Endangered and Threatened Wildlife and Plants: Emergency Listing of the Jarbidge River Population Segment of Bull Trout as Endangered

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1080-AF01

Endangered and Threatened Wildlife and Plants: Emergency Listing

of the Jarbidge River Population Segment of Bull Trout as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service) exercises its

emergency authority to determine the Jarbidge River population segment

of bull trout (Salvelinus confluentus) from the Jarbidge River basin in

southern Idaho and northern Nevada to be endangered pursuant to the

Endangered Species Act of 1973, as amended (Act). The Jarbidge River

population segment, composed of a single subpopulation, is threatened

by habitat degradation from past and ongoing land management activities

such as mining, road construction and maintenance, and grazing.

Recently initiated river channel alteration associated with

unauthorized road construction on the West Fork of the Jarbidge River

is believed to imminently threaten the survival of the Jarbidge River

bull trout population. Because of the need to make the protective

measures afforded by the Act immediately available to the Jarbidge

River population of bull trout and its habitat, the Service finds that

an emergency rule action is justified. This emergency rule provides

Federal protection pursuant to the Act for the Jarbidge River

population of bull trout for a period of 240 days. A proposed rule to

list the Jarbidge River population of bull trout as threatened, which

requested data and comment from the public, was published in the

Federal Register on June 10, 1998. The comment period on the proposed

rule closes on October 8, 1998.

DATES: This emergency rule is effective on August 11, 1998, and expires

on April 8, 1999.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the U. S. Fish and

Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial

Boulevard, Suite 234, Reno, Nevada 89502.

FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor,

Nevada Fish and Wildlife Office (see ADDRESSES section; telephone: 702/

861-6300).

SUPPLEMENTARY INFORMATION:

Background

A complete discussion of this section is contained in the proposed

rule published on June 10, 1998 (63 FR 31693).

Distinct Population Segments

The best available scientific and commercial information supports

designating five distinct population segments (DPSs) of bull trout in

the coterminous United States--(1) Klamath River, (2) Columbia River,

(3) Coastal-Puget Sound, (4) Jarbidge River, and (5) St. Mary-Belly

River. A final listing determination for the Klamath River and Columbia

River DPSs was published in the Federal Register on June 10, 1998 (63

FR 31647), and includes a detailed description of the rationale behind

the DPS delineation. A proposed rule to list the Coastal Puget Sound,

Jarbidge River, and St. Mary-Belly River population segments as

threatened was also published in the Federal Register on June 10, 1998

(63 FR 31693). The approach is consistent with the joint National

Marine Fisheries Service (NMFS) and Service's policy for recognizing

distinct vertebrate population segments under the Act (February 7,

1996; 61 FR 4722). This emergency rule addresses only the Jarbidge

River bull trout DPS.

The Jarbidge River, located in southwest Idaho and northern Nevada,

is a tributary in the Snake River basin and contains the southernmost

habitat occupied by bull trout. This population segment is discrete

because it is segregated from other bull trout in the Snake River basin

by a large gap (greater than 240 kilometers (km) (150 miles (mi)) in

suitable habitat and several impassable dams on the mainstem Snake

River. The occurrence of a species at the extremities of its range is

not necessarily sufficient evidence of significance to the species as a

whole. However, because the Jarbidge River possesses bull trout habitat

that is disjunct from other patches of suitable habitat, the population

segment is considered significant because it occupies a unique or

unusual ecological setting, and its loss would result in a substantial

modification of the species' range.

Status and Distribution

To facilitate evaluation of current bull trout distribution and

abundance for the Jarbidge River population segment, the Service

analyzed data on a subpopulation basis within the segment because

fragmentation and barriers have isolated bull trout. A subpopulation is

considered a reproductively isolated bull trout group that spawns

within a particular area(s) of a river system.

