Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Bull Trout in the Coterminous United States

SUMMARY: We, the U.S. Fish and Wildlife Service, determine threatened

status for all populations of bull trout (Salvelinus confluentus)

within the coterminous United States, with a special rule, pursuant to

the Endangered Species Act of 1973, as amended (Act). This

determination is based on our finding that the Coastal-Puget Sound and

St. Mary-Belly River population segments are threatened, coupled with

our earlier findings of threatened status for the Klamath River,

Columbia River, and Jarbidge River population segments. These

population segments are disjunct and geographically isolated from one

another with no genetic interchange between them due to natural and

man-made barriers. These population segments collectively encompass the

entire range of the species in the coterminous United States.

Therefore, for the purposes of consultation and recovery, we recognize

these five distinct population segments as interim recovery units. With

this final rule, the bull trout will now be listed as threatened

throughout its entire range in the coterminous United States.

The Coastal-Puget Sound bull trout population segment encompasses

all Pacific coast drainages within Washington, including Puget Sound.

The St. Mary-Belly River bull trout population segment occurs in

northwest Montana. Bull trout are threatened by the combined effects of

habitat degradation, fragmentation and alterations associated with

dewatering, road construction and maintenance, mining, and grazing; the

blockage of migratory corridors by dams or other diversion structures;

poor water quality; incidental angler harvest; entrainment (process by

which aquatic organisms are pulled through a diversion or other device)

into diversion channels; and introduced non-native species. This final

determination was based on the best available scientific and commercial

information including current data and new information received during

the comment period.

EFFECTIVE DATE: December 1, 1999.

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

by appointment, during normal business hours at the Snake River Basin

Office, 1387 S. Vinnell Way, Room 368, Boise, Idaho 83709.

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Supervisor, at the

above address (telephone 208/378-5243; facsimile 208/378-5262) to make

an appointment to inspect the complete file for this rule or for

information pertaining to the Columbia River population segment; Gerry

Jackson, Manager, Western Washington Office (telephone 360/753-9440;

facsimile 360/753-9008) for information pertaining to the Coastal-Puget

Sound population segment; Kemper McMaster, Field Supervisor, Montana

Field Office (telephone 406/449-5225; facsimile 406/449-5339) for

information pertaining to the St. Mary-Belly River population segment;

Steven Lewis, Field Supervisor, Klamath Falls Fish and Wildlife Office

(telephone 541/885-8481; facsimile 541/885-7837) for information

pertaining to the Klamath River population segment; Robert D. Williams,

Field Supervisor, Nevada State Office (telephone 775/861-6300;

facsimile 775/861-6301) for information pertaining to the Jarbidge

River population segment.

SUPPLEMENTARY INFORMATION:

Background

Bull trout (Salvelinus confluentus), members of the family

Salmonidae, are char native to the Pacific northwest and western

Canada. They historically occurred in major river drainages in the

Pacific northwest from about 41 deg. N to 60 deg. N latitude, from the

southern limits in the McCloud River in northern California and the

Jarbidge River in Nevada, north to the headwaters of the Yukon River in

Northwest Territories, Canada (Cavender 1978; Bond 1992). To the west,

bull trout range includes Puget Sound, various coastal rivers of

Washington, British Columbia, Canada, and southeast Alaska (Bond 1992;

Leary and Allendorf 1997). Bull trout are relatively dispersed

throughout tributaries of the Columbia River Basin, including its

headwaters in Montana and Canada. Bull trout also occur in the Klamath

River Basin of south-central Oregon. East of the Continental Divide,

bull trout are found in the headwaters of the Saskatchewan River in

Alberta and the MacKenzie River system in Alberta and British Columbia

(Cavender 1978; Brewin and Brewin 1997).

Bull trout were first described as Salmo spectabilis by Girard in

1856 from a specimen collected on the lower Columbia River, and

subsequently described under a number of names such as Salmo

confluentus and Salvelinus malma (Cavender 1978). Bull trout and Dolly

Varden (Salvelinus malma) were previously considered a single species

(Cavender 1978; Bond 1992). Cavender (1978) presented morphometric

(measurement), meristic (counts), osteological (bone structure), and

distributional evidence to document specific distinctions between Dolly

Varden and bull trout. Subsequently, bull trout and Dolly Varden were

formally recognized as separate species by the American Fisheries

Society in 1980 (Robins et al. 1980). Although bull trout and Dolly

Varden co-occur in several northwestern Washington River drainages,

there is little evidence of introgression and the two species appear to

be maintaining distinct genomes (Leary and Allendorf 1997).

Bull trout exhibit both resident and migratory life-history

strategies through much of the current range (Rieman and McIntyre

1993). Resident bull trout complete their life cycles in the tributary

streams in which they spawn and rear. Migratory bull trout spawn in

tributary streams, and juvenile fish rear from 1 to 4 years before

migrating to either a lake (adfluvial), river (fluvial), or in certain

coastal areas, saltwater (anadromous), to mature (Fraley and Shepard

1989; Goetz 1989). Anadromy is the least studied life-history type in

bull trout, and some biologists believe the existence of true anadromy

in bull trout is still uncertain (McPhail and Baxter 1996). However,

historical accounts, collection records, and recent evidence suggests

an anadromous life-history form for bull trout (Suckley and Cooper

1860; Cavender 1978; McPhail and Baxter 1996; Washington Department of

Fish and Wildlife (WDFW) et al. 1997--formerly the Washington

Department of Wildlife (WDW)). Resident and migratory forms may be

found together, and bull trout may produce offspring exhibiting either

resident or migratory behavior (Rieman and McIntyre 1993).

Compared to other salmonids, bull trout have more specific habitat

requirements (Rieman and McIntyre 1993) that appear to influence their

distribution and abundance. Critical parameters include water

temperature, cover, channel form and stability, valley form, spawning

and rearing substrates, and migratory corridors (Oliver 1979; Pratt

1984, 1992; Fraley and Shepard 1989; Goetz 1989; Hoelscher and Bjornn

1989; Sedell and Everest 1991; Howell and Buchanan 1992; Rieman and

[[Page 58911]]

McIntyre 1993, 1995; Rich 1996; Watson and Hillman 1997). Watson and

Hillman (1997) concluded that watersheds must have specific physical

characteristics to provide the necessary habitat requirements for bull

trout spawning and rearing, and that the characteristics are not

necessarily ubiquitous throughout watersheds in which bull trout occur.

Because bull trout exhibit a patchy distribution, even in undisturbed

habitats (Rieman and McIntyre 1993), fish would not likely occupy all

available habitats simultaneously (Rieman et al. 1997).

Bull trout are typically associated with the colder streams in a

river system, although fish can occur throughout larger river systems

(Fraley and Shepard 1989; Rieman and McIntyre 1993, 1995; Buchanan and

Gregory 1997; Rieman et al. 1997). For example, water temperature above

15 deg. C (59 deg. F) is believed to negatively influence bull trout

distribution, which partially explains the generally patchy

distribution within a watershed (Fraley and Shepard 1989; Rieman and

McIntyre 1995). Spawning areas are often associated with cold-water

springs, groundwater infiltration, and the coldest streams in a given

watershed (Pratt 1992; Rieman and McIntyre 1993; Rieman et al. 1997).

All life history stages of bull trout are associated with complex

forms of cover, including large woody debris, undercut banks, boulders,

and pools (Oliver 1979; Fraley and Shepard 1989; Goetz 1989; Hoelscher

and Bjornn 1989; Sedell and Everest 1991; Pratt 1992; Thomas 1992; Rich

1996; Sexauer and James 1997; Watson and Hillman 1997). Jakober (1995)

observed bull trout overwintering in deep beaver ponds or pools

containing large woody debris in the Bitterroot River drainage,

Montana, and suggested that suitable winter habitat may be more

restrictive than summer habitat. Maintaining bull trout populations

requires stream channel and flow stability (Rieman and McIntyre 1993).

Juvenile and adult bull trout frequently inhabit side channels, stream

margins, and pools with suitable cover (Sexauer and James 1997). These

areas are sensitive to activities that directly or indirectly affect

stream channel stability and alter natural flow patterns. For example,

altered stream flow in the fall may disrupt bull trout during the

spawning period, and channel instability may decrease survival of eggs

and young juveniles in the gravel during winter through spring (Fraley

and Shepard 1989; Pratt 1992; Pratt and Huston 1993).

Preferred spawning habitat generally consists of low gradient

stream reaches often found in high gradient streams that have loose,

clean gravel (Fraley and Shepard 1989) and water temperatures of 5 to

9 deg. C (41 to 48 deg. F) in late summer to early fall (Goetz 1989).

Pratt (1992) reported that increases in fine sediments reduce egg

survival and emergence. High juvenile densities were observed in Swan

River, Montana, and tributaries characterized by diverse cobble

substrate and a low percent of fine sediments (Shepard et al. 1984).

The size and age of maturity for bull trout is variable depending

upon life-history strategy. Growth of resident fish is generally slower

than migratory fish; resident fish tend to be smaller at maturity and

less fecund (productive) (Fraley and Shepard 1989; Goetz 1989).

Resident adults range from 150 to 300 millimeters (mm) (6 to 12 inches

(in)) total length and migratory adults commonly reach 600 mm (24 in)

or more (Pratt 1985; Goetz 1989). The largest verified bull trout is a

14.6 kilogram (kg) (32 pound (lb)) specimen caught in Lake Pend

Oreille, Idaho, in 1949 (Simpson and Wallace 1982).

Bull trout normally reach sexual maturity in 4 to 7 years and can

live 12 or more years. Biologists report repeat and alternate year

spawning, although repeat spawning frequency and post-spawning

mortality are not well known (Leathe and Graham 1982; Fraley and

Shepard 1989; Pratt 1992; Rieman and McIntyre 1996). Bull trout

typically spawn from August to November during periods of decreasing

water temperatures. However, migratory bull trout may begin spawning

migrations as early as April, and move upstream as far as 250

kilometers (km) (155 miles (mi)) to spawning grounds in some areas of

their range (Fraley and Shepard 1989; Swanberg 1997). In the Blackfoot

River, Montana, bull trout began spawning migrations in response to

increasing temperatures (Swanberg 1997). Temperatures during spawning

generally range from 4 to 10 deg. C (39 to 51 deg. F), with redds

(spawning beds) often constructed in stream reaches fed by springs or

near other sources of cold groundwater (Goetz 1989; Pratt 1992; Rieman

and McIntyre 1996). Depending on water temperature, egg incubation is

normally 100 to 145 days (Pratt 1992), and juveniles remain in the

substrate after hatching. Time from egg deposition to emergence may

surpass 200 days. Fry normally emerge from early April through May

depending upon water temperatures and increasing stream flows (Pratt

1992; Ratliff and Howell 1992).

Bull trout are opportunistic feeders, with food habits primarily a

function of size and life-history strategy. Resident and juvenile bull

trout prey on terrestrial and aquatic insects, macro-zooplankton,

amphipods, mysids, crayfish, and small fish (Wyman 1975; Rieman and

Lukens 1979 in Rieman and McIntyre 1993; Boag 1987; Goetz 1989; Donald

and Alger 1993). Adult migratory bull trout are primarily piscivorous,

known to feed on various trout and salmon species (Onchorynchus spp.),

whitefish (Prosopium spp.), yellow perch (Perca flavescens) and sculpin

(Cottus spp.) (Fraley and Shepard 1989; Donald and Alger 1993).

In the Coastal-Puget Sound and St. Mary-Belly River population

segments, bull trout co-evolved with, and in some areas, co-occur with

native cutthroat trout (Oncorhynchus clarki subspecies (ssp.)),

migratory rainbow trout (O. mykiss ssp.), chinook salmon (O.

tshawytscha), coho salmon (O. kisutch), sockeye salmon (O. nerka),

mountain whitefish (Prosopium williamsoni), pygmy whitefish (P.

coulteri), and various sculpin, sucker (Catastomidae) and minnow

(Cyprinidae) species (Rieman and McIntyre 1993; R2 Resource

Consultants, Inc. 1993). Bull trout habitat within the coterminous

United States overlaps with the range of several fishes listed as

threatened or endangered, and proposed or petitioned for listing under

the Act, including endangered Snake River sockeye salmon (November 20,

1991; 56 FR 58619); threatened Snake River spring and fall chinook

salmon (April 22, 1992; 57 FR 14653); endangered Kootenai River white

sturgeon (Acipenser transmontanus) (September 6, 1994; 59 FR 45989);

threatened and endangered steelhead (August 18, 1997; 62 FR 43937);

threatened Puget Sound chinook salmon (March 9, 1998; 63 FR 11481);

threatened Hood Canal summer-run chum salmon and Columbia River chum

salmon (March 25, 1999; 64 FR 14507); proposed threatened status for

southwestern Washington/Columbia River coastal cutthroat trout (April

5, 1999; 64 FR 16397); and westslope cutthroat trout in northern Idaho,

eastern Washington, and northwest Montana (O. c. lewisi) for which a

status review is currently underway (June 10, 1998; 63 FR 31691).

Widespread introductions of non-native fishes, including brook

trout (Salmo fontinalis), lake trout (S. namaycush) (west of the

Continental Divide), and brown trout (Salmo trutta) and hatchery

rainbow trout (Oncorhynchus mykiss), have also occurred across the

range of bull trout. These non-native fishes are often associated with

local bull trout declines and extirpations (Bond 1992; Ziller

[[Page 58912]]

1992; Donald and Alger 1993; Leary et al. 1993; Montana Bull Trout

Scientific Group (MBTSG) 1996a,h). East of the Continental Divide, in

the St. Mary-Belly River drainage, bull trout co-evolved with lake

trout and westslope cutthroat trout (Fredenberg 1996). In this portion

of their range, bull trout and lake trout have apparently partitioned

habitat with lake trout dominating lentic (i.e., lake) systems,

relegating bull trout to riverine systems and the fluvial life-history

form (Donald and Alger 1993).

Bull trout habitat in the coterminous United States is found in a

mosaic of land ownership, including Federal, State, Tribal, and private

lands. For the Coastal-Puget Sound population segment, over half of the

bull trout habitat occurs on non-Federal lands. For the St. Mary-Belly

River population segment, about two-thirds of the habitat occurs on

Federal land (Glacier National Park) and about a third on Tribal lands

of the Blackfeet Indian Nation.

Migratory corridors link seasonal habitats for all bull trout life-

history forms. The ability to migrate is important to the persistence

of local bull trout subpopulations (Rieman and McIntyre 1993; Mike

Gilpin, University of California, in litt. 1997; Rieman and Clayton

1997; Rieman et al. 1997). Migrations facilitate gene flow among local

subpopulations if individuals from different subpopulations interbreed

when some return to non-natal streams. Migratory fish may also

reestablish extirpated local subpopulations.

Metapopulation concepts of conservation biology theory may be

applicable to the distribution and characteristics of bull trout

(Rieman and McIntyre 1993; Kanda 1998). A metapopulation is an

interacting network of local subpopulations with varying frequencies of

migration and gene flow among them (Meffe and Carroll 1994).

