Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2009-0085]

[MO 92210-0-0009]

RIN 1018-AW88

Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, are revising critical habitat for the bull trout (

Salvelinus confluentus

) under the Endangered Species Act of 1973, as amended (Act). We are designating a total of 31,750.8 km (19,729.0 mi) of streams (which includes 1,213.2 km (754.0 mi) of marine shoreline) and are designating a total of 197,589.2 ha (488,251.7 ac) of reservoirs and lakes. The areas designated as critical habitat are located in the States of Washington, Oregon, Nevada, Idaho, and Montana.

DATES:

This rule becomes effective on November 17, 2010.

ADDRESSES:

This final rule and the associated final economic analysis, as well as comments and materials received, and supporting documentation we used in preparing this final rule, are available on the internet

http://www.regulations.gov

(see Docket No. FWS-R1-ES-2009-0085; at

http://www.fws.gov/pacific/bulltrout/

; and by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Boise, ID 83709; telephone 208-378-5293; facsimile 208-378-5262.

FOR FURTHER INFORMATION CONTACT:

Brian Kelly, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office (see

ADDRESSES

). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics directly relevant to the development and designation of critical habitat for the bull trout in this final rule. For more information on bull trout biology and habitat, population abundance and trend, distribution, demographic features, habitat use and conditions, threats, and conservation measures, please refer to the Bull Trout 5-year Review Summary and Evaluation, completed April 25, 2008, available at

http://ecos.fws.gov/docs/five _year _review/doc1907.pdf

. For information on bull trout critical habitat, and information on the associated draft economic analysis for the proposed rule to designate revised critical habitat, refer to the proposed rule to designate critical habitat for the bull trout published in the

Federal Register

on January 14, 2010 (75 FR 2269).

Description, Distribution, Habitat and Recovery

Bull trout 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. Bull trout historically occurred in the Sacramento River basin, and were more widespread in general than they are now. The distribution of populations, however, is scattered and patchy (Goetz 1989, p. 4; Ziller 1992, p. 6; Rieman and McIntyre 1993, p. 3; Light

et al.

1996, p. 44; Quigley and Arbelbide 1997, p. 1176).

Bull trout have more specific habitat requirements than most other salmonids (Rieman and McIntyre 1993, p. 4). Habitat components that particularly influence their distribution and abundance include water temperature, cover, channel form and stability, spawning and rearing substrate conditions, and migratory corridors (Fraley and Shepard 1989, p. 138; Goetz 1989, p. 19; Watson and Hillman 1997, p. 247). Large patches of these components are necessary to support robust populations. This rule identifies those physical or biological features essential to bull trout conservation.

Bull trout exhibit a variety of migratory and nonmigratory life histories. 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, p. 133). Resident and migratory forms may be found together, and either form can produce resident or migratory offspring (Rieman and McIntyre 1993, p. 2). Historically most bull trout populations may have included a migratory component, and any resident-only forms found today may often reflect a loss of the migratory component due to impacts such as habitat loss or migration barriers (Muhlfeld 2010, pers.comm.).

Bull trout, coastal cutthroat trout (

Oncorhynchus clarkii clarkii

), Pacific salmon (

Oncorhynchus

spp.), and other species that migrate from saltwater to freshwater to reproduce are commonly referred to as anadromous. 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, p. 5; Brenkman and Corbett, 2005, p. 1075). The amphidromous life history form of bull trout is unique to the Coastal-Puget Sound population (64 FR 58921, November 1, 1999). For additional information on the biology of this life form, see the 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).

The decline of bull trout is primarily due to habitat degradation and fragmentation, blockage of migratory corridors, poor water quality, past fisheries management practices, impoundments, dams, water diversions, and the introduction of nonnative species (63 FR 31647, June 10, 1998; 64 FR 17112, April 8, 1999). Climate change may exacerbate some of these impacts. The bull trout 5-year review (Service 2008, p. 45) recommended that the recovery units identified in the 2002 draft recovery plan be updated based on assemblages of bull trout core areas (metapopulations, or interacting breeding populations) that retain genetic and ecological integrity and are significant to the distribution of bull trout throughout the conterminous United States. After consulting with biologists from States, Federal agencies, and Native American Tribes, and applying the best scientific information available, we identified six draft recovery units for bull trout in the conterminous United States. Please refer to the “Critical Habitat” section below for additional information on this topic.

Previous Federal Actions

On November 29, 2002, we proposed to designate critical habitat for the Klamath River and Columbia River bull trout populations (67 FR 71235). On October 6, 2004, we finalized the critical habitat designation for the Klamath

River and Columbia River bull trout populations (69 FR 59995). On June 25, 2004, we proposed to designate critical habitat for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations (69 FR 35767). On September 26, 2005, we designated critical habitat for the Klamath River, Columbia River, Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout (70 FR 56212). Please refer to the above-mentioned rules for a detailed summary of previous Federal actions completed prior to publication of this final rule.

On January 5, 2006, a complaint was filed in Federal district court by the Alliance for the Wild Rockies, Inc., and Friends of the Wild Swan, alleging the U.S. Fish and Wildlife Service (Service) failed to designate adequate critical habitat, failed to rely on the best scientific and commercial data available, failed to consider the relevant factors that led to listing, and failed to properly assess the economic benefits and costs of critical habitat designation. Other allegations included inadequate analysis and unlawful use of exclusions under section 4(b)(2) of the Act. On March 23, 2009, the Service provided notice to the U.S. District Court for the District of Oregon that we would seek remand of the final critical habitat rule for bull trout based on the findings of an investigative report by the Department of the Interior's Inspector General (USDI 2008, pp. 10-38). On July 1, 2009, the Court granted our request for a voluntary remand of the 2005 final rule and directed a new proposed rule to be completed by December 31, 2009, with a final rule submitted to the

Federal Register

by September 30, 2010 (

Alliance for the Wild Rockies

v.

Allen

, 2009 U.S. Dist. LEXIS 63122 (D. Or., July 1, 2009)). On January 14, 2010, the Service published a proposed revised bull trout critical habitat rule (75 FR 2269). The comment period on the proposed rule was open for 60 days, ending March 15, 2010. On March 23, 2010, we reopened the comment period on the proposed rule for an additional 14 days, ending April 5, 2010 (75 FR 13715).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the bull trout during two comment periods. The first comment period, associated with the publication of the proposed rule and announcement of availability of draft economic analysis (75 FR 2269, January 14, 2010), opened on January 14, 2010, and closed on March 15, 2010. We also reopened the comment period for an additional 15 days from March 23, 2010, to April 5, 2010 (75 FR 13715, March 23, 2010), to accommodate a request for a comment period extension. We also contacted appropriate Federal, State, tribal, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule and the draft economic analysis. We held a public hearing in Boise, Idaho, on February 25, 2010, and held public meetings and open houses in Bend, Chiloquin, and LaGrande, Oregon; Post Falls, Idaho; Missoula, Montana; Elko, Nevada; and Wenatchee Washington. During the first comment period, we received a request for an additional public hearing from the Native Fish Society; however, section 4(b)(5)(E) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531

et seq.

), only requires that one public hearing be held on a proposed regulation if any person files a request for such a hearing within 45 days after the date of publication of a proposed rule. Because of the court-ordered deadline, we were unable to hold an additional public hearing; however, we did conduct an additional open house and public information meeting in Vancouver, Washington, in response to the Native Fish Society's request.

We received several hundred comment letters and e-mails from individuals and organizations, and speaker testimony at the February 25, 2010, Boise, Idaho, public hearing. We also received comment letters from four peer reviewers, eight State agencies, several Native American Tribes, and seven Federal agencies, including the U.S. Navy.

We coordinated the proposed revision of critical habitat with federally recognized Tribes on a government-to-government basis in accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2). We contacted all Tribes potentially affected by the proposed designation and met with a number of these Tribes to discuss their ongoing or future management strategies for bull trout.

All substantive information provided during comment periods has either been incorporated directly into this final designation or addressed below. Comments we received were grouped into general issues specifically relating to the proposed critical habitat designation for the bull trout, and are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our policy published in the

Federal Register

on July 1, 1994, (59 FR 34270), we solicited opinions from four knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from each of the peer reviewers we contacted. We reviewed all comments we received for substantive issues and new information regarding bull trout critical habitat. We have addressed peer reviewer comments in the following summary and have incorporated them into this final rule as appropriate.

The peer reviewers generally agreed we relied on the best scientific information available, accurately described the species and its habitat requirements (primary constituent elements (PCEs)), and accurately characterized the reasons for the species' decline and the threats to its habitat, and the peer reviewers generally concurred with our critical habitat selection criteria. Peer reviewer comments addressed several topics, including the importance of off-channel habitats and information on specific waterbodies, climate change, migratory corridors and connectivity, historical and contemporary range, disturbance processes, primary constituent elements, and threats.

Comments from Peer Reviewers

(1)

Comment:

The Service should discuss uncertainty in our knowledge of habitat use by bull trout and what habitat features are important to bull trout. Peer reviewers expressed concern about how new information (e.g., regarding bull trout occupancy, and habitat requirements and use) should be integrated into critical habitat protections. Because we do not know what type of disturbance will occur where, or how long those effects may last, there are uncertainties regarding future habitat viability (i.e., what is good habitat today might not be suitable in the future, and vice versa).

Some specific comments include the following. The term “migratory corridors” implies that fish do not occupy these areas for extended periods of time during their life history, but mainstem river habitats are critical for rearing and overwintering. Subadults stay for months and years in these areas

to grow to maturity. Bull trout depend critically on large patches of suitably cold habitat; cold habitat is necessary, but it also has to be very large as well. In addition to connectivity, this is a landscape characteristic that defines the species' local occurrence. In areas where anadromous fish are extirpated or endangered, bull trout have been affected through the loss of abundant prey in the form of parr and smolts, and by a severe reduction in marine-derived nutrients that adult anadromous fish formerly annually returned to interior basins. The PCEs do not address habitat requirements for fry-parr rearing, fry-parr overwintering, adult staging, and adult overwintering. PCE 6 needs to address cobble/boulder substrates with a few fines and abundant interstitial spaces as essential for overwintering bull trout juveniles and resident bull trout. The actual range of spawning temperature is wider and often noted in field observations, but less frequently published. Studies found that fish in cold water did not move outside of cold water to other spawning areas, but there is probably more variation than indicated in the proposed rule (75 FR 2278, January 14, 2010). The implication is that a wider range of habitats may be important for spawning. Finally, it appeared to reviewers that there was an arbitrary distinction drawn between foraging, migration, and overwintering (FMO) and spawning and rearing habitat. In addition, peer reviewers provided additional bull trout life-history information.

Our Response:

The Service agrees there are many uncertainties in the identification and protection of essential bull trout habitat. Uncertainties include an incomplete understanding of important features, uncertainty of future disturbance effects, a lack of data to clearly distinguish between spawning and rearing and FMO habitats, and a lack of information on how the absence of or a reduction in anadromous fish abundance affects bull trout. The PCEs in this final rule represent our best current understanding of habitat requirements for bull trout. The PCEs were developed by working with a broad array of local experts to identify both occupied habitat that contains physical or biological features essential to bull trout conservation, and unoccupied habitat that is essential to conservation. We acknowledge that potential disturbances such as wildfire or invasive species introductions are difficult to predict, but may affect bull trout habitat. To address this concern, we designated critical habitat areas we believe will be sufficient to address variability in the habitat function of individual portions of these habitats over time, based on the best available scientific information. Should it become necessary, we can revise critical habitat to address more complete or additional information (if and when such information becomes available) relative to bull trout conservation.

We have revised the PCEs based on the peer review and other comments, and believe they address all life-history components and habitat needs for bull trout, including the need for large patches of suitably cold habitat. Given the wide range of circumstances and habitats to which PCEs may apply, they necessarily lack absolute specificity and detail. The sections on

Primary Constituent Elements

,

Effects of Critical Habitat Designation

, and

Application of the Jeopardy and Adverse Modification Standards

, below, provide additional context for how the PCEs will be interpreted and implemented.

We acknowledge an imprecise understanding of the distinction between spawning and rearing habitat and FMO habitat on a general and site-specific basis. This final rule acknowledges that bull trout typically spawn over a narrow time window of a couple weeks during periods of decreasing water temperatures, but clarifies that spawning ranges from August to November depending on local conditions (Swanberg 1997, p. 735). When we discuss migratory corridors in this rule, we generally refer to FMO habitat, which includes more than just habitat for migration at limited times of year. We agree that there is considerable uncertainty regarding the role FMO habitat plays in any particular area. We anticipate the need to include spatial and temporal considerations regarding the role of FMO habitat for particular areas during section 7 consultation, and modify those consultations accordingly.

We have a limited understanding of the effects that the loss of anadromous fish had on bull trout, although bull trout appear to continue to thrive in some areas where anadromous fish have been eliminated. However, bull trout populations may have been more robust where anadromous fish were historically also present, or present in greater numbers. For the purposes of this designation, we believe identifying essential habitats regardless of the historic or current presence of anadromous fish provides an opportunity to protect those essential habitats. We anticipate evaluating more closely the role anadromous fish may play in bull trout conservation during recovery planning.

(2)

Comment:

Climate change should be identified as an existing stressor that compounds other stressors, contributing to bull trout decline. Due to the complex interaction of climatic responses and the high degree of uncertainty associated with climate projections, there needs to be some type of criteria (e.g., maximum summer temperatures) in deciding to deemphasize some habitats. One peer reviewer commented the current analysis of climate impacts does not help in thinking about localized climate impacts; it provides a big picture view that is probably a lot more apocalyptic than might actually occur (for example, air may respond a lot more strongly to climate impacts than water temperatures). Maximum air and water temperatures are not always correlated, and changes to air temperatures may not reliably indicate changes to water temperature. Lower-elevation, warmer, marginal habitats should not necessarily be excluded from critical habitat because they still may serve as important migratory corridors during certain times of the year that could link isolated populations. Not including these habitats as critical habitat could result in further habitat fragmentation, population isolation, and associated threats (e.g., reduced genetic diversity.). The Service should address the extent to which such habitats are valued and may be accounted for in recovery planning.

