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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A05-18880

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 26, 2005
- **Citation:** 70 FR 56212

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ12; 1018-AU31
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bull Trout

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule becomes effective October 26, 2005.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Branch of Endangered Species (see
ADDRESSES
section), telephone, facsimile 503/231-6237.

SUPPLEMENTARY INFORMATION:

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

Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under ESA section 4(b)(2), there are significant limitations on the regulatory effect of designation under ESA section 7(a)(2). In brief, (1) designation provides additional protection to habitat only where there is a federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would in fact take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decision-making would not prevent the destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat.

Currently, only 470 species, or 37 percent of the 1,264 listed species in the U.S. under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,264 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, the Section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

In considering exclusions of areas originally proposed for designation, we evaluated the benefits of designation in light of
Gifford Pinchot Task Force
v.
United States Fish and Wildlife Service
. In that case, the Ninth Circuit invalidated the Service's regulation defining “destruction or adverse modification of critical habitat.” In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas in this final designation. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance.

On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designation of critical habitat is expensive, time-consuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a time frame that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful.

In light of these circumstances, the Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

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

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

Background

Bull trout (
Salvelinus confluentus
) are members of the char subgroup of the family Salmonidae and are native to waters of western North America. Bull trout range throughout the Columbia River and Snake River basins, extending east to headwater streams in Montana and Idaho, into Canada, and in the Klamath River basin of south-central Oregon. The distribution of populations, however, is scattered and patchy (Goetz 1989; Rieman and McIntyre 1993; Zeller 1992; Light
et al.
1996; Quigley and Arbelbide 1997).

Bull trout exhibit a number of life-history strategies. Stream-resident bull trout complete their entire life cycle in the tributary streams where they spawn and rear. Most bull trout are migratory, spawning in tributary streams where juvenile fish usually rear from 1 to 4 years before migrating to either a larger river (fluvial) or lake (adfluvial) where they spend their adult life, returning to the tributary stream to spawn (Fraley and Shepard 1989). Resident and migratory forms may be found together, and either form can produce resident or migratory offspring (Rieman and McIntyre 1993).

Bull trout, coastal cutthroat trout (
Oncorhynchus clarki clarki
), Pacific salmon (
Oncorhynchus
spp.), and some other species are commonly referred to as “anadromous” (fish that can migrate from saltwater to freshwater to reproduce). However, bull trout, coastal cutthroat trout, and some other species that enter the marine environment are more properly termed “amphidromous.” Unlike strictly anadromous species, such as Pacific salmon, amphidromous species often return seasonally to fresh water as subadults, sometimes for several years, before returning to spawn (Wilson 1997). The amphidromous life history form of bull trout is unique to the Coastal-Puget Sound population. For additional information on the biology of this life form, see our June 25, 2004, proposed critical habitat designation for the Jarbidge River, Coastal-Puget sound, and Saint Mary-Belly River populations of bull trout (69 FR 35767).

For additional information on population ranges, biology, and habitat requirements of the bull trout, please refer to the following published rules: Proposed critical habitat designation for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations (69 FR 35767, June 25, 2004; as corrected by 69 FR 43058, July 19, 2004); final critical habitat designation (69 FR 59995, October 6, 2004) and proposed critical habitat designation (67 FR 71235, November 29, 2002) for the Klamath River and Columbia River populations; and listing rules for the Klamath River and Columbia River populations (63 FR 31647, June 10, 1998), Jarbidge River population (64 FR 17110, April 8, 1999), and for all populations (64 FR 58909, November 1, 1999).

Previous Federal Action

Please refer to the November 29, 2002, proposed critical habitat designation for the Klamath River and Columbia River bull trout populations (67 FR 71235) for a detailed summary of Federal actions completed prior to publication of that proposal related to all bull trout populations. Please refer to the October 6, 2004, final critical habitat designation for the Klamath River and Columbia River bull trout populations (69 FR 59995) for a detailed summary of Federal actions completed between the proposed and final rules related to the Columbia and Klamath populations. Please refer to the June 25, 2004, proposed critical habitat designation for the Jarbidge, Coastal-Puget, and St. Mary Belly bull trout populations (69 FR 35767) for a detailed summary of previous Federal actions completed prior to publication of that proposal related to those bull trout populations.

On December 14, 2004, Alliance for the Wild Rockies
et al.
filed a complaint challenging the adequacy of the final critical habitat designation for the Klamath River and Columbia River bull trout populations. Our motion for partial voluntary remand was subsequently granted by the court with a final rule due by September 15, 2005. On May 25, 2005, we announced the opening of a public comment period on the proposed and final designations of critical habitat for the Klamath River and Columbia River bull trout populations (70 FR 29998). On June 6, 2005, we published a notice clarifying the reopening of the comment period for the proposed and final designation of critical habitat for the Klamath River and Columbia River bull trout populations (70 FR 32732). The comment period was open until June 24, 2005.

On May 3, 2005, we published a notice of the availability of the draft economic analysis (DEA) and reopening of a 30-day comment period until June 2, 2005 (70 FR 22835), for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-belly River populations of bull trout. On June 27, 2005, Judge Jones extended the deadline for designating critical habitat for the Puget Sound-Coastal, Jarbidge, and St. Mary-Belly River bull trout populations to September 15, 2005. This rule combines all of the listed populations of bull trout into one final critical habitat designation, and, in doing so, replaces the final critical habitat designation for the Klamath River and Columbia River populations of bull trout published in the
Federal Register
on October 6, 2004 (69 FR 59995).

Summary of Comments and Recommendations

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

We requested written comments from the public on the proposed designation of critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-belly River populations of bull trout in the proposed rule published on June 25, 2004 (69 FR 35767). We also contacted and invited the appropriate Federal, State, and local agencies, scientific organizations, and other interested parties to comment on the proposed rule. In addition, we held one public hearing on August 10, 2004, in Tumwater, Washington.

During the comment period that opened on June 25, 2004, and closed on August 24, 2004, we received 34 comment letters directly addressing the proposed critical habitat designation: 8 from peer reviewers, 5 from Federal agencies, 3 from State agencies, 2 from County or city agencies, 6 from tribes, and 10 from organizations or individuals.

During the reopened comment period (May 3, 2005 through June 2, 2005) (70 FR 228350), we received 16 comment letters directly addressing the proposed critical habitat designation and DEA, 7 of which were from organizations or individuals that submitted comments during the first comment period. Of the 16 letters, we received 1 from a peer reviewer, 2 from Federal agencies, 3 from State agencies, 3 from county or city agencies, 1 from a tribe, and 6 from organizations or individuals.

Klamath River and Columbia River Bull Trout Populations

Responses to public and peer review comments on proposed critical habitat for the Klamath River and Columbia River bull trout populations (67 FR 71235, November 29, 2002) and the DEA (69 FR 17634, April 5, 2004) were published in the final designation of critical habitat (69 FR 59995, October 6, 2004). The following summary responds only to those comments received during the reopened comment period period (May 3, 2005 through June 2, 2005) on the proposed and final rules for critical habitat designation for the Klamath River and Columbia River bull trout populations (70 FR 32732).

During the reopened comment period, we received 33 letters addressing the final critical habitat designation and economic analysis (EA). Of these letters, we received 7 from Federal agencies, 4 from State agencies, 10 from local entities, 1 from a tribe, and 11 from organizations or individuals.

All comments of a similar nature were grouped together for all populations of bull trout and are addressed in the following summary. Substantive comments have been incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicit opinions from individuals who have expertise with the species and the geographic region where the species occurs and are familiar with conservation biology principles. The peer review process for the Klamath and Columbia River bull trout populations was discussed in the October 6, 2004, final critical habitat designation for the Klamath River and Columbia River bull trout populations (69 FR 59995).

For the proposed critical habitat designation for Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations, we solicited independent expert review from eight individuals and all responded. The peer reviewers generally concurred with our methods, but also provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Key elements of the reviewers' critical comments related to the proposal's scope and whether existing laws and regulations already protect some areas. Comments also addressed the need for greater prioritization of conservation issues influencing critical habitat designation, emphasis on quality habitat to support the migratory life form of bull trout, and an explanation of why some particular habitat, including areas of degraded habitat, are important to bull trout conservation. Additionally, the reviewers provided many technical comments on the appropriateness and bounds of specific geographic areas proposed as critical habitat. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

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

When similar comments were also received from other reviewers, they are addressed in the comments here to avoid redundancy.

(1)
Comment:
A peer reviewer requested clarification on the difference between critical habitat subunits (CHSUs) and core areas described in the bull trout draft recovery plans (draft Recovery Plans) (Service 2002, 2004).

Our Response:
In general, critical habitat subunits (CHSUs) correspond to core areas identified in the draft Recovery Plans (
http://www.fws.gov/pacific/bulltrout/
). However, the Olympic Peninsula and Puget Sound Critical Habitat Units (Coastal-Puget Sound populations) also contain nearshore and freshwater habitats outside of natal river basins that are used by bull trout from more than one CHSU or core area. These habitats outside of core areas contain all the physical elements and features (primary constituent elements) critical to overwintering, migration, and subadult and adult foraging needs essential for the conservation of amphidromous (referring to the migratory behavior of fishes moving from fresh water to the sea and vice versa, not for breeding purposes but occurring regularly at some stage of the life cycle, such as feeding or overwintering) bull trout, which are unique to the Coastal-Puget Sound bull trout population. Within the core areas, certain areas identified by the Service as containing features essential for the conservation of the species, and in need of special management or protection, are designated critical habitat. Although core areas contribute to recovery and share primary constituent elements (PCEs) with critical habitat, only those portions of the core areas that meet the statutory definition of critical habitat and provide defined PCEs are considered for designation.

(2)
Comment:
Since little of the Belly River is within the United States, this core area is not a biologically functioning unit that contains necessary features or PCEs.

Our Response:
A short reach of the North Fork Belly River, extending across the international border from Canada (downstream) into the United States (upstream), is the only known spawning reach for bull trout in the entire Belly River system. Thus, this portion of the North Fork Belly River in the United States is vital as spawning and rearing habitat for this bull trout population. It contains the PCEs necessary for the spawning and rearing life stages (
i.e.
, permanently flowing, cold, upwelling groundwater with suitable spawning substrate and complex rearing habitat). The foraging, migration, and overwintering (FMO) habitat for this population is found downstream in Alberta, Canada. This downstream habitat includes the PCEs found in a migratory corridor, including deep holding pools and a forage base to support large adult bull trout. Adult fish from Canada travel into the United States portions of the watershed annually to spawn. Because of the important spawning areas in the United States, and the presence of necessary PCEs, we have determined that this area is essential to this important biologically functioning unit and is designated critical habitat.