Metapopulations provide a mechanism for reducing risk because the

simultaneous loss of all subpopulations is unlikely. Although local

subpopulations may become extinct, they can be reestablished by

individuals from other local subpopulations. However, because bull

trout exhibit strong homing fidelity when spawning and their rate of

straying appears to be low, natural re-establishment of extinct local

subpopulations may take a very long time. Habitat alteration, primarily

through construction of impoundments, dams, and water diversions, has

fragmented habitats, eliminated migratory corridors, and isolated bull

trout, often in the headwaters of tributaries (Rieman et al. 1997).

Distinct Population Segments

Using the best available scientific and commercial information, we

identified 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. The final listing determination for the Klamath River and

Columbia River bull trout DPSs on June 10, 1998 (63 FR 31647), includes

a detailed description of the rationale behind the DPS delineation for

those two population segments. The Jarbidge River DPS final listing

determination was made on April 8, 1999 (64 FR 17110). However, the DPS

policy, published on February 7, 1996 (61 FR 4722), is intended for

cases where only a segment of a species' range needs the protections of

the Act, rather than the entire range of a species. Although the bull

trout DPSs are disjunct and geographically isolated from one another

with no genetic interchange between them due to natural and man-made

barriers, collectively, they include the entire distribution of the

bull trout in the coterminous United States. In accordance with the DPS

policy, our authority to list DPSs is to be exercised sparingly. Thus a

coterminous listing is appropriate in this case. In recognition of the

scientific basis for the identification of these bull trout population

segments as DPSs, and for the purposes of consultation and recovery

planning, we will continue to refer to these populations as DPSs. These

DPSs will serve as interim recovery units in the absence of an approved

recovery plan.

Coastal-Puget Sound Population Segment

The Coastal-Puget Sound bull trout DPS encompasses all Pacific

Coast drainages within the coterminous United States north of the

Columbia River in Washington, including those flowing into Puget Sound.

This population segment is discrete because it is geographically

segregated from other subpopulations by the Pacific Ocean and the crest

of the Cascade Mountain Range. The population segment is significant to

the species as a whole because it is thought to contain the only

anadromous forms of bull trout in the coterminous United States, thus,

occurring in a unique ecological setting. In addition, the loss of this

population segment would significantly reduce the overall range of the

taxon.

St. Mary-Belly River Population Segment

The St. Mary-Belly River DPS is located in northwest Montana east

of the Continental Divide. Both the St. Mary and Belly rivers are

tributaries of the Saskatchewan River Basin in Alberta, Canada. The

population segment is discrete because it is segregated from other bull

trout by the Continental Divide and is the only bull trout population

found east of the Continental Divide in the coterminous United States.

The population segment is significant because its loss would result in

a significant reduction in the range of the taxon within the

coterminous United States. Bull trout in this population segment

migrate across the international border with Canada (Clayton 1998).

Status and Distribution

To facilitate evaluation of current bull trout distribution and

abundance for the Coastal-Puget Sound and St. Mary-Belly River

population segments, we analyzed data on a subpopulation basis within

each population 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. In areas where two groups of bull trout are separated by

a barrier (e.g., an impassable dam or waterfall, or reaches of

unsuitable habitat) that may allow only downstream access (i.e., one-

way passage), both groups were considered subpopulations. In addition,

subpopulations were considered at risk of extirpation from natural

events if they were: (1) Unlikely to be reestablished by individuals

from another subpopulation (i.e., functionally or geographically

isolated from other subpopulations); (2) limited to a single spawning

area (i.e., spatially restricted); and (3) characterized by low

individual or spawner numbers; or (4) consisted primarily of a single

life-history form. For example, a subpopulation of resident fish

isolated upstream of an impassable waterfall would be considered at

risk of extirpation from natural events if it had low numbers of fish

that spawn in a relatively restricted area. In such cases, a natural

event such as a fire or flood could eliminate the subpopulation, and,

subsequently, reestablishment of the subpopulation from fish downstream

would be prevented by the impassable waterfall. However, a

subpopulation residing downstream of the waterfall would not be

considered at risk of extirpation because of potential reestablishment

by

[[Page 58913]]

fish from upstream. Because resident bull trout may exhibit limited

downstream movement (Nelson 1996), our estimate of subpopulations at

risk of natural extirpation may be underestimated. The status of

subpopulations was based on modified criteria of Rieman et al. (1997),

including the abundance, trends in abundance, and the presence of life-

history forms of bull trout.

We considered a bull trout subpopulation ``strong'' if 5,000

individuals or 500 spawners likely occur in the subpopulation,

abundance appears stable or increasing, and life-history forms

historically present were likely to persist. A subpopulation was

considered ``depressed'' if 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 (Rieman et

al.1997). If there was insufficient abundance, trend, and life-history

information to classify the status of a subpopulation as either

``strong'' or ``depressed,'' the status was considered ``unknown.'' It

should be noted that the assignment of ``unknown'' status implies only

a deficiency of available data to assign a subpopulation as ``strong''

or ``depressed,'' not a lack of information regarding the threats.

Section 4 of the Act requires us to make a determination solely on the

best scientific and commercial data available.

Coastal-Puget Sound Population Segment

The Coastal-Puget Sound bull trout population segment encompasses

all Pacific coast drainages within Washington, including Puget Sound.

No bull trout exist in coastal drainages south of the Columbia River.

Within this area, bull trout often occur with (i.e., are sympatric)

Dolly Varden. Because the two species are virtually impossible to

visually differentiate, the WDFW currently manages bull trout and Dolly

Varden together as ``native char.'' Previously, we delineated a total

of 35 subpopulations of ``native char'' (bull trout, Dolly Varden, or

both species) within the Coastal-Puget Sound population segment

published on June 10, 1998 (63 FR 31693). Upon further review, we

revised the total number of subpopulations to 34. In order to be fully

consistent with the defined subpopulation criteria, we concluded that

the Puyallup River Basin only has two subpopulations as opposed to

three, which are the upper Puyallup River and the lower Puyallup

(includes Carbon River and White River).

Bull trout and Dolly Varden can be differentiated by both genetic

and morphological-meristic (measurements and counts) analyses, of which

biologists have conducted one or both analyses on 15 of the 34

subpopulations. To date, we have documented bull trout in 12 of 15

subpopulations investigated (five with only bull trout, three with only

Dolly Varden, and seven with both species), and it is likely that bull

trout occur in the majority of the remaining 19 subpopulations (Service

1998a). Although we only documented three of the tested ``native char''

subpopulations as containing Dolly Varden at this time, we are not yet

confident in excluding these subpopulations from the listing. We

believe it would be premature to conclude that bull trout do not exist

in these subpopulations given the limited sample sizes used in the

analyses, the location of the subpopulations, and the evidence that

bull trout and Dolly Varden can frequently co-exist together. In order

to identify trends that may be specific to certain geographic areas,

the 34 ``native char'' subpopulations were grouped into five analysis

areas--Coastal, Strait of Juan de Fuca, Hood Canal, Puget Sound, and

Transboundary.

Coastal Analysis Area

Ten ``native char'' subpopulations occur in five river basins in

the Coastal analysis area (number of subpopulations)--Chehalis River-

Grays Harbor (1), Coastal Plains-Quinault River (5), Queets River (1),

Hoh River-Goodman Creek (2), and Quillayute River (1). Recent efforts

to determine species composition in three subpopulations documented

bull trout in at least two, the upper Quinault River and Queets River

(Leary and Allendorf 1997; WDFW 1997a). Biologists identified only

Dolly Varden in the upper Sol Duc River to date (Cavender 1978, 1984;

WDFW 1997a).

Subpopulations of ``native char'' in the southwestern portion of

the coastal area appear to be in low abundance based on anecdotal

information (Mongillo 1993). Because this is the southern extent of

coastal bull trout and Dolly Varden, abundance may be naturally low in

systems like the Chehalis, Moclips, and Copalis rivers (WDFW 1997a). In

recent years, there have been even fewer reports of incidental catches

of ``native char'' in the Chehalis River Basin. In 1997, a single

juvenile was captured in a downstream migrant trap on the mainstem of

the Chehalis River (WDFW 1998a). Although little historical and current

information is known concerning bull trout in these river basins,

habitat degradation in the past has adversely affected other salmonids

(Phinney and Bucknell 1975; Hiss and Knudsen 1993; WDFW 1997a). Habitat

degradation in these basins is assumed to have similarly affected bull

trout. Although ``native char'' are believed to be relatively more

abundant in the Quinault River, extensive portions of the Basin have

been degraded by past forest management (Phinney and Bucknell 1975;

WDFW 1997a).

Most ``native char'' subpopulations in the northwestern coastal

area occur partially within Olympic National Park, which contains

relatively undisturbed habitats. However, outside Olympic National

Park, ``native char'' habitat has been severely degraded by past forest

practices in the Queets River and Hoh River basins (Phinney and

Bucknell 1975; WDFW 1997a). Non-native brook trout have been stocked in

many of the high lakes and streams in the Olympic National Park. Brook

trout are present in the upper Sol Duc subpopulation and threaten this

subpopulation from competition and hybridization (Service 1998a). Data

collected while seining for outmigrating salmon smolts on the Queets

River indicate a decline in ``native char'' catch rate from 3.3 fish/

day in 1977 to 1 fish/day by 1984 (WDFW 1997a). From 1985 to the time

seining was discontinued in 1991, catch rate remained relatively stable

at approximately 1.5 fish/day. The WDFW believes that the Hoh River may

have the largest subpopulation of ``native char'' on the Washington

coast, although their numbers have greatly declined since 1982 (WDFW in

litt. 1992; WDFW 1997a). Reasons for the decline are unknown, but

overfishing is believed to be a contributing factor (WDFW 1997a; WDFW,

in litt. 1997). Forty-one and 31 adult ``native char'' were observed

during snorkel surveys of a 17.6-km (11-mi) section of the South Fork

Hoh River in 1994 and 1995, respectively (WDFW 1997a). We consider the

Hoh River subpopulation ``depressed.'' The status of the remaining nine

``native char'' subpopulations in the coastal analysis area is

``unknown'' because insufficient abundance, trend, and life-history

information is available (Service 1998a). Although the status of these

subpopulations is unknown, we believe that anecdotal information, such

as described for the Chehalis River-Grays Harbor and Queets River

subpopulations, indicate declines in abundance in other subpopulations

within the coastal analysis area.

[[Page 58914]]

Strait of Juan de Fuca Analysis Area

Five ``native char'' subpopulations occur in three river basins in

the Strait of Juan de Fuca analysis area (number of subpopulations)--

Elwha River (2), Angeles Basin (1), and Dungeness River (2). Recent

efforts to determine species composition in three subpopulations have

documented bull trout in at least two, the upper Elwha River and lower

Dungeness River-Gray Wolf River (Leary and Allendorf 1997; WDFW 1997a).

Only Dolly Varden have been identified in the upper Dungeness River

subpopulation to date (WDFW 1997a).

The two subpopulations in the Dungeness River Basin occur partially

within Olympic National Park and Buckhorn Wilderness Area, and likely

benefit from the relatively undisturbed habitats located there.

However, non-native brook trout occur in some streams in the park.

Large portions of the Dungeness River Basin lie outside of Olympic

National Park, and have been severely degraded by past forest and

agricultural practices (Williams et al. 1975; WDFW 1997a). Within

Olympic National Park, the lower and upper Elwha River subpopulations

are isolated by dams. Biologists have observed few ``native char'' in

the lower Elwha subpopulation in recent years. Since 1983, one or two

individuals have been seen each year in a chinook salmon rearing

channel located in the lower Elwha River (WDFW 1997a). A creel census,

conducted in 1981 and 1982 on the Elwha River reservoirs of the upper

Elwha River subpopulation, reported that ``native char'' were found in

low numbers (WDFW 1997a). Although ``native char'' are believed to be

widespread in some basins within the analysis area, such as the

Dungeness and Gray Wolf rivers, fish abundance is thought to be

``greatly reduced in numbers'' (WDW, in litt. 1992; WDFW 1997a).

Electrofishing surveys conducted in four sections of the upper

Dungeness River subpopulation during 1996 recorded an overall ``native

char'' density of 0.78 fish/meter (2.56 fish/foot) for the four

sections (WDFW 1997a). These preliminary surveys indicate that the

upper Dungeness River subpopulation may be ``strong.'' We consider the

lower Elwha River subpopulation ``depressed'' because less than 500

spawners likely occur in the subpopulation, and the lower Dungeness

River-Gray Wolf River ``depressed'' because abundance has declined. The

remaining three ``native char'' subpopulations in the Strait of Juan de

Fuca coastal analysis area have ``unknown'' status because insufficient

abundance, trend, and life-history information is available (Service

1998a).

Hood Canal Analysis Area

Three ``native char'' subpopulations occur in the Skokomish River

Basin in the Hood Canal analysis area. Surveys by Brown (1992) and

Brenkman (1996 in WDFW 1997) documented bull trout in Cushman

Reservoir, and Leary and Allendorf (1997) and WDFW (1997a) documented

bull trout in the South Fork-lower North Fork Skokomish River. Due to

the construction of Cushman Dam on the North Fork Skokomish River, bull

trout in Cushman Reservoir are isolated and restricted to an adfluvial

life-history form. Spawner surveys, which began in 1973, indicate a

decline in adult bull trout through the 1970s, subsequent increases

from 4 adults in 1985 to 412 adults in 1993, and relatively stable

numbers of 250 to 300 spawning adults in recent years (WDFW 1997a). The

increase in adult bull trout from 1985 to 1993 is likely related to

harvest closure on Cushman Reservoir and upper North Fork Skokomish

River in 1986 (Brown 1992). Recent surveys indicate low numbers of bull

trout in tributaries of the South Fork Skokomish River such as Church,

Pine, Cedar, LeBar, Brown, Rock, Flat, and Vance creeks, as well as in

the mainstem (Larry Ogg, Olympia National Forest (ONF), in litt. 1997).

Past forest and agricultural practices and hydropower development have

severely degraded habitat in the South Fork-lower North Fork Skokomish

River (Williams et al. 1975; Hood Canal Coordinating Council (HCCC)

1995; WDFW 1997a). The upper North Fork Skokomish River subpopulation

occurs within Olympic National Park and habitat is relatively

undisturbed. We consider the South Fork-lower North Fork Skokomish

River subpopulation ``depressed,'' because fewer than 500 spawners and

fewer than 5,000 individuals likely occur in the subpopulation.

Although the number of spawning adult bull trout appears to have been

relatively stable in the Cushman Reservoir subpopulation since 1990,

under our analysis, this population is consider ``depressed'' based on

the criteria used to determine subpopulation status (i.e., less than

500 spawning adults). The status of the upper North Fork Skokomish

subpopulation is considered ``unknown'' because insufficient abundance,

trend, and life-history information is available (Service 1998a).