Our Response:

We are unable to predict the site-specific effects of climate change on bull trout habitat throughout the range of the species with certainty, but we did consider climate change as we developed the proposed rule (75 FR 2280, January 14, 2010). For areas that were marginal in terms of adequately providing PCEs for the bull trout, which we believe would be further degraded as a result of climate change, we chose not to identify those areas as critical habitat. However, this rationale was applied only in a few instances. We agree with the peer review comments that these warmer habitats can be essential to bull trout conservation because they facilitate connectivity among otherwise isolated headwater populations of bull trout. In the Klamath Basin, we are designating a larger amount of unoccupied habitat of this type specifically for this reason. In most cases, these areas can serve as migratory corridors in a few cooler months of the year with higher water flows. Also, providing cold-water habitat during low-flow summer months may never have been an important feature of this kind of habitat for bull trout.

(3)

Comment:

While the presence of nonnative invasive species is likely

detrimental to bull trout in most cases, areas with nonnative species present should not necessarily be excluded from critical habitat, as seems to be suggested under PCE 9. Nonnative species can serve as an important forage base where the native fish assemblage has been fractured. The Service should address more clearly how nonnative species impact our evaluation of whether habitats are essential.

Our Response:

We agree with peer reviewer's comments and have revised PCE 9 to reflect the concern. We considered the impact of invasive species to evaluate areas that may have been marginal habitat to begin with. If these areas were additionally compromised because of robust populations of invasive species that would be difficult to control, we are not designating the area as critical habitat if bull trout populations were not reasonably recoverable and the area was not needed for recovery. In some cases bull trout occur in good habitat that is primarily impacted by invasive species. If these populations are essential to recovery and special management actions can be reasonably implemented to control invasive species, we are designating the area as critical habitat. More importantly, this PCE is included here as one key bull trout habitat protection element. So, for example, a Federal action that would introduce an invasive species such as brook trout in a watershed with bull trout critical habitat would be inconsistent with the recovery needs of the species in that area.

(4)

Comment:

The Service should ensure that confining the lateral extent of the critical habitat designation in streams to the bankfull elevation addresses habitat needs. The Service should also clarify what is meant by habitat complexity under PCE 4, and develop appropriate metrics that relate to habitat complexity. In some basins, off-channel habitats may be critical for providing low-velocity habitats for rearing small fish, and the accessibility of these habitats will change with flow. Many of the constituent elements identified for bull trout depend on watersheds as a whole, and other contributing tributaries, not just the reaches that bull trout use. Consequently, it may be difficult or impossible to conserve bull trout by limiting habitat protection and restoration only to the reaches that they use.

Peer reviewer comments related to threats included observations that roads can increase the likelihood of poaching; herbicides and pesticides cause additional agricultural effects; screening of diversions may reduce the impacts of irrigation; negative impacts of flow modifications associated with hydropower and flood control operations, and summer augmentation, may occur in downstream areas; and road crossings may create barriers in addition to barriers already in place from dams.

Our Response:

Activities above the ordinary high water mark can, and often do, impact bull trout critical habitat. Off-channel habitats may be seasonally important for bull trout, and upland management practices such as road construction, use, and maintenance or timber harvest can affect aquatic habitat. Actions that occur upstream in a watershed above bull trout occurrence reaches can also adversely affect designated habitat if not properly conducted. We will implement this rule consistent with our understanding of these effects, and work closely and cooperatively with Federal agencies to ensure any such actions do not adversely modify designated critical habitat.

When we discuss bull trout habitat complexity, we refer to a diversity of pool, riffle, and run habitats in streams, and gravel, cobble, and boulder stream substrates with open interstitial spaces. We also refer to stream channels and their associated riparian habitat areas that collectively function to provide important features such as undercut stream banks, shade, overhanging cover, and large woody debris in streams and other waterbodies. Any Federal actions that would adversely modify these features would be inconsistent with this rule. Examples of these actions could include activities that introduce sediment into streams that clog interstitial spaces, discharge dredged or fill material into stream pool habitat, degrade stream banks, and reduce or remove large woody debris. Because of this habitat complexity across the range of the species, we determined and quantified the habitat needs of the bull trout and defined the PCEs to include the needs of the species across all types of waterbodies within the full range of the bull trout. We have presented additional information for Federal agencies in the sections on

Primary Constituent Elements

and

Section 7 Consultation

, below, to help them consider their future actions and ongoing actions where they have continuing discretionary involvement with regard to conserving the PCEs. With regard to the comment that it may be difficult or impossible to conserve bull trout by limiting habitat protection and restoration only to the reaches that they use, we do not limit the critical habitat designation to occupied habitat. We are designating approximately 1,323.7 km (822.5 mi) of streams and 6,758.8 ha (16,701.3 ac) of unoccupied habitat to address bull trout conservation needs in specific geographic areas.

(5)

Comment:

It is unclear where occupied habitats that are not proposed for designation are located, or where historical populations of bull trout once occurred. It is reasonably arguable that some critical habitat is more critical to the conservation needs of the species than other critical habitat.

Our Response:

Section 3(5)(A) of the Act defines critical habitat, in part, as the specific areas within the geographical area occupied by the species at the time it is listed, on which are found those physical or biological features essential to the conservation of the species which may require special management considerations or protection. Based on this definition, the proposed rule identified a large majority of habitat that was known to be occupied by bull trout at the time of listing. It is uncertain how much habitat may have been historically occupied but is no longer occupied. We used the best scientific information available to include occupied habitat with the features essential to the conservation of the species, as well as unoccupied areas also essential to the conservation of the bull trout. All areas designated as critical habitat in this final rule are essential to the conservation of the species, based on the best available information.

(6)

Comment:

Peer reviewers questioned whether restoration activities in areas that are not designated as critical habitat could be counted as progress in terms of recovery, and whether all areas designated as critical habitat would have to be recovered before declaring overall bull trout recovery. One peer reviewer recommended that the final rule address how bull trout will be protected in reintroduction sites, such as the Clackamas River in Oregon, and how these areas may or may not be linked to the persistence of populations.

Our Response:

These comments will be fully considered as we engage in the recovery planning process. Please see the

Relationship of Critical Habitat to Recovery Planning

section of this rule for more information regarding this effort.

(7)

Comment:

One peer reviewer stated that it wasn't clear whether areas outside of critical habitat are essential to conservation of bull trout, and that if not, biological consultations and

recovery planning and implementation should incorporate these considerations.

Our Response:

This rule designates as critical habitat areas that we have determined to meet the definition of critical habitat under section 3(5)(A) of the Act, except for those areas we have identified and expressly excluded under section 4(b)(2) of the Act. A critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that support populations, but are outside the critical habitat designation, may continue to be subject to conservation actions we implement under section 7(a)(1) of the Act, and are subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard. Please see the

Effects of Critical Habitat Designation

section in the rule for further information.

(8)

Comment:

The Service should explain what has changed from 2005 to 2010 that enabled a determination that unoccupied habitats were essential for the conservation of bull trout in certain areas.

Our Response:

As stated in the proposed rule (75 FR 2273, January 14, 2010), in the 2005 final rule we did not designate any unoccupied critical habitat because the Secretary concluded that it was not possible to make a determination that such lands were essential to the conservation of the species. In the proposed rule and this rule, we were able to identify several habitats not occupied at the time of listing that we believe are essential for restoring functioning migratory bull trout populations based on currently available scientific information. These areas often include lower main stem river environments that can provide seasonally important migration habitat for bull trout. This type of habitat is essential in areas where bull trout habitat and population loss over time necessitates reestablishing bull trout in currently unoccupied habitat areas to achieve recovery.

(9)

Comment:

More detailed and recent literature should be reviewed to support the habitat needs discussion. Updated citations and references that list research and other new information obtained since the original listing should be incorporated into the critical habitat rule.

Our Response:

We agree, and have done so in this final rule.

Comments from States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments we received from States regarding the proposal to designate revised critical habitat for the bull trout are addressed below. We received comments from the Nevada Division of Wildlife, Montana Fish Wildlife and Parks, Oregon Department of Fish and Wildlife, Washington Department of Fish and Wildlife, Washington Department of Natural Resources (WDNR), Idaho Department of Lands, Idaho Office of Species Conservation, and Idaho Department of Fish and Game related to biological information for specific waterbodies, critical habitat exclusions, and economics. These agencies provided additional information and made recommendations for revisions to the final critical habitat designation in several specific areas. Two agencies expressed specific support for the Service's approach to designating critical habitat.

(1)

Comment:

We received several comments from State resource agencies presenting site-specific biological information on areas that should or should not be considered essential habitat, and the underlying rationale for those recommendations.

Our Response:

The information received from our State resource agency partners was very helpful, and enabled us to refine our understanding of habitat essential to the conservation of the species, and in the case of occupied habitat, habitat that contains physical or biological features that may require special management considerations or protections. We based the proposed rule on the best available information at that time; we requested technical input from a variety of partners, including the States, to help us refine the final critical habitat designation. The final rule has been adjusted, accordingly, including modifying boundaries of critical habitat units, based on our partners' site-specific biological expertise with the species.

(2)

Comment:

We received comments from some State agencies identifying concerns with the draft economic analysis, which included failure to consider costs related to bull trout recovery, failure to request economic information from the State prior to publication of the proposed rule, and costs to forest land management.

Our Response:

These comments have been addressed below in the section of the final rule that responds to all comments we received on the draft economic analysis.

(3)

Comment:

Some commenters recommended that we exclude lands subject to State conservation planning efforts, or that we rely on existing habitat protections, such as State forest practice rules, rather than designating critical habitat in those areas.

Our Response:

We disagree. It would be inappropriate to rely on other protections such as state forest practice rules or similar large-scale programs that have not been subject to review under the Act as an alternative to critical habitat designation, based on the uncertainty of protections that would be afforded to the physical or biological features essential to bull trout conservation. Uncertainty regarding future funding, and revisions and implementation of those plans is also a concern. However, some State conservation planning efforts related to finalized habitat conservation plans (HCPs) have resulted in our exclusion of areas from critical habitat designation under section 4(b)(2) of the Act. Please see the

Exclusions

section below for additional information.

(4)

Comment:

One State agency commented that the Service proposed a vast and over-reaching critical habitat designation without first acquiring the requisite site-specific information required by the Act. The State agency also commented that, without future refinement, the designation would lead to unnecessary regulation on otherwise lawful activities. The agency also expressed concern that the Service ignored information regarding the agency's position when forming the basis for the revised critical habitat designation.

Our Response:

As required by section 4(b)(2) of the Act, we used the best scientific data available in determining areas that contain the features essential to the conservation of bull trout for the proposed rule. Data sources included research published in peer-reviewed journals and previous Service documents, including the final listing determination (64 FR 58909, November 1, 1999), the bull trout draft recovery plan (Service 2002), and the bull trout 5-year review (Service 2008). In the proposed rule, we requested comments or information from the public, other concerned government agencies, the scientific community, industry, and other interested parties, which included a specific request for information regarding areas essential to the conservation of the species. Because of the court-ordered deadline for delivery of a proposed rule to the

Federal Register

, our strategy was to work closely with our resource management partners after publication of the proposed rule, and use their biological expertise to help us refine the final critical habitat designation. This final

rule incorporates that information, as appropriate.

(5)

Comment:

One State agency commented that the designation of critical habitat for bull trout invites the potential for additional regulatory burdens to be placed on landowners, persons holding public land permits, and industries. The agency also commented that while the Service is already consulting on projects with a Federal nexus under section 7 of the Act, the bar is now arguably raised as reinitiation of consultation will be required to ensure permitted activities do not adversely modify critical habitat.

Our Response:

The Service believes any additional regulatory burdens resulting from the designation of critical habitat in occupied areas will be minimal. The rationale for this determination is that the species was listed under the Act because of threats to habitat, and section 7 consultations are already required to address any habitat-related impacts associated with Federal actions. Although it is theoretically possible, we have been unable to identify any specific type of Federal action that could adversely modify critical habitat in occupied areas that would not also result in a jeopardy finding for the same action. Accordingly, we do not believe the regulatory bar has been raised in occupied areas. Designating critical habitat adds educational value in these areas by identifying habitats that should be prioritized for recovery actions as opportunities arise. While critical habitat may result in additional conservation requirements for Federal actions in unoccupied areas, we do not believe this would be a significant impact because these areas constitute only 4 percent of the total critical habitat area being designated in this final rule. Federal agencies will need to consider the adverse modification of critical habitat in future section 7 consultations, and may need to reinitiate consultation on existing actions where they have continued discretionary involvement or control if the activity may affect designated critical habitat. However, we anticipate the overall result of reinitiation will be minor because of the similarity between measures needed to avoid the destruction or adverse modification of critical habitat and measures needed to avoid jeopardizing the species. In addition, consultation tools such as streamlining and programmatic consultations are commonly implemented to minimize the administrative costs associated with consultation within the range of bull trout.

(6)

Comment:

Concern was expressed that if all unoccupied critical habitat had to be recolonized and recovered before bull trout could be delisted, the uncertainties and potential costs associated with this requirement would be high.

Our Response:

One of the greatest conservation benefits of critical habitat is the designation of unoccupied habitat that is essential to the conservation of a listed species. For bull trout, unoccupied habitat plays an important role in restoring connectivity between currently isolated headwater populations via lower mainstem river habitats. The Service does not believe all designated unoccupied habitat would necessarily need to be recolonized and restored to declare recovery, and we would take into consideration the status of adjacent populations (e.g., their robustness in relation to threats). For example, nearby occupied habitats could currently be in an imperiled status, but by restoring bull trout in adjacent unoccupied habitat, the overall recovery potential in that area could be improved. We anticipate that the bull trout recovery planning process and our continued progress towards achieving recovery goals will provide more precision with regard to identifying the restoration needs of specific habitat areas.

(7)

Comment:

Two State agencies expressed support for the Service's approach to designating critical habitat, stating that: (1) The approach generally provides the breadth of habitat necessary to support bull trout in a fully recovered state and includes significant portions of aquatic habitat that are currently not occupied or disconnected due to anthropogenic (i.e., human-caused) factors; and (2) the approach contains those areas essential for the conservation of the bull trout.

Our Response:

We appreciate this support from our partners, and the helpful site-specific information they presented in response to the request for information in the proposed rule.