(3)
Comment:
Although it may be consistent with section 4(b)(2) of the Act to exclude Habitat Conservation Plans (HCPs) and the areas covered by the Washington Forest Practice Rules, there are no provisions in the rule to include these excluded lands within designated critical habitat if land-use practices or ownership changes.

Our Response:
Although the specific provisions vary for each plan, HCPs typically include language that addresses change in circumstances or ownership. For example the draft Implementing Agreement for the Washington Department of Natural Resources, Forest Practices HCP states that any changes in the permits must be adopted through the procedures specified in the Act, other applicable Federal laws, and applicable regulations and if the Service determines that such changes materially impair the conservation plan contained in the HCP, they will notify the State and, if the matter is not otherwise resolved, may suspend or terminate the HCP, permits and the Implementing Agreement. If land ownership changes and a new landowner does not agree to the terms and conditions of the original permit, the original permittee must work with the Services to determine whether, and under what circumstances, the permit can be terminated. In order to terminate a permit, the Services must determine if the minimization and mitigation

measures that were conducted up to that point were commensurate with the amount of incidental take that occurred during the term of the permit. The Services will always require implementation of any outstanding minimization and mitigation measures before a permit is terminated.

(4)
Comment:
Freshwater foraging, migratory, and overwintering habitats outside core areas are not clearly essential to bull trout nor well documented. Therefore, these areas should not be included in the critical habitat designation.

Our Response:
Some habitats outside of core areas contain all the physical elements to meet critical overwintering, migration, and subadult and adult foraging needs that are essential for the conservation of amphidromous bull trout. Recent tagging studies on the Olympic Peninsula and in Puget Sound have tracked the complex migrations of amphidromous bull trout from their core areas to marine and freshwater foraging, migratory, and overwintering habitats outside of their natal core areas (Brenkman and Corbett 2003, 2005; Goetz
et al.
2004). Amphidromous bull trout have shown site fidelity to, and extensive use of, freshwater and marine habitat areas, demonstrating these are necessary in completing their life history and therefore, are included as critical habitat.

(5)
Comment:
Reviewers acknowledged the exclusions the Service had proposed for HCPs and the Washington Forest Practice Rules and recommended considering other types of management plans and actions for possible exclusions. They indicated that designation of critical habitat would be a duplication of effort since Federal actions, such as allotment management plans, already undergo formal consultation. One reviewer wanted to know why waterbodies within some Federal lands, such as wilderness, parks, and forests, were not excluded. Another reviewer asked why multi-species conservation plans under development by local watershed organizations in Washington were not excluded. Several reviewers suggested lands covered by Washington State's watershed planning process (subbasin plans), and lands in Olympic and North Cascades National Parks are currently not in need of special management.

Our Response:
We believe some existing management plans are appropriate for exclusion because the benefits of exclusion outweigh the benefits of inclusion (see section “Section 3(5)(A) and Exclusions Under Section 4(b)(2)”). Landownership is not a factor in determining which areas contain PCEs and meet the definition of critical habitat. Some waterbodies on Federal lands meet the definition of critical habitat. While we have done so in the past, in this rulemaking we did not consider any pending HCPs for exclusion, primarily because none of the pending HCPs were at a point we could do so without prejudging the outcome of the ongoing HCP process and because we expect further changes to the developing HCPs.

(6)
Comment:
One reviewer suggested that Corps of Engineers 401 and 404 permits should be excluded from critical habitat.

Our Response:
Corps of Engineers 401 and 404 or other instream permits are issued to ensure that applicants avoid and minimize impacts to streams. Any mitigation that may be required by a permit is to avoid or minimize degradation and to mitigate for unavoidable impacts.

(7)
Comment:
Are small stream habitats in the Saint Mary-Belly River headwaters in the critical habitat designation contributing to rearing and foraging of bull trout and are they adequately considered?

Our Response:
Because of the steep topography, flashy stream flow and very active erosion and depositional processes of the Saint Mary-Belly River headwaters, very few smaller tributary streams support adequate year-round stream flow to allow bull trout passage; in addition, many have natural barriers. Most of those tributary streams have been surveyed, and all those known to support bull trout were considered and included in the final critical habitat designation.

(8)
Comment:
It would help to understand what the threats to bull trout are and how threats relate to critical habitat designation.

Our Response:
For details of the threats that were the basis for the bull trout listing, refer to the final listing rules for the Klamath River and Columbia River population (63 FR 31647), Jarbidge River population (64 FR 17110), and Coastal-Puget Sound and Saint Mary-Belly River populations (64 FR 58910). Critical habitat identifies those areas that contain the physical and biological features (PCEs) that are essential to the conservation of the species, and those areas that may require special management considerations or protections.

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

(9)
Comment:
The proposed critical habitat for the bull trout fails to account for the importance of habitat connectivity.

Our Response:
The draft Recovery Plans, critical habitat proposal, and the listing rules for bull trout, citing relevant scientific literature, describe the species' conservation needs. In fact, migratory corridors with minimal physical, biological, or water quality impediments are identified as a PCE in the critical habitat rule. Our proposed designation connected essential occupied waterbodies having PCEs to one another to maintain connectivity within and among habitat types (spawning and rearing, freshwater and marine foraging, migratory, and overwintering habitats). In the final designation, we exclude some critical habitat segments based on a careful balancing of the benefits of inclusion versus the benefits of exclusion. Exclusion of waterbodies from designated critical habitat does not negate or diminish their importance for bull trout conservation, and in most cases does not affect the protections available to that habitat through the Act.

(10)
Comment:
The status of bull trout strongly indicates that critical habitat designation is warranted for all waterbodies occupied by bull trout.

Our Response:
Although all occupied habitats are important to the species, not all meet the definition of critical habitat. Examples of exclusions include reaches where bull trout are sometimes entrained and lost to the population or highly fragmented habitats within core areas. We believe that we have identified habitat that contains features essential to the bull trout's conservation. In the final designation, we exclude some critical habitat segments based on a careful balancing of the benefits of inclusion versus the benefits of exclusion. Exclusion of waterbodies from designated critical habitat does not negate or diminish their importance for bull trout conservation.

(11)
Comment:
The Service should describe the relationship between the reduced distribution of salmon and steelhead (
Oncorhynchus
sp.) and the reduced distribution and abundance of bull trout.

Our Response:
Our recovery plan and administrative record for critical habitat designation, including public comment and peer review, includes information about the relationship between bull trout and their prey species, such as salmon and steelhead. Such information was employed to support the biological basis of the proposal, but practical considerations limited the amount of such information that could be presented in the proposed critical habitat rule. Refer to the previously

published bull trout critical habitat designations and listings (63 FR 31647, 64 FR 17109, 64 FR 58910, 68 FR 6863, 69 FR 35767, 69 FR 59995) for additional information.

(12)
Comment:
The Service's position equating adverse modification with jeopardy is not supported by the Act or case law. The Service needs to define adverse modification.

Our Response:
In response to recent court decisions, we are no longer using the regulatory definition of adverse modification. Instead, we are following guidance from the Director, embodied in a December 9, 2004 memorandum, which uses the statute as the basis for our regulatory standard when conducting section 7 consultations on critical habitat. We do note in this rule that due to the method of analyzing jeopardy specific to bull trout, that jeopardy and adverse modification rarely diverge. However, that circumstance is due to the specifics of our bull trout analyses rather than an interpretation of regulations or law.

(13)
Comment:
The Service proposed to designate streams as critical habitat that do not currently support bull trout or have little evidence of bull trout use, with no justification for such designation as to why these stream reaches are essential to the conservation of the species, as required by the Act.

Our Response:
All streams proposed for critical habitat designation within the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout population segments were known to be occupied. We considered streams occupied if bull trout were documented there within the last 20 years (our 2004 critical habitat designation provides a full explanation for the basis of this standard). Areas of unknown occupancy and unoccupied habitats were included in the proposed designation for the Klamath River and Columbia River populations. However, in this final rule no unoccupied habitat is being designated. The bull trout critical habitat designation is based on the best available scientific information. In addition, the proposed designations were peer-reviewed by individuals who have expertise with bull trout, the geographic region where bull trout occur, and the principles of conservation biology. Justifications for all critical habitat units are available for public review (see
ADDRESSES
section above).

(14)
Comment:
Critical habitat needs to be designated in unoccupied areas because these areas are important for re-introduction of extirpated populations or expansion of existing populations and are the most important areas in need of protection.

Our Response:
We have limited the critical habitat designation to areas of known occupancy that have features essential to the conservation of the species because we did not have sufficient data for the Secretary to make a determination that specific unoccupied areas were essential to the bull trout's conservation. We based this designation on the best scientific and commercial information available. Many streams not included in this designation can and will contribute to bull trout recovery, but do not meet the definition of critical habitat.

(15)
Comment:
The Service neglected or violated a variety of regulatory or other requirements including NEPA, the Data Quality Act, Regulatory Flexibility Act, and other laws, regulations, and orders.

Our Response:
We are not required to prepare an environmental assessment or an environmental impact statement, as defined under the authority of NEPA, in connection with regulations adopted pursuant to section 4(a) of the Act, and in States under the jurisdiction of the Ninth Circuit Court. A notice outlining our reason for this determination was published in the
Federal Register
on October 25, 1983 (48 FR 49244). This position has been upheld by the Ninth Circuit Court of Appeals in
Douglas County
v.
Babbitt
, 48 F.3d 1495 (9th Cir. 1995). We have addressed all the relevant required regulatory determinations in this rule (see Required Determinations section below). Our Policy on Information Standards Under the Endangered Species Act, published in the
Federal Register
on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific and commercial data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. All information in this critical habitat rule is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service. Both public and peer review of the proposed rule further ensures that the final designation will meet this standard.

(16)
Comment:
Stream temperature is a limiting factor for some populations, and bankfull designation may not encompass sufficient shading to maintain water temperatures for bull trout.

Our Response:
We agree that temperature can be a limiting factor for some populations which is why it is considered a PCE. Riparian vegetation influences instream habitat conditions by providing shade, organic matter, root strength, bank stability, and large woody debris inputs to streams. Stream width and depth ratios also influence stream temperatures. Even though riparian vegetation may not be within a stream's bankfull width, and therefore not included in the critical habitat designation, effects to these areas are likely to be evaluated during the consultation process due to the indirect effect riparian and upland actions may have on water temperatures, which is one of the identified PCEs for bull trout critical habitat.