Puget Sound Analysis Area

Fifteen ``native char'' subpopulations occur in eight river basins

in the Puget Sound analysis area (number of subpopulations)--Nisqually

River (1), Puyallup River (2), Green River (1), Lake Washington Basin

(2), Snohomish River-Skykomish River (1), Stillaguamish River (1),

Skagit River (4), and Nooksack River (3). Recent surveys of seven

``native char'' subpopulations have documented bull trout in at least

six--lower Puyallup (Carbon River), Green River, Chester Morse

Reservoir, Snohomish River-Skykomish River, lower Skagit River, and

upper Middle Fork Nooksack River (R2 Resource Consultants, Inc. 1993;

Samora and Girdner 1993; Kraemer 1994; Michael Barclay, Cascades

Environmental Services, Inc., pers. comm. 1997; Leary and Allendorf

1997; Eric Warner, Muckleshoot Indian Tribe, pers. comm. 1997). Leary

and Allendorf (1997) identified only Dolly Varden in the Canyon Creek

(tributary to the Nooksack River) subpopulation.

The current abundance of ``native char'' in southern Puget Sound is

likely lower than occurred historically and declining (Tom Cropp, WDW,

in litt. 1993; Fred Goetz, U.S. Army Corps of Engineers (COE), pers.

comm. 1994a,b). Historical accounts from southern Puget Sound indicate

that anadromous ``native char'' entered rivers there in ``vast

numbers'' during the fall and were harvested until Christmas (Suckley

and Cooper 1860). ``Native char'' are now rarely collected in the

southern drainages of the area (T. Cropp, in litt. 1993; F. Goetz,

pers. comm. 1994a,b). There is only one recent record of a ``native

char'' being collected in the Nisqually River. A juvenile char was

collected during a stream survey for salmon in the mid-1980s (George

Walter, Nisqually Indian Tribe, pers. comm. 1997; WDFW 1997a). In the

Puyallup River (lower Puyallup subpopulation), ``native char'' are

occasionally caught by steelhead anglers (WDW, in litt. 1992; WDFW

1997a). In the White River (lower Puyallup subpopulation), counts of

upstream migrating ``native char'' at the Buckley diversion dam have

averaged 23 adults since 1987. Although trapping effort has varied

during the past 11 years, annual counts have generally been poor to

moderate, ranging from a low of 8 to a high of 46 adult ``native char''

(WDFW 1998a). In the Green River, ``native char'' are rarely observed

(T. Cropp, in litt. 1993; F. Goetz, pers. comm. 1994a,b; E. Warner,

pers. comm. 1997). Aquatic habitat in the Nisqually, Puyallup, and

Green rivers has been variously degraded by logging, agriculture, road

construction, and urban development. In the Chester Morse Reservoir

[[Page 58915]]

subpopulation, biologists observed fewer than 10 redds as recently as

1995 and 1996; and fry abundance was low in spring 1996 and 1997

(Dwayne Paige, Seattle Water Department, in litt. 1997). Logging and

extensive road construction have occurred within the Basin (Foster

Wheeler Environmental 1995; WDFW 1997a), and likely affected bull trout

in Chester Morse Reservoir. Only two ``native char'' have been observed

during the past 10 years in the Issaquah Creek drainage and none have

been observed in the Sammamish River system, which are occupied by the

Sammamish River-Issaquah Creek subpopulation. It is questionable

whether a viable subpopulation remains. Habitat in the Sammamish River

and Issaquah Creek drainages has been negatively affected by

urbanization, road building and associated poor water quality (Williams

et al. 1975; Washington Department of Ecology (WDOE) 1997). We consider

the Nisqually River, Green River, Chester Morse Reservoir, Sammamish

River-Issaquah Creek, and lower Puyallup subpopulations ``depressed''

based on fewer than 500 spawning adults and a decline in general

abundance.

Drainages in the northern Puget Sound area appear to support larger

subpopulations of ``native char'' than the southern portion (F. Goetz,

pers. comm. 1994a, b; Steve Fransen, Service, pers. comm. 1997). The

WDFW conducts redd counts in two index reaches of the northern Puget

Sound; a reach in the upper South Fork Sauk River that is included in

the lower Skagit River subpopulation, and a reach in the upper North

Fork Skykomish River that is included in the Snohomish River-Skykomish

River subpopulation. These areas are said to have healthy habitats

supporting stable numbers of ``native char'' (Kraemer 1994). Biologists

have conducted redd surveys since 1988 in both index reaches. In the

upper South Fork Sauk River, WDFW (1997a) observed a substantial

increase in redds in 1991, a year after a minimum

508-mm (20-in) harvest restriction was implemented; and redd numbers

have remained relatively stable at or above 34. The State implemented

harvest restrictions in the Skagit River and its tributaries in 1990.

``Native char'' in the lower Skagit River subpopulation have access to

at least 38 documented or suspected spawning tributaries (WDFW et al.

1997) with the number of adults estimated to be 8,000 to 10,000 fish

(Curt Kraemer, WDFW, pers. comm. 1998). The number of redds in the

upper North Fork Skykomish River index reach have averaged 78 redds

(range 21 to 159) during 1988 through 1996, with 75 or fewer redds

observed between 1993 and 1996 (WDFW 1997a). A total of 170 redds were

counted in 1997 (WDFW 1998a). Redd counts in the North Fork Skykomish

River index reach have been more variable between years than the South

Fork Sauk River index reach. The upper Skagit River is fragmented into

three reservoirs from the construction of Gorge, Diablo, and Ross dams

(WDFW 1997a). The primary spawning area for the Gorge Reservoir

subpopulation is said to be the lower Steattle Creek and a portion of

the Skagit River below Diablo Dam (WDFW 1997a). The primary spawning

areas for the Diablo Reservoir subpopulation is thought be in the

Thunder Arm area, including Fisher Creek (WDFW 1997a), although WDFW et

al. (1997) did not locate any ``native char'' adults or juveniles

upstream of the mouth of Thunder Creek during snorkel and

electrofishing surveys. Within Ross Reservoir, it is reported that

spawning occurs in lower reach areas of at least six tributaries, in

addition to a portion of the upper Skagit River in Canada (WDFW 1997a).

Biologists have documented ``native char'' spawning in at least seven

creeks in the Stillaguamish River subpopulation and in five creeks and

several mainstem areas of the Lower Nooksack River subpopulation.

Biologists have also observed ``native char'' in at least four creeks

in the upper Middle Fork Nooksack River subpopulation. Neither adult

count data nor redd count data is available for these six

subpopulations (WDFW 1997a). Within the Puget Sound analysis area, we

consider the lower Skagit River subpopulation ``strong,'' based on a

large number of spawning adults and high overall abundance. We consider

five subpopulations within the Puget Sound analysis area ``depressed''

and the status of the remaining nine ``native char'' subpopulations in

the Puget Sound analysis area ``unknown'' because insufficient

abundance, trend, and life-history information is available (Service

1998a).

Transboundary Analysis Area

One ``native char'' subpopulation occurs in the Chilliwack River

Basin in the Transboundary analysis area. The Chilliwack River is a

transboundary system flowing into British Columbia, Canada. We have not

determined the species composition of this subpopulation. In

Washington, portions of the Chilliwack River are within the North

Cascades National Park and a tributary, Selesia Creek, are within the

Mount Baker Wilderness where the habitat is relatively undisturbed

(WDFW 1997a). Little information is available for ``native char'' in

the Chilliwack River-Selesia Creek subpopulation (Service 1998a). The

current status of the ``native char'' subpopulations in the

Transboundary analysis area is ``unknown'' because insufficient

abundance, trend, and life-history information is available (Service

1998a).

St. Mary-Belly River Population Segment

Much of the historical information regarding bull trout in the St.

Mary-Belly River DPS is anecdotal and abundance information is limited.

Bull trout probably entered the system via postglacial dispersal routes

from the Columbia River through either the Kootenai River or Flathead

River systems (Fredenberg 1996). The St. Mary River system historically

contained native bull trout, lake trout, and westslope cutthroat trout.

Although abundance of these fishes is unknown, the presence of lake

trout suggests that migratory bull trout were restricted primarily to

streams and rivers and not common in lakes (Donald and Alger 1993).

Within the St. Mary River system, historic accounts of bull trout date

to the 1930s (Fredenberg 1996). In the Belly River, historic

distribution of bull trout in the Basin is limited but migratory bull

trout from Canada likely spawned in the North Fork and mainstem Belly

rivers.

Both migratory (fluvial) and resident life-history forms are

present (Fredenberg 1996), although bull trout within the St. Mary-

Belly River DPS are isolated and fragmented by irrigation dams and

diversions (Fredenberg 1996; Clayton 1998; Robin Wagner, Service, pers.

comm. 1998). Bull trout that migrate across the international border

are dependent upon the relatively undisturbed water quality and

spawning habitat located in the upper St. Mary and Belly rivers and

their tributaries within the coterminous United States (Fredenberg

1996).

Based on natural and artificial barriers to fish passage within the

St. Mary-Belly River DPS, we identified four bull trout

subpopulations--(1) Upper St. Mary River (from the U.S. Bureau of

Reclamation (USBR) diversion structure on lower St. Mary Lake upstream

to St. Mary Falls, including Swiftcurrent and Boulder creeks below Lake

Sherburne, and Red Eagle and Divide creeks); (2) Swiftcurrent Creek

(including tributaries and Lake Sherburne and Cracker Lake); (3) lower

St. Mary River (St. Mary River downstream of the USBR diversion

structure including Kennedy, Otatso, and Lee creeks); and (4) Belly

River (mainstem and North

[[Page 58916]]

Fork Belly River) (Service 1998b). Based on 1997 and 1998 trapping of

post-spawning adults, fewer than 100 fish existed in the Boulder Creek

and Kennedy Creek spawning populations (Lynn Kaeding, Service, in litt.

1998). These two streams include the strongest known spawning runs in

the upper St. Mary River and lower St. Mary River subpopulations,

respectively, and evaluation of these streams is continuing. Based on

studies conducted in 1996 and 1997, the Belly River drainage is thought

to contain fewer than 100 adult bull trout (Clayton 1998). The status

of the upper St. Mary River, lower St. Mary River, and North Fork Belly

River bull trout subpopulations is ``depressed'' because fewer than 500

spawning adults or 5,000 total bull trout occur in the subpopulations.

The status of the Swiftcurrent Creek subpopulation is ``unknown''

because insufficient abundance, trend, and life-history information is

available (Service 1998b).

In summary, we considered the information received during the

public comment period on the abundance, trends in abundance, and

distribution of bull trout in the Coastal-Puget Sound and St. Mary-

Belly River population segments. The Coastal-Puget Sound population

segment includes the only anadromous bull trout found in the

coterminous United States. The population segment is composed of 34

``native char'' subpopulations of which bull trout have been documented

in 12 of 15 subpopulations examined. The remaining 19 subpopulations

consist of ``native char'' that may include bull trout, Dolly Varden,

or both species. At this time, the only ``native char'' documented in

three of the subpopulations is Dolly Varden. Of the 34 subpopulations,

we believe one is ``strong,'' 10 are ``depressed,'' and insufficient

abundance, trends in abundance, and life-history information exists to

assign either category to the remaining 23 subpopulations.

The St. Mary-Belly River population segment of bull trout is

composed of four subpopulations and represents the only area of bull

trout range east of the Continental Divide within the coterminous

United States. Migratory fish occur in three of the subpopulations and

the life-history form in the fourth subpopulation is unknown. Bull

trout subpopulations in the St. Mary River Basin are isolated by

impassable diversion structures. Three of the four subpopulations are

``depressed'' due to low abundance of fish, and the status of one

subpopulation is ``unknown'' because insufficient abundance, trends in

abundance, and life-history information exists to categorize the

subpopulations as ``strong'' or ``depressed.''

Previous Federal Action

On October 30, 1992, we received a petition to list the bull trout

as an endangered species throughout its range from the following

conservation organizations in Montana: Alliance for the Wild Rockies,

Inc., Friends of the Wild Swan, and Swan View Coalition (petitioners).

The petitioners also requested an emergency listing and concurrent

critical habitat designation for bull trout populations in select

aquatic ecosystems where the biological information indicated that the

species was in imminent danger of extinction. In our 90-day finding,

published on May 17, 1993 (58 FR 28849), we determined that the

petitioners had provided substantial information indicating that

listing of the species may be warranted. We initiated a rangewide

status review of the species concurrent with publication of the 90-day

finding.

In our June 10, 1994, 12-month finding (59 FR 30254), we concluded

that listing the bull trout throughout its range was not warranted due

to unavailable or insufficient data regarding threats to, and status

and population trends of, the species within Canada and Alaska.

However, we determined that sufficient information on the biological

vulnerability and threats to the species was available to support a

warranted 12-month finding to list bull trout within the coterminous

United States, but this action was precluded due to higher priority

listings.

On November 1, 1994, Friends of the Wild Swan, Inc. and Alliance

for the Wild Rockies, Inc. (plaintiffs) filed suit in the U.S. District

Court of Oregon (Court) arguing that the warranted but precluded

finding was arbitrary and capricious. After we recycled the petition

and issued a new warranted but precluded 12-month finding for the

coterminous population of bull trout on June 12, 1995 (60 FR 30825),

the Court issued an order declaring the plaintiffs' challenge to the

original finding moot. The plaintiffs declined to amend their complaint

and appealed to the Ninth Circuit Court of Appeals, which found that

the plaintiffs' challenge fell ``within the exception to the mootness

doctrine for claims that are capable of repetition yet evading

review.'' On April 2, 1996, the Circuit Court remanded the case back to

the District Court. On November 13, 1996, the Court issued an order and

opinion remanding the original finding to us for further consideration.

Included in the instructions from the Court were requirements that we

limit our review to the 1994 administrative record, and incorporate any

emergency listings or high magnitude threat determinations into current

listing priorities. We delivered the reconsidered 12-month finding

based on the 1994 Administrative Record to the Court on March 13, 1997.

We concluded in the finding that two populations of bull trout

warranted listing (Klamath River and Columbia River population

segments).

On March 24, 1997, the plaintiffs filed a motion for mandatory

injunction to compel us to issue a proposed rule to list the Klamath

River and Columbia River bull trout populations within 30 days based

solely on the 1994 Administrative Record. On April 4, 1997, we

requested 60 days to prepare and review the proposed rule. In a

stipulation between us and plaintiffs filed with the Court on April 11,

1997, we agreed to issue a proposed rule within 60 days to list the

Klamath River population of bull trout as endangered and the Columbia

River population of bull trout as threatened based solely on the 1994

record.

We proposed the Klamath River population of bull trout as

endangered and Columbia River population of bull trout as threatened on

June 13, 1997 (62 FR 32268). The proposal included a 60-day comment

period and gave notice of five public hearings in Portland, Oregon;

Spokane, Washington; Missoula, Montana; Klamath Falls, Oregon; and

Boise, Idaho. The comment period on the proposal, which originally

closed on August 12, 1997, was extended to October 17, 1997 (62 FR

42092), to provide the public with more time to compile information and

submit comments.

On December 4, 1997, the Court ordered us to reconsider several

aspects of the 1997 reconsidered finding. On February 2, 1998, the

Court gave us until June 12, 1998, to respond. The final listing

determination for the Klamath River and Columbia River population

segments of bull trout and the concurrent proposed listing rule for the

Coastal-Puget Sound, St. Mary-Belly River, and Jarbidge River DPSs

constituted our response.