(8)

Comment:

The Washington Department of Natural Resources presented information supportive of excluding lands covered under the final State HCP and the final Forest Practices HCPs. The Montana Department of Natural Resources presented information supportive of excluding streams and rivers intersecting forested Montana State Trust lands that would be covered under a draft HCP from the final bull trout critical habitat rule.

Our Response:

Please refer to the discussion of the Forest Practices HCPs in our responses to Public Comments below and in the

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

section under

Exclusions

in this final rule. The WDNR State lands HCP is discussed under the

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

in this rule.

When considering HCPs, draft land-management plans, and draft conservation agreements, the Service can consider the certainty of implementation or the lack thereof, especially if there are no established procedures to ensure that the final instrument will produce the anticipated benefits. The Service believes that, in general, it is inappropriate exclude areas that are covered by draft conservation programs or plans, because their proposed conservation measures are subject to change. Without a high degree of assurance that conservation measures will be implemented and effective for a particular species and its habitat, we cannot complete a meaningful analysis under section 4(b)(2) of the Act.

Federal Agency Comments

Bureau of Land Management

(1)

Comment:

The Service should exclude Bureau of Land Management (BLM)-administered lands from critical habitat designation.

Our Response:

The Secretary of the Interior may exclude an area from critical habitat designation under section 4(b)(2) of the Act after taking into consideration the economic impact, the impact on national security, and any other relevant impact if he determines the benefits of exclusion outweigh the benefits of specifying such area, unless he determines the exclusion would result in the extinction of the species concerned. The primary benefit of including an area within critical habitat designation is the protection provided by section 7(a)(2) of the Act that directs Federal agencies to ensure that their actions do not result in the destruction or adverse modification of critical habitat. The benefit of designating critical habitat is limited if the areas under consideration occur on private lands for which there may not be a Federal nexus to invoke the protections of section 7(a)(2) of the Act. Federal lands by default have a Federal nexus, and the intent of section 7 of the Act is to require Federal agencies to consult on any action authorized, funded, or carried out by such agency to ensure that the action will not jeopardize a listed species or destroy or adversely modify its critical habitat. In addition, section 7(a)(1) of the Act states, in part, “Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act

by carrying out programs for the conservation of endangered and threatened species.” Therefore, the benefits of inclusion of these areas are greater because they are Federal lands.

We requested specific information from the BLM describing: (1)Activities being conducted and planned that conserve bull trout or the physical or biological features identified in the proposed critical habitat rule; (2) the status of management plans, including the geographic area covered, date finalized, date implementation was initiated, timeline for future revisions, and the amount of critical habitat affected by the plan; (3) specific management measures that conserve the physical or biological features in the plan area; (4) conservation benefits associated with the plan; (5) information on plan implementation, including the level of certainty and uncertainty that exists with regard to conservation commitments and funding assurances continuing into the future; and (6) the plan's effectiveness related to biological goals and objectives, implementation progress, monitoring, adaptive management provisions, and schedule. We also requested specific examples of completed projects that have improved the status of bull trout within a particular plan area.

Although specific information was not presented, we did receive some information from the BLM on Areas of Critical Environment Concern (ACEC) Plans, the Wild and Scenic River Management (WSR) Plans for the Deschutes and Lower Crooked Rivers in Oregon, and the Willamette Basin Water Quality Restoration Plan (WBWQ) to support their request for the exclusion of BLM-administered lands from critical habitat designation. The BLM also resubmitted comments that were prepared for the Service's consideration for the 2005 bull trout final critical habitat rule; those comments summarize several management plans and guidance documents, such as agency memorandums, BLM Manual chapters, Land Health Standards, Pacific Anadromous Fish Strategy (PACFISH), Inland Fish Strategy (INFISH), National Fire Plan, Healthy Forests Restoration Act of 2003 (16 U.S.C. 6501

et seq.

), Wilderness Study Areas, Interior Columbia River Basin Ecosystem Management Project, Road Density and Land Management recommendations, and Regional Executive/Line Manager Oversight/Communication roles. We have reviewed the information that was submitted in light of the October 3, 2008, Memorandum Opinion from the Department of the Interior's Office of the Solicitor “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under section 4(b)(2) of the Endangered Species Act” (DOI 2008), and the best available information. We were unable to confirm that the BLM's management plans and guidance documents provide a conservation benefit for bull trout comparable to critical habitat designation, or that designation of critical habitat on BLM lands would present a disproportionate economic or other relevant impact. The Secretary has elected not to exercise his discretion under section 4(b)(2) of the Act to exclude BLM-administered lands from this revised critical habitat designation. However, we are committed to working efficiently and proactively with the BLM to address their program administration needs, in light of the conservation needs of bull trout.

(2)

Comment:

The BLM commented, “The BLM does not agree and the guidance issued in the October 3, 2008, Solicitors Opinion does not support the conclusion that if something meets the Federal agency obligation under section 7(a)(1) it should automatically be precluded from exclusions under section 4(b)(2).”

Our Response:

The proposed rule does not state that actions taken to comply with section 7(a)(1) of the Act preclude consideration of those actions for purposes of section 4(b)(2) of the Act; however, it does state that Federal land management plans, in and of themselves, are generally not an appropriate basis for excluding essential habitat. Federal agencies have an independent responsibility under section 7(a)(1) of the Act to use their programs in furtherance of the Act and to utilize their authorities to carry out programs for the conservation of endangered and threatened species. In areas where Federal land management agencies actively manage for bull trout and its habitat, conduct specific conservation actions for the species at a level comparable to critical habitat designation, provide assurances that a plan will remain in effect for a relevant period of time, and show that a disproportionate impact would result from the designation, exclusion under section 4(b)(2) of the Act may be appropriately considered by the Secretary.

(3)

Comment:

Conservation measures within the Northwest Forest Plan (NWFP), Aquatic Conservation Strategy (ACS), and PACFISH/INFISH are currently still in place and continue to be adequate to provide for the conservation of bull trout.

Our Response:

We recognize the extensive planning and development that has been invested in these efforts, and commend the BLM's efforts to conserve federally listed species on their lands. However, as stated in the proposed rule (75 FR 2273), large-scale Federal land management plans such as the NWFP and its aquatic component (the ACS), and other plans such as PACFISH/INFISH, are in and of themselves generally not an appropriate basis for excluding essential habitat. These plans typically guide agency activities, and provide some level of conservation benefit in occupied bull trout habitat areas, but are fluid documents that may or may not be revised, based on resource availability, management emphasis, and changes in management direction to respond to changing agency priorities.

(4)

Comment:

The designation of critical habitat would not offer any additional protections to bull trout beyond those currently provided.

Our Response:

We acknowledge in the proposed rule that since the primary threat to bull trout is habitat loss or degradation, the jeopardy analysis under section 7 of the Act for a project with a Federal nexus will most likely evaluate the effects of the action on the conservation or functionality of the habitat for bull trout. We also stated that, in many cases, the analysis of a project to address designated critical habitat would be comparable to the jeopardy analysis, and for many circumstances the outcome of the consultation to address critical habitat would not result in any significant additional project modifications or conservation measures (75 FR 2291, January 14, 2010). A possibility exists that a section 7(a)(2) consultation on a future BLM project would result in a determination that an action would result in the destruction or adverse modification of bull trout critical habitat. In accordance with our current policy, in cases where the Secretary determines the benefits of inclusion (designation) are equal to or outweigh the benefits of exclusion, he may not make an exclusion (USDOI 2008, p. 24).

(5)

Comment:

The designation of critical habitat would impose additional regulatory burdens that would increase the process and administrative costs, and this money would be more appropriately directed at implementing protection measures on the ground.

Our Response:

The analyses that result from the consultation provisions under section 7(a)(2) of the Act constitute a regulatory benefit of critical habitat, and Federal agencies must consult with the Service on discretionary actions that may affect listed species. Federal agencies must

also analyze the effects of an action on critical habitat, which is a separate and different analysis from that of the effects to the species. We anticipate that, in some cases, this consultation would translate to the implementation of on-the-ground bull trout conservation measures. Avoiding the costs associated with the designation of critical habitat would be the principal benefit of excluding an area under section 4(b)(2) of the Act. We appreciate the BLM's concern that the designation of critical habitat may impose additional regulatory burdens and increase administrative costs; however, the BLM did not present any information characterizing the magnitude of that impact. In order to make a section 4(b)(2) exclusion or critical habitat designation determination, the Secretary must gather the available information about the economic and other relevant impacts that would result from his decision (DOI 2008, p. 15). We have no information available that would indicate that the regulatory and administrative burden that may result from the designation of critical habitat on BLM lands presents a disproportionate impact to the agency that outweighs the regulatory benefit of designating critical habitat on those lands.

(6)

Comment:

The conservation benefit of designating critical habitat would only be realized when the Service determines the action would destroy or adversely modify critical habitat and reasonable and prudent alternatives are issued, which is rare.

Our Response:

We agree that adverse modification determinations are rare, because in the majority of section 7 consultations the Service is able to work in partnership with Federal agencies to identify ways to accomplish agency management objectives, comply with the Act, and conserve species and their habitats on managed lands. However, in some cases, we may determine a proposed Federal action would alter the physical or biological features of critical habitat to an extent that appreciably reduces its conservation function for bull trout. Under these circumstances, an adverse modification finding for the proposed action would be warranted. There may be additional conservation benefits to consultation on adverse effects that is not limited to adverse modification situations, because an agency may modify an action in advance to avoid any effects to critical habitat and avoid the need for consultation.

(7)

Comment:

Because any conservation benefits realized through the section 7(a)(2) process would already be occurring in areas occupied by bull trout, additional conservation benefit would only occur in areas designated as critical habitat where the species is not present.

Our Response:

As stated in the proposed rule, when consulting under section 7(a)(2) of the Act, independent analyses are conducted for jeopardy to the species and adverse modification of critical habitat (75 FR 2291, January 14, 2010). In occupied bull trout habitat, any adverse modification determination would likely also result in a jeopardy determination for the same action. As such, project modifications that may be needed to minimize impacts to the species would coincidentally minimize impacts to critical habitat. Accordingly, in occupied critical habitat, it is unlikely, although possible, that an analysis would identify a difference between measures needed to avoid the destruction or adverse modification of critical habitat from measures needed to avoid jeopardizing the species. Alternatively, in unoccupied critical habitat, we would not conduct a jeopardy analysis. However, measures to avoid the destruction or adverse modification of critical habitat may be necessary to ensure that the affected critical habitat area can continue to serve its intended conservation role for the species, or retain the physical or biological features related to the ability of the area to periodically support the species (75 FR 2291, January 14, 2010).

U.S. Forest Service

(1)

Comment:

The U.S. Forest Service (USFS) believes excluding Federal lands continues to be a valid procedure. They recommended that we exclude from critical habitat designation all occupied bull trout habitat on all USFS-managed lands, as well as unoccupied habitat in the Northwest Forest Plan area, but the USFS acknowledged other factors are used by the Service to decide which lands and waters meet the criteria for critical habitat designation or exclusion.

Our Response:

We have reviewed USFS request in light of the October 3, 2008, Memorandum Opinion from the Department of the Interior's Office of the Solicitor “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under section 4(b)(2) of the Endangered Species Act” (DOI 2008), and the best available information. We are unable to confirm that the USFS' management activities under the NWFP or other management plans provide a conservation benefit for bull trout comparable to critical habitat designation, or that designation of critical habitat on USFS lands would present a disproportionate economic or other relevant impact. In light of the foregoing, the Secretary has elected not to exercise his discretion under section 4(b)(2) of the Act to exclude USFS-managed lands from this revised critical habitat designation. However, we are committed to working efficiently and proactively with the USFS to address their program administration needs, in light of the conservation needs of bull trout.

(2)

Comment:

The guidance issued in the 2008 Solicitor M-Opinion does not support a conclusion that if something meets the Federal agency obligation under section 7(a)(1), it should automatically be precluded from exclusions under sections 4(b)(2) of the Act.

Our Response:

See response to BLM comment (2) above.

(3)

Comment:

Conservation measures within the Northwest Forest Plan, Aquatic Conservation Strategy, and PACFISH/INFISH are currently still in place and continue to be adequate to provide for the conservation of bull trout.

Our Response:

See response to BLM comment (3) above.

(4)

Comment:

Because any conservation benefits realized through actions that used the section 7(a)(2) process would already be occurring in areas occupied by bull trout, The USFS believes the additional conservation benefits of designation would occur only in areas designated as critical habitat that are not actually occupied by bull trout.

Our Response:

See response to BLM comment (4) above.

(5)

Comment:

After the final rule, the USFS will need time to reinitiate and conclude interagency cooperation on many ongoing Federal actions involving critical habitat, and to initiate and conclude new consultations for actions in the process of being developed in occupied and unoccupied critical habitat areas. To facilitate this consultation workload, the USFS requested that the effective date of the final rule be delayed for 120 days (similar to the National Marine Fisheries Service's (NMFS) final rule designating critical habitat for listed anadromous fish populations).

Our Response:

Although we appreciate the concern, we have no authorization under the court's remand order to delay the effective date of the rule. However, the Service is committed to working closely and efficiently with our Federal agency partners to meet both their management needs and the conservation needs of bull trout in designated critical habitat areas affected by their actions.

(6)

Comment:

Because critical habitat, by definition, includes those habitats essential to the conservation, and ultimately restoration, of the species, the USFS believes streams on Federal lands that meet critical habitat criteria should be explicitly designated by rule, rather than relying on other planning processes to “de-facto” cover these essential conditions. This helps clarify priority areas, internally and with partners, for habitat conservation and improvement-related efforts that will support recovery planning and implementation. The USFS expressed support for designation of critical habitat on National Forest System lands where bull trout can logically be expected to recover. The agency also supported the designation of critical habitat for all areas that are known to have existing populations of bull trout and the designation of tributaries that drain into known spawning habitats.

Our Response:

We appreciate the comment, and are designating critical habitat on certain National Forest System lands.

(7)

Comment:

The six new recovery units seem too large to measure recovery should it take place, or be a reachable goal. The old set of 27 smaller recovery units made sense because they were at a scale that is realistic to manage and evaluate the effects of recovery actions.