The Jarbidge River DPS consists of one bull trout subpopulation

occurring primarily in Nevada (Service 1998b). Resident fish inhabit

the headwaters of the East Fork and West Fork of the Jarbidge River and

several tributary streams, and low numbers of migratory (fluvial) fish

are present (Zoellick et al. 1996; L. McLelland, Nevada Division of

Wildlife (NDOW), in litt. 1998; K. Ramsey, Humboldt National Forest

(HNF), in litt. 1997). Bull trout were not observed during surveys in

the Idaho portion of the Jarbidge River basin in 1992 and 1995 (Warren

and Partridge 1993; Allen et al. 1997), however, a single, small bull

trout was captured when traps were operated on the lower East Fork and

West Fork Jarbidge River during August through October 1997 (F.

Partridge, Idaho Department of Fish and

[[Page 42758]]

Game (IDFG), pers. comm. 1998). A loss of range likely has occurred for

migratory bull trout (fluvial) in the lower Jarbidge and Bruneau rivers

and perhaps downstream to the Snake River (Johnson and Weller 1994;

Zoellick et al. 1996). Low numbers of migratory (fluvial) bull trout

have been documented in the West Fork Jarbidge River from the 1970's

through the mid-1980's (Johnson and Weller 1994).

The distribution of bull trout in Nevada includes at least six

headwater streams above 2,200 meters (m) (7,200 feet (ft)), primarily

in wilderness areas-- East Fork and West Fork Jarbidge River and Slide,

Dave, Pine, and Jack creeks (Johnson and Weller 1994). Zoellick et al.

(1996) compiled data from 1954 through 1993 and estimated bull trout

population size in the middle and upper headwater areas of the West

Fork and East Fork of the Jarbidge River. In each stream, sampled areas

were located at elevations above 1,792 m (5,880 ft), and population

estimates were less than 150 fish/km (240 fish/mi) (Zoellick et al.

1996).

In general, bull trout represent a minor proportion of the fish

fauna downstream of the headwater reaches; native redband trout are the

most abundant salmonid and sculpin the most abundant fish (Johnson and

Weller 1994). Although accounts of bull trout distribution in the

Jarbidge River basin date to the 1930's, historic abundance is not well

documented. In 1934, bull trout were collected in the East Fork

Jarbidge River drainage downstream of the Idaho-Nevada border (Miller

and Morton 1952). In 1985, 292 bull trout ranging from 73 to 266

millimeters (mm) (2.9 to 10.5 inches (in)) in total length, were

estimated to reside in the West Fork Jarbidge River (Johnson and Weller

1994). In 1992, the abundance of bull trout in the East Fork Jarbidge

River was estimated to be 314 fish ranging from 115 to 165 mm (4.5 to

6.5 in) in total length (Johnson and Weller 1994). In 1993, bull trout

numbers in Slide and Dave creeks were estimated at 361 and 251 fish,

respectively (Johnson and Weller 1994). During snorkel surveys

conducted in October 1997, no bull trout were observed in 40 pools of

the West Fork Jarbidge River or in four 30-m (100-ft) transects in Jack

Creek (G. Johnson, NDOW, pers. comm. 1998). Only one bull trout had

been observed at the four transects in 1992 (Johnson, pers. comm.

1998). However, it is premature to consider bull trout extirpated in

Jack Creek (Service 1998b). There is no information on whether bull

trout have been extirpated from other Jarbidge River headwater

tributaries.

It is estimated that between 50 and 125 bull trout spawn throughout

the Jarbidge River basin annually (Johnson, pers. comm. 1998). However,

exact spawning sites and timing are uncertain (Johnson, pers. comm.

1998) and only two redds have been observed in the basin (Ramsey, in

litt. 1997; Ramsey, pers. comm. 1998a). Presumed spawning streams have

been identified by records of one or more small bull trout (about 76 mm

(3 in)).

Population trend information for bull trout in the Jarbidge River

subpopulation is not available, although the current characteristics of

bull trout in the basin (i.e., low numbers and disjunct distribution)

have been described as similar to that observed in the 1950's (Johnson

and Weller 1994). Based on recent surveys, the subpopulation is

considered ``depressed'' (less than 5,000 individuals or 500 spawners

likely occur in the subpopulation, abundance appears to be declining,

or a life-history form historically present has been lost). Past and

present activities within the basin are likely restricting bull trout

migration in the Jarbidge River, thus reducing opportunities for bull

trout reestablishment in areas where the fish are no longer found

(Service 1998b).