We published a final rule listing the Klamath River and Columbia

River population segments of bull trout as threatened on June 10, 1998

(63 FR 31647). On the same date, we also published a proposed rule to

list the Coastal-Puget Sound, Jarbidge River, and St. Mary-Belly River

population segments of bull trout as threatened (63 FR 31693). On

August 11, 1998 (63 FR 42757), we issued an emergency rule listing the

Jarbidge River population

[[Page 58917]]

segment of bull trout as endangered due to river channel alteration

associated with unauthorized road construction on the West Fork of the

Jarbidge River, which we found to imminently threaten the survival of

the distinct population segment. On April 8, 1999 (64 FR 17110), we

published the final rule to list the Jarbidge River population segment

as threatened in the Federal Register.

Summary of Comments and Recommendations

In the June 10, 1998 (63 FR 31693), proposed rule, we requested

interested parties to submit comments or information that might

contribute to the final listing determination for bull trout. The

proposed rule included the Coastal-Puget Sound, St. Mary-Belly River,

and Jarbidge River bull trout DPSs. We sent announcements of the

proposed rule and notice of public hearings to at least 800

individuals, including Federal, State, county and city elected

officials, State and Federal agencies, interested private citizens, and

local area newspapers and radio stations. We also published

announcements of the proposed rule in 10 newspapers, which included the

Idaho Statesman, Boise, Idaho; the Times-News, Twin Falls, Idaho; the

Glacier Reporter, Browning, Montana; the Daily Inter Lake; Kalispell,

Montana; the Great Falls Tribune, Great Falls, Montana; the Elko Daily

Free Press, Elko, Nevada; the Bellingham Herald, Bellingham,

Washington; the Olympian, Olympia, Washington; the Spokesman-Review,

Spokane, Washington, and the Seattle Post-Intelligencer, Seattle,

Washington. We held public hearings on July 7, 1998, in Lacey,

Washington; July 9, 1998, in Mount Vernon, Washington; July 14, 1998,

in East Glacier, Montana; and July 21, 1998, in Jackpot, Nevada. The

comment period on the proposed rule closed on October 8, 1998.

We received 12 oral and 40 written comments on the proposed rule.

These included comments from two Federal agencies, one Native American

Tribe, three State agencies, one county in Nevada, three cities in

Washington, and two private companies. In addition, we solicited formal

scientific peer review of the proposal in accordance with our July 1,

1994 (59 FR 34270), Interagency Cooperative Policy on Peer Review. We

requested six individuals, who possess expertise in bull trout biology

and salmonid ecology, and whose affiliations include academia and

Federal, State, and provincial agencies, to review the proposed rule by

the close of the comment period. One individual responded to our

request and we have addressed their comments in this section of the

rule.

We considered all comments for the proposed rule for the Coastal-

Puget Sound, St. Mary-Belly River, and Jarbidge River population

segments, including oral testimony presented at the public hearings and

the comments from the peer reviewer who responded to our request to

review the proposed rule. The majority of comments supported the

listing proposal and nine comments were in opposition. Opposition was

based on several concerns, including possible negative economic effects

from listing bull trout; potential restrictions on activities; lack of

solutions to the bull trout decline that would result from listing; and

interpretation of data concerning the status of bull trout and their

threats in the three population segments. The U.S. Forest Service

(USFS) (B. Siminoe, USFS, in litt. 1998); National Park Service (NPS)

(David Morris, NPS, in litt. 1998), Idaho Department of Fish and Game

(IDFG) (F. Partridge, IDFG, in litt. 1998; Partridge and Warren 1998),

Nevada Division of Wildlife (NDOW) (T. Crawforth, NDOW, in litt. 1998;

R. Haskins, NDOW, in litt. 1998), (Bruce Crawford, WDFW, in litt. 1998;

WDFW 1998a), and Alberta Environmental Protection (AEP) (Duane Radford,

AEP, in litt. 1998) provided us with information on respective agency

efforts to assess, evaluate, monitor, and conserve bull trout in

habitats affected by each agency's management for the three DPSs.

Comments specific to the Jarbidge River population segment were

addressed in the final rule determination for that DPS (April 8, 1999;

64 FR 17110). Comments specific to the Coastal-Puget Sound and St.

Mary-Belly River population segments are addressed in this rule.

Because multiple respondents offered similar comments, we grouped

comments of a similar nature or point. These comments and our responses

are presented below.

Issue 1: Several respondents opposed the Federal listing, while

others supported it. Some respondents requested that we delay or

preclude Federal listing until additional data on the Coastal-Puget

Sound population segment are collected and considered, and one

respondent based this on the belief that some subpopulations within the

north Puget Sound region and the Olympic Peninsula appear to be stable

or increasing, and other subpopulations occur in excellent or pristine

habitat. A respondent asked if complete status and trend information is

not available, whether changes in habitat or threats are sufficient to

list a species, even if there is no indication that a population is in

trouble. Another respondent noted we did not evaluate listing criteria

with objective and quantitative methods, making it difficult to

interpret new information in a consistent manner. The respondent also

said that, although quantitative data are lacking for many local

populations of bull trout, sufficient information exists to design an

inventory program to describe their current distribution, relative

abundance, and population structure.

Our Response: A species may be determined to be an endangered or

threatened species due to the five factors identified in section

4(a)(1) of the Act and addressed in the ``Summary of Factors Affecting

the Species'' section. The Act requires us to base listing

determinations on the best available commercial and scientific

information. Data are often not available to make statistically

rigorous inferences about a species' status (e.g., abundance, trends in

abundance, and distribution). Overall, we found that sufficient

evidence exists in each of the population segments that demonstrate

they are threatened by a variety of past and ongoing threats, and are

likely to become endangered in the foreseeable future.

In making this final determination, we took into account the

overall status of bull trout in the coterminous United States. We

acknowledge that three north Puget Sound subpopulations of bull trout

(lower Skagit River, Stillaguamish River, and Snohomish River-Skykomish

River supopulations) appear to be in better condition than

subpopulations in other areas of the Coastal-Puget sound population

segment. We determined that the lower Skagit subpopulation was

``strong.'' The WDFW has identified ``native char'' spawning areas in a

number of tributaries in the Stillaguamish River subpopulation, and

reported them as stable or expanding based on limited spawner surveys

of Boulder Creek and the upper Stillaguamish River (WDFW 1997a).

However, Mongillo (1993) and WDFW (1997a) identified other areas of the

Stillaguamish subpopulation, specifically Deer Creek and Canyon Creek,

as declining. Although the 1997 redd count for the Snohomish-Skykomish

River subpopulation was the highest since an index reach was

established in 1988 (WDFW 1998a), redd counts have been highly variable

over this time period, possibly indicating an unstable population.

There is scant evidence that subpopulations within the Nooksack River

are increasing or stable, although much of the habitat within the

Nooksack River drainage has been

[[Page 58918]]

severely degraded (WDFW 1998a). The Cushman Reservoir subpopulation, on

the Olympic Peninsula, appears to have an adult spawner return that has

stabilized around 300 fish for the past 7 years (WDFW 1998a). The

available spawning habitat for this subpopulation lies primarily within

Olympic National Park and WDFW considers it to be in excellent

condition (WDFW 1998a). In contrast, bull trout in the South Fork-lower

North Fork Skokomish River occur in low numbers with no known spawning

sites. Habitat in the south Fork and lower North fork Skokomish River

is severely degraded (WDFW 1998a).

Conversely, we have ample information regarding threats to the

Coastal-Puget Sound population segments. Many of the threats are

similar to those described for the threatened Klamath River and

Columbia River bull trout population segments (June 10, 1998; 63 FR

31647). We acknowledge that available information is insufficient to

designate many of the subpopulations within the Coastal-Puget Sound

population segment as ``strong'' or ``depressed.'' However, because

bull trout display a high degree of sensitivity to environmental

disturbance and are referred to as an indicator species, we believe

that bull trout are significantly impacted by past and current habitat

degradation within the Coastal-Puget Sound population segment, similar

to other listed and sensitive species (i.e., salmon). Habitat loss and

degradation is acknowledged as a significant factor limiting salmon and

trout populations within Washington (Washington Department of Fisheries

(WDF) et al. 1993; Weitkamp et al. 1995; Busby et al. 1996; Spence et

al. 1996; WDFW 1997a, b). Although a number of subpopulations have

documented spawning and rearing habitat in protected areas of

watersheds, the spawning and rearing habitats of many other

subpopulations are not identified. In addition, habitats used by other

life-history stages for migration, overwintering, sub-adult rearing,

are degraded, and all life-history stages are required for a species to

persist. See the ``Summary of Factors Affecting the Species'' section

for a more complete discussion of threats affecting bull trout.

Because the location of spawning areas for many bull trout

subpopulations are not well known for the Coastal-Puget Sound

population segment, we have been funding efforts to determine the

distribution of spawning areas in various Coastal-Puget Sound

subpopulations. Although estimates of bull trout abundance based on

redd counts will provide information on which to evaluate the status of

``native char'' subpopulations, the method should be used with caution.

For example, in analyzing counts of bull trout redds in Idaho and

Montana, Rieman and Myers (1997) found that variability of counts in

individual streams reduces the ability to detect trends, especially

with data sets for relatively short periods. They caution that

detection of trends will often require more than 10 years of sampling,

even where declines could be large, and for many bull trout spawning

reaches, declining trends may not be statistically evident until

numbers drop to critically low levels. Given the lack or limitations of

statistically rigorous data for bull trout in the Coastal-Puget Sound

population segment, our review of the status of ``native char''

subpopulations is based on the generally low number of individuals

observed in several subpopulations throughout the population segment,

and the apparent declines reported in others.

Issue 2: A respondent noted that the proposed rule considered that

loss of the St. Mary-Belly River population segment would constitute a

significant reduction in the range of the taxon. They asked what

portion of the range is significant, and would the statement be true

for the St. Mary-Belly River population segment if fish in Canada were

considered. They also inquired whether bull trout in the population

segment are distinct from fish east of the Continental Divide in

Canada. Because a large portion of the St. Mary-Belly River population

segment occurs on the Blackfeet Reservation, another respondent

requested that we establish government-to-government relations with the

Blackfeet Tribe, expressing concern that Tribal comments and

interactions with us were considered similarly to those from the

general public and not on a government-to-government basis.

Our Response: We considered both biological (available data) and

administrative (international boundary) issues in determining distinct

population segments. Policy used to guide determination of distinct

population segments is described in the joint National Marine Fisheries

Service (NMFS) and Service policy for recognizing distinct vertebrate

population segments under the Act (February 7, 1996; 61 FR 4722).

Although we are not including bull trout in Canada in the St. Mary-

Belly River population segment, fish are believed to migrate across the

international boundary. Determination of a significant reduction in

range was based only on bull trout occurring within the coterminous

United States, of which loss of the population segment would result in

elimination of all bull trout east of the Continental Divide. Mogen

(1998) noted genetic work that indicated bull trout from the upper St.

Mary River drainage in Glacier National Park and the Belly River in

Alberta form a genetically similar group, and bull trout collected from

other areas in southern Alberta form another (Thomas et al. 1997, cited

in Mogen 1998). Genetic analysis of tissue samples collected in the St.

Mary River drainage during 1997 is not complete (Mogen 1998).

Regarding governmental relations, a June 1997 Secretarial Order on

Federal-Tribal trust responsibilities and the Act, clarifies

responsibilities of agencies relative to Tribal lands, rights, and

trust resources in implementing the Act. A cooperative agreement among

us, the Blackfeet Tribe, and Bureau of Reclamation establishes a

partnership focused on the conservation and restoration of native

salmonids and habitat in the St. Mary River drainage. Mogen (1998)

presents results of a study to investigate bull trout spawning areas

and fish abundance conducted pursuant to the cooperative agreement. We

have met with representatives of the Blackfeet Tribe to address

concerns about bull trout and government-to-government relations.

Issue 3: One respondent noted that criteria we used to determine

the status of subpopulations were adopted from Rieman et al. (1997),

who originally developed them to apply to 6th field watersheds in the

Interior Columbia Basin Ecosystem Management Project (ICBEMP). Because

fish in 6th field watersheds are roughly equivalent to local

populations (see Rieman and McIntyre 1995), using the criteria may be

inconsistent with subpopulations as defined in the proposed rule. Also,

several respondents were concerned about applying the criteria to the

Coastal-Puget Sound population segment for evaluating whether a

subpopulation is ``strong'' or ``depressed.'' One respondent asked

whether our definition of subpopulation designation required absolute

reproductive isolation or only some level of structuring that means

reduced gene flow and some local adaptation, and whether subpopulations

can compose a larger metapopulation or if a metapopulation is

equivalent to a subpopulation. Another respondent contended that some

dams were not isolating mechanisms for subpopulations (Middle Fork

Nooksack, Skagit, and Nisqually rivers) because

[[Page 58919]]

they believe the dams were constructed at natural barriers.

Our Response: In adopting the criteria, we considered a bull trout

subpopulation ``strong'' if 5,000 individuals or 500 spawners likely

occur in the subpopulation, abundance appears stable or increasing, and

life-history forms historically present were likely to persist; and

``depressed'' if 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 (see Rieman et al.

1997). If there was insufficient abundance, trend, and life-history

information to classify the status of a subpopulation as either

``strong'' or ``depressed,'' we considered status as ``unknown.''

We used these criteria because they represent the best available

information and were used in evaluating bull trout in the Klamath River

and Columbia River population segments. We acknowledge the criteria

were originally developed for application to salmonids in the Columbia

River Basin, but their underlying premises are based on concepts of

conservation biology. Whether a subpopulation is ``strong'' or

``depressed'' relative to its potential may vary among population

segments. However, we were unable to refine these criteria, either

higher or lower, based on the available data. Designating a

subpopulation as ``strong'' or ``depressed'' is only one of several

factors that we considered in evaluating the overall status of a bull

trout subpopulation in a given population segment.

Regarding the use of 6th field watersheds, we acknowledge the

different spatial scales used in applying criteria developed by Rieman

et al. (1997) for ICBEMP in our evaluation of bull trout

subpopulations. Subpopulations identified in the population segments

for bull trout in the coterminous United States (see June 10, 1998; 63

FR 31647) ranged in size from a portion of a single watershed unit used

by ICBEMP to several watersheds. For example, the best available

information concerning bull trout and ``native char'' in the Coastal-

Puget Sound population segment was based on a spatial scale consisting

of up to several ICBEMP watershed units. Although the spatial scale of

most subpopulations identified in the proposed rule occupy multiple

ICBEMP watershed units, we believe that the criteria offered useful

information in evaluating the status of bull trout.

We selected subpopulations as a convenient unit on which to analyze

bull trout within population segments, and defined subpopulation as ``a

reproductively isolated group of bull trout that spawns within a

particular area of a river system.'' We identified subpopulations based

on documented or likely barriers to fish movement (e.g., impassable

barriers to movement and unsuitable habitat). To be considered a single

subpopulation, two-way passage at a barrier is required, otherwise bull

trout upstream and downstream of a barrier are each considered a

subpopulation. Because it is likely that fish above a barrier could

pass downstream and mate with fish downstream, absolute reproductive

isolation was not required to be considered a subpopulation.