Our Response:

This comment is beyond the scope of the final rule. However, there may be a need to revise the existing draft recovery plan or consider alternative recovery unit boundaries to effectively manage and evaluate the effects of recovery actions in each critical habitat unit. We are conducting preliminary work to develop a revised draft recovery plan, with the goal of developing a final bull trout recovery plan in the future.

Bureau of Reclamation

(1)

Comment:

For existing dams, it is unclear how the current condition of the habitat with the dam in place can threaten the physical or biological features of the specific areas being designated as those areas, if occupied, can only be designated if the physical or biological features essential to the conservation of the species are found under the existing conditions (i.e., with the dams in place). The Bureau of Reclamation (BOR) recommended the following language for inclusion in the final rule: “While critical habitat is designated in streams and reservoirs where flows and volumes fluctuate due to water management activities, these are existing conditions that were found at the time of listing. The lateral extent described for those streams and reservoirs influenced by water management activities is considered the upper limit of the critical habitat designation and changes in flows and volumes are acceptable.”

Our Response:

To qualify as critical habitat, an occupied area need not contain all PCEs; one is sufficient. We acknowledge that the adverse modification standard would not require an action agency to create PCEs in occupied areas where such PCEs were wholly absent at the time the areas were designated as critical habitat. Moreover, not all adverse effects on PCEs that are present would rise to the level of adverse modification. We must be cautious, however, not to imply that fluctuating conditions would never constitute an adverse modification of designated habitat for the reason that “these are existing conditions that were found at the time of listing.” This would be a flawed approach, for two reasons:

(1) The fact that an existing Federal project is not presently adversely modifying critical habitat does not mean that the same operations would not result in adverse modification under future circumstances. As the section 7 regulations make clear, analysis for jeopardy and adverse modification is heavily dependent on context, and relies on consideration, not only of the effects of the Federal action itself, but also the current baseline, the effects of interrelated and interdependent actions, and the cumulative effects of future non-Federal activities (50 C.F.R. §402.02). Thus, a stream that has adequate flows now, despite Federal diversions, might not have adequate flows in the future as a result of drought or non-Federal diversions. Even if the amount of the Federal diversion does not change, its effect on the PCEs could be more substantial if the context changes. Context plays a critical role in the adverse modification analysis, and it would be improper to prejudge the outcome of future consultations.

(2)Such an approach might lead to the erroneous conclusion that, if a designated area contains essential features, those features are already in a condition that is ideal for bull trout, and therefore any Federal action that maintains the status quo would not cause adverse modification. It is possible for an area to be less than ideal for bull trout, yet contain features that are essential to the species' conservation, because there is no better habitat available to serve an essential function such as migrating, spawning or rearing. An area designated for spawning habitat, for example, might have sufficient clean gravel to provide for some spawning, yet still be suffering some degradation as a result of sedimentation from roads. Depending on the context, a Federal action that causes such sedimentation to continue could constitute adverse modification.

Specifically, the lateral extent of critical habitat in lakes and reservoirs is defined by the perimeter of the waterbody as mapped on standard 1:24,000 scale topographic maps, and the Service assumes in many cases this is full pool level. Defining the lateral limits in reservoirs and lakes in this manner is consistent with the approach taken for streams. Within streams, the critical habitat designation includes the stream channels within the designated stream reaches with the lateral extent defined by the bankfull elevation on one bank to the bankfull elevation on the opposite bank. In cases where the bankfull elevation is not evident on either bank, the ordinary high-water line determines the lateral extent of critical habitat. Conditions at some lakes or reservoirs allow a range of flows to occur. However, a full range for one reservoir may operate from full pool to run-of-river (zero pool) annually, while another reservoir may operate from full pool with a built-in minimum conservation pool to address specific water quality requirements. Reservoir operational requirements related to bull trout critical habitat would be evaluated during the section 7 consultation process on a specific lake or reservoir basis. Accordingly, we are unable to include the statement in the final rule that was requested by the BOR, because the section 7 consultation process has not been concluded.

(2)

Comment:

Lake Cascade and Phillips Reservoir should not be designated as either occupied or unoccupied critical habitat, because they would at best minimally provide two or three PCEs on a seasonal basis and the abundance and spatial arrangement of the minimal PCEs provided would not rise to the level of providing the physical or biological features essential for conservation.

Our Response:

We are designating stream segments and lakes or reservoirs that contain habitat seasonally to connect and to promote bull trout migratory life-history expression. Maintaining connectivity between bull trout local populations through the restoration and protection of main stem

rivers is a major emphasis for bull trout recovery. The designation of critical habitat in occupied habitat is based on whether lakes or reservoir contain one or more PCEs either seasonally or year-round. We identified two major habitat types (spawning and rearing, and FMO); both of these reservoirs were identified as FMO habitat in the proposed rule. We have determined that Phillips Reservoir is essential for the conservation of the species, because it provides FMO habitat seasonally, during the fall, winter and spring.

In a comment letter we received from the Oregon Department of Fish and Wildlife (ODFW) (March 10, 2010), they specifically recommended inclusion of Phillips Reservoir: “ODFW recommends extending critical habitat designations downstream to the confluence with the Snake River. Specifically we recommend including the mainstem Powder River from Phillips Reservoir downstream to the mouth including Phillips and Thief Valley Reservoirs. This designation would provide the opportunity for connectivity among local populations and full life history expression and to provide consistency with application of the seven guiding principles for bull trout conservation, as well as consistency with other designations in the state.” We agree with their assessment. Inclusion of Phillips Reservoir is key to restoring connectivity between local bull trout populations, which is essential to maintaining a viable bull trout population in the Powder River core area.

However, based on the best available scientific information (including new site-specific biological information provided by the BOR), we are not designating Lake Cascade as critical habitat. We agree with the BOR that Lake Cascade lacks several of the essential habitat features, is not confirmed to be occupied by bull trout, and poses too many obstacles to be useful in bull trout conservation. Habitat connections essential for metapopulation dynamics and genetic interchange, which are important to maintaining a viable bull trout population, are lacking. Exotic species have also extensively colonized Lake Cascade, further complicating bull trout recovery (BOR 2010, pers. comm.).

(3)

Comment:

The BOR provided site-specific biological information on bull trout use in the Powder River, Malheur River, and Southwest Idaho River Basins Units, and made several recommendations for clarifications and revisions in the final rule.

Our Response:

The Service received numerous comments from various Federal agencies including the BOR. The Service reviewed all site-specific comments, and we have revised the final critical habitat designation based on information contained in our files and new information received during the comment period, as appropriate. The final critical designation for the Powder River, Malheur River, and Southwest Idaho River Basins fully considered the information presented by the BOR.

Department of Energy, Bonneville Power Administration

(1)

Comment:

The Federal Columbia Power System (FCRPS) hydropower dams operating under the Service's and the National Oceanic and Atmospheric Administration's (NOAA) Biological Opinions for the FCRPS and Willamette River and within congressionally authorized operating ranges are part of the environmental baseline. Given the extensive management of operations of the FCRPS reservoirs consistent with bull trout and salmonid Biological Opinions, the Service should clarify that the FCRPS reservoirs are managed in a manner that is sufficiently protective to achieve the biological features essential to the conservation of bull trout.

Our Response:

The Service will assess whether the current management of the FCRPS is sufficient to conserve bull trout with regard to the action described in the biological assessment after we participate in section 7 analyses with the appropriate action agencies involved. The purpose of critical habitat is to identify specific geographic areas that contain the physical or biological features essential for the conservation of an endangered or threatened species and that may require special management considerations or protection. Biological opinions are not conservation plans and do not have specific measures that address the long-term conservation needs of bull trout with regard to PCEs, but rather, they evaluate the effects of particular projects on listed species or its critical habitat. Biological opinions are the formal basis for disclosing NOAA's or the Service's opinion on whether the Federal action will result in jeopardy of a species or adverse modification of critical habitat, and are specific to a particular proposed Federal action. See

Section 7 Consultation

, below, for additional information.

(2)

Comment:

The Bonneville Power Administration (BPA) requested that the Service identify any likely instances where the current FCRPS operations under the Biological Opinions might be detrimental to bull trout critical habitat, and address any potential conflict between two or more listed species and the requirements of two regulatory agencies. The BPA also requested that the Service address whether the current FCRPS or Willamette operations may have to be substantially altered from operations that would otherwise be required under the relevant Biological Opinions. If alterations are identified, the Service should describe how those alterations have been considered in the economic analysis of the impacts of designation.

Our Response:

It is possible that some future operational alterations may be undertaken as a result of bull trout critical habitat designation, although the specific extent to which project modification costs for the FCRPS or Willamette Project will increase as a result of this designation is unclear. We did not receive any specific data from BPA that would facilitate additional analysis; however, this potential concern is particularly complex because most of the proposed area on the Upper Willamettte River was designated as critical habitat in 2005. The Final Economic Analysis (FEA) applied the best available information and methods to estimate potential incremental impacts. Although section 4 of the Act establishes requirements for listing species and designating critical habitat, it does not address Federal agency requirements under section 7 of the Act, which addresses the need for Federal agencies to consult on the effects of their actions on listed species. Potential FCRPS operations will be analyzed for their effects on bull trout critical habitat once section 7 consultation is reinitiated.

(3)

Comment:

The bankfull width for streams and perimeter of the water as mapped on standard 1:24,000 scale topographic map definitions for the lateral boundaries of critical habitat could imply that any drawdown or lowering of those levels would adversely affect the designated critical habitat. Lake and reservoir drawdown is within the authorized range of FCRPS and other hydro projects and is required to meet Federal project purposes such as flood control, irrigation, power production, and at times to meet requirements under FCRPS biological opinions. These activities do not necessarily negatively affect bull trout, and in some circumstances, may actually benefit bull trout.

Our Response:

Section 7 of Act requires that Federal agencies confer or consult with the Service on their actions; it is during such conference or consultation that the effects of the action on critical habitat will be analyzed. This designation does not

result in modifications of current biological opinions, but may result in the need for reinitiation of consultation in some cases. A determination regarding the beneficial, neutral, or detrimental nature of effects of a particular Federal action would be made during section 7 consultation for that specific activity.

U.S. Small Business Administration, Office of Advocacy

(1)

Comment:

The U.S. Small Business Administration's Office of Advocacy encouraged the Service to conduct outreach to county governments and other small municipal bodies to further examine the economic impact of the critical habitat designation to determine whether any reasonable alternatives exist that would accomplish conservation goals while providing needed regulatory relief to small entities. The Office indicated that, through these discussions, the Service may determine to exclude particular areas from critical habitat designation under section 4(b)(2) of the Act.

Our Response:

As noted as in the final economic analysis (FEA), there are numerous baseline regulations in place for several fish species whose ranges overlap bull trout, including conservation protections for salmon and steelhead, that provide coincident protections for bull trout and its critical habitat. These protections apply to most of the lands currently occupied by bull trout (96 percent). Annualized incremental impacts to small entities considered represent 51 percent of total incremental impacts estimated in the rest of the FEA, and less than 0.6 percent of annual revenues for all activities. Given the history of regulation and baseline protections already in place, we do not believe county governments or small municipal bodies will experience any appreciable incremental economic impacts from this designation. Accordingly, no areas are being excluded from critical habitat designation based on economic impacts. Please refer to the section below that addresses comment responses to the economic analysis for further information in this regard.

Department of the Navy

(1)

Comment:

The U.S. Department of the Navy commented that national security impacts would occur if critical habit were to be designated in the Dabob Bay Range Complex (DBRC), Quinault Underwater Tracking Range (QUTR), and Crescent Harbor. The additional regulatory requirements imposed by the designation may delay, restrict, or prohibit the implementation of required training and testing in these areas. The Navy requested that the Service exclude the existing training areas and the proposed extensions of the DBRC and QUTR areas currently being evaluated in their Environmental Impact Statement from designation as critical habitat under section 4(b)(2) of the Act.

Our Response:

Under section 4(b)(2) of the Act, we are required to consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist if such areas are designated as critical habitat. Please see the

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

section below for more information regarding the analysis of the above Navy facilities.

National Park Service

(1)

Comment:

Crater Lake National Park, a unit of the National Park Service, indicated that designation of critical habitat in Annie Creek is appropriate based on historic records and the connectivity of Annie Creek with other stream networks known to contain bull trout. The Park supported returning the lower Sun Creek irrigation canal to a more natural alignment to increase connectivity and benefit recovery of the Sun Creek population. The Park noted that designation of critical habitat within the irrigation system should not preclude efforts to restore the natural Sun Creek channel.

Our Response:

The Service has been working with Federal, State, and local partners to develop a plan for reconnecting Sun Creek with its historic (i.e., natural) connection with the Wood River. This connection would allow movement of bull trout between Sun Creek, the Wood River, and Annie Creek. These unoccupied areas that were identified in the proposed rule are essential for the conservation of bull trout in the Upper Klamath Lake critical habitat subunit, and are being designated as critical habitat.

Comments from Native American Tribes

(1)

Comment:

In response to the tribal coordination identified in the

Summary of Comments and Recommendations

section above, we received comments from several Tribes, including the Confederated Tribes of the Umatilla Indian Reservation, Puyallup Tribe of Nations, Confederated Tribes and Bands of the Yakama Nation, Jamestown S'Klallam Tribe, Quinault Indian Nation, Upper Skagit Indian Tribe, Lower Elwha Klallam Tribe, Shoshone-Paiute Tribes of the Duck Valley Indian Reservation, Confederated Tribes of the Warm Springs Reservation of Oregon, Swinomish Indian Tribal Community, Nisqually Indian Tribe, Coeur d'Alene Tribe, Nez Perce Tribe, Kalispel Tribe of Indians, Blackfeet Tribe, Muckleshoot Indian Tribe, and Burns Paiute Tribe. We also received a comment letter from the Northwest Indian Fisheries Commission. Most Tribes requested exclusion from critical habitat designation based on: (1) Secretarial Order 3206, which states, in part, that critical habitat shall not be designated in areas that may impact tribal trust resources, tribally-owned fee lands, or the exercise of tribal rights unless it is determined essential to conserve a listed species; (2) section 4(b)(2) of the Act; and (3) existing tribal resource management plans that are protective of bull trout. Other Tribes expressed support for the proposed critical habitat revision and did not request exclusion of their lands. One Tribe requested exclusion of their lands, except for the portion of tribal land that shares a boundary with nontribal interests.