(17)
Comment:
The Service failed to consult with Native American tribes in developing the proposed rule and economic analysis.

Our Response:
We have been, and will continue, to consult with those tribes affected by the critical habitat designation. We contacted Native American tribes where proposed bull trout critical habitat occurred on, or adjacent to, tribal lands. We discussed the critical habitat proposal with representatives of the tribes that responded. We will continue to work with the tribes on a government-to-government basis for the conservation of bull trout.

(18)
Comment:
A single sighting of a native char (bull trout) in a water body is not sufficient reason to designate the water as critical habitat.

Our Response:
We have not designated any unoccupied areas as critical habitat. However, we included any area with documented occupancy (even a single sighting) within the last 20 years, if the area has PCEs essential to the species' conservation and will support the essential life history needs of bull trout. The published survey protocol for juvenile and resident bull trout was not developed until 2002, and no similar survey protocol for adult migratory bull trout has been developed. Many bull trout sightings are the incidental result of surveys for other species (salmon). In addition, bull trout are difficult to find, are migratory, and often exhibit a patchy distribution. Therefore, an incidental sighting of one

individual or a few bull trout is often the only available information until a targeted survey for bull trout is conducted. With the increasing availability of radio telemetry data, we are finding that the extent or range of bull trout occupied habitat is often greater than was previously known based on incidental observations.

(19)
Comment:
Specific numerical habitat standards for critical habitat must be included along with critical habitat designations.

Our Response:
There is no requirement under the Act that PCEs have specific numerical standards, nor would it necessarily promote effective conservation to determine numerical standards for all PCEs given the various life histories expressed by bull trout throughout their range. However, we recognize the value of observable or measurable standards. The PCEs include numerical standards when appropriate (
e.g.
, to bracket a range of acceptable temperatures) and feasible, such as for temperature and substrate embeddedness.

(20)
Comment:
The Service should designate critical habitat for a number of “source water” streams. These are predominantly steep, small streams not occupied by bull trout, but are key sources of cold, clean water that feed bull trout habitat downstream.

Our Response:
Streams that contribute necessary habitat elements such as cold, clean water downstream to designated streams are not included in this designation unless bull trout presence has been documented. Our determination of bull trout critical habitat is limited to areas that bull trout rely on for some portion of their life cycle. Although not designated as critical habitat, we recognize that these “source waters” or non-fish-bearing streams influence the character of designated stream segments located downstream. Where section 7 consultation is required, impacts to these “source water” streams that may affect bull trout critical habitat will be evaluated (see Critical Habitat Designation section below).

(21)
Comment:
The Service failed to include areas of historical bull trout occupancy and the rules do not provide adequate justification for their exclusion.

Our Response:
The critical habitat proposals did not reflect all habitat areas bull trout are known to occupy or occupied historically, in the coterminous United States. Rather, it reflects those areas that contain the necessary features that are essential for the conservation of the species and are currently occupied by the species. Historical records of bull trout distribution may be anecdotal and incomplete relative to current bull trout distribution and thus, would not provide a sufficient basis for this critical habitat rule. We believe by defining as occupied those segments with at least one documented sighting in the last 20 years we have used a sufficiently broad measure to ensure the most likely occupied areas are included. This standard takes into account the fact that bull trout are abnormally difficult to find as they are primarily nocturnal feeders.

In our proposed critical habitat designation for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River population segments, we specifically solicited additional information on areas of habitat with evidence of occupancy of which we were unaware. These waterbodies had been identified by the bull trout recovery teams as key recovery habitat in the draft recovery plan, however, at that time they had no specific information documenting bull trout occupancy. Since the proposal, we have received additional information on bull trout occupancy for several tributaries in the Nooksack River (Fossil Creek), South Fork Skykomish River (West Fork Foss River), and Ross Lake (North Fork Canyon Creek) systems, which have been excluded from the final designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(22)
Comment:
The contribution of tribal lands to bull trout habitat conservation is unclear and these lands are not essential to bull trout recovery.

Our Response:
The scientific information cited in the draft Recovery Plans provided the basis for our evaluation of habitats that contain the features essential to bull trout conservation. Many tribal lands include portions of mainstem rivers that provide essential migratory corridors and overwintering habitat for fluvial and amphidromous bull trout. Waterbodies on tribal lands were included in the critical habitat designation only if they were found to be currently occupied, contain PCEs that are essential for bull trout conservation, and were not adequately covered by management plans (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(23)
Comment:
The proposed rule fails to mention water rights.

Our Response:
The proposed and final rules do not specifically address water rights. However, examples of activities that may potentially affect aquatic bull trout critical habitat by altering the PCEs, such as changes in water use or water rights were provided in the proposed and final rules.

(24)
Comment:
The proposal to designate critical habitat in the Saint Mary-Belly Rivers focuses on potential impacts of irrigation activities instead of potential adverse effects of recreational fishing on bull trout.

Our Response:
Under the 4(d) rule that was included in the final rule which listed bull trout, take of bull trout in accordance with state, National Park Service, and Native American Tribal permitted fishing activities is allowed (64 FR 58910). Irrigation activities are often linked to Federal agencies, such as Bureau of Reclamation (BOR), for the allocation, delivery or storage of the water. Individual anglers, however, are only required to avoid take of listed bull trout by following fishing regulations.

(25)
Comment:
There is no evidence to specifically identify when marine or estuarine areas are being used by bull trout.

Our Response:
Recent radio and acoustic telemetry studies in Grays Harbor, Puget Sound, and the Snohomish, Dungeness, and Hoh Rivers have provided new information on bull trout use of marine and estuarine areas and the importance of this habitat for bull trout recovery (Brenkman and Corbett 2003, 2005; Jeanes
et al.
2003; Goetz
et al.
2004). These studies documented that marine forage fish such as herring (
Clupea
spp.), surf smelt (
Hypomesus pretiosus
), sand lance (
Ammodytes hexapterus
), and shiner surfperch (
Cymatogaster aggregate
) are bull trout prey. In addition, marine waters provide essential migratory corridors for amphidromous bull trout moving from their natal river basin to other rivers or streams as they seek suitable foraging or overwintering habitat. We now know that large numbers of bull trout overwinter in streams that do not contain spawning and rearing habitat and are only accessible by migration through marine waters. Therefore, we have included these marine nearshore areas that contain features essential to bull trout conservation in this final designation.

(26)
Comment:
Adequate foraging habitat has not been included in the designation.

Our Response:
We believe this designation is based on the best scientific and commercial information available. It includes only occupied habitat, and contains those features that are essential to the conservation of bull trout populations. We recognize that bull trout may forage in areas where their presence has not been detected and these areas may provide access to

abundant forage. However, because we were unable to identify all areas that are used, we have limited designated critical habitat to areas of known occupancy having the necessary PCEs and which were determined to be essential for recovery. However, because of the relatively broad definition of ‘occupied' used in this rule, it is likely that forage habitat is included as well as breeding habitat and migratory corridors.

(27)
Comment:
Floodplains are not mentioned in the proposed designation. Does this mean they are not included?

Our Response:
We have only included occupied aquatic habitats that contain the features essential to the conservation of bull trout within the designation. Federal activities occurring in floodplains may affect designated critical habitat, and as such would be reviewed in section 7 consultation.

(28)
Comment:
Comments provided in the previous rule for the Klamath River and Columbia River populations were not addressed.

Our Response:
All substantive issues raised in comments received during public comment period for the proposed rule received a response. The response was to either accept or incorporate the issue raised, or to provide a narrative response as to why we did not do so.

(29)
Comment:
Existing regulatory mechanisms are inadequate and continuing threats to bull trout and its habitat from a variety of land and water management activities warrant the designation of all habitat essential to bull trout survival and recovery.

Our Response:
We believe this designation is based on the best scientific and commercial information available, includes only occupied habitat, and contains those areas that contain the features essential to the conservation of bull trout. Some areas we identified as essential to the conservation of bull trout are not designated in the final rule. This is due to the areas not meeting the definition of critical habitat under section 3(5)(A) or exclusion under 4(b)(2). Sections 3(5)(A) (definition of critical habitat) and 4(b)(2) (Secretarial weighing of the benefits of inclusion versus the benefits of exclusion) of the Act provide for specifc areas to be excluded from critical habitat if they are otherwise provided needed protection (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(30)
Comment:
The final rule is inadequate to recover bull trout and the status quo is leading to declining populations in spite of section 7 consultations, habitat conservation plans, and state restoration plans.

Our Response:
Recovery planning for bull trout is complex due, in part, to its wide geographic distribution and multifaceted life history. Recovery of the species will require a variety of efforts and the cooperation of Federal, state, tribal, and other entities. Critical habitat by itself will not recover the species, but does provide an additional regulatory benefit for bull trout habitat where protection and special management are necessary to ensure the habitat contributes to the conservation of the species. While any one effort will not recover bull trout, we believe that through the cooperative efforts of all stakeholders, using a variety of conservation tools, bull trout can reach the point of no longer needing the protections of the Act.

(31)
Comment:
We believe that the current attempt to solicit more information on the critical habitat rule is unlawful.

Our Response:
We disagree and believe that soliciting public comment is essential to conserving any species.

(32)
Comment:
Why is the entire Columbia River mainstem (especially the upper Columbia River) designated as critical habitat, what data were used, and why did the Service use the draft recovery plan?

Our Response:
This final rule does not include the entire Columbia River mainstem. The bull trout is a wide ranging migratory species and follows salmon, whitefish, and other prey species in the Columbia River, marine waters and freshwater streams and rivers. Records of bull trout distribution indicate their presence from the mouth of the Columbia River to its uppermost reaches. Past monitoring efforts for salmon rarely recorded bull trout in data collections because bull trout were not the targeted species. In the upper Columbia River data from multiple telemetry studies show the use by bull trout of the area between Priest Rapids pool and the Okanogan River, and back into multiple tributaries. Some bull trout that spawn in the upper Columbia River basin use the mainstem for six months or more. We have excluded some areas of the Columbia mainstem where the benefits of excluding these areas outweigh the benefits of including them in the designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below). Sub-adults and adults that spawn in alternate years have been documented using the Columbia River year-round. In reference to the use of the draft recovery plan, the Service acknowledges there are data gaps within the plan. The science used in the draft recovery plan was the best available data for bull trout at that time and provided the basis for proposing and designating critical habitat. In the process of developing the proposed and final critical habitat designation, additional data have become available, have been used in these rules, and are available as part of our administrative record.