Previous Federal Action

A complete discussion of this section is contained in the proposed

rule published on June 10, 1998 (63 FR 31693).

Summary of Factors Affecting The Species

Procedures found in section 4 of the Act and regulations (50 CFR

part 424) promulgated to implement the Act set forth the procedures for

adding species to the Federal lists. A species may be determined to be

an endangered or threatened species due to one or more of the five

factors described in section 4(a)(1). These factors and their

application to the Jarbidge River population segment of bull trout

(Salvelinus confluentus) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Land and water management activities that degrade and continue to

threaten all of the bull trout distinct population segments, including

the Jarbidge River population segment, in the coterminous United States

include dams, forest management practices, livestock grazing,

agriculture and agricultural diversions, roads, and mining (Beschta et

al. 1987; Chamberlain et al. 1991; Furniss et al. 1991; Meehan 1991;

Nehlsen et al. 1991; Sedell and Everest 1991; Craig and Wissmar 1993;

Frissell 1993; Henjum et al. 1994; McIntosh et al. 1994; Wissmar et al.

1994; U.S. Department of Agriculture (USDA) and U.S. Department of the

Interior (USDI) 1995, 1996, 1997; Light et al. 1996; MBTSG 1995a-e,

1996a-h).

Although timber was historically removed from the Jarbidge River

basin, forest management is not thought to be a major factor currently

affecting bull trout habitat. The steep terrain of the Jarbidge River

basin has been a deterrent to grazing (J. Frederick, HNF, in litt.

1998a); and grazing does not occur in approximately 60 percent of the

watershed. Although much of the remaining 40 percent of public and

private lands are grazed, the effects are localized and considered of

relatively minor importance to bull trout habitat in the Jarbidge River

basin. For example, livestock grazing is affecting about 3.2 km (2 mi)

of the East Fork Jarbidge River and portions of Dave Creek and Jack

Creek (Frederick, pers. comm. 1998; Johnson, pers. comm. 1998).

Ongoing threats affecting bull trout habitat have created degraded

conditions in the West Fork Jarbidge River (McNeill et al. 1997;

Frederick, pers. comm. 1998; Ramsey, pers. comm. 1998a). At least 11.2

km (7 mi) of the West Fork Jarbidge River has been affected by over a

century of human activities such as road development and maintenance,

historic mining and mine (adit) drainage, channelization and removal of

large woody debris, residential development, road and campground

development on U.S. Forest Service lands (McNeill et al. 1997). As a

result of these activities, the riparian canopy and much of the upland

forest has been removed, recruitment of large woody debris reduced, and

channel stability has decreased (McNeill et al. 1997; Ramsey, in litt.

1997; Frederick, in litt. 1998a). These activities reduce habitat

complexity and likely elevate water temperatures seasonally. For

example, water temperatures recorded near Bluster Bridge were 15 to

17 deg.C (59 to 63 deg. F) for 24 days in 1997.

Culverts installed at road crossings may act as barriers to bull

trout movement in the Jarbidge River basin. For example, an Elko County

road culvert had prevented upstream movement of bull trout in Jack

Creek, a West Fork Jarbidge River tributary, for approximately 17

years. Private and public funding was used to replace the culvert with

a bridge in the fall of 1997 (Frederick, in litt. 1998b); however, a

rock structure approximately 300 m

[[Page 42759]]

(1,000 ft) upstream the bridge in Jack Creek may still impede bull

trout movement, at least seasonally during low flows.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Declines in bull trout have prompted states to institute

restrictive fishing regulations and eliminate the harvest of bull trout

in most waters in Idaho and Nevada. Overutilization by angling was a

concern in the past for the Jarbidge River DPS of bull trout. Although

Idaho prohibited harvest of bull trout beginning in 1995, Nevada, until

recently, allowed harvest of up to 10 trout per day, including bull

trout, in the Jarbidge River basin. An estimated 100 to 400 bull trout

were harvested annually in the Jarbidge River basin (Johnson 1990; P.