Our Response:

Federal agencies are obligated to consult with Tribes based on their unique relationship with the Federal government. We have evaluated the Tribes' past and ongoing efforts to conserve bull trout and have weighed the benefits of including or excluding tribal lands in the designation under section 4(b)(2) of the Act. We have also taken into consideration the requirements under Secretarial Order 3206; however, any exclusions have been considered only under section 4(b)(2) of the Act, as that is the only statutory authority that provides the Secretary the discretion to exclude areas from critical habitat designation. Please see the

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

section below for more information regarding this analysis.

Public Comments

(1)

Comment:

We received several comments comparing the 2010 proposed rule to the 2005 final rule. Most pointed out the irregularities in the rulemaking process identified in a December 2008 Interior Department Inspector General's report, and felt that science played a more prominent and effective role in the 2010 proposed rule. Other commenters indicated the more restricted designation in the 2005 final rule was more appropriate.

Our Response:

This final rule fully considers the findings in the 2008 Inspector General's report, the language in the court's remand order, and comments we received from peer reviewers and others. This final critical habitat designation for bull trout is based on the best scientific information available, as required by section 4(b)(2) of the Act.

(2)

Comment:

We received many comments that presented biological information relevant to the designation of critical habitat, and site-specific information regarding particular waterbodies. Comments also addressed rangewide issues such as information on biological needs in general, PCEs, and the effects of specific types of actions on bull trout. Issues raised included the threats that contributed to listing bull trout under the Act.

Our Response:

We appreciate the information submitted and issues raised. We will address specific issues, including information regarding particular waterbodies and specific threats, in our responses below. In general, past efforts to eradicate bull trout contributed to their decline and led to their protection under the Act. Since the bull trout is now protected under the Act, those eradication efforts can no longer legally occur, and habitat threats are currently the most serious threats. However, we address habitat threats in this final rule.

(3)

Comment:

We received comments on the threat of fine sediment impacts to bull trout stream habitat.

Our Response:

Taking measures to limit the introduction of fine sediment in bull trout critical habitat is important. A PCE has been developed to address this specific concern, and there is a continuing need to evaluate and assess site-specific information to determine the effects of any particular Federal action on sediment delivery and bull trout critical habitat, using the best scientific information available.

(4)

Comment:

We received comments and information regarding the cold water requirements of bull trout.

Our Response:

Bull trout require among the coldest water temperatures of any native salmonid in the Pacific Northwest, and we have developed a PCE to address this specific need.

(5)

Comment:

We received comments on reservoir operations and their effects on bull trout.

Our Response:

In our proposed rule (75 FR 2291, January 14, 2010), we did not mean to imply that reservoir operations would have to be consistently at full pool to avoid adverse modification of critical habitat. Project-specific analyses would be the best tool to identify bull trout critical habitat protection needs with regard to the relevant PCEs in a particular area. We have included clarifying language in this rule to address the issue. See the response to Bureau of Reclamation comment (1) and the

Adverse Modification Standard

section below for additional information with regard to section 7 consultation considerations for bull trout critical habitat.

(6)

Comment:

We received a number of comments recommending the designation of the upper Clark River in Montana between Flint Creek and Warm Springs Creek, based on ongoing restoration efforts directed toward re-establishing a migratory corridor for bull trout and restoring adequate stream flow and temperature regimes. The restoration is anticipated to re-establish a migratory corridor and essential foraging and overwintering habitat for bull trout, and provide additional genetic diversity for bull trout populations that have been fragmented by the construction of Milltown dam for nearly a century.

Our Response:

Bull trout are present in the upper reaches of Warm Springs Creek and Flint Creek, tributaries at the upstream extent of this section of the upper Clark Fork River. The likelihood of migratory bull trout occupancy in the upper Clark Fork River has increased as a result of the 2008 removal of Milltown dam. The condition of the physical or biological features essential to the conservation of the species has improved as a result of the dam removal and will continue to improve with the ongoing restoration activities in the Clark Fork River. This area provides an important migratory corridor and will provide for increased genetic exchange between migratory bull trout populations in the Clark Fork River, meets the definition of critical habitat, and meets the selection criteria for inclusion in critical habitat. Consequently, we agree with the commenters that this reach of the Clark Fork River is essential for the conservation of bull trout. The inclusion of this 100.8 km (62.7 mi) reach of the upper Clark Fork River increases the critical habitat designation for the Clark Fork River basin by less than 2 percent. We have long recognized the importance of this reach of the upper Clark Fork River as an historical migratory corridor for bull trout, which we have considered potentially occupied but undocumented bull trout habitat. This area was proposed as critical habitat in the November 29, 2002, proposed rule (67 FR 71331), and identified as Unit 2, Clark Fork River Basin, Subunit iv - Upper Clark Fork River. We did not include this area in the September 26, 2005, final critical habitat designation (70 FR 56212), because at that time we did not find the PCEs present and therefore this area did not meet our selection criteria. No unoccupied habitat was designated in the 2005 final rule. In preparing the January 14, 2010, reproposal (75 FR 2269), we re-examined the record, including the State of Montana's MFISH database, and found that hard documentation of bull trout occupancy of this reach over the last 20 years was lacking. However, the sampling was not comprehensive and we acknowledge that low levels of undocumented bull trout occupancy likely occur in this lengthy stream reach. The determination not to include this reach in the 2010 proposed rule was a difficult choice, based on a decision to not propose any critical habitat in Montana where occupation by bull trout could not be documented with fish survey records or other hard documentation. Due to the known presence of bull trout in the upper reaches of Warm Springs Creek at the upstream extent of this section of the upper Clark Fork River, at least a portion of which are thought potentially represent the migratory life history form, there is further circumstantial evidence that migratory bull trout may temporarily or seasonally occur in this reach of the upper Clark Fork River. Accordingly, section 7 consultation is conducted on Federal actions that may

affect bull trout. The likelihood of bull trout occupancy has also increased since 2008, as a result of the removal of Milltown Dam, which removes a barrier to bull trout migration in this reach. Because of the removal of Milltown Dam and the ongoing and planned habitat restoration actions, we no longer believe that the PCEs in this reach of the Clark Fork River are limiting to occupancy by migratory bull trout, on at least a seasonal basis. Based on comments and data we received in response to our request for information in the January 14, 2010, reproposal (75 FR 2269), we now find PCEs present in this area and determine that this area does meet the selection criteria and is essential for the conservation of the species. Therefore, we are including it in our final designation.

(7)

Comment:

We received many comments from a variety of sources suggesting we consider designating critical habitat upstream of Big Falls on the mainstem Deschutes River in Oregon.

Our Response:

Under section 3(5)(A) of the Act, specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions under section 4 of the Act can be designated as critical habitat, if such areas are essential to the conservation of the species. We are not designating bull trout critical habitat in the Deschutes River basin upstream of Big Falls on the mainstem Deschutes River. The lower Deschutes River bull trout populations

are some of the healthiest and most stable populations in Oregon, and the designation of unoccupied habitat in this area is not essential to the conservation of the species. However, we have initiated a feasibility assessment to evaluate the capability of the upper Deschutes River to support bull trout, and support recovery of bull trout populations in the upper basin to the extent practicable.

(8)

Comment:

We received several comments related to climate change. Most said that it is an important issue and bull trout may be disproportionately affected because they have the coldest water temperature requirements of any native salmonid in the Pacific Northwest. Some commenters deny that climate change is occurring, question the underlying science, and reject its consideration in this rule.

Our Response:

The earth's climate has changed throughout history, and an overwhelming proportion of climate scientists worldwide agree change is continuing today. We acknowledge this is a complex issue, and there may be some uncertainty over all the causes and precise manifestations of change. Given these uncertainties, one objective of this final rule was to identify and protect those habitats that we believe will provide resiliency for bull trout use in the face of climate change. We will undoubtedly have to adapt management approaches as we learn more. We agree that bull trout management actions should stem the impacts of climate change where opportunities to do so exist. Bull trout may be among the species most sensitive to the effects of climate change, and protection of bull trout cold-water habitat would help protect the ecosystems upon which they and other species depend. Some of the least disturbed watersheds may serve this purpose.

(9)

Comment:

We received two requests for an additional public hearing near Portland, Oregon, to supplement the hearing that was conducted in Boise, Idaho, on February 25, 2010. We also received four requests for an extension of the comment period.

Our Response:

Because of time constraints related to our court-ordered deadline for submittal of a final rule to the

Federal Register

, we were unable to conduct an additional public hearing. However, we did hold a public meeting near Portland, Oregon, during the public comment period, and reopened the comment period from March 23 through April 5, 2010, to provide additional opportunity for interested parties to provide information to the Service.

(10)

Comment:

We received several comments regarding connectivity of bull trout habitats to provide for migration between key habitat types. The comments either emphasized the need for connectivity to recover bull trout, or expressed concern that in some cases, connectivity could harm bull trout by allowing introgression of invasive species or disease.

Our Response:

Bull trout are highly migratory, and connectivity among patches of occupied habitat is essential to their conservation. Accordingly, we are designating critical habitat to facilitate connectivity in this final rule. However, connectivity may be limited in scope and degree in areas where FMO habitat provides the necessary PCEs for only a few months of the year, and perhaps only in higher water flow years. Limited or sporadic historical connectivity is likely reflected in the high degree of genetic distinctness among bull trout populations in relatively close proximity to one another, which is greater than expected when compared to other species, such as salmon and steelhead. However, some degree of connectivity over time may allow refounding of populations that are either at risk of becoming extirpated or that have become extirpated. We agree that in some cases, restoring connectivity might be detrimental to bull trout, if it introduces nonnative predatory or competitive species into those habitats. We will evaluate these areas on a case-by-case basis using the best scientific information available, to ensure we maximize bull trout conservation potential.

(11)

Comment:

We received several comments regarding the extent of critical habitat, specific waterbodies that may or may not be essential, or areas that may or may not have the physical or biological features essential to bull trout conservation.

Our Response:

As required by section 4(b)(2) of the Act, we used the best scientific data available in determining areas that contain the features essential to the conservation of bull trout. In occupied habitat, each of the areas we are designating either contains those physical or biological features essential to the conservation of the species, which may require special management considerations or protection, or in the case of unoccupied habitat, has been determined to be essential for the conservation of the species. This final rule applies the best scientific information available to identify those areas, including the extent of critical habitat needed to conserve the species.

(12)

Comment:

We received comments concerning the need for numerical ranges or standards for PCEs, and PCE interpretation.

Our Response:

Due to the range of habitat required for bull trout across all types of waterbodies and across the range of the species, we have not identified narrow-range, specific-to-one-area PCEs for the bull trout, but rather have identified broader, more general PCEs that are required for all life-history needs and stages of the bull trout, and which apply throughout the range of the bull trout. Moreover, water quality and quantity and other habitat needs are often influenced by the type of habitat used by bull trout (e.g., spawning and rearing) and season of use (e.g., May or June migratory habitat). Additionally, wet or dry water years may significantly influence the quality of habitat potentially available to bull trout. We have included language in the

Primary Constituent Elements

section of this final rule that identifies the physical, hydrological, and biological conditions the PCEs have been designed to protect, to provide context for PCE interpretation and application.

(13)

Comment:

We received comments related to the role of critical habitat in recovery.

Our Response:

Critical habitat designation can contribute to the overall recovery strategy for a species. However, it does not, by itself, achieve all recovery plan goals. In developing this final rule, we considered the conservation relationship between critical habitat and recovery planning. The designation of critical habitat can help prioritize recovery tasks and focus recovery efforts in areas essential for conservation. Habitat restoration actions may compete more successfully for Federal funding if they occur in areas designated as critical habitat for species listed under the Act. Please see the section below on

Relationship of Critical Habitat to Recovery Planning

for additional information.

(14)

Comment:

We received comments related to critical habitat and section 7 consultation requirements.

Our Response:

Please see the section below on the

Effects of Critical Habitat Designation

for information related to section 7 consultation requirements.

(15)

Comment:

We received comments regarding the effects of specific actions on bull trout related to stream hydrograph, stream flow, and stream temperature requirements. There was also a concern that maintaining a naturally functioning hydrograph conflicts with protecting spring flows.

Our Response:

PCE 7 is designed to address hydrologic functions that

conserve bull trout by identifying the importance of peak, high, low, and base flows that fall within historic and seasonal ranges, or if controlled, minimize flow departures from a natural hydrograph. However, we do not believe maintaining a naturally functioning hydrograph conflicts with protecting natural spring flows. To the contrary, the flexible and inclusive language of PCE 7 can encompass protecting the natural hydrograph associated with these discharges. Since some streams flood annually and others do not, different special management prescriptions may be appropriate, depending on particular circumstances. These special management needs would appropriately be considered during section 7 consultation, as discussed later in this final rule.

(16)

Comment:

We received several comments on the exclusion of specific areas from this designation, with some arguing for exclusion of specific habitats or broader categories of habitats, while others argued against the same.

Our Response:

Please refer to the

Exclusions

section below for a detailed discussion of this issue.

(17)

Comment:

Some commenters specifically opposed the exclusion of the lands covered by the Washington State Forest Practices Habitat Conservation Plan (FPHCP) from critical habitat designation. One commenter and the State of Washington supported the exclusion of the FPHCP. Opponents of exclusion commented that the needs of anadromous salmon and steelhead, not bull trout, largely dictated the final forest practice rule set in the FPHCP, and that the forest practice rules are not sufficiently protective of headwater streams and near-surface ground waters, springs, and seeps in headwater catchments. They also stated that Washington's forest land is being converted to other uses at an alarming rate, and that failure to designate critical habitat on lands currently covered by the FPHCP would deprive habitats essential for bull trout recovery from protection. One commenter stated HCPs are not required to provide a net benefit to the species. One commenter stated the FPHCP does not protect bull trout from activities that cause or contribute to global warming and global climate change, and stated the HCP does not protect bull trout or its habitat from the widespread application of pesticides and herbicides that occur on forestlands. They were also concerned the implementation of the HCP is not advancing at an adequate level, and that the lack of progress has been the focal point of attention at the highest levels of the State agencies charged with overseeing its implementation. One commenter stated current economic conditions related to Washington State's budget and reduced Federal funding have resulted in future funding of the adaptive management plan being severely reduced or even unlikely, and that crucial monitoring and adaptive management studies have already been postponed or cancelled by the State.