We viewed metapopulation concepts (see Rieman and McIntyre 1993) as

useful tools in evaluating bull trout, but, in querying biologists both

within the Service and elsewhere, we found considerable variability in

the definition of a metapopulation and the types of data suggestive of

a metapopulation. Some biologists may consider a subpopulation, as

defined by us, as a metapopulation if it has multiple spawning areas.

Likewise, subpopulations without reciprocal interactions (i.e.,

individuals from upstream of a barrier may mingle with individuals

downstream, but not vice versa) may be considered components of a

metapopulation consisting of more than one subpopulation. Because

little genetic and detailed movement information exists throughout bull

trout range in the population segments addressed in the proposed rule,

we believe that barriers to movement is an appropriate consideration

for identifying subpopulations.

Relative to dams, the WDFW (1998a) believes that bull trout were

able to commingle on both the Middle Fork Nooksack River and the Skagit

River prior to construction of the dams. There may have been a natural

barrier between La Grande and Alder dams on the Nisqually River.

Because the existence of ``native char'' above Alder Dam is not

established, we chose not to identify this area as a separate

subpopulation. Regardless, the DPS discreteness criterion can be

satisfied by natural or man-made barriers.

Issue 4: Several respondents believed the Federal listing was not

necessary due to current and recently improved regulations related to

forest land management.

Our Response: We believe that implementation of the Northwest

Forest Plan (NFP) and Washington Department of Natural Resources (WDNR)

Habitat Conservation Plan (HCP) should limit further degradation to

aquatic habitats from future forest management practices for the

Coastal-Puget Sound population segment. Only about 32 percent of the

Coastal-Puget Sound population segment is covered by either one of

these two plans. An additional 15 percent of the population segment

resides on National Park lands. Bull trout in this population segment

will continue to be negatively affected by severely degraded habitats

in many subbasins where ``native char'' occur (e.g., increased stream

temperatures and sedimentation, altered stream flows, and lack of

instream cover). These effects are expected to continue because many

river basins affected by past, poor forest practices that contain

``native char'' will take decades to fully recover.

Approximately 45 percent of the Coastal-Puget Sound population

segment occurs on lands under private ownership. Timber harvest

activities on lands in forest production are subject to Washington

State Forest Practice Rules (WFPR). Although State rules and

regulations governing forested land management activities on private

lands are improving, we believe they are not adequate to conserve and

recover bull trout or remedy the effects of past damage to bull trout

habitats (U.S. Department of Interior (USDI) et al. 1996a). The WFPR

are currently being renegotiated, and it is anticipated that there will

be some improvements over past rules. Because the State has not issued

new rules, we are unable to evaluate their adequacy to conserve and

recover bull trout on private lands within the Coastal-Puget Sound

area. If improved sufficiently, these rules could form the basis for a

delisting, 4(d) rule, or HCP.

Issue 5: The U.S. Forest Service proposed that we issue a special

rule pursuant to section 4(d) of the Act that would relax the

prohibition against incidental take associated with Federal actions

consistent with the NFP. Another respondent requested that we develop a

special rule that was sufficiently protective to address any threat to

bull trout from a specific development project.

Our Response: Under section 4(d) of the Act, we have the authority

to issue regulations as deemed necessary and advisable to provide for

the conservation of a species listed as threatened. We recognize that

on-going and future land-use activities will occur on non-Federal lands

and that these activities may result in take of bull trout. Elsewhere

in today's Federal Register we have published a Notice of Intent to

prepare another special rule pursuant to section 4(d) of the Act for

bull trout within the coterminous

[[Page 58920]]

United States (see ``Special Rule'' section). The special rule would

address two categories of non-Federal activities affecting bull trout:

(1) Habitat restoration; and (2) regulations that govern land and water

management activities. Special regulations addressing both categories

would provide for the conservation of bull trout. We have already

issued two special rules, one for Jarbidge River population segment on

April 8, 1999, and the other for the Klamath and Columbia River

population segments on June 10, 1998. In general, these special rules

exempt from the take prohibition fishing and activities that are

conducted in accordance with State, Tribal, and NPS laws and

regulations governing fish and wildlife conservation. The special rule

for the Coastal Puget-Sound and St. Mary-Belly population segments,

described in the ``Special Rule'' section, will also exempt from the

take prohibition fishing and activities conducted in accordance with

State, Tribal, and NPS laws and regulations.

A proposal to relax the prohibition against incidental taking of

bull trout associated with Federal actions consistent with the NFP

Aquatic Conservation Strategy (ACS) is an option we may address in the

future. There are a number of issues regarding the interpretation of

ACS objectives and ACS components that are being discussed at an

interagency level, but currently remain unresolved. It would not be

prudent for us to consider a 4(d) rule until these discussions are

concluded and the issues are satisfactorily resolved. The NFP applies

to Federal lands in the Coastal-Puget Sound population segment.

Although we have not finalized a programmatic biological opinion, we

have re-initiated programmatic consultations with three National

Forests, including conferencing on bull trout with the USFS regional

office for those three National Forests. Thus, we will address Federal

actions consistent with the NFP either through section 7 of the Act or

through a 4(d) rule.

Issue 6: One respondent felt it was inappropriate to include in the

final rule those streams or stream segments where only ``native char''

or both bull trout and Dolly Varden are documented to date. One

respondent suggested the listing of bull trout will be a (de facto)

listing of Dolly Varden, due to their similarities in appearance and

life-history characteristics.

Our Response: It is true that species composition is not yet known

in many streams in Washington containing ``native char.'' However, bull

trout are documented in most streams that biologists have investigated

(12 of 15 subpopulations). We are funding WDFW to collect and analyze

bull trout tissue samples in an effort to determine the genetic

identity of ``native char'' in the 19 subpopulations that biologists

have not evaluated. Information from these studies may eventually be

used to exclude stream systems with only Dolly Varden from the listing,

if we are satisfied that bull trout are not present in the system.

Based on the available evidence, we believe there is a high likelihood

that bull trout occur in the majority of the remaining 19

subpopulations. For subpopulations that contain both bull trout and

Dolly Varden it is completely appropriate to include those

subpopulations in the listing.

Bull trout and Dolly Varden are virtually indistinguishable based

upon physical appearance (Service 1998a) and share similar life-history

strategies and habitat requirements. Because of these similarities, the

WDFW manage the two species as one (WDFW 1998a), and we can evaluate

the threats to subpopulations currently known only as ``native char.''

Although the listing currently does not include Dolly Varden under the

similarity of appearance rule, the coexistence of Dolly Varden and bull

trout within a certain subpopulation would not be justification to

preclude listing of bull trout in that particular subpopulation.

Finally, there is no evidence demonstrating strong Dolly Varden

subpopulations coexisting with depressed bull trout subpopulations.

Issue 7: One respondent said we failed to identify and properly

address other threats to bull trout, primarily the reduction in the

bull trout forage base as a result of the commercial and recreational

harvest of returning salmon and steelhead.

Our Response: Ratliff and Howell (1992) suggest that due to its

highly piscivorous nature, bull trout may have been adversely affected

by declines in prey species. They present the example of declining bull

trout populations occurring above Hells Canyon Dam, where there is no

longer anadromous salmon and steelhead production. We acknowledge that

the depressed status or declining abundance of anadromous fish stocks

in some river basins may have negatively affected bull trout through a

decreased prey base. However, we are unable to determine from the

available information whether this is a threat or just a suppressing

factor to bull trout since they are opportunistic feeders and forage on

a wide variety of prey. In addition, we are unable to determine whether

current escapement goals set for anadromous salmon and steelhead are at

levels that may limit bull trout. A threat would clearly exist where

anadromous fish stocks are no longer accessible to a bull trout

subpopulation, and it is determined that an alternative forage base

does not exist.

Issue 8: One respondent questioned the rationale of our exclusion

of bull trout in Canada in delineating distinct population segments.

The respondent stated that bull trout in Canada were excluded because

fish there are outside the jurisdiction of the Act or that listing

would not have much effect on the Canadian government, as opposed to

the explanation in the proposed rule that data for bull trout in Canada

are limited and suggested we should clarify the issue.

Our Response: We acknowledge that additional information concerning

the status and threats to bull trout in Canada has been compiled in

recent years. Some of the available data indicate a decline of bull

trout in several areas in Canada. Although we recognize that more data

on bull trout in Canada currently exist than we originally considered,

this new information did not lead us to conclude that listing the bull

trout in Canada is necessary at this time. We believe that addressing

bull trout only in the coterminous United States relative to the Act is

appropriate. We acknowledge that for threatened or endangered species

that cross international boundaries, recovery is more complex. For

areas where bull trout subpopulations cross international boundaries,

we intend to work with all appropriate jurisdictional entities, Tribal,

provincial and Federal Canadian agencies and all entities in the United

States, in developing and implementing a recovery plan for bull trout.

Issue 9: One respondent noted that critical habitat is presently

not determinable. They noted that consistent patterns in juvenile fish

distribution, primarily with respect to stream elevation and water

temperature, is useful in predicting patches of spawning and rearing

habitats, which are probably sensitive to land use and important for

the overall productivity of local populations. Another respondent asked

us to consider including as critical habitat, streams that contribute

to the water quality of Puget Sound, but are not part of the current

known distribution of bull trout. Several respondents encouraged us to

consider several issues, such as designating all historic and existing

bull trout habitat as critical, protecting roadless and riparian areas,

establishing standards for water temperature, sediment delivery, and

[[Page 58921]]

other habitat parameters and other management activities.

Our Response: The definition of critical habitat as stated in

section 3 of the Act holds that critical habitat may include specific

areas outside of the geographical area occupied by the species at the

time it is listed, upon determination that such areas are essential for

the conservation of the species. At this time, we find that critical

habitat is not determinable for the Coastal-Puget Sound and St. Mary-

Belly River population segments. We appreciate the comments and believe

that patterns in fish distribution will likely be useful in determining

future critical habitat designations. This and other habitat

considerations will be important issues to be considered during

development of the recovery plan.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we determine the Coastal-Puget Sound and St. Mary-Belly

River population segments of bull trout to be threatened species. We

followed procedures found at section 4(a)(1) of the Act and regulations

(50 CFR part 424) implementing the listing provisions of the Act. 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 Coastal-Puget Sound and St. Mary-

Belly River population segments 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 bull trout

habitat and continue to threaten all of the bull trout population

segments in the coterminous United States include dams, forest

management practices, livestock grazing, agriculture and agricultural

diversions, roads, and mining (Beschta et al. 1987; Chamberlin 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; USDA and USDI 1995,

1996, 1997; Light et al. 1996; MBTSG 1995a-e, 1996a-h).

Coastal-Puget Sound Population Segment

Barriers, timber harvesting, agricultural practices, and urban

development are thought to be major factors affecting ``native char''

in the Coastal-Puget Sound DPS (Service 1998a). Bull trout are often

migratory (Fraley and Shepard 1989; Pratt 1992; Rieman and McIntyre

1993; Oregon Department of Fish and Wildlife (ODFW) 1995; McPhail and

Baxter 1996), and migratory ``native char'' exhibit anadromous,

adfluvial, and fluvial strategies in the Coastal-Puget Sound DPS.

Factors affecting ``native char'' may preclude or inhibit migratory

behavior or contribute to degradation of aquatic habitats used by

``native char'' (Rieman and McIntyre 1993; Spence et al. 1996; WDFW

1997a).

Past forest management activities have contributed to degraded

watershed conditions, including increased sedimentation of bull trout

habitat (Salo and Cundy 1987; Meehan 1991; Bisson et al. 1992; USDA et

al. 1993; Henjum et al. 1994; Spence et al. 1996). Past activities

continue to negatively affect ``native char'' in the Coastal-Puget

Sound population segment. Timber harvest and road building in riparian

areas reduce stream shading and cover, channel stability, large woody

debris recruitment, and increase sedimentation and peak stream flows

(Chamberlin et al. 1991). These can alternatively lead to increased

stream temperatures and bank erosion, and decreased long-term stream

productivity. Over 35 percent of natural forested areas in Puget Sound

have been eliminated (WDFW 1997b).

Strict cold water temperature requirements make bull trout

particularly vulnerable to activities that warm spawning and rearing

waters (Goetz 1989; Pratt 1992; Rieman and McIntyre 1993). Increased

temperature reduces habitat suitability, which can exacerbate

fragmentation within and between subpopulations (Rieman and McIntyre

1993). Of the 34 ``native char'' subpopulations in the Coastal-Puget

Sound population segment, 11 are likely affected by elevated stream

temperatures resulting from past forest practices (lower Nooksack

River, Stillaguamish River, Snohomish River-Skykomish River, Green

River, lower Puyallup, Nisqually River, South Fork-lower North Fork

Skokomish, River, Goodman Creek, Copalis River, Moclips River, and

Chehalis River-Grays Harbor) (Phinney and Bucknell 1975; Williams et

al. 1975; Hiss and Knudsen 1993; WDFW 1997a; WDOE 1997). Bull trout are

documented in three of these ``native char'' subpopulations (Green

River, South Fork-lower North Fork Skokomish River, and Snohomish

River-Skykomish River).

The effects of road construction and associated maintenance account

for a majority of sediment loads to streams in forested areas (Shepard

et al. 1984; Cederholm and Reid 1987; Furniss et al. 1991).

Sedimentation affects streams by reducing pool depth, altering

substrate composition, reducing interstitial space, and causing

braiding of channels (Rieman and McIntyre 1993), which reduce carrying

capacity. Sedimentation negatively affects bull trout embryo survival

and juvenile bull trout rearing densities (Shepard et al. 1984; Pratt

1992). In National Forests in Washington, large deep pools have been

reduced 58 percent due to sedimentation and loss of pool-forming

structures such as boulders and large wood (USDA et al. 1993). The

effects of sedimentation from roads and logging are prevalent in 10

basins containing ``native char'' subpopulations (Nooksack, Skykomish,

Stillaguamish, Puyallup, upper Cedar, Skokomish, Dungeness, Hoh,

Queets, and Coastal Plain-Quinault basins) (HCCC 1995; Olympic National

Forest 1995a,b; Sandra Noble and Shelley Spalding, Service, in litt.

1995; WDFW 1997a, WDOE 1997). Bull trout are documented in six of these

basins (upper Cedar, Skokomish, Dungeness, Queets, Quinault, and

Skykomish basins). We consider five subpopulations within these basins

to be ``depressed''. These are the Chester Morse Reservoir, lower

Puyallup River, South Fork-lower North Fork Skokomish River, lower

Dungeness-Gray Wolf, and Hoh River subpopulations. The remaining six

affected subpopulations found in Canyon Creek, upper Middle Fork

Nooksack River, Snohomish River-Skykomish River, Stillaguamish River,

Queets River, and lower Quinault River are considered ``unknown.''