Coffin, Service, pers. comm. 1994; Coffin, in litt. 1995). Nevada State

regulations were recently amended to allow only catch-and-release of

bull trout starting March 1, 1998 (G. Weller, NDOW, in litt. 1997;

Johnson, pers. comm. 1998). The Service anticipates that this change in

the regulations will have a positive effect on conservation of bull

trout, however, the effects of the new harvest regulations may require

five years to evaluate (Johnson, pers. comm. 1998).

C. Disease and Predation

Diseases affecting salmonids are present or likely present in the

Jarbidge DPS, but are not thought to be a factor for listing bull

trout. However, interspecific interactions, including predation, likely

negatively affect bull trout where non-native salmonids have been

introduced (J. Palmisano and V. Kaczynski, Northwest Forestry Resources

Council (NFRC), in litt. 1997).

D. The Inadequacy of Existing Regulatory Mechanisms

Although efforts are underway to assist in conserving bull trout

throughout the coterminous U.S. (e.g., Batt 1996; R. Joslin, USFS, in

litt. 1997; A. Thomas, BLM, in litt. 1997), the implementation and

enforcement of existing Federal and State laws designed to conserve

fishery resources, maintain water quality, and protect aquatic habitat

have not been sufficient to prevent past and ongoing habitat

degradation leading to bull trout declines and isolation. Regulatory

mechanisms, including the National Forest Management Act, the Federal

Land Policy and Management Act, the Public Rangelands Improvement Act,

the Clean Water Act, the National Environmental Policy Act, Federal

Power Act, State Endangered Species Acts and numerous State laws and

regulations oversee an array of land and water management activities

that affect bull trout and their habitat.

Regulatory mechanisms addressing alterations to stream channels,

riparian areas, and floodplains from road construction and maintenance,

and the effects associated with roads and past mining on water quality,

have been inadequate to protect bull trout habitat in the Jarbidge

River basin. For example, the Jarbidge Canyon Road parallels the West

Fork Jarbidge River for much of its length and includes at least seven

undersized bridges for the stream and floodplain. Maintenance of the

road and bridges require frequent channel and floodplain modifications

that affect bull trout habitat, such as channelization; removal of

riparian trees and beaver dams; and placement of rock, sediment, and

concrete (McNeill et al. 1997; Frederick, pers. comm. 1998; Frederick,

in litt. 1998a). In 1995, debris torrents washed out a portion of the

upper Jarbidge Canyon Road above Pine Creek. The Service has

recommended that this road segment be closed to vehicular traffic and

that a trail be maintained to reduce the effects of the road and its

maintenance on the river (R. Williams, Service, in litt. 1998).

Periodic channelization in the Jarbidge River by unknown parties has

occurred without the oversight provided by the Corps of Engineers Clean

Water Act section 404 regulatory program (M. Elpers, Service, pers.

comm. 1998), and the HNF has been unable to control trespass

(unauthorized road openings) on Federal lands. Several old mines

(adits) are releasing small quantities of warm water and other

contaminants into the West Fork Jarbidge River.

The Nevada water temperature standards throughout the Jarbidge

River are 21 deg.C (67 deg.F) for May through October, and 7 deg.C

(45 deg.F) for November through April, with less than 1 deg.C (2 deg.F)

change for beneficial uses (Nevada Department of Environmental

Protection (NDEP), in litt. 1998). Water temperature standards for May

through October exceed temperatures conducive to bull trout spawning,

incubation, and rearing (Rieman and McIntyre 1993; Buchanan and Gregory

1997).

In 1994, a local Bull Trout Task Force was formed to gather and

share information on bull trout in the Jarbidge River. The task force

is open to any representative from Elko and Owyhee counties, the towns

of Jarbidge (Nevada) and Murphy Hot Springs (Idaho), road districts,

private landowners, NDOW, IDFG, the Boise District of Bureau of Land

Management, HNF, and the Service. The task force was successful in 1997

in obtaining nearly $150,000 for replacing the Jack Creek culvert with

a concrete bridge to facilitate bull trout passage into Jack Creek.