(33)
Comment:
All waters behind dams (reservoirs and pools) and areas covered by habitat conservation plans do not require designation due to existing management activities and should be excluded.

Our Response:
We reviewed reservoir operations and habitat conservation plans and carefully weighed the benefits of inclusion versus the benefits of exclusion. Based on this analysis we are excluding all reservoirs and pools that provide flood protection or water supply benefit and we are also excluding habitat conservation plans that adequately address bull trout conservation (see Section 3(5)(a) and Exclusions under Section 4(b)(2) section below).

(34)
Comment:
The final rule for Klamath River and Columbia River populations needs clarification regarding the exclusion of 0.5 mile segments on private land. The inclusion of these stream segments appears to contradict the statement in the rule that exempts segments of less than 0.5 miles on private land.

Our Response:
The intent in the previous rule was to exclude those stream segments that were less than 0.5 miles in length and under private landownership. The definition was intended to apply only to unbroken stream segments shorter than 0.5 miles in length, irrespective of underlying landownership patterns. The Service is no longer excluding areas of critical habitat on this basis, and all stream segments regardless of length remain designated critical habitat.

Exclusion Comments

(35)
Comment:
Exclusions are arbitrary and benefit special interest groups.

Our Response:
All areas excluded are covered by management plans that specifically address bull trout PCEs, or are being excluded based on policy considerations. Exclusions were carefully reviewed and the Secretary has made the determination that the benefits of excluding these habitats outweighs the benefits of including them in the designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(36)
Comment:
Comments were received to either exclude or to include areas covered by HCPs.

Our Response:
We determined that waterbodies within lands covered under an existing or pending HCP should be excluded from the designation of critical habitat where the benefits of excluding these habitats covered by these management plans outweighs the benefits of including them in the designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(37)
Comment:
Comments were received to either exclude or to include areas covered by the Washington Forest Practice Rules. Reasons cited for including areas covered by the Washington Forest Practice Rules were that the rules are not complete, the rules do not include adequate standards, it has not been fully implemented, and the adaptive management process is incomplete. A primary reason expressed for excluding those lands was that this law protects aquatic habitat on State and private land.

Our Response:
Washington State law H.B. 2091, which codified the Washington Forest Practice Rules, is a science-based plan that protects water quality and fish habitat on over 8 million acres (3.2 million ha) of non-Federal forestland throughout Washington State. Implementing these regulations is expected to maintain the thermal regimes of streams within the range of normal variation, contribute to the maintenance of complex stream channels, maintain appropriate substrates, natural hydrograph, ground-water sources and subsurface connectivity, migratory corridors, and provide abundant food sources for bull trout. Because the benefits of excluding the streams covered by the Washington Forest Practice Rules outweigh the benefits of including them, we have excluded stream segments protected by these regulations. See Washington State Forest Practices Rules and Regulations, as amended by the Forest and Fish Law (FFR) under the Lands to be Excluded from Critical Habitat under section 4(b)(2) of this final rule for further discussion on FFR.

(38)
Comment:
We believe the current Forest Service Land and Resource Management Plans (LRMP) as amended by the Northwest Forest Plan, PACFISH, and/or INFISH aquatic conservation strategies provide the necessary protection and special management that would eliminate the need to designate these areas as critical habitat. In addition, the designation would provide little additional benefit as described under Section 4(b)(2) of the Act.

Our Response:
We agree. These areas have been excluded from the final critical habitat designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(39)
Comment:
Areas covered by the Oregon Forest Practices Act (OFPA) and the Oregon Plan for Salmon and Watersheds (OR Plan) should be excluded.

Our Response:
The OFPA includes provisions that generally limit clear cut size, require retention of green trees within harvest units for stream shading and downed wood for recruitment into riparian areas, and require replanting after harvest. However, the OFPA has no provisions that specifically address any of the PCEs for bull trout or for ensuring their conservation or protection. The OR Plan serves as a general salmon conservation planning guide and encourages close coordination among the agencies responsible for salmon conservation. Both the OFPA and OR Plan are well intentioned and provide encouragements and some benefits to aquatic habitats in areas where they apply. However, we were unable to determine that the OFPA or the OR Plan provide adequate conservation or protection of bull trout or their PCEs. Therefore, the areas covered by the OFPA or OR Plan do not warrant exclusion based on special protections or management.

(40)
Comment:
The Montana Bull Trout Plan should not be used as the basis for excluding lands from critical habitat. It is a voluntary plan without tracking, reporting, or funding certainty, and it provides no protections against detrimental groundwater or surface water extraction. Implementation has been slow or nonexistent, the list of recommended immediate conservation actions were not acted upon or incorporated into the Plan.

Our Response:
We have reviewed the plan and determined it does not provide special management protections to the same extent a critical habitat designation would. Therefore, we are not using the Montana Bull Trout Plan as a basis for excluding lands from critical habitat.

(41)
Comment:
No critical habitat should be designated on military lands for national security concerns or those that have Integrated Natural Resource Plans.

Our Response:
Pursuant to section 4(a)(3)(B)(i) of the Act, the Service has not included critical habitat on military installations that have an Integrated Natural Resource Plan (INRMP) that provide benefits to the bull trout. Pursuant to section 4(b)(2) of the Act, we have excluded other military lands based on national security concerns (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(42)
Comment:
Reservoirs should be included as critical habitat.

Our Response:
In many places reservoirs provide important foraging and overwintering habitat for bull trout and contain the features essential to the conservation of the bull trout. However, under 4(b)(2) of the Act, the Secretary has discretion to exclude any area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species. The Secretary carefully weighed the benefits of inclusion versus the benefits of exclusion regarding reservoirs (see Section 3(5)(A) and Exclusions under Section 4(b)(2) section below) and found that, for those reservoirs that provide a flood control or water for human consumption function, the benefits of exclusion outweighed the benefits of inclusion.

(43)
Comment:
All tribal reservation lands should be excluded from critical habitat designation.

Our Response:
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we coordinate with federally-recognized tribes on a government-to-government basis. Further, Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (1997) provides that critical habitat should not be designated in an area that may impact tribal trust resources unless it is determined to be essential to the conservation of a listed species and that Tribes be given deference when evaluating conservation management planning.

Accordingly, we are obligated to consult with tribes based on their unique relationship with the Federal government, and to evaluate the appropriateness of designating tribal lands within the framework of the above mentioned directives. In addition, we evaluate tribes' past and ongoing efforts for species conservation and the benefits of including or excluding tribal lands in the designation under section 4(b)(2). We contacted all tribes potentially affected by the proposed designations and met with a number of these tribes to discuss their ongoing or future management strategies for bull trout. Several tribes subsequently submitted letters requesting exclusions from the designation based on their ongoing

management and conservation efforts, or their commitment to develop an appropriate management plan, on their lands. We excluded those tribal lands where there was a commitment to conserve bull trout habitat and where the benefits of exclusion where found to outweigh the benefits of inclusion (
see
Section 3(5)(A) and Exclusions Under Section 4(b)(2) of the Act section below).

(44)
Comment:
The Service ignores court decisions and required components of the Act when it states that areas can be excluded based on economic impacts, national security, management plans, and the preservation of partnerships (
see Center for Biological Diversity
v.
Norton
(2003)).

Our Response:
Section 4(b)(2) of the Act allows us to consider the economic impact, national security impact, and any other relevant impact of designating any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of designating a particular area as critical habitat, unless the failure to designate such an area as critical habitat will result in the extinction of the species. In addition, the congressional record is clear that the consideration and weight given to any impact is completely within the Secretary's discretion (
see
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(45)
Comment:
Does excluding habitat covered by HCPs also exclude covered activities on lands the applicant does not own or manage? For example, studies are occurring on lands not owned by the City of Seattle but required by the terms of the approved HCP.

Our Response:
Areas excluded due to the existence of an approved HCP only include those areas directly covered by the HCP. Areas outside the HCP
e.g.
, City of Seattle, remain designated critical habitat unless excluded for some other reason.

Comments Related to the Economic Analysis

(46)
Comment:
The Service neglected to conduct an economic analysis (EA) for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations, contrary to the Act's requirements.

Our Response:
The Service did conduct an economic analysis for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations. We informed the public in the proposed rule that we would be conducting an analysis of the economic impacts of designating the proposed areas as critical habitat prior to making a final determination. We announced the availability of the DEA with a notice in the
Federal Register
(May 3, 2005, 70 FR 22835) that reopened the public comment period on the DEA and the proposed rule at that time. Reopening the comment period allowed the public to concurrently review and comment on both the DEA and the proposed critical habitat designation. We subsequently provided this same information when replying to electronic mail (e-mail) messages and telephone calls, and during the public hearing held in Washington.

(47)
Comment:
The costs of critical habitat outweigh the benefits of designation and all costs associated with critical habitat should be included in the analysis.

Our Response:
This final rule excludes areas where the benefits of excluding critical habitat have been determined to exceed the benefit of including these areas in the designation under provisions of section 4(b)(2). The economic analysis (EA) considers the economic efficiency effects that may result from the designation, including habitat protections that may be coextensive with the listing of the species. It also addresses distribution of impacts, including an assessment of the potential effects on small entities and the energy industry. The analysis focuses on quantifying the direct and indirect costs of the rule although economic impacts to land-use activities may exist in the absence of designating critical habitat. For example, economic impacts may result from local zoning laws, state and natural resource laws, and enforceable management plans and best management practices applied by other state and Federal agencies. The information in the EA can be used by the Secretary when taking into consideration the economic impact, and any other relevant impact of specifying any particular area as critical habitat.

(48)
Comment:
Costs associated with the operations of agencies such as the Bureau of Reclamation (BOR) to deliver water belonging to irrigation districts must be taken into consideration. The impact of attempting to alter pre-existing legal requirements, and the constraints those legal rights have on designating critical habitat, must be considered before a final decision can be made.

Our Response:
Potential costs associated with the designation of bull trout critical habitat, including those related to BOR water management, are addressed through the economic analysis. We received additional information regarding the possible under-or over-estimate of costs related to regulation of water and power generation due to the designation. Where appropriate, this information was used by the Secretary in making determinations under section 4(b)(2) of the Act.

(49)
Comment:
In the economic analysis, the Service did not account for the many economic benefits that the designation of critical habitat for bull trout provides.