Other commenters stated critical habitat designation does not provide any greater protection or enhancement of bull trout habitat for forest management activities on private and State lands in Washington beyond what is already provided by the FPHCP, and designating critical habitat would discourage similar partnerships and weaken stakeholder support for the existing plan. They also stated that the Service should concentrate resources on participation and technical support for the FPHCP adaptive management program, rather than expending them on administrative requirements.

Our Response:

HCPs are considered one of the tools available that can help effect recovery. In order to obtain a permit under section 10 of the Act, an applicant must meet the issuance criteria identified at 50 CFR 17.32, which include minimizing and mitigating any incidental take of listed species to the maximum extent practicable while conducting their covered activities. One of the commenters noted that HCPs are not required to provide a net benefit; however many HCPs do provide a net benefit compared to the alternative of no HCP and no incidental take permit. The FPHCP rules and program as a whole require the maintenance and restoration of aquatic and riparian habitat. Among the multiple goals of the FPHCP is the goal to restore and maintain riparian habitat on non-Federal forest lands to support a harvestable supply of fish. The FPHCP was developed with an emphasis on salmonids, including bull trout, and focuses on providing needed flows, temperature, substrate, habitat, and connectivity by addressing habitat protection and natural processes and regimes, which benefits bull trout and other native species. The role of adaptive management in HCPs is often poorly understood. In some cases, adaptive management may specify the direction of change either through requiring additional measures or reducing measures. While the Service may at times rely on adaptive management in evaluating an HCP, in the FPHCP, we evaluated conservation measures that were already dictated by the forest practice rules enacted by the State of Washington and by the assurances that the conservation measures would occur. We have reviewed the funding budgeted by the State for adaptive management studies under the FPHCP, and believe that it is adequate for purposes of bull trout conservation. The Service anticipated some delays and implementation issues as a program this large is applied over time, and we continue to monitor the progress of this adaptive program. See the

Exclusions

section in this final rule for additional discussion and evaluation of the benefits of the FPHCP.

(18)

Comment:

We received several comments on the role of Federal lands, most of which requested that we include Federal lands in this designation rather than excluding them as was done in the 2005 final rule. One commenter suggested that designating critical habitat on Federal lands could empower third parties to litigate more effectively.

Our Response:

Exclusion of Federal lands from the 2005 final rule was one of the primary reasons for litigation, and one of the primary inconsistencies found by the Inspector General in his 2008 report. As previously discussed, the Service agrees Federal lands should not be excluded from critical habitat designation based solely on large-scale land management plans. In addition, the Service believes by collectively implementing a proactive and collaborative approach to addressing the recovery needs of bull trout, the risk of litigation should be minimized.

(19)

Comment:

We received some comments expressing concern about the effects of wildfire on bull trout and the landscape, and that this designation may impact the ability to manage landscapes susceptible to fire.

Our Response:

The Service will continue to facilitate implementation of ongoing or preventative fuel reduction projects through the Act's section 7 consultation requirements, and we have been doing so since bull trout was listed in 1998, and since critical habitat was designated in 2005. These cooperative efforts include annual meetings with action agencies and meetings conducted on a project specific basis.

(20)

Comment:

We received several comments from individual citizens, Native American tribes, States, environmental groups, and groups representing interests such as ranching, logging, and agriculture, which supported protection of bull trout habitat, and doing so in a manner sensitive to the needs of local residents and resource users.

Our Response:

The Service agrees that protecting bull trout critical habitat will have multiple, wide-ranging benefits,

and commits to working with all interested parties to protect habitat in a way that respects the interests and needs of local residents and resource users.

(21)

Comment:

We received several comments discussing the relationship between bull trout and other species, including other anadromous fish; the impacts of bull trout on other species; and the impacts of other species on bull trout.

Our Response:

Protecting ecosystems upon which bull trout depend may also conserve other native species that share those ecosystems. We believe efforts to conserve bull trout will generally be complementary to efforts to conserve other native species that coevolved with bull trout, including salmon, steelhead, and Klamath Basin suckers, because each species would have developed traits and behaviors allowing them to coexist. Anadromous fish likely provided a significant input of energy into the ecosystems upon which bull trout depend, but we do not fully understand how their reduction or loss affects bull trout populations. However, we believe the restoration of ecosystem components and the implementation of salmon recovery actions will also help recover bull trout populations.

(22)

Comment:

We received comments on threats posed by invasive species and concerns that further spread of invasive species may affect some bull trout populations. Commenters also stated that restoring each of the habitat components that favor bull trout may reduce the competitive effects in bull trout habitat where invasive species are already present.

Our Response:

Invasive species include potential competitors such as brook trout and brown trout, which represent a threat to bull trout populations. In some cases, currently isolated populations could be threatened if restoring connectivity allows invasive species to access currently isolated habitats. The Service will consider and encourage management of bull trout populations to address this concern, and is working with Federal partners to better understand why bull trout and invasive competitors are able to coexist in certain areas and not in others. The results of this research will help to inform recovery actions with respect to the removal of nonnative species and bull trout recovery.

(23)

Comment:

Some commenters stated that the effects of livestock grazing can negatively impact bull trout habitat quality. Alternatively, other commenters believe grazing and habitat conservation can co-occur.

Our Response:

The bull trout listing rule for the Klamath River and Columbia River Distinct Population Segment (63 FR 31647, June 10, 1998), and the Jarbidge River Distinct Population Segment (64 FR 17110, April 8, 1999) acknowledge that livestock grazing contributed to the decline in bull trout abundance and distribution. Depending on how it is managed, grazing in riparian areas can reduce cover, reduce streambank stability, increase stream temperatures, reduce fish prey, and change stream geometry by making channels wider and shallower. We do not believe livestock grazing and fish and fish habitat conservation are mutually exclusive in all cases, provided appropriate special management needs for particular areas are implemented.

(24)

Comment:

We received comments expressing concern about the potential effects of timber harvest and mining on bull trout habitat, and effects of critical habitat designation on those activities.

Our Response:

The Service agrees that forestry and mining practices can impact bull trout habitat. We will continue to work cooperatively with land managers and operators to implement bull trout conservation measures in a manner consistent with the operators' needs to the maximum extent practicable.

(25)

Comment:

We received several comments regarding the public participation process for this rule. Some commenters expressed concern over the opportunity to comment, some expressed concern with the quality of maps provided in the proposed rule, some expressed frustration with having to navigate the Federal website to submit their comments, and others stated that compliance with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321

et seq.

) was required.

Our Response:

Service outreach efforts began in late 2009 and continued in early 2010. We issued press releases, published legal notices in local newspapers, contacted and coordinated with Native American Tribes, met with State officials, and communicated through a variety of means to individuals with interest in commenting on the rule. The initial comment period was extended to accommodate further input from interested private individuals, State and Federal agencies, or others. One public hearing was conducted in Boise, Idaho, and several public meetings were conducted at centralized locations within areas affected by the critical habitat designation. With regard to NEPA, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not prepare environmental analyses as defined by NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the

Federal Register

on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (

Douglas County

v.

Babbitt

, 48 F.3d 1495 (Ninth Cir. 1995), cert. denied 516 U.S. 1042 (1966)). As suggested by commenters, the Service has published simplified maps in the

Federal Register

with this final rule, and has made more detailed maps available on its web site,

http://www.fws.gov/pacific/bulltrout/

, or by request from the Oregon Fish and Wildlife Field Office, 2600 S.E. 98th Ave, Suite 100, Portland, OR 97266, telephone 503-231-6179.

(26)

Comment:

We received several specific comments on road impacts to bull trout habitat.

Our Response:

Roads and other activities above the ordinary high water mark or bankfull elevation of streams, and upstream in watersheds can directly or indirectly impact bull trout habitat in streams. The construction, use, and maintenance of roads may impact bull trout habitat in several ways; for example, roads can act as vectors for introducing sediment to streams and road culverts can block fish passage. To protect bull trout habitat, the Service will continue to evaluate impacts on a site-specific basis and develop appropriate avoidance, minimization, and mitigation measures during section 7 consultation on Federal actions.

(27)

Comment:

We received comments supporting the more prominent role science played in this designation when compared to the 2005 designation, and comments expressing concern over how science was used to identify essential habitat and PCEs. Concerns were also expressed regarding the differences between the 2005 designation and this designation, and the amount of critical habitat proposed in some areas.

Our Response:

We believe the information we relied on to develop this final rule is consistent with accepted scientific standards. The rationale behind the differences between the 2005 final rule and the 2010 proposed rule are explained in the

Summary of Changes from the Previously Designated Critical Habitat

of the proposed rule (75 FR 2273, January 14, 2010), and are primarily associated with fewer section 4(b)(2) exclusions in this rule compared to the 2005 rule. Additional scientific information from peer reviewers, State

fish and wildlife agencies, and Federal agency biologists was used to identify areas with the physical or biological features essential to the conservation of bull trout and additional unoccupied areas essential to the conservation of bull trout in each of the critical habitat units.

(28)

Comment:

We received several comments regarding special management needs for bull trout, most of which addressed concerns over what may be required and how we would regulate management activities to conserve bull trout. We also received comments related to the impact of critical habitat designation on private lands.

Our Response:

In occupied critical habitat areas, special management considerations or protection are required. In some cases, (e.g., Congressionally-designated Wilderness Areas), continued implementation of wilderness designation management measures may be necessary to ensure adequate protection of key spawning and rearing streams, but in other cases avoiding creation of fish passage impediments may be required. Broad prohibitions of any specific actions across the range of bull trout would be inappropriate because the effects of actions can vary widely throughout the range of the species, and the special management needs in those areas may vary accordingly. Although special management considerations and protections are not implicitly required in unoccupied critical habitat areas, we will work collaboratively with Federal agencies to identify ways to ensure unoccupied critical habitat can continue to serve its intended conservation purposes, in light of agency actions that may be proposed in those areas.

Designating critical habitat will help inform private landowners more specifically of the needs and opportunities for bull trout conservation. Private landowners can protect fish and wildlife habitat quickly and efficiently, and they often choose to do so, sometimes in cooperation with and with support from the Service and other government agencies. We agree with the need to work cooperatively with landowners to conserve bull trout.

(29)

Comment:

We received several comments advocating for and against designating unoccupied critical habitat, and comments questioning the regulatory effects of unoccupied habitat designation on Federal agency actions.

Our Response:

The Service believes it is essential to designate unoccupied habitat in order to achieve bull trout recovery. In most cases, this includes lower elevation main stem river FMO habitats important for seasonal connectivity among existing upstream populations. We anticipate that many of these FMO habitats may only be important during certain times of year to support bull trout migration. With regard to the regulatory effect of designating unoccupied habitat, when consulting under section 7(a)(2) of the Act in designated critical habitat, independent analyses are conducted for jeopardy to the species and adverse modification of critical habitat (75 FR 2291, January 14, 2010). In unoccupied critical habitat, Federal agencies may need to implement measures to avoid the destruction or adverse modification of critical habitat to ensure the affected critical habitat area can continue to serve its intended conservation role for the species. Any management needs would be addressed on a case-by-case basis, relative to the specific Federal action under consultation.

(30)

Comment:

We received several comments suggesting that rather than designating critical habitat, we should rely on other protective measures to meet the need for bull trout conservation. Examples included measures that protect critical habitat designated for salmon and steelhead species, State forest practice rules, Federal land management protections, and other commitments to conserve fish habitat within the range of bull trout.

Our Response:

The Service is aware that several other regulatory protections are currently in place in many parts of the range of bull trout, and we appreciate those efforts. We evaluated many of the protective measures suggested by commenters within the context of section 4(b)(2) of the Act, and do not believe any significant new regulatory requirements will result from designating bull trout critical habitat. Nonetheless, under section 7(a)(2) of the Act, Federal agencies are required to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. There may also be educational benefits associated with informing the public of those areas that are most important to bull trout conservation.

(31)

Comment:

We received several comments on the effects of water use on bull trout, and the regulatory effect the designation of critical habitat could have on water use. Most commenters were concerned that their ability to use water for irrigated agriculture might be impacted by this designation, and recommended that we carefully evaluate effects of water use on a site-specific basis, and work closely with irrigators and State agencies.

Our Response:

Any water use effects to designated critical habitat from Federal actions will be addressed on a case-by-case basis through consultation with Federal agencies under section 7 of the Act. The Service intends to work cooperatively with Federal agencies, irrigators, and State agencies to ensure bull trout conservation needs are compatible with their program needs and interests to the maximum extent practicable. In our experience, working collaboratively to address bull trout stream flow requirements provides significant conservation benefits to bull trout. Special management needs in bull trout critical habitat areas would be addressed on a case-by-case basis, but are generally expected to be similar to existing measures that provide protection for this species.

(32)

Comment:

One commenter stated that, in the 2005 rule, the Service excluded a segment of the Clark Fork River in Montana from critical habitat because that segment was in a designated Superfund site, subject to cleanup under the Superfund statute, but the mainstem Coeur d'Alene River was proposed as critical habitat in this rule, even though it, like the Clark Fork, is a listed Superfund site. The commenter stated that the Service has never explained its inconsistent treatment of the Clark Fork River and the Coeur d'Alene River Superfund sites.

Our Response:

We disagree that the 2005 final critical habitat rule excluded a segment of the Clark Fork River because the segment was in a Superfund site, subject to cleanup under the Superfund statute (42 U.S.C. 103, §§ 9601-9628). The 2005 final critical habitat rule states that the segment of the Clark Fork River in question was excluded because it did not have sufficient PCEs to support at least one of the species' essential biological activities, not because it was a Superfund site. In contrast, the mainstem Coeur d'Alene River is identified as a migratory corridor and provides the PCEs necessary for seasonal use (primarily spring and late fall) by migrating bull trout.