However, the task force has not yet developed a comprehensive

conservation plan addressing all threats to bull trout in the Jarbidge

River basin.

In 1995, the Humboldt National Forest plan was amended to include

the Inland Native Fish Strategy. This fish and wildlife habitat policy

sets a no net loss objective and is currently guiding Forest Service

planning of possible reconstruction of a portion of the Jarbidge Canyon

Road (Ramsey 1997). In June 1998, HNF issued the Jarbidge River

Environmental Assessment for Access and Restoration between Pine Creek

Campground and the Jarbidge Wilderness (HNF 1998).

E. Other Natural or Manmade Factors Affecting its Continued Existence

Natural and manmade factors affecting the continued existence of

bull trout include--previous introductions of non-native species that

compete, hybridize, and prey on bull trout; fragmentation and isolation

of bull trout subpopulations from habitat changes caused by human

activities; and subpopulation extirpations due to naturally occurring

events such as droughts, floods and other environmental events.

Previous introductions of non-native species by the Federal

government, State fish and game departments and unauthorized private

parties, across the range of bull trout has resulted in declines in

abundance, local extirpations, and hybridization of bull trout (Bond

1992; Howell and Buchanan 1992; Leary et al. 1993; Donald and Alger

1993; Pratt and Huston 1993; MBTSG 1995b,d, 1996g; Platts et al. 1995;

Palmisano and Kaczynski, in litt. 1997). Non-native species may

exacerbate stresses on bull trout from habitat degradation,

fragmentation, isolation, and species interactions (Rieman and McIntyre

1993). In some lakes and rivers, introduced species, such as rainbow

trout or kokanee, may benefit large adult bull trout by providing

supplemental forage (Faler and Bair 1991; Pratt 1992; ODFW, in litt.

1993; MBTSG 1996a). However, the same introductions of game fish can

negatively affect bull trout due to increased angling and subsequent

incidental catch, illegal harvest of bull trout, and competition for

space (Rode 1990; Bond 1992; WDW 1992; MBTSG 1995d).

``The smaller and more isolated parts of the range [such as the

bull trout

[[Page 42760]]

remaining in the Owyhee Uplands ecological reporting units or Jarbidge

River basin] likely face a higher risk'' of naturally occurring

extirpation relative to other bull trout populations (Rieman et al.

1997). One such risk is fire. In 1992, a 4,900 hectare (ha) (12,000

acre (ac)) fire (Coffeepot Fire) occurred at lower elevations, up to

2,286 m (7,500 ft), in areas adjacent to the Bruneau River basin and a

small portion of the Jarbidge River basin. Although the Coffeepot Fire

did not affect areas currently occupied by bull trout, similar

conditions likely exist in nearby areas where bull trout occur. Adverse

effects of fire on bull trout habitat may include loss of riparian

canopy, increased water temperature and sediment, loss of pools, mass

wasting of soils, altered hydrologic regime and debris torrents. Fires

large enough to eliminate one or two suspected spawning streams are

more likely at higher elevations where bull trout are usually found in

the Jarbidge River basin (Frederick, in litt. 1998a; Ramsey, pers.

comm. 1998b).

Hybridization with introduced brook trout is also a potential

threat. In the West Fork Jarbidge River, approximately one percent of

the harvest from the 1960's through the 1980's was brook trout (Johnson

1990). Some brook trout may spill out of Emerald Lake into the East

Fork Jarbidge River during peak runoff events, but the lake lacks a

defined outlet so that the event appears unlikely (Johnson, pers. comm.

1994). Although low numbers of brook trout persist in the Jarbidge

River basin, conditions are apparently not conducive to the expansion

of a brook trout population.