Our Response:
In the context of a critical habitat designation, the primary purpose of the rulemaking (
i.e.
, the direct benefit) is to designate areas that contain the features essential to the conservation of listed species and that may require special management or protections. While the Act is clear that it is the policy of the Federal government to provide a means whereby the ecosystems upon which endangered and threatened species depend are conserved, it is also clear that Congress provided several methods for achieving this policy and critical habitat designation is just one of the methods. The Act states that this policy is to be achieved through cooperation with states through the resolution of water resource issues in concert with conservation. Finally, the Act provides the flexibility for the Secretary to exclude portions of critical habitat based on the consideration of economics, national security, or any other relevant impact if the Secretary determines that the benefit of exclusion exceeds the benefits of inclusion, as long as that exclusion does not result in the extinction of the species.

The designation of critical habitat may result in two distinct categories of benefits to society: (1) Measurable or economic benefits and (2) intangible benefits. The economic analysis generally captures the measurable benefits (such as increased tourism or recreational expenditures) by quantifying them in terms of dollars. The less tangible social benefits that accrue from the physical existence of a resource are more difficult to capture. Non-use benefits, in contrast, represent benefits that individuals perceive from “just knowing” that a particular listed species” natural habitat is being specially managed for the survival and recovery of that species. This benefit is virtually impossible to quantify as there is no market transaction to use as a measurement for such a benefit.

The economic analysis captures those benefits that can be quantified and provides information regarding the economic costs associated with a proposed critical habitat designation.

The economic analysis is used by the Secretary in making decisions under section 4(b)(2) of the Act based on economic impacts. Economic impacts can be both positive and negative and, by definition, are observable through market transactions.

In our designations we recognize that critical habitat may also generate ancillary benefits which can be both negative and positive. That is, management actions undertaken to conserve a species or habitat as a result of designation may have coincident implications to a place's quality of living. For example, fewer consumptive activities (
e.g.
, timber harvesting or cattle grazing) may affect some individuals' enjoyment of an area. While they are not the primary purpose of critical habitat, these ancillary effects which are perceived as benefits may result in gains in non-economic benefits that may offset the direct, negative impacts to a region's economy resulting from actions to conserve a species or its habitat. Conversely, for those formerly dependent on the timber industry or grazing for their livelihood, they may find that significantly reduced employment opportunities which represent reduction in benefits.

It is often difficult to evaluate the ancillary benefits of a critical habitat designation. Where data are available, this analysis attempts to recognize and measure the net economic impact of the proposed designation. For example, if the fencing of a species' habitat to restrict motor vehicles results in an increase in the number of individuals visiting the site for wildlife viewing, then the analysis would recognize the potential for a positive economic impact and attempt to quantify the effect (
e.g.
, impacts that would be associated with an increase in tourism spending by wildlife viewers). Conversely, if the critical habitat designation will result in increased fishing and hiking opportunities, that benefit would be reflected in economic benefits from tourism and related industries. What is not measurable in other than qualitative terms are such benefits as increased quality-of-life values for some and decreased quality-of-life for others (
e.g.
, lower employment due to family wage jobs supported by industrial timber harvesting being replaced by service jobs in the recreation industry).

While section 4(b)(2) of the Act gives the Secretary discretion to exclude certain areas from the final designation, she is authorized to do so only if an exclusion does not result in the extinction of the species. Thus, we believe that explicit consideration of broader social values for the species and its habitat, beyond economic impacts, is evidenced by the designation itself that protects areas for the conservation of the species despite costs associated with that designation. In other words, the Secretary begins a designation based on an assumption that the benefit of designation outweighs the benefit of exclusion and only excludes where an explicit determination is made that the benefit of exclusion, in fact, does outweigh the benefit of inclusion.

(50)
Comment:
The DEA for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations must evaluate impacts of bull trout critical habitat designation on the tribes' trust resources to be consistent with trust responsibilities.

Our Response:
The DEA for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations evaluates the impacts of this designation on tribal trust resources. Refer to section 3.1.4 in the DEA for further discussion on impacts of the bull trout critical habitat designation on the tribes' trust resources.

(51)
Comment:
The Service needs to address habitat and economic concerns in Canada, as well since a critical habitat designation may affect waters that flow into Canada.

Our Response:
We state on page 35771 of the critical habitat proposed rule for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations that, “The inter-jurisdictional nature of the Saint Mary River and Belly River watersheds is unique in the bull trout's range and makes international coordination especially critical.” However, we cannot propose to establish critical habitat in other countries or address economic concerns of critical habitat in other countries.

(52)
Comment:
The BOR requires water users to pay for all maintenance and operational and mitigation costs associated with the Milk River irrigation system in Montana, so it is the irrigators not the BOR that must avoid adverse modification.

Our Response:
Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency ensures that its actions do not destroy or adversely modify critical habitat. The Service consults with the Federal agencies (in this case BOR) not private individuals. Private individuals may, however, have an identified role in the consultation if they are “applicants” as defined in section 7.

(53)
Comment:
The BOR indicated that bypass facilities at the Saint Mary Diversion dam should be included among the costs attributable to bull trout (not included in the DEA), at an estimate of $128,000 (in 2002 dollars). In addition, there are costs associated with the Sherburne Dam rehabilitation, and BOR estimates those costs to be $700,000 (in 2004 dollars).

Our Response:
The DEA acknowledged that elements of the Saint Mary Diversion fish entrainment and bypass costs and modifications to Sherburne Dam, located upriver of the Saint Mary Diversion, may be necessary. However, the specific elements or their costs for these components were not available at the time they were requested from BOR, and only preliminary estimates were provided in the DEA (see page 239). We have incorporated new information on these costs into the final economic analysis and our final critical habitat designation. Based on the costs provided in BOR's comment, updated to current dollars, the inclusion of bypass facility costs on the Saint Mary Diversion and the portion of Sherburne Dam rehabilitation attributable to bull trout would increase the total prospective costs by $830,900 and the total annualized cost by $78,400 in the Saint Mary-Belly River region.

(54)
Comment:
BOR noted that fish screens to reduce entrainment on the Saint Mary Diversion would likely not be installed were it not for the bull trout listing, and that the costs in the DEA were underestimated. BOR estimates the cost to be $4,270,000 for an 850 cubic feet/second (cfs) canal.

Our Response:
BOR's project modification estimates for the rehabilitation of the Saint Mary Diversion were addressed in the DEA (page 239). However, specific costs for fish screens associated with the modification options were not available when we requested the information from BOR, and other sources of information were instead used in the DEA for estimating those costs. We appreciate receiving the estimate of cost that was provided in the comment. A decision has not yet been made about whether to proceed with the rehabilitation as planned, or when, or the size of the rehabilitated canal. Assuming that the rehabilitation is completed in 5 years, and based on the cost for fish screens provided by BOR

for an 850 cfs canal (updated to current dollars), the prospective cost attributable to bull trout would increase by $3,024,800 in the Saint Mary-Belly River region from that presented in the DEA. The total annualized cost would increase by $285,500.

(55)
Comment:
Monitoring riparian areas will occur in areas where there is no grazing. If grazing is unlikely to affect bull trout, why are costs involved?

Our Response:
Monitoring livestock grazing that may affect the conservation status of sensitive species is a requirement of INFISH in eastern Oregon and Washington, Idaho, western Montana, and portions of Nevada. INFISH was developed as an amendment to U.S. Forest Service (USFS) land and resource management plans and Bureau of Land Management (BLM) resource management plans. The monitoring responsibility would be in effect even in the absence of the designation of critical habitat for bull trout. Costs were included in the economic analysis as they are related to the conservation of bull trout.

(56)
Comment:
The impacts in the economic analysis are overestimated because it does not differentiate between the impacts of the listing and impacts of critical habitat designation. This method of estimating costs unfairly attributes too large a percentage of costs to critical habitat.

Our Response:
The economic analysis is intended to assist the Secretary in determining whether the benefits of excluding particular areas from the designation outweigh the biological benefits of including those areas in the designation. Also, this information allows us to comply with direction from the U.S. 10th Circuit Court of Appeals that “co-extensive” effects should be included in the economic analysis to inform decision-makers regarding which areas to designate as critical habitat (
New Mexico Cattle Growers Association
v.
U.S. Fish and Wildlife Service
(248 F.3d 1277)).

This analysis identifies those potential activities believed to be most likely to threaten the bull trout and its habitat and, where possible, quantifies the economic impact to avoid, mitigate, or compensate for such threats within the boundaries of the critical habitat designation. Where critical habitat is being proposed after a species is listed, some future impacts may be unavoidable, regardless of the final designation and exclusions under section 4(b)(2). However, due to the difficulty in making a credible distinction between listing and critical habitat effects within critical habitat boundaries, this analysis considers all future conservation-related impacts to be co-extensive with the designation.

(57)
Comment:
The economic analysis overestimates impacts of critical habitat designation by not differentiating between impacts attributable to bull trout conservation verses salmon conservation.

Our Response:
There are several salmonid species that are listed as threatened or are candidates for listing under the Act whose ranges overlap the critical habitat designation of bull trout. Conservation activities designed to protect bull trout may provide coincident protection to salmon. Conversely, conservation activities designed specifically for salmon may provide protection for bull trout. In assigning costs for fish-related conservation activities in watersheds supporting previously listed salmon species and bull trout, we assume in the analysis that the economic effect of fish-related conservation measures is attributed co-extensively to both species. Therefore, where a conservation activity provides indivisible benefits to both salmon and bull trout, the cost of the activity is apportioned to both species. In areas where proposed critical habitat for bull trout does not overlap the range of other listed species, the costs are assigned solely to bull trout conservation activities. Co-extensive effects may also include impacts associated with overlapping protective measures of other Federal, State, and local laws that aid habitat conservation in the areas proposed for designation. We note that in past instances, some of these measures have been precipitated by the listing of the species. Because habitat conservation efforts affording protection to a listed species likely contribute to the efficacy of the critical habitat designation efforts, the impacts of these actions are considered relevant for understanding the full effect of the proposed designation. Enforcement actions taken in response to violations of the Act, however, are not included.

(58)
Comment:
Critical habitat creates undue economic hardship on private land owners.

Our Response:
Private landowners are only required to consult with the Service if their action has a Federal nexus and if the action is likely to affect bull trout or its critical habitat.

(59)
Comment:
By designating less area as critical habitat, the costs are disproportionately high for the areas included in critical habitat.

Our Response:
Excluding areas does not increase the costs on those areas left within the designation. The costs associated with the designation are the section 7 administrative costs of preparing a biological assessment and the potential costs associated with implementing a Reasonable and Prudent Alternative (RPA) if we find that an action is likely to destroy or adversely modify critical habitat. Given that we are only designating critical habitat in occupied areas, where an action agency would need to consult on any adverse effects to bull trout, and given our framework for conducting section 7 consultations on bull trout and bull trout critical habitat, we anticipate that most projects that would result in destruction or adverse modification of critical habitat would also constitute jeopardy to the species. Thus, any costs associated with conducting consultations or implementing an RPA would be present with or without the critical habitat designation, and would not be correlated with the size of the designation.