Comments on the Draft Economic Analysis

The Service published a draft economic analysis (DEA) concurrent with the proposed rule (75 FR 2269, January 14, 2010). Of the 1,111 public comments we received, 128 were on the DEA. We initially grouped these comments into two main categories: comments on the economic analysis, and comments on economic costs and benefits of critical habitat. We then

performed a separate analysis of all these comments, and further broke down subject matter into 34 separate responses. Comments from each of the 34 economic-related categories are summarized, below, with the Service's responses.

(1)

Comment:

One commenter was concerned that the baseline approach to the economic analysis has been rejected by courts.

Our Response:

As stated in Chapter 2 of the final economic analysis (FEA), the U.S. Tenth Circuit Court of Appeals instructed the Service in 2001 to conduct a full analysis of all of the economic impacts of proposed critical habitat, regardless of whether those impacts are attributable co-extensively to other causes. Since that decision, however, courts in other cases have held that an incremental analysis of impacts stemming solely from the critical habitat rulemaking is proper. For example, in the March 2006 ruling that the August 2004 critical habitat rule for the Peirson's milk-vetch (

Astragalus magdalenae

var.

peirsonii

) (69 FR 47329, August 4, 2004) was arbitrary and capricious, the United States District Court for the Northern District of California stated, “That case also involved a challenge to the Service's baseline approach and the court held that the baseline approach was both consistent with the language and purpose of the Act and that it was a reasonable method for assessing the actual costs of a particular critical habitat designation. . . ‘To find the true cost of a designation, the world with the designation must be compared to the world without it.'” More recently, in

Arizona Cattle Growers' Association

v.

Salazar

, No. 08-15810 (9th Cir. 2010) (Mexican spotted owl 2004 critical habitat designation), the Court of Appeals upheld the Service's use of the baseline approach in preparing the economic analysis and making the ultimate section 4(b)(2) decision. The Ninth Circuit disagreed with the Tenth Circuit's opinion requiring a co-extensive analysis. The Ninth Circuit thought it was more logical to use the impacts resulting from listing the species as a baseline and to limit consideration of areas for exclusion to those where there were impacts above those imposed by listing. It noted that considering costs imposed by the listing of the species made no sense because those listing costs would still be present if the area in question were excluded from critical habitat. Also, on May 27, 2010, the U.S. District Court ruling in

Otay Mesa Property

v.

USDOI

- CV 08-383(RMC)(D.D.C.) stated in part that “FWS has explained its preference for the baseline method and fully explained the analyses that underlie the critical habitat designation for the San Diego fairy shrimp. It need do no more.”

In order to address the divergent opinions of the courts and provide the most complete information to decision-makers, the final economic analysis reports both (a) the baseline impacts of bull trout conservation from protections afforded the species absent critical habitat designation; and (b) the estimated incremental impacts precipitated specifically by the designation of critical habitat for the species. However, the data used in determining our regulatory flexibility analysis reflects only the incremental costs which may be attributable to the designation of critical habitat for the bull trout.

(2)

Comment:

One commenter stated that the economic analysis did not consider the potential for the curtailment of mining production and employment on the main stem and North Fork Coeur d'Alene River, or the upstream tributaries. The commenter also noted the potential for impacts to waste water treatment plants, storm water requirements, other point and nonpoint source discharges, and potential impacts to plans for a Superfund cleanup site located in the Coeur d'Alene basin, which include plans for bank stabilization, channel realignment, and dredging projects.

Our Response:

The mainstem Coeur d'Alene River and North Fork Coeur d'Alene Rivers have been designated as critical habitat for bull trout since September 26, 2005 (70 FR 56212). This critical habitat revision extends the designation into several tributaries of the North Fork Coeur d'Alene and St. Joe Rivers, but does not revise existing critical habitat on the mainstem or North Fork. The commenter did not present any substantive economic information regarding potential impacts of extending the designation, and we have no data indicating that designating critical habitat in the tributaries would have any impacts on mining or other activities beyond those attributable to listing.

(3)

Comment:

Several commenters stated that the economic analysis should incorporate the recent ruling in the Ninth Circuit Court of Appeals,

Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service,

378 F.3d 1059 (9th Cir. 2004), amended by 387 F.3d 968 (9th Cir. 2004). Specifically, commenters point out that the court decided “the jeopardy standard should be applied with reference to whether the proposed action appreciably diminishes the likelihood of both the survival and recovery of a species. By contrast, the prohibition against destruction or adverse modification of critical habitat is triggered at a lower threshold—when sufficient critical habitat is lost so as to threaten a species' recovery even if there remains sufficient critical habitat for the species' survival.” Commenters state much of the analysis is predicated on the idea that a project that would likely jeopardize bull trout would also likely adversely modify its critical habitat and vice versa. Commenters stated that because the jeopardy standard and the adverse modification standard are not synonymous, the DEA should not rely on the assumption that there will be few incremental costs in occupied areas.

Our Response:

As stated in Chapter 2 of the FEA, incremental effects of critical habitat designation are determined using the Service's December 9, 2004, interim guidance on “Application of the ‘Destruction or Adverse Modification' Standard Under section 7(a)(2) of the Endangered Species Act” and information from the Service regarding what potential consultations and project modifications may be imposed as a result of critical habitat designation over and above those associated with the listing of bull trout (Appendix E of the final economic analysis). Specifically, in

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service

, the Ninth Circuit invalidated the Service's regulation defining destruction or adverse modification of critical habitat, and the Service no longer relies on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. In occupied critical habitat, it is unlikely that a section 7 consultation would identify a difference between measures needed to avoid the destruction or adverse modification of bull trout critical habitat from measures required to avoid jeopardizing the species. This conclusion is based on numerous regulatory protections and associated conservation activities that are already occurring in those areas for listed salmon and steelhead, as discussed in the FEA. Alternatively, in unoccupied critical habitat, a jeopardy analysis would not be conducted during section 7 consultation. However, measures to avoid destruction or adverse modification may be necessary to ensure unoccupied areas can continue to serve their intended conservation role for the species.

(4)

Comment:

Several Tribes submitted comments expressing concern about the potential economic impact of the designation on tribal lands. One Tribe requested the

economic analysis specifically address the economic impacts on the Tribe, the Reservation, and tribal trust resources, taking into account “the unique nature of Reservation economies,” and stated “in particular, the analysis must fully analyze the Tribe's ability to use its water, including potential future uses and the effective reallocation of water rights priorities that may be caused by the designation and the cost to the Tribe of such.”

Our Response:

Under Secretarial Order 3206, we consult with affected Indian Tribes when considering the designation of critical habitat in an area that may impact tribal trust resources, tribally-owned fee lands, or the exercise of tribal rights. The Secretarial Order states that critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species, and that in designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands. To estimate the incremental costs of conservation efforts, the economic analysis focuses on activities in areas considered to be unoccupied by bull trout. Incremental costs are those efforts above and beyond the costs undertaken due to existing required or voluntary conservation efforts being undertaken due to other Federal, State, and local regulations or guidelines. In particular the analysis focuses on those areas that do not overlap with salmon critical habitat, since the primary constituent elements identified for salmon are similar to those identified for bull trout, and additional conservation measures in those areas would unlikely be necessary.

To the extent possible, potential impacts to tribal areas are considered in the FEA as part of the unit in which the tribal lands are located. For example, section 7 consultations that may have been undertaken with tribal entities have been included in calculations of administrative costs for applicable units. Information provided in public comments related to particular tribal concerns has been incorporated into Chapters 3 and 4 of the FEA.

(5)

Comment:

Several commenters stated the economic analysis fails to recognize the benefits that might derive from critical habitat designation. Other commenters state it is unclear why benefits have not been quantified. Several comments indicated the Service should have presented a cost-effectiveness analysis or a cost/benefit analysis. A few comment letters also state that by analyzing only the costs associated with the designation, the Service cannot meet the requirements of the Act, and that without analyzing benefits it is arbitrary for the Service to exclude areas from critical habitat designation on the basis of economic impacts.

Our Response:

There are no areas proposed as critical habitat that are being excluded from designation on the basis of economic impacts. Chapter 6 of the DEA discusses the types of benefits that could result from designation of critical habitat for bull trout and explains methods that could be used to estimate benefits and the data that would be required to calculate such estimates. As discussed in Chapter 6 of the DEA, data are not currently available to estimate the incremental economic benefits that could result from designation of critical habitat for bull trout. The primary intended benefit of critical habitat is to support the conservation of endangered and threatened species. Thus, attempts to develop monetary estimates of the benefits of the bull trout critical habitat designation would focus on the public's willingness to pay to achieve the conservation benefits to the bull trout resulting from this designation. Quantification and monetization of species conservation benefits requires information on the incremental change in the probability of bull trout conservation that is expected to result from the designation. No readily available models or studies exist that provide such information. Even if this information existed, the published valuation literature does not support monetization of incremental changes in conservation probability for this species. Similarly, none of the alternative methods suggested (e.g., methods to evaluate losses from fish kills, the Service's Habitat Evaluation Procedures Model, fish market or restaurant value, and replacement cost) would overcome the fact that information is not available to predict the extent and timing of bull trout recovery that could result from designation of critical habitat. The Office of Management and Budget has acknowledged that it may not be feasible to monetize or quantify benefits because there may be a lack of credible, relevant studies, or because the agency faces resource constraints that would make benefit estimation infeasible (U.S. OMB, “Circular A-4,” September 17, 2003, available at

http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf

).

(6)

Comment:

Several commenters suggested that economic benefits of a restored bull trout fishery have been estimated to be $215 million, based on an economic benefits section that was removed from the previous draft 2004 economic analysis.

Our Response:

The Service removed the benefits analysis from the 2004 DEA because of concerns from the Office of Management and Budget (OMB) and the Department over the contingent valuation and benefits transfer methods used. A contingent valuation involves asking someone how much they would pay to continue a specific activity that is threatened by pollution or other factors. For example, one might ask an angler how much he or she would spend to continue fishing for bull trout in clean rivers. Some economists doubt the accuracy of such analyses because of their hypothetical nature and because respondents do not have to follow up their answers with actual payments. Therefore, they may tend to over-value the benefit. The 2004 DEA's discussion of the value of bull trout recreational fishing was a benefits-transfer analysis. A benefits-transfer analysis uses research conducted for one species or purpose to extrapolate results for another species or purpose. OMB's guidelines on the use of benefits transfer state that although benefit-transfer can provide a quick, low-cost approach for obtaining desired monetary values, the methods are often associated with uncertainties and potential biases of unknown magnitude. It should therefore be treated as a last resort option and not used without explicit justification (OMB Circular A-4). As such, these estimates are not included in the FEA. Chapter 6 of the DEA discusses the types of benefits that could result from designation of critical habitat for bull trout and explains methods that could be used to estimate benefits and the data that would be required to calculate such estimates. As discussed in Chapter 6 of the DEA, the Service believes that sufficient data are not currently available to enable us to estimate the incremental benefits that could result from designation of critical habitat for bull trout. Specifically, information is not available to predict the extent and timing of bull trout recovery that could result from designation of critical habitat.

General Comments on Economic Analysis

(1)

Comment:

Several commenters believed the DEA failed to consider the full extent of potential impacts that may occur as a result of the designation of critical habitat. Some commenters stated the DEA only addresses impacts to Federal agencies, and does not consider other impacts to private landowners or

the costs of recovery. Other commenters stated that the DEA did not consider additional impacts to activities such as flood control, including the increased risk of catastrophic flood; and fire management.

Our Response:

Chapter 5 of the FEA estimates the costs associated with section 7 consultation for the bull trout, while Chapter 4 discusses potential incremental impacts (i.e., impacts that are not expected to occur absent critical habitat). The FEA quantifies potential impacts to private landowners, including timber companies, cattle ranchers, crop farmers, and mining companies, that may be affected by the designation. Exhibit 4-4 of the FEA outlines potential conservation measures, affected action agencies, and affected third parties.

The FEA considers impacts that are probable and reasonably foreseeable. While the FEA does not estimate impacts associated with damage resulting from catastrophic flood or fire events, this type of catastrophic event is largely unpredictable. Moreover, the analysis assumes the relevant agencies actively manage to prevent these events, and that these management actions will not be precluded by the designation. The analysis quantifies the potential costs to these agencies of implementing project modifications as well as undergoing section 7 consultation.

Specifically, administrative costs associated with considering possible impacts to fuels reduction and other fire management activities are considered in Chapter 5 of the FEA. As noted in Exhibits D-2 through D-4, more than 21 formal section 7 consultations, 38 informal consultations, and 12 technical assistance efforts are forecast annually related to forest management activities. In addition, forest management costs as quantified in Chapters 3 and 4 of the FEA include project modifications associated with fuel reduction projects, including biologist monitoring time for work occurring within buffer zones.

Administrative costs associated with flood control, bank stabilization, and other instream construction work, are included under “other activities” in Chapter 5 of the FEA. As noted in Appendix D, more than 325 section 7 actions are forecast for “other activities.” Potential incremental project modifications associated with flood control activities are summarized in section 4.1 of the FEA.

(2)

Comment:

A number of commenters noted the proposed designation is likely to have a significant economic impact, citing a potential for $1 billion in impacts. Given the current state of the economy, other commenters expressed concern about impacts related to bull trout conservation placing additional stress on already economically vulnerable industries and areas. Several commenters stated that funds spent on bull trout protection efforts would be better used for other purposes.

Our Response:

The Service acknowledges that the current economic situation creates conditions in which local and regional economies may be less able to absorb any additional regulatory burden. However, this analysis examines a 20-year timeframe, with expected impacts distributed across the entirety of this time period. Moreover, incremental impacts are expected to be relatively small, at approximately $5 to $7 million a year, distributed across 87 counties and four States. Finally, the bulk of these incremental impacts are likely to be borne by Federal and State agencies rather than private landowners. While the analysis also forecasts the potential for approximately $100 million in annualized baseline costs, these impacts are expected to occur regardless of critical habitat designation for bull trout.

(3)

Comment:

One comment suggested the DEA overstated incremental conservation costs associated with the proposed critical habitat and provided various examples to illustrate this. The comment states the range of annualized incremental costs should have been narrower, and that certain costs are inappropriately included as incremental conservation costs. The commenter further states mitigation costs for sediment controls should not be considered incremental since they would be incurred due to forest management practices already in place. Also, the comment states incremental costs above Condit Dam should not be included since this dam is scheduled for removal.