Other naturally occurring risks have been recently documented. The

Jarbidge River Watershed Analysis (McNeill et al. 1997) indicates that

65 percent of the upper West Fork Jarbidge River basin has a 45 percent

or greater slope. Debris from high spring runoff flows in the various

high gradient side drainages such as Snowslide, Gorge, and Bonanza

gulches provide the West Fork Jarbidge River with large volumes of

angular rock material. This material has moved down the gulches at

regular intervals, altering the river channel and damaging the Jarbidge

River Canyon road, culverts, and bridge crossings. Most of the river

flows are derived from winter snowpack in the high mountain watershed,

with peak flows corresponding with spring snowmelt, typically in May

and June (McNeill et al. 1997). Rain on snow events earlier in the year

(January and February) can cause extensive flooding problems and has

the potential for mass-wasting, debris torrents, and earth slumps,

which could threaten the existence of bull trout in the upper Jarbidge

River and tributary streams. In June, 1995, a rain on snow event

triggered debris torrents from three of the high gradient tributaries

to the Jarbidge River in the upper watershed (McNeill et al. 1997). The

relationship between these catastrophic events and the history of

intensive livestock grazing, burning to promote livestock forage,

timber harvest and recent fire control in the Jarbidge River basin is

unclear. However, debris torrents may potentially affect the long-term

viability of the Jarbidge River bull trout subpopulation.

The Jarbidge River population segment is composed of a single

subpopulation, characterized by low numbers of resident fish.

Activities such as road construction and maintenance, mining and

grazing threaten bull trout in the Jarbidge River basin. Although some

of these activities have been modified or discontinued in recent years,

the lingering effects continue to alter water quality, contribute to

channel and bank instability, and inhibit habitat recovery. Ongoing

threats include channel and bank alterations associated with road

construction and maintenance, a proposed stream rechannelization

project, recreational fishing (intentional and unintentional harvest),

and competition with brook trout.

Based on the above factors, the Service determined that it was

appropriate to propose listing the Jarbidge River population of bull

trout as threatened, and did so on June 10, 1998. Developments

subsequent to publication of that proposed rule have led the Service to

conclude that it is appropriate to use the Act's emergency provision to

list the Jarbidge River bull trout population as endangered. This

population is endangered by habitat destruction and degradation

resulting from channel alteration associated with recently-initiated,

unauthorized road construction along the West Fork Jarbidge River, and

a substantial risk that this construction will continue. After

carefully assessing the best scientific and commercial information

available regarding the past, present, and future threats faced by the

Jarbidge River population segment of bull trout, and based on the

reasoning discussed below, the Service has concluded that this

population is in imminent danger of extinction throughout all or a

significant portion of its range within the distinct population

segment. The Jarbidge River population segment is, therefore,

endangered as defined in the Act.

Reasons for Emergency Determination

Under section 4(b)(7) of the Act and 50 CFR 424.20, the Secretary

may determine a species to be endangered or threatened by emergency

rule that shall cease 240 days following publication in the Federal

Register. The reasons for this rule are discussed below. If at any time

after this rule has been published, the Secretary determines that

substantial evidence does not exist to warrant such a rule, it shall be

withdrawn.

An emergency posing a significant risk to the well-being and

continued survival of the Jarbidge River bull trout population exists

as a result of channel alteration associated with unauthorized road

construction, and the substantial risk that such construction will

continue. On July 22, 1998, the Elko County Road Department was

actively working in and along the Jarbidge River to repair the Jarbidge

Canyon Road (also referred to as South Canyon Road and Forest

Development Road #064), as directed in a resolution passed by the Elko

County Board of Commissioners on July 15, 1998. On July 22, 1998, a

Forest Service employee reported a 5.6 km (3.5 mi) plume of sediment

downstream from the construction site. Fish and Wildlife Service and

Forest Service staff visited the area on July 23, 1998. They observed

approximately 275 m (300 yards (yd)) of new road where the river had

previously flowed. To create the road, sections of river were roughly

filled with material from adjacent hillsides and debris left by the

1995 flood. The construction activity had completely destroyed all

aquatic habitat in this area. The entire river flow was diverted into a

newly created straight channel lacking pools and cover. All riparian

vegetation, including mature trees, adjacent to the new channel had

been removed. Impacts of resultant sedimentation in areas of the river

downstream are being evaluated. The NDOW and HNF are currently

evaluating the total extent of impacts from the construction. Water

temperatures recorded on July 22, 1998, suggest that this portion of

the river would have supported bull trout prior to the construction

activity.