A recent assessment of the interior Columbia Basin ecosystem

revealed that increasing road densities were associated with declines

in four non-anadromous salmonid species (bull trout, Yellowstone

cutthroat trout, westslope cutthroat trout, and redband trout) within

the Columbia River Basin, likely through a variety of factors

associated with roads (Quigley and Arbelbide 1997). Bull trout were

less likely to use highly roaded basins for spawning and rearing, and

if present, were likely to be at lower population levels (Quigley and

Arbelbide 1997). Quigley et al. (1996) demonstrated that when average

road densities were between 0.4 to 1.1 km/km\2\ (0.7 and 1.7 mi/mi\2\)

on USFS lands, the proportion of subwatersheds supporting ``strong''

populations of key salmonids dropped substantially. Higher road

densities were associated with further declines.

[[Page 58922]]

When USFS lands were compared to lands administered by all other

entities at a given road density, the proportion of lands supporting

``strong'' bull trout populations was lower on lands administered by

other entities. Although this assessment was conducted east of the

Cascade Mountain Range, some effects from high road densities may be

more severe in western Washington. Higher precipitation west of the

Cascade Mountains increases the frequency of surface erosion and mass

wasting (USDI et al. 1996b). Limited data concerning road densities are

available for the Coastal-Puget Sound DPS. It is known, however, that

two bull trout subpopulations (lower Dungeness River-Gray Wolf River

and Chester Morse Reservoir) occur in basins with road densities

greater than 1.1 km/km\2\ (1.7 mi/mi\2\), and the effects of

sedimentation from high road density on aquatic habitat is likely a

contributing factor to the ``depressed'' status of these two ``native

char'' subpopulations. Because basins in portions of the Queets River

drainage contain high road densities, ranging from 1.5 to 3.0 km/km\2\

(2.4 to 4.8 mi/mi\2\) (ONF 1995a; Cederholm and Reid 1987), we believe

that the Queets River ``native char'' subpopulation is affected by high

road density.

At least 22 ``native char'' subpopulations within the Coastal-Puget

Sound DPS are affected by past or present forest management activities.

Remaining subpopulations not affected by such activities occur

primarily within National Parks or Wilderness Areas. For example, five

``native char'' subpopulations lie completely within National Parks and

Wilderness Areas withdrawn from timber harvest. These include the upper

Quinault River, upper Sol Duc River, Gorge Reservoir, Diablo Reservoir,

and Ross Reservoir subpopulations. Although the status of these

``native char'' subpopulations is considered ``unknown'' at this time,

all except the upper Quinault River subpopulation are threatened by

non-native brook trout (see Factor E).

Agricultural practices and associated activities also affect

``native char'' and their aquatic habitats. Irrigation withdrawals

including diversions can dewater spawning and rearing streams, impede

fish passage and migration, and cause entrainment. Discharging

pollutants such as nutrients, agricultural chemicals, animal waste and

sediment into spawning and rearing waters is also detrimental (Spence

et al. 1996). Agricultural practices regularly include stream

channelization and diking, large woody debris and riparian vegetation

removal, and bank armoring (Spence et al. 1996). Improper livestock

grazing can promote streambank erosion and sedimentation, and limit the

growth of riparian vegetation important for temperature control,

streambank stability, fish cover, and detrital input. In addition,

grazing often results in increased organic nutrient input in streams

(Platts 1991). Eight ``native char'' subpopulations in the Coastal-

Puget Sound DPS (lower Puyallup, Stillaguamish River, lower Skagit

River, lower Nooksack River, Green River, South Fork-lower North Fork

Skokomish River, Dungeness River-Gray Wolf River, and Chehalis River-

Grays Harbor) are subject to the effects of past or ongoing

agricultural or livestock grazing practices (Williams et al. 1975; Hiss

and Knudsen 1993; WDF et al. 1993; HCCC 1995; ONF 1995b; WDFW 1997a).

Species composition has been examined in five of these subpopulations,

and bull trout are documented in four (Green River, lower Puyallup,

South Fork-lower North Fork Skokomish River, and Dungeness River-Gray

Wolf River).

Dams constructed with poorly designed fish passage or without fish

passage create barriers to migratory ``native char,'' precluding access

to suitable spawning, rearing, and migration habitats. Dams disrupt the

connectivity within and between watersheds essential for maintaining

aquatic ecosystem function (Naiman et al.1992; Spence et al. 1996) and

bull trout subpopulation interaction (Rieman and McIntyre 1993).

Natural recolonization of historically occupied sites can be precluded

by migration barriers (e.g., McCloud Dam in California (Rode 1990)).

Within the Coastal-Puget Sound DPS, there are at least 41 existing or

proposed hydroelectric projects regulated by the Federal Energy

Regulatory Commission (FERC) within watersheds supporting ``native

char'' (Gene Stagner, Service, in litt. 1997). Of the 41 existing or

proposed projects, 17 are currently operating and most are run-of-the-

river small hydroelectric projects. Negotiated instream flows for these

projects are based primarily on resident cutthroat trout or rainbow

trout flow requirements, and may not meet seasonal migratory flow

requirements of bull trout (Tim Bodurtha, Service, in litt. 1995). Fish

passage has not been addressed for 28 of the existing or proposed

projects (G. Stagner, in litt. 1997). We are aware of at least seven

water diversions or other dams currently operating in watersheds with

``native char,'' and none currently providing for upstream fish

passage. These diversions and dams are located on the Middle Fork

Nooksack, Skagit, Green, Puyallup, and Nisqually rivers. These seven

facilities currently affect the lower Nooksack River, upper Middle Fork

Nooksack River, lower Skagit River, Gorge Reservoir, Diablo Reservoir,

Ross Reservoir, lower Puyallup, upper Puyallup River subpopulations.

Projects in the Green and Nisqually rivers block fish passage in the

upper stream reaches of these basins, although ``native char'' use of

the river areas above the facilities remains unconfirmed. Various fish

surveys conducted in the upper Green River watershed above the

facility, did not detect ``native char'' (Ed Connor and Phil Hilgert,

R2 Resource Consultants, Inc., in litt. 1998). Surveys of the upper

Nisqually River watershed are underway (WDFW 1998a). Dams on the

Skokomish and Elwha rivers are also barriers to upstream fish migration

and have fragmented populations of ``native char'' within the Coastal-

Puget Sound DPS. FERC published an Environmental Impact Statement (EIS)

for three proposed hydroelectric projects on Skagit River tributaries.

The final EIS recommends two proposed hydroelectric projects on the

lower Nooksack River, affecting two subpopulations, the lower Skagit

River and the lower Nooksack River. We consider the status of these

subpopulations ``strong'' and ``unknown,'' respectively.

Urbanization has led to decreased habitat complexity (uniform

stream channels and simple nonfunctional riparian areas), impediments

and blockages to fish passage, increased surface runoff (more frequent

and severe flooding), and decreased water quality and quantity (Spence

et al. 1996). In the Puget Sound area, human population growth is

predicted to increase by 20 percent between 1987 and 2000, requiring a

62 percent increase in land area developed (Puget Sound Water Quality

Authority (PSWQA) 1988 in Spence et al.1996). The effects of

urbanization, concentrated at the lower most reaches of rivers within

Puget Sound, primarily affect ``native char'' migratory corridors and

rearing habitats. Five ``native char'' subpopulations in the Coastal-

Puget Sound DPS (lower Dungeness River-Gray Wolf River, lower Puyallup

River, Green River, Sammamish River-Issaquah Creek, and Stillaguamish

River) are negatively affected by urbanization (Williams et al. 1975;

WDFW 1997a).

Mining can degrade aquatic systems by generating sediment and heavy

metals pollution, altering water pH levels, and changing stream

channels

[[Page 58923]]

and flow (Martin and Platts 1981). Although not currently active,

mining in the Nooksack River Basin, where ``native char'' occur, has

adversely affected streams. For example, the Excelsior Mine on the

upper North Fork Nooksack River was active at the turn of the century

and mining spoils were placed directly into Wells Creek (Mt. Baker-

Snoqualmie National Forest (MBSNF) 1995), a known spawning stream for

``native char.'' Spoils in and adjacent to the stream may continue to

be sources of sediment and heavy metals.

St. Mary-Belly River Population Segment

Forest management practices, livestock grazing, and mining are not

thought to be major factors affecting bull trout in the St. Mary-Belly

River DPS. However, bull trout subpopulations are fragmented and

isolated by dams and diversions (Fredenberg 1996; Clayton 1998; Mogen

1998). Specifically, the USBR diversion at the outlet of lower St. Mary

Lake is an unscreened trans-Basin diversion (i.e., transferring water

to the Missouri River drainage via the Milk River) that threatens the

species in the St. Mary River Basin (upper St. Mary River, lower St.

Mary River, and Swiftcurrent Creek subpopulations). This diversion

restricts upstream bull trout passage into the upper St. Mary River.

Consequently, migratory (fluvial) bull trout are prevented from

reaching suitable spawning habitat in Divide and Red Eagle creeks

(Fredenberg 1996; R. Wagner, pers. comm. 1998). Similarly, the

irrigation dam on Swiftcurrent Creek (Lake Sherburne) physically blocks

bull trout passage into the upper watershed (Fredenberg 1996; R.

Wagner, pers. comm. 1998), affecting the three St. Mary River

subpopulations. In the Belly River drainage, two adult bull trout

implanted with radio transmitters that spawned in the North Fork Belly

River near the international border in 1997 were subsequently passed

down the Mountain View Irrigation District Canal and captured (Terry

Clayton, Alberta Conservation Association (ACA), in litt. 1998).

In addition to the dams physically isolating subpopulations, the

associated diversions seasonally dewater the streams, effectively

decreasing available habitat for migratory and resident bull trout

(Fredenberg 1996). The diversion at the outlet of lower St. Mary Lake

may result in a reduction (up to 50 percent) of instream flow of the

St. Mary River, possibly affecting juvenile and adult bull trout (R.

Wagner, pers. comm. 1998). The diversion is unscreened and recent

information suggests downstream loss through entrainment of bull trout

(R. Wagner, pers. comm. 1998). Similarly, the irrigation dam on

Swiftcurrent Creek (Lake Sherburne) seasonally dewaters the creek

downstream, effectively eliminating habitat (Fredenberg 1996; R.

Wagner, pers. comm. 1998).

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Declines in bull trout abundance have prompted States to institute

restrictive fishing regulations and eliminate the harvest of bull trout

in most waters in Idaho, Oregon, Montana, Nevada, and Washington. These

more restrictive regulations resulted in an increase in recent

observations of adult bull trout in some areas of their range. However,

illegal harvest and incidental hook and release of ``native char'' in

fisheries targeting other species still threaten bull trout in some

areas.

Coastal-Puget Sound Population Segment

Fishing for ``native char'' is currently closed in most of the

waters within the Coastal-Puget Sound population segment. The State of

Washington implemented most of these closures in 1994. Harvest of

``native char'' is still allowed in the area of the lower Skagit River

subpopulation in the mainstem Skagit River and several of its

tributaries (Cascade, Suiattle, Whitechuck and Sauk rivers) (508 mm (20

in.) minimum size limit and two fish daily bag limit); the Snohomish

River-Skykomish River subpopulation in the Snohomish River mainstem and

the Skykomish River below the forks (508 mm (20 in.) minimum size limit

and two fish daily bag limit) (WDFW 1997a); and portions of the

Quinault and Queets rivers that are within the Quinault Indian

Reservation (QIN) boundary (4 fish daily bag limit with no minimum size

restriction) (Scott Chitwood, Quinault Indian Nation, pers. comm. 1997;

WDFW 1997a). Olympic National Park has recently closed fishing for

``native char'' in all park waters (D. Morris, in litt. 1998). Fishing

for bull trout in Mount Rainier National Park is prohibited. There is

likely some mortality from incidental hook and release of ``native

char'' in fisheries targeting other species, especially in streams

where restrictive angling regulations (i.e., artificial flies or lures

with barbless single hook, bait prohibited) are not established.

The objective of the 508 mm (20 in.) minimum size limit in the

Skagit River and Snohomish-Skykomish River systems is to allow most

females to spawn at least once before harvest (WDFW 1997a), and

evidence suggests that more females are allowed to spawn in these two

systems where the regulation is in place (WDFW 1998b). However, the

minimum size limit allows the selective harvest of larger, mature fish

that are more fecund (Jim Johnston, WDFW, pers. comm. 1995).

Regulations on the Quinault Indian Reservation in the lower

Quinault River and Queets River systems offer less bull trout

conservation opportunity because there is no minimum size limit to

allow most females to reach maturity before being subject to harvest.

Consistent with the June 1997 Secretarial Order on Tribal-Federal Trust

responsibilities and the Act, we will continue to assess the effects of

these regulations and work with the Tribes to assure that the

conservation needs of bull trout are met. The State of Washington has

closed areas of the lower Quinault River and Queets River watersheds

outside of the Quinault Indian Reservation to harvest of ``native

char'' (WDFW 1997a).

In 1993, WDFW increased the catch limit for brook trout in order to

reduce interactions with bull trout (WDFW 1995). The increased brook

trout catch has the potential to increase the incidental harvest of

bull trout due to misidentification by anglers. For example, only 40

percent of Montana anglers surveyed correctly identified bull trout out

of six species of salmonids found locally (Mack Long and Sean Whalen,

Montana Fish Wildlife and Parks, in litt. 1997).

Poaching is still a factor that threatens ``native char'' in nine

drainages within the Coastal-Puget Sound population segment. These are

the South Fork Nooksack River, North Fork Nooksack River (above and

below the falls), Sauk River and tributaries, North Fork Skykomish

River, Chester Morse Reservoir, lower Dungeness River-Gray Wolf River,

Hoh River, Goodman Creek, and Morse Creek (WDW, in litt. 1992; Mongillo

1993; WDFW 1997a; Service 1998a).

St. Mary-Belly River Population Segment

Historically, the harvest of bull trout in the St. Mary-Belly River

DPS was considered ``extensive'' (Fredenberg 1996). Currently, legal

angler harvest in the St. Mary-Belly River DPS occurs only on the

Blackfeet Indian Reservation, which has a five fish per day limit with

only one fish over 508 mm (20 in.) (Fredenberg 1996).

In 1994, the Blackfeet Tribe reported harvest of at least 19 adult

and subadult bull trout in gill nets set for a commercial fishery for

lake whitefish

[[Page 58924]]

(Coregonus clupeaformis) in lower St. Mary Lake (Blackfeet Tribe, in

litt. 1998). Given the apparent low abundance of adult bull trout in

the upper St. Mary Lake subpopulation and restricted migration

opportunities over the USBR diversion on lower St. Mary Lake, any

harvest of bull trout from this subpopulation represents a threat.

Record-keeping by the two commercial fishers is a requirement of the

Blackfeet Tribal Fish and Game Commission, but is not strictly

enforced. As discussed in Issue 2 in the ``Summary of Comments and

Recommendations section'', a cooperative agreement exists among us, the

Blackfeet Tribe, and the Bureau of Reclamation which establishes a

partnership focused on the conservation and restoration of native

salmonids and habitat in the St. Mary River drainage. We have recently

met with the Blackfeet Tribe to address our concerns about bull trout.

We will continue to assess the effects of their harvest regulations

and, in accordance with the June 1997 Secretarial Order on Tribal-

Federal Trust responsibilities and the Act, we will continue work with

the Tribe to assure that the conservation needs of bull trout are met.