(60)
Comment:
The EA does not address impacts/costs to the Klamath Lake BOR project or to Agency Lake Ranch.

Our Response:
BOR staff were contacted and consulted on the likelihood of projects requiring section 7 consultation, as described in Section 4.2.4 for the final EA. When contacted, BOR staff in Klamath Falls stated that no significant consultation activity concerning bull trout was anticipated. As a result, the analysis assumes impacts are not reasonably foreseeable for a BOR project on Agency Lake Ranch.

(61)
Comment:
Specific cost information related to fencing, well installation, maintenance, grass filter strip installation was not accurate in the EA. The comment letter provided specific costs on a per acre basis.

Our Response:
The DEA (Section 4.2.2, page 4-9 and Section 4.2.7, page 4-72) estimates the number of grazing-related consultations likely to take place in the future and then multiplies the consultations by per consultation estimates of fencing, monitoring, and water requirement costs. Whether the per acre costs presented in the comment fall within the range of per consultation costs estimated in the DEA is difficult to determine. The estimate in the DEA is drawn from a sample of historical consultations.

(62)
Comment:
The EA underestimated costs in the upper Deschutes River basin because 95 percent of crops depend on irrigation.

Our Response:
The Upper Deschutes basin is currently unoccupied by the species. For effects to irrigated agriculture to occur, the Service would first have to reintroduce bull trout to this basin, consult with BOR on the

operation of the reservoir, and recommend reasonable and prudent measures that would reduce the available irrigation water. As discussed on page 4-28 of the report, this sequence of events is not reasonably foreseeable.

(63)
Comment:
Comments made on the DEA for the Columbia/Klamath Rivers populations were not incorporated into the final EA.

Our Response:
We believe that the Final Economic Analysis adequately addresses all the comments provided during the public comment period that are consistent with the framework for the analysis described in Section 1.3 of the report. Specifically, impacts to families and small entities are addressed in Section 4.3; costs to irrigators, cities, industries, and other water users are addressed in Section 4.2; costs to hydropower customers are discussed in Section 4.4.2; potential costs to recreational users are discussed in Section 3.3.6; costs associated with flood damages are addressed in Section 4.2.4; costs associated with water quality changes are addressed in paragraphs 16 and 211; costs due to regulatory uncertainty are captured in Section 4; values of potential lost irrigation water supplies are discussed in paragraphs 494 through 499; and employment and secondary impacts are discussed in paragraph 274.

(64)
Comment:
The EA cited the existence of irrigated agricultural diversions and the need for fish screening of those diversions to prevent bull trout entrainment, however the EA did not extrapolate out screening costs. The EA acknowledged that fish screening costs are substantial, ranging between $2,000 and $5,000 per cfs the structure can divert.

Our Response:
The Service agrees that irrigators incur costs associated with fish screens. However, as described in footnote 110 of the FEA, “* * * installation of diversion fish screen[s] is a baseline regulation within Idaho, Oregon, and Washington. That is, screens on agricultural diversions are already required under Idaho Code 36-906(b).” Because fish screens are required in Idaho, Oregon and Washington in the absence of the Endangered Species Act (ESA), these costs are not included in this analysis.

(65)
Comment:
The economic impact to Baker County and the Regulatory Flexibility Act was ignored in the DEA and final EA.

Our Response:
In accordance with the Regulatory Flexibility Act, the Final Economic Analysis includes a quantitative screening analysis (see Section 4.3) that the Service used as the basis for its certification that a substantial number of small agricultural entities will not be significantly impacted by the proposed designation. Impacts to small farmers resulting from curtailed irrigation diversions are discussed specifically in Section 4.3.2.

(66)
Comment:
The costs for fish passage and habitat restoration are associated with compliance of Sections 4(e) and 18 of the FPA. The costs for fish passage and restoration of habitat address the recovery of other native salmonids found in the aquatic system, such as westslope cutthroat trout and mountain whitefish. The cost for total dissolved gas abatement is associated with compliance with the Clean Water Act under the 401 Water Quality Certification and Section 4(e) of the FPA. It is not clear what the final terms of the relicensing of the Box Canyon Project will be. The project modifications and costs are not due to bull trout Section 7 consultation as no biological opinion (BO) has been done. It is unclear why Box Canyon Project was picked for a discussion of detailed project modification costs since this project has no modification costs related to Section 7 consultation or the designation of critical habitat.

Our Response:
FERC relicensing costs are discussed in Section 4.2.6 in the Final Economic Analysis (paragraphs 416-452). Estimates of project modification costs for the FERC Environmental Impact Statement (EIS) on Box Canyon are summarized in paragraph 452 as an example of the uncertainty surrounding the estimate of FERC-related costs. The discussion is consistent with this view that passage modifications are not attributable to section 7 bull trout consultations.

(67)
Comment:
The EA's estimate of conservation costs of $570 per acre for Dungeness Irrigation District is artificially low. The costs for revision or addition of fish passage facilities at those federal dams would be passed on to irrigation contractors through the United States Bureau of Reclamation.

Our Response:
Following the framework described in on pages 1-11 and 1-12, the FEA considers the costs of proposed or reasonably foreseeable HCPs. In Section 4.1.2, the FEA identifies two HCPs that were currently under development at the writing of the analysis, and projects the costs of future based on the historical costs of developing these plans. HCPs are not reasonably foreseeable in the irrigation districts providing comment. However, the FEA accounts for HCP costs at unspecified locations for the 10-year time period of the analysis (see paragraph 359).

Unit Specific Comments

Unit 1: Klamath River Basin

(68)
Comment:
No critical habitat in Agency Lake was requested because of limited to no occurrences or use by bull trout.

Our Response:
Historically, bull trout are known to have been distributed in several streams along the west side of Agency Lake (Cherry Creek, Threemile Creek, and Sevenmile Creek) and in the Wood River system (Sun, Annie, and Fort Creeks). Given the proximity of habitat and local populations and the predatory and migratory nature of the species, it is likely that bull trout utilized Agency Lake, at least seasonally, as feeding, migrating, and overwintering habitat, however, we are not able to document bull trout use in the last 20 years and have not included Agency Lake in this designation.

Unit 4: Willamette River Basin

See Comments from States (Oregon) section below.

Unit 6: Deschutes River Basin

(69)
Comment:
The Service properly chose not to designate the Crooked River as critical habitat because it is unoccupied and was not essential to the conservation of the species, that designation could also cause harm to ongoing conservation efforts, and that the benefits of excluding this area outweigh the benefits of including it.

Our Response:
We have limited the critical habitat designation to areas of known occupancy (defined by documented occurrence within the last 20 years) that have features essential to the conservation of the species because we did not have sufficient data for the Secretary to make a determination that specific unoccupied areas were essential to the bull trout's conservation. We have determined that the approximately 14 mile-long section of the Crooked River downstream of the Highway 97 bridge to the Opal Springs Dam is occupied and contains many of the features essential to the conservation of the bull trout. The volume of cold water spring flows that enter the Crooked River downstream of the Highway 97 bridge crossing decreases stream temperatures enough to make this section of the Crooked River suitable for foraging bull trout even during the summer months. The additional habitat in the Crooked River also allows bull trout in Lake Billy Chinook to forage.

(70)
Comment:
There are many plans in the Deschutes River basin that provide special management and protections for bull trout (list of plans provided).

Our Response:
The Service has reviewed information regarding numerous plans in the Deschutes River basin including the Middle Deschutes/Lower Crooked River Wild and Scenic Management Plan, the Lower Deschutes River Wild and Scenic River Management plans, the Aquatic Conservation Strategy of the Northwest Forest Plan, PACFISH, INFISH, and the Deschutes River Subbasin Plan. For each plan we assessed the protections of the plan as compared with the protections of critical habitat and weighed the benefits of inclusion versus the benefits of exclusion. For those plans where the benefits of exclusion outweighed the benefits of designating critical habitat we excluded those lands from the final designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

Unit 8: John Day River Basin

(71)
Comment:
Critical habitat should be removed on the mainstem John Day River below 4,500 ft elevation because the mainstem John Day River below this elevation does not have the appropriate water temperatures for bull trout.

Our Response:
The Service acknowledges that the current distribution of bull trout in the John Day River basin is fragmented and that water temperature is a limiting factor in the lower portion of the river outside of peak runoff periods (late winter and spring). Bull trout distribution occurs primarily in the headwaters of the Upper Mainstem, North Fork and Middle Fork John Day River tributaries, with seasonal use of the entire North Fork John Day River. However, in 2000, the Oregon Department of Fish and Wildlife captured eleven subadult bull trout in the mainstem John Day River near the town of Spray, Oregon (1,802 ft elevation), while seining for juvenile Chinook salmon. Two of the fish were implanted with radio-tags and both were subsequently tracked into the North Fork John Day River. This suggests that subadult migrations do seasonally occur within lower river segments of the Upper Mainstem, North Fork, and Middle Fork John Day River. Within the John Day Subbasin, historic bull trout distribution likely included seasonal use of the entire mainstem and larger tributaries. Bull trout from the John Day Subbasin were known to migrate to and from the Columbia River (Buchanan
et al.
1997). Historical records indicate presence of bull trout in Dads Creek, Dixie Creek, Pine Creek, Canyon Creek, Laycock Creek, and Beech Creek (Buchanan
et al.
1997) all below 1,800 ft in elevation. The lower segments of the John Day Basin currently have many PCEs, including permanent water with low levels of contaminants, stream temperatures from 36° to 59° F (2° to 15° C), complex stream channels, and an abundant food base. Lower segments of the John Day River are typically suitable for bull trout use during peak runoff periods in late winter and spring when water temperatures range from 36° to 59° F (2° to 15° C). During those periods, these streams contain the necessary features essential to the conservation of the bull trout because they serve as migratory corridors that connect local populations in the basin. Such connections are particularly critical in the John Day River Basin because the existing local populations are small and highly vulnerable to localized extirpation. The most viable way to avoid extinction in these areas is to maintain seasonal habitat connections so that the movement of fish between them can sustain or periodically re-establish these small populations. We recognize the apparent difficulty in designating critical habitat where the presence of the PCEs is sporadic. To avoid future misinterpretations of the effect of this designation where PCEs occur as a result of current ongoing federal management, we have included that management in the baseline for future section 7 consultations.