Elko County stopped the road work at all locations on July 24,

1998, after receiving cease and desist orders from the State of Nevada

and the Corps of Engineers. At present, the Service is concerned that

Elko County will resume the unauthorized road work. Continued

unauthorized reconstruction of the 2.4 km (1.5 mi) of the Jarbidge

Canyon Road damaged by the 1995 flood would result in the direct loss

of 27 percent of the

[[Page 42761]]

known occupied bull trout habitat in the West Fork Jarbidge River (8.8

km (5.5 mi); Johnson and Weller 1994), which has among the highest

reported densities of bull trout within the Jarbidge River DPS (85

fish/km; 53 fish/mi; Johnson and Weller 1994). The road construction

would also indirectly impact an additional 21 km (13 mi) of bull trout

habitat downstream of the construction site in the West Fork Jarbidge

River, and potentially 45 km (28 mi) in the mainstem Jarbidge River.

This construction activity has deposited additional sediment into the

West Fork Jarbidge River; this sediment has been carried downstream

causing further damage to bull trout habitat. Indirect impacts include

alteration of stream flow and water temperature, increased sediment

transport, decreased invertebrate production, disruption of migration

and spawning during August through September caused by stream turbidity

and sedimentation, and decreased survival of eggs and juveniles from

deposition of fine sediment. The combination of direct and indirect

impacts resulting from the unauthorized road construction, and the

substantial risk that the construction will continue, constitutes an

emergency posing a significant risk to the well-being and continued

survival of the already depressed Jarbidge River bull trout population.

Critical Habitat

A complete discussion of this section is contained in the proposed

rule published on June 10, 1998 (63 FR 31693).

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain activities. Recognition through listing encourages and

results in conservation actions by Federal, State, and private

agencies, groups, and individuals. The Act provides for possible land

acquisition and cooperation with the State and requires that recovery

actions be carried out for all listed species. The protection required

of Federal agencies and the prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

Part 402. Section 7(a)(4) requires Federal agencies to confer with the

Service on any action that is likely to jeopardize the continued

existence of a species proposed for listing or result in destruction or

adverse modification of proposed critical habitat. If a species is

listed subsequently, section 7(a)(2) requires Federal agencies to

insure that activities that they authorize, fund, or carry out are not

likely to jeopardize the continued existence of a listed species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into formal consultation with the Service.

The Jarbidge bull trout population segment occurs on lands

administered by the USFS, various State-owned properties, and private

lands. Federal agency actions that may require conference or

consultation as described in the preceding paragraph include COE

involvement in projects such as the construction of roads and bridges,

and the permitting of wetland filling and dredging projects subject to

section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.); USFS

timber, recreational, mining, and grazing management activities;

Environmental Protection Agency authorized discharges under the

National Pollutant Discharge System of the Clean Water Act; and U.S.

Housing and Urban Development projects.

The Act and its implementing regulations, found at 50 CFR 17.21 and

17.31, set forth a series of general trade prohibitions and exceptions

that apply to all threatened and endangered wildlife. These

prohibitions, in part, make it illegal for any person subject to the

jurisdiction of the United States to take (includes harass, harm,

pursue, hunt, shoot, wound, kill, trap, or collect; or attempt any of

these), import or export, ship in interstate commerce in the course of

commercial activity, or sell or offer for sale in interstate or foreign

commerce any listed species. It is also illegal to possess, sell,

deliver, carry, transport, or ship any such wildlife that has been

taken illegally. Certain exceptions apply to agents of the Service and

State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered and threatened wildlife under certain

circumstances. Regulations governing permits are at 50 CFR 17.22,

17.23, and 17.32. Such permits are available for scientific purposes,

to enhance the propagation or survival of the species, and/or for

incidental take in connection with otherwise lawful activities.