Specifically, the ongoing research carried out under the cooperative

agreement is evaluating movement patterns, population status, and

genetic structure of the bull trout in the St. Mary River drainage. We

will utilize the results as a basis to develop future management

recommendations.

C. Disease or Predation

Diseases affecting salmonids are present or likely present in both

population segments, but are not thought to be a factor threatening

bull trout. Instead, interspecific interactions, including predation,

likely negatively affect bull trout where non-native salmonids are

introduced (Bond 1992; Ziller 1992; Donald and Alger 1993; Leary et al.

1993; MBTSG 1996a; J. Palmisano and V. Kaczynski, Northwest Forestry

Resources Council, in litt. 1997).

Coastal-Puget Sound Population Segment

Disease is not believed to be a factor in the decline of bull trout

in the Coastal-Puget Sound DPS. Outbreaks of the parasite

Dermocystidium salmonis in the lower Elwha River may negatively affect

``native char'' in years of high chinook salmon returns (Kevin Amos,

WDFW, pers. comm. 1997). The susceptibility of bull trout to the

parasite is unknown. There is concern about whirling disease (Myxobolus

cerebralis), which occurs in wild trout waters of western states, and

though this may be a potential threat to bull trout, we do not have

specific information on it at this time.

Predation is not considered a primary factor in the decline of

Coastal-Puget Sound ``native char.'' The only exception may be

largemouth bass (Micropterus salmoides) in Cushman Reservoir on the

Skokomish River that may potentially affect the bull trout

subpopulation (Sam Brenkman, Oregon State University, pers. comm. 1997;

WDFW 1997a).

St. Mary-Belly River Population Segment

Disease and predation are not known to be factors affecting the

survival of bull trout in the St. Mary-Belly River Basin. Whirling

disease has been documented in numerous Missouri River watersheds in

central Montana, though not in the Saskatchewan River drainage where

the St. Mary-Belly River bull trout subpopulations occur.

D. The Inadequacy of Existing Regulatory Mechanisms

Although varying efforts are underway to assist in conserving bull

trout throughout the coterminous United States (e.g., Batt 1996; Light

et al. 1996; Robert Joslin, USFS, in litt. 1997; Allan Thomas, BLM, in

litt. 1997; Montana Bull Trout Restoration Team 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. Statutory 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.

Coastal-Puget Sound Population Segment

In April 1994, the Secretaries of Agriculture and Interior adopted

the Northwest Forest Plan for management of late-successional forests

within the range of the northern spotted owl (Strix occidentalis

caurina) (USDA and USDI 1994a). This plan set forth objectives,

standards, and guidelines to provide for a functional late-successional

and old-growth forest ecosystem. Included in the plan is an aquatic

conservation strategy involving riparian reserves, key watersheds,

watershed analysis, and habitat restoration. Approximately 35 percent

of the total acreage within the Coastal-Puget Sound bull trout

population segment are Federal lands subject to Northwest Forest Plan

standards and guidelines (U.S. Geological Survey (USGS), in litt.

1996). In 1994, an assessment panel determined that the proposed

standards and guidelines in the Northwest Forest Plan would result in

an 85 percent future likelihood of attaining sufficient aquatic habitat

to support well-distributed populations of bull trout on Federal lands

(USDA and USDI 1994b). Prior to 1997, most projects developed under the

Northwest Forest Plan in this DPS were determined to have ``no impact''

on bull trout and its habitat. However, these determinations were made

prior to the development of specific criteria (Service 1998c) to

evaluate the effects of Forest Service activities on bull trout and

their habitat. Because existing aquatic habitat conditions are severely

degraded in many subbasins, the effects from past land management

activities can be expected to continue into the foreseeable future in

the form of increased stream temperatures, altered stream flows,

sedimentation, and lack of instream cover. These effects are often

exacerbated by landslides, road failures, and debris torrents. Many of

these aquatic systems will require decades to fully recover (USDA et

al. 1993). Until then, future habitat losses can be expected due to

past activities, potentially resulting in local extirpations, migratory

barriers, and reduced reproductive success (Spence et al. 1996).

Washington State Forest Practice Rules (WFPR) apply to all State,

city, county, and private lands not currently covered under a Habitat

Conservation Plan (HCP) or other conservation agreement in Washington.

Approximately 45 percent of the Coastal-Puget Sound population segment

is held under private ownership and 1.5 percent under city or county

ownership. Bull trout and their habitats continue to face threats from

ongoing and future timber harvest activities on many of these lands.

The WFPR set forth timber harvest regulations for non-Federal and non-

Tribal forested lands in the State of Washington. These rules set

standards for timber harvest activities in and around riparian areas,

in an effort to protect aquatic resources. These riparian management

zone widths, as specified by the WFPR, do not ensure protection of the

riparian components, because the

[[Page 58925]]

minimum buffer widths are likely insufficient to fully protect riparian

ecosystems (USDI et al. 1996a).

In January 1997, the Washington State Department of Natural

Resources (WDNR) developed a multispecies HCP under section 10 of the

Act, covering all WDNR-owned lands within the range of the northern

spotted owl. The WDNR HCP primarily addresses the conservation needs

for old-growth forest-dependent species, such as the northern spotted

owl and marbled murrelet (Brachyramphus marmoratus marmoratus), while

allowing WDNR to meet its trust responsibilities to the State. The HCP

also addresses the conservation needs of other terrestrial and aquatic

species on WDNR lands. Approximately 10 percent of the Coastal-Puget

Sound population segment is in State ownership and is covered by the

HCP. The HCP specifically provides Riparian Conservation Strategies

designed to maintain the integrity and function of freshwater stream

habitat necessary for the health and persistence of aquatic species,

especially salmonids. Road maintenance and network planning strategies

included in the HCP also play important roles in protecting aquatic

habitats, but are often reliant on the Riparian Conservation Strategy

stream buffers for complete protection. If fully and properly

implemented, the HCP should aid in the restoration and protection of

freshwater salmonid habitat on the Olympic Peninsula and the areas on

the west slope of the Cascades. There are still ``legacy'' threats to

bull trout subpopulations on State lands even with the HCP in place.

For example, the HCP states, ``Adverse impacts to salmonid habitat will

continue to occur because past forest practices have left a legacy of

degraded riparian ecosystems, deforested unstable hillslopes, and a

poorly planned and maintained road network'' (WDNR 1997). Areas logged

in the past will take decades to fully recover. In addition, ``Some

components of the riparian conservation strategy require on-site

management decisions, and adverse impacts to salmonid habitat may occur

inadvertently.'' For example, timber harvesting in the riparian buffer

must ``maintain or restore salmonid habitat,'' but, at present, the

amount of timber harvesting in riparian ecosystems compatible with high

quality salmonid habitat is unknown (WDNR 1997).

In 1992, the WDFW (formerly the WDW) developed a draft bull trout-

Dolly Varden management and recovery plan. In 1995, WDFW released a

draft EIS for the management plan. The plan establishes a goal of

restoring and maintaining the health and diversity of ``native char''

stocks and their habitats in the State of Washington (WDFW 1995). In

1998, WDFW distributed a revised draft of the bull trout and Dolly

Varden management plan to us for review (WDFW 1998b). Although

commendable goals and strategies are presented in the new draft plan,

specific guidance on how these goals and strategies would be

accomplished is not provided. Our review of the plan determined that it

does not fully address all elements necessary to conserve and restore

bull trout populations (Nancy Gloman, Service, in litt. 1998). Because

all elements necessary for conservation and restoration of bull trout

are not fully addressed and there are uncertainties concerning

implementation of the plan, the effect of the plan on future bull trout

conservation in Washington is unknown.

Since 1994, WDFW has been developing a Wild Salmonid Policy (WSP)

to address management of all native salmonids in the State. In

September 1997, WDFW released the final EIS for the WSP. The policy

establishes a goal to protect, restore, and enhance the productivity,

production, and diversity of wild salmonids and their ecosystems to

sustain ceremonial, subsistence, commercial, and recreational

fisheries; non-consumptive fish benefits; and related cultural and

ecological values well into the future (WDFW 1997b). The WSP, in its

current form, may not adequately protect bull trout because the primary

focus is restoring wild salmon and steelhead. Although other wild

salmonids, including bull trout, are referred to in the document, the

proposed policy does not address the unique requirements of bull trout.

As a result, proposed habitat and water quality standards (current

State surface water quality standards), originally developed with a

focus on salmon, may fall short in protection for bull trout. The final

EIS is not considered a policy document to direct WDFW. The EIS

describes a set of alternatives presented to the Washington State Fish

and Wildlife Commission (Commission). The Commission has the final

responsibility for taking action on the preferred alternative and

recommending policy direction. When implemented, the policy would

present guidelines for actions that WDFW must follow, but would not be

binding on other State, Tribal, or private entities. The publication of

a WSP will likely occur in the near future, but the format and exact

content of the document is unknown. Given the uncertainties surrounding

implementation of the plan and lack of specificity concerning bull

trout, including funding, possible benefits to bull trout can not be

evaluated.

Section 305(b) of the 1972 Federal Clean Water Act requires States

to identify water bodies biennially that are not expected to meet State

surface water quality standards (WDOE 1996). These waters are reported

in the section 303(d) list of water quality limited streams. The

Washington State 303(d) list (WDOE 1997) reflects the poor condition of

lower stream reaches of some systems containing bull trout and Dolly

Varden. At least 30 stream reaches within habitat occupied by 13

subpopulations of ``native char'' are listed on the Washington State

proposed 1998 303(d) list of water quality impaired streams (WDOE

1997). Eight of these subpopulations are ``depressed,'' one is

``strong,'' and four are ``unknown.'' Waters included on the 303(d)

list due to temperature exceedances are found in areas where the

Chehalis River-Grays Harbor, lower Quinault River, Hoh River, lower

Elwha River, Nisqually River, lower Puyallup, Green River, Sammamish

River-Issaquah Creek, Stillaguamish River, and lower Nooksack River

subpopulations occur. We have identified bull trout in two of these

subpopulations (Green River and lower Puyallup). The State temperature

standards are likely inadequate for bull trout because temperatures in

excess of 15 deg. C (59 deg. F) are thought to limit bull trout

distribution (Rieman and McIntyre 1993) and the State temperature

standard for the highest class of waters is 16 deg. C (61 deg. F).

Subpopulations that occur in waters on the 303(d) list not meeting

instream flow standards include the Dungeness River-Gray Wolf River,

South Fork-lower North Fork Skokomish River, lower Puyallup River,

lower Skagit River, and lower Nooksack River ``native char''

subpopulations. Bull trout are known to occur in four of these

subpopulations (Dungeness River-Gray Wolf River; South Fork-lower North

Fork Skokomish River; lower Puyallup; and lower Skagit River). Although

no minimum instream flow requirements exist for bull trout, variable

stream flows and low winter flows are thought to negatively influence

the embryos and alevins (a young fish which has not yet absorbed its

yolk sac) of bull trout (Rieman and McIntyre 1993).

The Chehalis River-Grays Harbor and Sammamish River-Issaquah Creek

``native char'' subpopulations occur in waters on the 303(d) list for

not meeting the standards for dissolved oxygen. Although no dissolved

oxygen

[[Page 58926]]

standards exist for bull trout, poor water quality and highly degraded

migratory corridors may hinder or interrupt migration (Spence et al.

1996), leading to the further fragmentation of habitat and isolation of

bull trout.

Surface waters are assigned to one of five classes under the Water

Quality Standards for Surface Waters of the State of Washington (WAC

173-201A-130). These classes are AA (extraordinary), A (excellent), B

(good), C (fair) and Lake class. These classes of criteria are

established for the following water quality parameters: temperature,

fecal coliform, turbidity, dissolved oxygen, and toxic deleterious

material concentrations. With the exception of dissolved oxygen,

parameters are not to exceed specified maximum levels for each class.

Maximum water temperature criteria range from 16 deg. C (60.8 deg. F)

(Class AA), 18 deg. C (64.4 deg. F) (Class A), 21 deg. C (69.8 deg. F)

(Class B), to 22 deg. C (71.6 deg. F) (Class C). Bull trout streams

within the Coastal-Puget Sound population segment have stream segments

that fall in classes AA, A, and B. Given the apparent low temperature

requirements of bull trout (Rieman and McIntyre 1993), these

temperature standards are likely inadequate to protect bull trout

spawning, rearing or migration. Segments of the Quinault, Queets,

Elwha, Skokomish, Nisqually, White, Green, and Snohomish rivers do not

meet existing State standards for their respective classes. It is

unknown whether the current standards established for other water

quality parameters (fecal coliform, turbidity, dissolved oxygen, toxic

deleterious material concentrations) within the various classes, are

adequate to protect bull trout. See Factor A for additional discussion

of water quality.

St. Mary-Belly River Population Segment

Two USBR structures likely affect bull trout by dewatering stream

reaches, acting as passage barriers or exposing fish to entrainment

(Service 1998b). We are not aware that the effects of the structures

were considered in their construction (1902 and 1921) or operation.

Currently, operators attempt to minimize passage and entrainment

problems by staging the fall dewatering of the canal and removing

boards in the dam during winter. USBR has not evaluated the

effectiveness of the operations and has not established formal

guidelines to minimize the effects of the structures' operations on

bull trout. The draft Montana Bull Trout Restoration Plan (1998) does

not address or incorporate recommendations for bull trout conservation

found in the St. Mary-Belly River population segment.

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 and hybridize with ``native char;'' subpopulation habitat

fragmentation and isolation caused by human activities; and the risk of

local extirpations due to natural events such as droughts and floods.

Introductions of non-native species by the Federal government,

State fish and game departments and unauthorized private parties across

the range of bull trout have 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; John Palmisano

and V. 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 including rainbow trout and

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).

Coastal-Puget Sound Population Segment

Competition and hybridization with introduced brook trout threatens

the persistence of some ``native char'' subpopulations in the Coastal-

Puget Sound DPS. The State of Washington has introduced brook trout

into several headwater areas occupied by ``native char;'' however, the

distribution of brook trout within many of these areas appears to be

limited. Brook trout can affect bull trout even in areas with

undisturbed habitats (e.g., National Parks). Brook trout normally have

a reproductive advantage (earlier maturation) over resident bull trout,

which can lead to species replacement (Leary et al. 1993; Thomas 1992).

At present, the distribution of 14 ``native char'' subpopulations

partially overlap with brook trout in the upper Sol Duc River, upper

Elwha River, lower Dungeness River-Gray Wolf River, upper North Fork

Skokomish River, South Fork-lower North Fork Skokomish River, Green

River, lower Puyallup (Carbon River), Snohomish River, Skykomish River,

Gorge Reservoir, Diablo Reservoir, Ross Reservoir, Lower Skagit River,

upper Middle Fork Nooksack River, and Canyon Creek (Reed Glesne, North

Cascades National Park, in litt. 1993; Mongillo and Hallock 1993; John

Meyer, Olympic National Park, pers. comm. 1995; Morrill and McHenry

1995; S. Brenkman, pers. comm. 1997; Brady Green, MBSNF, pers. comm.

1997).