Unit 9: Umatilla/Walla Walla River Basin

(72)
Comment:
There are many examples of additional special management and protections governing habitat utilized by bull trout on BLM-managed lands including the South Fork of the Walla Walla River ACEC, which is an amendment to the Resource Management Plan (RMP) for the Baker Resource Area of the Vale District. The amended plan was signed in February 1992, creating an ACEC of 1,273 acres within the South Fork of the Walla Walla River watershed. The river provides high quality spawning and rearing habitat for bull trout. The decision included: (1) No surface occupancy stipulation for oil and gas leasing; (2) prohibition against development of mineral resources within the ACEC boundary unless needed on an emergency basis to protect ACEC values; (3) prohibition against issuance of grazing leases; (4) no fire salvage will occur unless it meets the goal of ACEC management; and (5) reduction by 99% of the permitted amount of timber removed on the 120 acres of commercial timberland economically operable within the ACEC.

Our Response:
We agree that the designation in 1992 of the South Fork Walla Walla River as an Area of Critical Environmental Concern added habitat protections that benefit bull trout. The ACEC management actions in the plan amendment, particularly the livestock grazing restrictions and measures to limit and control recreational motor vehicle traffic along the river, are actions that have improved bull trout habitat along the approximately two miles of river that cross BLM land. As a result we have determined this lads do not meet the definition of “in need of special management or protection” in order to be designated as critical habitat.

Unit 10: Grande Ronde River Basin

(73)
Comment:
Wright Slough (Grande Ronde River Basin) has been designated as critical habitat and should not have been. It now has restrictions on it that are impacting agricultural use of the land.

Our Response:
Wright Slough, a tributary of the Grande Ronde River, was not designated as critical habitat for bull trout in the previous final rule and is not being designated in this rule. The mainstem Grande Ronde River immediately above and below where Wright Slough enters the river is designated as bull trout critical habitat. The State of Oregon has designated Wright Slough as “essential salmonid habitat”, which may have been confused with bull trout critical habitat. Critical habitat does not create a preserve and does not, by itself, place restrictions on agricultural land use. If, through section 7 consultation, a proposed Federal action was found to destroy or adversely modify critical habitat, then a reasonable and prudent alternative may result in restrictions on agricultural use. We have not issued any adverse modification biological opinions on bull trout critical habitat and therefore have not imposed any restrictions on agricultural use of lands in Wright Slough through designation of critical habitat.

(74)
Comment:
It is not appropriate to designate critical habitat in the Powder River Basin in areas located below 4,500 ft elevation to prevent extinction of bull trout because these low elevation streams do not have appropriate water temperatures.

Our Response:
We acknowledge that temperatures in the lower portions of the Powder River Basin are likely only suitable for bull trout use during peak runoff periods in late winter and spring. During these times, lower elevation areas contain the features that are essential to bull trout conservation. These areas are important because they

serve as migratory corridors that connect local populations in the basin. Such connections are particularly critical in the Powder Basin because the existing local populations are small and highly vulnerable to localized extirpation. The most viable way to avoid extirpation in these areas is to maintain seasonal habitat connections so that the movement of fish between them can sustain or periodically re-establish these small populations. We have also indicated that current federal management is included in the baseline so as to ensure that existing PCEs—in this case migrating corridors are maintained without implying that other PCEs are present or require special management or protections.

(75)
Comment:
The previously designated stream segments in the Powder River Basin below the Wallowa-Whitman National Forest boundary are not essential for conservation of bull trout, because: (1) The presence of brook trout downstream of most known bull trout populations and the large number of existing physical barriers in low-elevation stream sections preclude genetic exchange between local populations and attempts to provide connectivity will result in increased hybridization; (2) given the physical and biological barriers, it would be advisable to keep resident bull trout populations in the upper tributaries to prevent brook trout hybridization; (3) the listed segments lack almost all of the identified PCEs and, in fact, dry up or go subsurface for much of the year; and (4) with the single exception of Big Muddy Creek, all observations of bull trout have been above the National Forest boundary, thus the stream sections below the boundary are unoccupied.

Our Response:
It is true that many of the Powder River tributaries contain impediments to bull trout movement, particularly those that flow through the Baker Valley, where the stream channels and stream flows have been altered for many years to support agricultural production. We also concur that brook trout hybridization is a problem in this area. Nevertheless, the designated tributary streams are deemed essential for bull trout conservation for the following reasons: (1) These streams are occupied and contain PCEs; (2) given the small size of the local populations, which appear to be currently confined to upper elevation headwaters, it is highly unlikely that they will persist in isolation, thus the long-term viability of this core area is dependent on the ability of bull trout to move between populations; and (3) the impediments to seasonal fish movement in these streams are mostly human-caused and could feasibly be corrected. The lower reaches of these streams can function as effective movement corridors even if only during high runoff periods; their designation as critical habitat does not imply that they need to be maintained as suitable habitat year-round. Therefore, we have designated critical habitat in these areas. In addition our inclusion of present operations in the baseline is designed to recognize the particular contributions of the area to bull trout conservation without overstating them.

(76)
Comment:
We believe that fish survey data from the Powder River Basin has been misused because: (1) No accepted, scientific protocol was used for many of the surveys; (2) some of the fish counts were erroneous and contained inaccurate information; (3) some purported sightings and inferences about habitat use were not supported by scientific data; (4) credible evidence provided by local citizens, indicating that bull trout were introduced in the early 1900s into upper tributaries of the Powder River, was ignored or disregarded.

Our Response:
It is our intent to use only accurate information about species' occurrences when identifying critical habitat. To address the concerns that were raised about data from the Powder River Basin, we conducted a review of all the survey data and anecdotal information we have received on bull trout locations in this area. The sources and documentation associated with these data have been re-checked and verified to the extent possible. Some of the bull trout sighting information comes from informal surveys that did not follow standardized survey protocols because surveys were done before formal survey protocols existed and in other situations “spot check” type surveys were done because the resource agency lacked sufficient resources to conduct more rigorous surveys. It would not be appropriate to disregard positive sightings just because the survey method was informal. The key credibility factor is the fish identification skills of the person making the observation. Also of major importance is the type of observation (
i.e.
, was the fish in hand or just seen swimming by).

In our review of existing data, we excluded from consideration sightings that did not meet the following two criteria: (1) The sighting was made by a biologist or technician that was trained and experienced in bull trout identification, and (2) the identification was made based on close examination of a fish in hand. We cannot verify the assertion that bull trout were introduced by man to the upper Powder River Basin and thus are not native to the area. We are not ignoring or disregarding the reports that suggest bull trout may have been planted in some streams in the Elkhorn Mountains in the early 1900s. It is just not possible to verify those reports or to conclude from them that bull trout did not exist in the area prior to those introductions. Documented information on the historic distribution of bull trout in other nearby Snake River tributaries is compelling evidence that they are likely native inhabitants of the Powder River.

(77)
Comment:
Data on reported bull trout sightings in Rock Creek and Pine Creek are not scientifically valid.

Our Response:
A bull trout/brook trout hybrid was reported in surveys of Rock Creek conducted by ODFW in 1994. Tissue samples were not collected so positive identification of this fish as a hybrid or pure bull or brook trout is not possible. Follow-up surveys conducted by the USFS did not detect any bull trout in Rock Creek, but surveyors did not search the upper portions of Rock Creek and North Fork Rock Creek, nor did they search about 0.7 mile of creek below Eilertson Meadow. Reaching the conclusion that bull trout are absent from this creek will require regular, repeated surveys using the same protocol. Bull trout have been observed, by professional fish biologists, in Pine Creek and Salmon Creek. Memoranda from Mark Lacy in 1995 (a BLM Fish Biologist at the time) and Jackie Dougan (then a USFS Fish Biologist) to Jeff Zakel (ODFW) provide information on bull trout sightings in these drainages in 1994-1995. Therefore, we have designated critical habitat in these areas.

(78)
Comment:
Special management considerations are already provided through the Powder Basin Subbasin Plan and the Powder/Brownlee Agricultural Water Quality Management Area Plan.

Our Response:
We have conducted a thorough analysis of the Powder Basin Subbasin Plan and the Powder/Brownlee Agricultural Water Quality Management Area Plan to determine if the benefits of excluding areas covered by these plans from critical habitat outweigh the benefits of including them. We have determined that this plan does not provide a direct conservation benefit to bull trout or any certainty that it will be implemented. Therefore, we have not used these plans as a basis for exclusion.

Unit 13: Malheur River Basin

(79)
Comment:
Do not exclude the Malheur Basin because the Forest Service has not fully implemented INFISH and has failed to effectively modify and suspend its authorized grazing practices required under INFISH. The matrix of pathways and indicators included in the Forest Service 1999 biological assessment documented ratings of “functioning” and fail to meet standards. The grazing program on the Malheur National Forest is maintaining degraded baseline conditions according to a 2004 Service biological opinion. In addition, grazing effects on the Malheur River are likely to restrict bull trout range expansion or at least slow recovery efforts substantially. Information provided by the U.S. Forest Service did document maintenance of a degraded condition for certain indicators. The Forest Service rated grazing allotments as maintaining the current conditions with the expectation that they would meet the requirement of a near natural rate of recovery if the allotments were grazed according to standards. This and other information provided by the Forest Service helped form the basis for the Service's biological opinions referenced by the commenter. The Service has expressed concerns in the past with grazing effects to bull trout on the Malheur National Forest and is working closely with the Forest Service to help decrease impacts to bull trout and their habitats due to grazing activities.

Response:
The Malheur National Forest recently completed its 2004 grazing monitoring report which provided information and summaries/explanations of data analyzed, collected, or submitted during the 2004 field season. The Forest Service also provided documentation to satisfy the reasonable and prudent measures contained in the Service's 2004 biological opinions by summarizing information collected in 2004. The Forest Service recommends potential management strategies for the 2005 Annual Operating Instructions that are consistent with PACFISH and INFISH. A critical habitat designation will not result in improvement of the conditions in the areas designated in and of itself. Critical habitat designation can only prevent erosion of the baseline levels of the PCEs. Forest Service management under INFISH actually takes positive steps to improve conditions in the aquatic habitat. The Forest Service expects that these strategies will move riparian and stream conditions towards desired conditions. The Service will continue to work with the Forest Service, and assist them in development and implementation of appropriate and effective monitoring strategies. In addition, we have determined that the Malheur National Forest management plan as currently implemented provides at least the same special management and protection as a critical habitat designation and goes beyond what a critical habitat designation provides by enhancing and restoring habitat. We have determined under Forest Service management that the Malheur National Forest does not meet the definition of critical habitat in 3(5)(a) and we have excluded the Malheur National Forest from critical habitat because the benefits of excluding areas covered under PACFISH and INFISH outweighed the benefits of inclusion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

Unit 16: Salmon River Basin

(80)
Comment:
Not all bull trout habitat in the Salmon River basin should be critical habitat.