It is the policy of the Service, as published in the Federal

Register on July 1, 1994 (59 FR 34272), to identify to the maximum

extent practicable at the time a species is listed those activities

that would or would not constitute a violation of section 9 of the Act.

The intent of this policy is to increase public awareness of the effect

of this listing on proposed and ongoing activities within the species'

range. The Service believes the following would not be likely to result

in a violation of section 9:

(1) Actions that may affect bull trout in the Jarbidge River

population segment and are authorized, funded or carried out by a

Federal agency when the action is conducted in accordance with an

incidental take statement issued by the Service pursuant to section 7

of the Act.

The following actions likely would be considered a violation of

section 9:

(1) Take of bull trout without a permit, which includes harassing,

harming, pursuing, hunting, shooting, wounding, killing, trapping,

capturing, or collecting, or attempting any of these actions;

(2) Possession, sale, delivery, carriage, transportation, or

shipment of illegally taken bull trout;

(3) Interstate and foreign commerce (commerce across state and

international boundaries) and import/export of bull trout (as discussed

earlier in this section);

(4) Introduction of non-native fish species that compete or

hybridize with, or prey on bull trout;

(5) Destruction or alteration of bull trout habitat by dredging,

channelization, diversion, in-stream vehicle operation or rock removal,

or other activities that result in the destruction or significant

degradation of cover, channel stability, substrate composition,

temperature, and migratory corridors used by the species for foraging,

cover, migration, and spawning;

(6) Discharges or dumping of toxic chemicals, silt, or other

pollutants into waters supporting bull trout that result in death or

injury of the species; and

(7) Destruction or alteration of riparian and adjoining uplands of

waters supporting bull trout by recreational activities, timber

harvest, grazing, mining, hydropower development, or other

developmental activities that result in destruction or significant

degradation of cover, channel stability, substrate composition,

temperature, and migratory corridors

[[Page 42762]]

used by the species for foraging, cover, migration, and spawning.

Questions regarding whether specific activities may constitute a

violation of section 9 should be directed to the Field Supervisor of

the Service's Nevada Fish and Wildlife Office (see ADDRESSES section).

Requests for copies of the regulations concerning listed animals and

inquiries regarding prohibitions and permits may be addressed to the

U.S. Fish and Wildlife Service, Endangered Species Permits, 911 NE.

11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-6241;

facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Act. A notice outlining the Service's reasons for this

determination was published in the Federal Register on October 25, 1983

(48 FR 49244).

Required Determinations

This rule does not contain any new collections of information other

than those already approved under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned Office of Management and Budget

clearance number 1018-0094. For additional information concerning

permit and associated requirements for endangered species, see 50 CFR

17.32.

References Cited

A complete list of all references cited herein is available upon

request from the U.S. Fish and Wildlife Service, Nevada Fish and

Wildlife Office (see ADDRESSES section).

Author: The primary authors of this emergency rule include --

Jeffery Chan, Western Washington Fishery Resource Office, Olympia, WA;

Timothy Cummings, Columbia River Fisheries Program Office, Vancouver,

WA; Stephen Duke, Snake River Basin Office, Boise, ID; Robert Hallock,

Upper Columbia River Basin Office, Spokane, WA; Samuel Lohr, Snake

River Basin Office, Boise, ID; Leslie Propp, Western Washington State

Office, Olympia, WA; Selena Werdon, Nevada Fish and Wildlife Office .

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service amends part 17, subchapter B of chapter I,

title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical

order under Fishes, to the List of Endangered and Threatened Wildlife

to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific Name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Fishes

* * * * * * *

Trout, bull...................... Salvelinus U.S.A. (Pacific NW) Jarbidge R. Basin E 639E NA NA

confluentus. Canada (NW (U.S.A.--ID, NV).

Territories).

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: August 6, 1998.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 98-21550 Filed 8-7-98; 10:09 am]

BILLING CODE 4310-55-P