Our Response:

As described in section 4 of the FEA, the analysis of incremental costs focuses on identifying costs that would be associated with unoccupied critical habitat designated in areas that do not overlap with salmon habitat. The range of incremental costs is due to various uncertainties underlying the expected types and costs of conservation measures. Where reliable information was available to narrow this range it was incorporated in the analysis. However, as discussed in the 2004 final economic analysis for the final Columbia and Klamath DPS critical habitat designation (69 FR 59995, October 6, 2004), in the case of costs associated with potential changes to irrigation withdrawals, the likelihood of these costs occurring is not known, leading us to estimate a wide range of impacts. Similarly, we estimated a range of incremental costs associated with forest management projects because the exact scope and type of projects were uncertain. Due to these uncertainties, the high-end scenario may overstate incremental impacts. While there is uncertainty in the estimates of incremental conservation costs presented in the DEA, the Service believes these estimates to be based on the best information currently available, and has made corrections as appropriate based on information provided in public comments.

As discussed in Chapter 3 of the FEA, forest management conservation costs associated with baseline regulations include the Idaho, Washington, and Oregon Forest Practices Acts, and many other Federal regulations. The methodology applied in the analysis was designed to separate out as incremental those costs that would not be incurred but for the critical habitat designation. Thus, based on historical consultation efforts and discussions with the U.S. Forest Service, forecast incremental forest management conservation costs are those costs associated with section 7 consultations that would not occur but for the designation of bull trout critical habitat in unoccupied areas.

We agree with the commenter that once the Condit Dam has been removed, there will not be incremental impacts associated with the area above the dam. As discussed in the FEA (section 4.2.2), incremental impacts in the Lower Columbia River Basin unit are expected to minimal. Once the Condit Dam is removed, projects will need to consider impacts to listed salmon species as well as bull trout.

(4)

Comment:

Several commenters indicated the DEA should not rely on the 2004 and 2005 economic analyses because the information is out of date and because national and regional economies have changed drastically since these analyses were published. Another commenter stated the DEA does not account for the drastic economic downturn in the Northwest, and provided information regarding how the timber industry has changed in the recent past. Also, this commenter indicates the use of the GDP deflator is not appropriate and the DEA should use a more up-to-date regional factor to convert costs to 2010.

Our Response:

In developing the DEA, research was conducted to ensure that the conservation costs forecast in the earlier 2004 and 2005 economic analyses were applicable. Where more

recent relevant information was available, this was incorporated, as appropriate. The 2004 final economic analysis of the Columbia and Klamath populations critical habitat designation was reviewed by three independent technical advisors: Dr. Joel Hamilton, Emeritus Professor of Agricultural Economics and Statistics, University of Idaho; Dr. Lon Peters, president of Northwest Economic Research, Inc., a Portland-based firm that provides economic consulting services to electric utilities; and Dr. Roger Sedjo, senior fellow and the director of Resources for the Future's forest economics and policy program. Similarly, the 2005 economic analysis of the Coastal-Puget Sound, Jarbidge River, and Saint Mary-Belly River populations final critical habitat designation was peer reviewed by Dr. Peters and Dr. Hamilton, as well as by Dr. Bruce Lippke, Professor Emeritus School of Forest Resources, University of Washington. Feedback from these reviewers was incorporated into the 2004 and 2005 final economic analyses as appropriate. The information provided by the commenter regarding changes in the timber industry consisted of articles published in 1999 and 2000, prior to 2004 and 2005 when the original research for this FEA was conducted, and as such, we did not use this information to update the report.

No specific information was provided regarding how the economic downturn in the Northwest is different than the economic conditions in the rest of the country, or how this downturn should be factored in differently in the DEA for the bull trout. The commenter did not provide any regional conversion factor, as suggested, which we could evaluate. Given the large geographic scale of this designation and the types of potential impacts, we determined that the national GDP deflator was the most appropriate figure for use in inflating the conservation costs. We believe we have taken the correct approach by updating costs to current dollars since the previous reports by using the GDP deflator, which takes into account the current state of the national economy.

(5)

Comment:

Several comments indicated confusion about what conservation costs were included as baseline costs. In particular, one commenter is concerned that the DEA did not assess potential economic impacts stemming from State laws that limit activities in designated critical habitat areas. A comment indicated that the DEA did not take into account land and resource management plans (i.e., Land and Resource Management Plans (LRMP) and Resource Management Plans (RMP)) as part of the baseline regulatory conditions. While one commenter is concerned that the DEA did not take into account baseline impacts that could result from reinitiated consultation on the Washington Forest Practices Habitat Conservation Plan (FPHCP), another commenter indicated that costs associated with HCPs should not be included in the analysis. Another commenter notes that it is unclear whether costs associated with the bull trout critical habitat finalized in 2005 are included in the baseline. Various other commenters provided details on baseline conservation costs that were not included in the DEA. In particular, one commenter notes that they have incurred significant expenses providing protection to bull trout under the Idaho Forest Practices Act since 2004, which should have been included in baseline impacts.

Our Response:

The State laws that may limit activities in designated critical habitat are discussed in section 3 of the FEA. The analysis considers State laws, LRMPs, and RMPs as part of the baseline regulatory environment. LRMPs and RMPs are generally developed under the Federal Land Policy and Management Act (43 U.S.C. 1701

et seq.

) listed in Exhibit 3-4. As discussed in section 5.2.2, incremental administrative costs quantified in the FEA include administrative costs associated with reinitiated consultations, such as reinitiation of consultation on the FPHCP. However, incremental conservation costs associated with reinitiation of consultation for the FPHCP are not anticipated, and therefore none are quantified. As discussed in section 2.3.2 of the FEA, no specific plans to prepare new HCPs in response to this critical habitat designation were identified; therefore, no conservation costs associated with HCPs are included in FEA.

Text has been added to section 2 of the FEA to clarify that the analysis considers and estimates the impacts of the rule as proposed and as if the existing 2005 critical habitat designation did not exist. In other words, this analysis considers and estimates the impacts associated with designating areas as critical habitat versus not designating these areas. This analysis is intended to assist the Secretary in determining whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation. These particular areas also include those already designated as critical habitat under the 2005 designation and which are subject to re-examination by the Secretary.

The commenter is correct that the analysis does not fully account for nor include all baseline costs. Section 2.3 of the FEA discusses the Service's approach to conducting the economic analysis and notes that due to extensive overlap between the current proposed designation and the past bull trout critical habitat proposals, and due to the existence of two detailed economic analyses of those past proposals, the FEA focuses on incremental impacts expected to occur after we finalize this designation of critical habitat. Because baseline costs are not solely attributable to the proposed designation, they are considered in the FEA primarily for purposes of providing context, while the incremental impacts are considered to be of primary importance for decision-making purposes. As discussed in section 3.3.1 of the FEA, costs associated with not-before-analyzed occupied areas as well as unoccupied habitat that overlaps with salmon habitat are included in the baseline, but were not expressly quantified in the current FEA. Nonetheless, where additional relevant information on baseline costs not captured in the report was provided in the public comments, it has been added to the FEA.

(6)

Comment:

Several commenters were concerned about potential costs to property owners that could result from the uncertain nature of future regulation. One commenter was concerned that critical habitat designation will result in decreased property values. In particular this commenter states that with the Act's regulation in the background it is reasonable to expect reduced property values of $100 per acre or more. This commenter states that a loss of $100 per acre could reduce their property values by $80 million in Idaho. On the other hand, another commenter states that impacts related to stigma and regulatory uncertainty are unlikely. This commenter further suggests that critical habitat could increase property values, for example by increasing the likelihood of Federal or State subsidies for conservation projects, or by increasing interest in the property for purchase for conservation easements.

Our Response:

Stigma and uncertainty impacts are discussed in section 2.3.2 of the FEA. While there is potential for uncertainty impacts associated with the designation of critical habitat for bull trout, as discussed in the FEA, information is not available to quantify these impacts. Thus, impacts related to uncertainty are not calculated in the FEA. The FEA does not predict or

quantify any impacts related to stigma that could result from the designation of critical habitat for the bull trout. As discussed in the FEA, public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed. However, as the public becomes aware of the true regulatory burden imposed by critical habitat, the impact of the designation on property values may decrease. The analysis considers the implications of public perceptions related to critical habitat on private property values within the proposed designation.

The FEA finds that the bull trout critical habitat designation is unlikely to cause property value losses because much of the property proposed for designation is already being managed in ways consistent with what would be required if adjacent streams were designated bull trout critical habitat. For example, as noted as in the FEA, there are numerous baseline regulations in place that provide protections for bull trout and its critical habitat including conservation protections for salmon and steelhead. In addition, most of the lands are currently occupied by bull trout (96 percent), and 87 percent of the proposed critical habitat was included in previous critical habitat proposals. Thus, given the history of regulation and baseline protections already in place, property value impacts resulting from this critical habitat designation are not considered reasonably foreseeable. The commenter did not provide supporting information for the estimate that critical habitat results in reduced property values of $100 per acre; thus the validity of this estimate cannot be evaluated.

(7)

Comment:

Several commenters noted the DEA did not provide estimates of impacts at a detailed geographic level. As a result, the commenters could not determine how the designation may affect specific stream segments and geographic areas (e.g., individual counties).

Our Response:

The FEA presents impacts based on the 32 units outlined by the Service in the proposed rule. Because the analysis covered almost 37,000 river kilometers (km) (23,000 miles (mi)) and more than 200,000 hectares (ha) (500,000 acres (ac)), and followed a 20-year time horizon, project forecasts and other data were not available at a sufficiently specific level to project impacts by individual stream mile. To the extent possible, the FEA identifies costs to specific areas when information was available. Where potentially affected projects or sites were identified, the FEA attributes impacts associated with these projects to the relevant unit. For example, project modifications associated with facilities that form part of the Federal Columbia River Power System are attributed to the relevant units. Other impacts that are expected to fall on specific types of lands (e.g., lands managed by the U.S. Forest Service) are distributed across the designation based on river mile.

(8)

Comment:

Several commenters stated the DEA failed to consider impacts on economic activities occurring upstream or downstream of critical habitat areas.

Our Response:

The DEA considers potential impacts to activities that may threaten the bull trout as identified by the Service. As discussed in section 2.3.2, the analysis considers indirect impacts to the extent it is possible to identify these types of impacts. Additional detail has been added to Chapters 3 and 4 of the FEA qualitatively discussing potential impacts on upstream and downstream activities. Since 96 percent of designated habitat is occupied by bull trout, any incremental effect of this regulation protecting bull trout habitat would likely be small. However, given data limitations and geographic scope, the DEA analysis does not answer the question of whether impacts to mining or other upstream operations are likely (i.e., the probability of such impacts), or define the expected magnitude of these impacts in any one area.

(9)

Comment:

A commenter states that the numbers in the 2009 report cannot be replicated from the results in the 2004 report.

Our Response:

There are several important reasons why the results of the previous economic analyses are not directly transferable to the current FEA. In particular, to update conservation costs forecast in previous reports, we had to account for three major differences between the current and previous reports. First, the geographic distribution of the proposed designation and unit definitions are different. Second, the framework underlying the economic analysis has changed. Previous reports included co-extensive costs, whereas the current FEA distinguishes between baseline and incremental costs. Third, the timeframe covered by the current analysis has been expanded to 20 years. In order to assist readers in understanding how the previous results are allocated to the new critical habitat units, we have added an appendix to the FEA providing additional information on the connections between previous reports and the current one. With the addition of this appendix, we believe all of the relevant assumptions and information used to predict the baseline and incremental costs are available in the 2010 FEA and the 2004 and the 2005 final economic analyses of bull trout critical habitat.

(10)

Comment:

A commenter notes the source of the 3 and 7 percent discount rates applied in the previous economic analyses is not explained.

Our Response:

Information has been added to Chapter 2 of the FEA to explain the source of the 3 and 7 percent discount rates applied in the analysis. To discount and annualize costs, guidance provided by the Office of Management and Budget (OMB) specifies the use of a real rate of 7 percent. In addition, OMB recommends conducting a sensitivity analysis using other discount rates such as 3 percent.

Economic Benefits Comments

(1)

Comment:

A commenter suggested the Service should have hired a renowned natural resource economist, such as Dr. John Loomis, to calculate the existence values of bull trout. This commenter also suggested the Service should have undertaken a willingness-to-pay study to quantify the benefits of recreational fishing.

Our Response:

As discussed in section 6.1 of the FEA, the existing economics literature does not provide the data necessary to quantify the value the public would place on actions taken to enhance the probability of recovery of bull trout. The estimation of the existence value of bull trout would require primary research involving formal approval from the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501

et seq.

), more than a year to conduct a survey and analyze the results, and significant resources in excess of those allocated to the preparation of the FEA. Similar efforts would be required to conduct a willingness-to-pay study to quantify the benefits of recreational fishing. Such primary research is beyond the scope of this economic analysis. Furthermore, biological models estimating the change in the likelihood of recovery that would result from the designation of critical habitat and information necessary for a credible estimate of willingness to pay are also not readily available. Thus, existing data do not allow for the quantification or monetization of the conservation value that is incremental to the designation of critical habitat.

(2)

Comment:

Commenters suggest that water originating from streams that may be designated as bull trout critical habitat has a value of at least $1.4 to

$1.5 billion based on a report by the U.S. Forest Service.

Our Response:

This U.S. Forest Service report estimates the total volume of water available for use on all Forest Service lands, and applies marginal values for instream and offstream water uses. In order to utilize this information for the purposes of quantifying the benefits of the critical habitat designation for bull trout, additional information would be necessary. Specifically, to apply a marginal value of water to estimate benefits of critical habitat designation we would need quantified estimates of incremental changes in the amount and quality of clear cold water resulting from the designation. The impact of the designated bull trout critical habitat on water quality and quantity has not been modeled.

(3)

Comment:

Various commenters provided information about specific benefits that should have been included in the DEA. In particular, commenters suggested that the analysis should have included benefits such as the value of bull trout as subsistence for tribal members, the reduction in likelihood that other aquatic species will be added to the endangered species list, benefits from closing Forest Service roads, and benefits of mitigating for climate change impacts through efforts to protect bull trout cri

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