Our Response:
Not all bull trout habitat in the Salmon River basin has been proposed or designated as critical habitat. Numerous streams were not proposed for designation for any, or a combination of, the following reasons: (1) Bull trout are not known to be present; (2) the habitat has low or no potential for bull trout occupation (low elevation, inherently warm water, not historically occupied, etc.); (3) the habitat does not currently contain, or have the potential to contain, one or more PCEs; and (4) the habitat was deemed not necessary to meet draft recovery plan objectives (i.e., non-essential potential populations).

Of those streams that were proposed as critical habitat, not all were designated. Areas covered under PACFISH, INFISH, and the Snake River Basin Adjudication were excluded (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(81)
Comment:
Salmon River bull trout are very healthy and not at risk.

Our
Response:
While it is true that Salmon River bull trout populations are relatively healthy, they are located in areas that contain the features essential to the conservation of bull trout. Areas that are already adequately protected by other management plans, and where the benefits of excluding areas from critical habitat outweigh the benefits of inclusion, exclusions have been applied (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

(82)
Comment:
Bull trout are rare in Jordan Creek of the Upper Salmon River and critical habitat should not be designated there.

Our
Response:
We did not exclude areas based on rarity of bull trout. The 2002 critical habitat proposal included stream segments known to be occupied. In our analyses of the species for the draft recovery plan and proposed critical habitat for bull trout, we determined that it is necessary to maintain as many currently occupied areas as possible to facilitate recovery of the species. Jordan Creek supports a local population of bull trout. It is likely that the local population occurring in Jordan Creek was historically, and is currently, supported by migratory bull trout from the Yankee Fork and larger streams, although monitoring has not yet observed this life history strategy. Lower Jordan Creek is important for providing connectivity between the bull trout local population above the mine and larger area of overwintering habitat below. Local populations not connected by migratory fish are believed to be at a substantially greater risk of extirpation.

Unit 17: Southwest Idaho River Basins

(83)
Comment:
Exclude Boise, Payette, and Weiser river basins for economic and social reasons in addition to exclusions based on the Snake River Basin Adjudication plan.

Our Response:
In our 2002 proposed critical habitat rule we proposed approximately 2,792 km (1,735 mi) of streams in the Boise, Payette, and Weiser river basins. The economic analysis did not identify costs justifying an economic exclusion with the Snake River basin. Section 4(b)(2) of the Act allows us to consider the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Therefore, the Secretary of Interior has excluded the area covered by the Snake River Basin Adjudication plan based on collaborative partnerships that have resulted in a settlement agreement benefiting bull trout conservation and where the benefits of excluding these areas outweigh the benefits of including them in the designation (Exclusions Under Section 4(b)(2) section below). The Secretary received inadequate information to make a determination that the economic and social benefits of exclusion outweighed the benefits of the designation.

(84)
Comment:
Many areas in Southwest Idaho do not have sufficient PCEs.

Our Response:
The 2002 proposed critical habitat rule was developed based on the best available information at that time. In order for a stream to be proposed as critical habitat, it must have sufficient PCEs to sustain at least one

essential life process of the species. However, a stream did not have to contain all PCEs to be proposed as critical habitat. In fact, many streams in southwest Idaho do not have all of the PCEs, but do have sufficient PCEs for bull trout to meet this standard. Streams that did not contain the necessary habitat for bull trout (
e.g.
, including one or more primary constituent elements), and streams inherently incapable of becoming bull trout habitat were not proposed for designation. Those streams that were included will have existing conditions included in the baseline for future section 7 consultations.

Unit 19: Lower Columbia River Basin

(85)
Comment:
Describe the validity of Cougar Creek, a tributary to Yale Reservoir in the Lewis River critical habitat sub-unit (CHSU), as part of the critical habitat designation.

Our Response:
The Settlement Agreement Concerning the Relicensing of the Lewis River Lewis River Hydroelectric Projects (Agreement) includes a perpetual conservation easement on PacifiCorp's lands in the Cougar/Panamaker Creek area. The measures included in the conservation easement and the settlement agreement provide a high level of conservation benefit to the bull trout PCEs in Cougar Creek. We have determined that lands covered under conservation easements and the Agreement should be excluded from the designation of critical habitat because the benefits of excluding them outweigh the benefits to the species by including them in the designation. Please refer to our discussion concerning the exclusion of Lewis River Hydroelectric Projects Conservation Easements in the Section 3(5)(a) and Exclusions under Section 4(b)(2) of the Act section below.

(86)
Comment:
Rush Creek in the Lewis River CHSU should be included in critical habitat even though it is covered by the Northwest Forest Plan.

Our Response:
All National Forest lands covered by the Aquatic Conservation Strategy of the Northwest Forest Plan have been excluded from the final designation because the Secretary determined that the lands did not meet the definition of critical habitat and the benefits of exclusion outweighed the benefits of inclusion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

Unit 21: Upper Columbia River

(87)
Comment:
Special management activities within Priest Rapids project should be excluded.

Our Response:
The Service has considered the special management activities within the Priest Rapids project area for this rule. Currently there is no biological opinion for bull trout or a settlement agreement in place addressing the PCEs for bull trout for the Priest Rapids Dam project area, and the PCEs for bull trout are not addressed by any other current management activities. The NOAA Fisheries biological opinion only covers salmon species. Although some habitat characteristics are similar for salmon species and bull trout, the PCEs have several differences. The Service Interim Guidelines for bull trout list some of these differences, which include the following: Fish passage and performance measures for salmon are not the same as they are for bull trout; bull trout exist year round in the area and are more closely associated with stream substrates; and, they also require a prey base year round. However, since the area does contain PCEs under current ongoing management, that management will be considered part of the baseline in future section 7 consultations.

(88)
Comment:
Additional consultation requirements for critical habitat negatively affect Grant County by increasing workload.

Our Response:
Because all areas in this designation are considered occupied, section 7 consultation for the bull trout would be required in all cases where consultation on bull trout critical habitat would be required. The Service has data documenting bull trout occurrence throughout many areas of the mainstem Columbia River, particularly between Priest Rapids pool and the Okanogan River. Fish from the Upper Columbia River Recovery Unit have been documented using this area to fulfill critical elements of their life cycle. A review of the amount of work associated with the incremental costs of completing consultations on bull trout critical habitat revealed that it was relatively minor.

(89)
Comment:
Wells, Rocky Reach, Rock Island, and Comprehensive Bull Trout Monitoring and Management Plans (WBTMP, RRBTMP, RIBTMP, CBTMP), as well as the Anadromous Fish Agreement, Rocky Reach, Rock Island, and Douglas PUD Wells Hydro Project HCPs provide needed benefits to bull trout and their PCEs and should be excluded from critical habitat.

Our Response:
The Service has considered these plans in our evaluation of critical habitat. The biological opinion and comprehensive BTMPS do not fully cover all PCEs nor do they address all recovery tasks or issues for bull trout in the upper mid-Columbia area. The BTMPs are limited to the requirements of the biological opinion and it is unclear if other PCEs will be addressed. The specific studies are designed to be implemented with specific timeframes which generally will be implemented every 10 years through the life of the plan (50 years). The goals of the Protection, Mitigation, and Enhancement measures in the BTMPs are to identify, develop, and implement measures to monitor and address ongoing impacts to bull trout resulting from project operations. The BTMPs incorporate “Reasonable and Prudent Measures” which are required by the Service Biological Opinion for the Rock Island, Rocky Reach, and Wells hydroelectric project operation. These measures will address the “complex stream channels (PCE #3) and “migratory corridors” (PCE #7) for bull trout. The Service biological opinion states that other PCE's are expected to be maintained or enhanced, but at this time it is unclear where or when any of the habitat restoration projects for the tributary enhancement provisions will occur. Therefore, we do not believe that these plans are an appropriate basis for exclusion.

Unit 22: Northeast Washington

(90)
Comment:
The critical habitat designation is inconsistent with the inclusion of Box Canyon Reservoir.

Our Response:
The Service acknowledges that the reservoir exclusion in the previous final rule was not applied consistently. In this final rule we are excluding all reservoirs that provide a flood control, water supply function, or energy generation. Although the Box Canyon Reservoir does not meet this criteria, it is being excluded because it is within the Federal Columbia River Power System (FCRPS) action area (see Section 3(5)(a) and Exclusions under Section 4(b)(2) section below).

(91)
Comment:
The Service needs to add the proposed critical habitat areas of the Northeast Washington Unit back in the designation.

Our Response:
We have evaluated which areas meet the definition of critical habitat for bull trout and excluded areas where we have determined that the benefits of excluding those areas outweigh the benefits of including them as critical habitat (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).

Unit 26: Jarbidge River

(92)
Comment:
Maintaining connectivity is important for the Jarbidge River population and it is not

clear if connectivity is included in the PCEs for this population.

Our Response:
We agree that migratory corridors are important and provide connectivity among local populations and access between spawning, overwintering, and foraging habitats within the Jarbidge River population area. The Jarbidge River bull trout population has been isolated from other bull trout populations by dams and diversion structures for over 100 years (Gilbert and Evermann 1894). The distance between occupied habitats in the Jarbidge River and Columbia River populations is approximately 150 river miles (rmi) (240 river kilometers (rkm)). Critical habitat was not proposed for these areas of unknown bull trout occupancy.

(93)
Comment:
Salmon Falls Creek, Idaho should be designated as critical habitat for the Jarbidge River bull trout population.

Our Response:
Salmon Falls Creek is not occupied by bull trout, and therefore under the Act, it cannot be designated as critical habitat unless it is essential for the conservation of the species. Salmon Falls Creek is a tributary to the Snake River in Idaho. It historically provided spawning and rearing habitat for anadromous fish, including Chinook salmon (
Oncorhynchus tshawytscha
) and steelhead. Since Salmon Falls Creek Dam was constructed in 1910, the lower 30 mi (48 km) of the stream have been significantly altered by upstream reservoir storage and water diversions. Migration barriers, water diversions, high water temperatures, sedimentation, and nonnative fish introductions are likely contributing factors to the loss of anadromous fish species in this watershed. T

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-18880. Public record. Not legal advice.