``Native char'' subpopulations that have become geographically

isolated may no longer have access to migratory corridors. First- and

second-order streams in steep headwaters tend to be hydrologically and

geomorphically more unstable than large, low-gradient streams. Thus,

salmonids are being restricted to habitats where the likelihood of

extirpation because of random environmental events is greatest''

(Spence et al. 1996). ``Native char'' subpopulations that are likely to

be negatively affected by natural events as a result of isolation are

Cushman Reservoir, South Fork-lower North Fork Skokomish River, Gorge

Reservoir, Diablo Reservoir, Ross Reservoir, upper Middle Fork Nooksack

River, upper Quinault River, upper Sol Duc River, upper Dungeness

River, and Chester Morse Reservoir (Service 1998a). Of these 10

``native char'' subpopulations, we have examined species composition in

seven and bull trout have been confirmed in five (Cushman Reservoir,

South Fork-lower North Fork Skokomish River, upper Quinault River,

Chester Morse Reservoir, and upper Middle Fork Nooksack River), of

which three are ``depressed'' (Service 1998a).

St. Mary-Belly Population Segment

Non-native species are pervasive throughout the St. Mary and Belly

rivers (Fitch 1994; Fredenberg 1996; Clayton 1997). Brook, brown, and

rainbow trout have been widely introduced in the area. We are not aware

of any studies conducted in the DPS evaluating the effects of

introduced non-native fishes on bull trout. However, because brook

trout occur in the four bull trout subpopulations, competition and

hybridization are threats in the St. Mary and Belly rivers (Service

1998b), especially on resident bull trout (R. Wagner, pers. comm.

1998).

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by the Coastal-Puget Sound and St. Mary-Belly River

[[Page 58927]]

population segments of bull trout in determining this rule. Based on

this evaluation, we have determined to list the bull trout as

threatened in both population segments as summarized below.

Coastal-Puget Sound Population Segment

Bull trout and ``native char'' in the Coastal-Puget Sound

population segment have declined in abundance and distribution within

many individual river basins. Bull trout and ``native char'' currently

occur as 34 separate subpopulations, which indicates the level of

habitat fragmentation and geographic isolation. Seven subpopulations

are isolated above dams or other diversion structures, with at least 17

dams proposed in streams inhabited by other bull trout or ``native

char'' subpopulations. Bull trout and ``native char'' are threatened by

the combined effects of habitat degradation and fragmentation, blockage

of migratory corridors, poor water quality, harvest, and introduced

non-native species. Although several subpopulations lie completely or

partially within National Parks or Wilderness Areas, these

subpopulations are threatened by the presence of brook trout, or from

habitat degradation that is occurring outside of these restricted land

use areas. Based on the best available information, we have concluded

that at least 10 subpopulations are currently ``depressed,'' one

subpopulation is ``strong,'' and the status of the remaining 23

subpopulations is ``unknown.'' Some subpopulations in the north Puget

Sound have relatively greater abundance compared to other areas of the

Coastal-Puget Sound population segment. However, we remain concerned

over the reported declines in abundance in other north Puget Sound

subpopulations, and the documented threats present in these

subpopulation basins. Available anecdotal information indicates

additional subpopulations within the population segment have declined

in abundance.

St. Mary-Belly River Population Segment

The St. Mary-Belly population segment contains the only bull trout

found east of the Continental Divide in the coterminous United States.

We identified four subpopulations isolated primarily by irrigation dams

and diversions. Recent surveys indicate that bull trout occur in

relatively low abundance, with three subpopulations ``depressed'' and

the status of one subpopulation ``unknown.'' Migratory bull trout are

known to occur in three subpopulations, but these subpopulations are

isolated by irrigation dams and unscreened diversions. We consider the

dams and unscreened diversions a major factor affecting bull trout in

the population segment by inhibiting fish movement and possibly

entrainment into diversion channels and habitat alterations associated

with dewatering. There are no formal guidelines to minimize the effects

of the operation of the structures on bull trout. Bull trout are also

threatened by negative interactions with non-native brook trout that

occur with the four subpopulations.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the

specific area within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those biological features (I) essential to the conservation of the

species and (II) that may require special management considerations or

protection and; (ii) specific areas outside the geographical area

occupied by a species at the time it is listed, upon a determination

that such areas are essential for the conservation of the species.

``Conservation'' means the use of all methods and procedures needed to

bring the species to the point at which listing under the Act is no

longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. Our

regulations (50 CFR 424.12(a)) state that critical habitat is not

determinable if information sufficient to perform required analysis of

impacts of the designation is lacking or if the biological needs of the

species are not sufficiently well known to permit identification of an

area as critical habitat. Section 4(b)(2) of the Act requires us to

consider economic and other relevant impacts of designating a

particular area as critical habitat on the basis of the best scientific

data available. The Secretary may exclude any area from critical

habitat if he determines that the benefits of such exclusion outweigh

the conservation benefits, unless to do so would result in the

extinction of the species.

We find that the designation of critical habitat is not

determinable for bull trout in the coterminous United States, based on

the best available information. When a ``not determinable'' finding is

made, we must, within 2 years of the publication date of the original

proposed rule, designate critical habitat, unless the designation is

found to be not prudent. We reached a ``not determinable'' critical

habitat finding in the proposed rule, and we specifically requested

comments on this issue. While we received a number of comments

advocating critical habitat designation, none of these comments

provided information that added to our ability to determine critical

habitat. Additionally, we did not obtain any new information regarding

specific physical and biological features essential for bull trout

during the open comment period, including the five public hearings. The

biological needs of bull trout is not sufficiently well known to permit

identification of areas as critical habitat. Insufficient information

is available on the number of individuals or spawning reaches required

to support viable subpopulations throughout each of the distinct

population segments. In addition, we have not identified the extent of

habitat required and all specific management measures needed for

recovery of this fish. This information is considered essential for

determining critical habitat for these population segments. In

addition, within the Coastal-Puget Sound bull trout are sympatric with

Dolly Varden. These two species are virtually impossible to visually

differentiate and genetic and morphological-meristic analyses to

determine the presence or absence of bull trout and Dolly Varden have

only been conducted on 15 of the 35 ``native char'' subpopulations. The

presence of bull trout in the remaining 20 subpopulations in the

Coastal-Puget Sound along with the information noted above is

considered essential for determining critical habitat for these

population segments. Therefore, we find that designation of critical

habitat for bull trout in the coterminous United States is not

determinable at this time. We will protect bull trout habitat through

the recovery process and through section 7 consultations to determine

whether Federal actions are likely to jeopardize the continued

existence of the species.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing encourages and results in

conservation actions by

[[Page 58928]]

Federal, State, and private agencies, groups, and individuals. The Act

provides for possible land acquisition and cooperation with the States

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)(2) requires Federal agencies to ensure that

activities 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 us.

The Coastal-Puget Sound and St. Mary-Belly River population

segments occur on lands administered by the USFS, NPS, and BLM; various

State- and privately-owned properties in Washington (Coastal-Puget

Sound population segment) and Montana (St. Mary-Belly River population

segment); Blackfeet Tribal lands in Montana, and various Tribal lands

in Washington. Federal agency actions that may require 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; Federal Energy Regulatory Commission

licensed hydropower projects authorized under the Federal Power Act;

USFS and BLM timber, recreation, 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.

On January 27, 1998, an interagency memorandum between the USFS,

BLM and us outlined a process for bull trout section 7 conference and

consultation in recognition of the possibility of an impending listing

of bull trout in the Klamath River and Columbia River basins. The

process considers both programmatic actions (e.g., land management

plans) and site-specific actions (e.g., timber sales and livestock

grazing allotments) and incorporates conference and consultation at the

watershed level. The process uses a matrix (Service 1998c) to determine

the environmental baseline and the effects of actions on the

environmental baseline of bull trout. The USFS and BLM provided a

Biological Assessment (BA) to us on June 15, 1998, which evaluated the

effects of implementing the land management plans, as amended by

PACFISH and INFISH strategy, in the Klamath River and Columbia River

basins. PACFISH is the Interim Strategies for Managing Anadromous Fish-

producing Watersheds in Eastern Oregon and Washington, Idaho, and

Portions of California, developed by the USFS and BLM. PACFISH is

intended to be an ecosystem-based, aquatic habitat and riparian-area

management strategy for Pacific salmon, steelhead, and sea-run

cutthroat trout habitat on lands administered by the two agencies that

are outside the area subject to implementation of the NFP. INFISH is

the Inland Native Fish Strategy, which was developed by the USFS to

provide an interim strategy for inland native fish in eastern Oregon

and Washington, Idaho, western Montana, and portions of Nevada. The BA

concluded the plans, as amended, would not jeopardize the Klamath River

and Columbia River DPSs of bull trout. In addition, in a June 19, 1998,

letter, the land management agencies provided commitments in

implementing the PACFISH and INFISH aquatic conservation strategies to

ensure the USFS and BLM management plans and associated actions would

conserve federally listed bull trout. The commitments addressed:

restoration and improvement; standards and guidelines of PACFISH and

INFISH; key and priority watershed networks; watershed analysis;

monitoring; long-term conservation and recovery; and section 7

consultation at the watershed level. The BA and additional commitments

were part of the materials we evaluated in developing a biological

opinion on the management plans. The non-jeopardy biological opinion,

issued August 14, 1998, endorsed implementation of those commitments in

the Klamath River and Columbia River basins, in addition to identifying

further actions to help ensure conservation of bull trout in those

DPSs. The NFP applies to Federal lands in the Coastal-Puget Sound

population segment. Although we have not finalized a programmatic

biological opinion, programmatic consultations with three National

Forests have been re-initiated, including conferencing on bull trout

with the USFS regional office for the Olympic, Mount Baker-Snoqualmie,

and Gifford Pinchot National Forests.

The Act and implementing regulations found at 50 CFR 17.31 set

forth a series of general prohibitions and exceptions that apply to all

threatened wildlife. These prohibitions, in part, make it illegal for

any person subject to the jurisdiction of the United States to take

(which includes to 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 our agents and State conservation agencies. In this case, a

special rule tailored to this particular species takes the place of the

regulations in 50 CFR 17.31; the special rule, though, incorporates

most requirements of the general regulations, although with additional

exceptions.

We may issue permits under section 10(a)(1) of the Act to carry out

otherwise prohibited activities involving endangered and threatened

wildlife under certain circumstances. Regulations governing permits are

at 50 CFR 17.32 for threatened species. 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. Permits are also available for zoological exhibition,

educational purposes, or special purposes consistent with the purpose

of the Act. For copies of the regulations concerning listed plants and

animals, and general inquiries regarding prohibitions and permits,

contact the U.S. Fish and Wildlife Service, Ecological Services,

Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon,

97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

It is our policy, 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 list, listing 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. We believe

the following actions would not be likely to result in a violation of

section 9, provided the activities are carried out in accordance with

all existing regulations and permit requirements:

[[Page 58929]]

(1) Actions that may affect bull trout 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 us pursuant to

section 7 of the Act;

(2) Possession of bull trout caught legally in accordance with

authorized State, NPS, and Tribal fishing regulations (see ``Special

Rule'' section);

(3) State, local and other activities approved by us under section

4(d), section 6(c)(1), or section 10(a)(1) of the Act;

(4) The planting of native vegetation within riparian areas, using

hand tools or mechanical auger. This does not include any site

preparation that involves the removal of native vegetation (such as

deciduous trees and shrubs) or goes beyond that necessary to plant

individual trees, shrubs, etc.;

(5) The installation of fences to exclude livestock impacts to the

riparian area and stream channel. The installation of new off-channel

livestock watering facilities where livestock use streams for watering,

and the operation and maintenance of existing off-channel livestock

watering facilities. These watering facilities must consist of low

volume pumping, gravity feed or well systems, and in-water intakes must

be screened consistent with National Marine Fisheries Service (NMFS)

Juvenile Fish Screen Criteria For Pump Intakes. This does not include

the potential impacts associated with the grazing activity itself or

negative effects attributable to depleting stream flow due to water

withdrawal;

(6) The placement of human access barriers, such as gates, fences,

boulders, logs, vegetative buffers, and signs to limit use- and

disturbance-associated impacts. These impacts include timber theft,

disturbance to wildlife, poaching, illegal dumping of waste, erosion of

soils, and sedimentation of aquatic habitats, particularly in sensitive

areas such as riparian habitats or geologically unstable zones. This

does not include road maintenance or the potential impacts associated

with the road itself;

(7) The current operation and maintenance of fish screens on

various water facilities that meet the current NMFS Juvenile Fish

Screen Criteria and Juvenile Fish Screen Criteria For Pump Intakes.

This does not include the use of traps or other collection devices at

screen installations, operation of the diversion structure, or negative

effects attributable to depleting stream flow due to water diversion;

(8) The installation, operation, and maintenance of screens where

the existing canal or ditch is located off the main stream channel. The

canal or ditch must be dewatered prior to screen and bypass

installation and prior to fish entering the canal or ditch. Installed

screens and bypass structures must meet the current NMFS Juvenile Fish

Screen Criteria. Bypass must be accomplished through free (volitional)

access, with adequate velocities, construction materials and stream re-

entry conditions that will not result in harm or death to fish. This

does not include the use of traps or other collection devices at screen

installations, placement or operation of the diversion structure, or

negative effects attributable to depleting stream flow due to water

diversion;

(9) The general maintenance of existing structures (such as homes,

apartments, commercial buildings) which may be located in close

proximity to a stream corridor, but outside of the stream channel. This

does not include potential impacts associated with sediment or chemical

releases that may adversely affect bull trout or their habitat, nor

does this include those activities that may degrade existing riparian

areas or alter streambanks (such as removal of streamside vegetation

and streambank stabilization); and

(10) The lawful use of existing State, county, city, and private

roads. This does not include road maintenance and the potential impacts

associated with the road itself that may destroy or alter bull trout

habitat (such as grading of unimproved roads, stormwater and

contaminant runoff from roads, failing road culverts, and road culverts

that block fish migration), unless authorized by us through section 7

or 10 of the Act.

The following actions likely would be considered a violation of

section 9:

(1) Take of bull trout without a permit or other incidental take

authorization from us. Take includes harassing, harming, pursuing,

hunting, shooting, wounding, killing, trapping, capturing, or

collecting, or attempting any of these actions, except in accordance

with applicable State, NPS, and Tribal fish and wildlife conservation

laws and regulations;

(2) To possess, sell, deliver, carry, transport, or ship illegally

taken bull trout;

(3) Unauthorized interstate and foreign commerce (commerce across

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

discussed in the prohibition discussion earlier in this section);

(4) Intentional 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,

grading of unimproved roads, stormwater and contaminant runoff from

roads, failing road culverts, and road culverts that block fish

migration or other activities that result in the destruction or

significant degradation of cover, channel stability, substrate

composition, turbidity, 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 or lakeshore habitat and

adjoining uplands of waters supporting bull trout by timber harvest,

grazing, mining, hydropower development, road construction or other

developmental activities that result in destruction or significant

degradation of cover, channel stability, substrate composition,

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

cover, migration, and spawning.

We will review other activities not identified above on a case-by-

case basis to determine if a violation of section 9 of the Act may be

likely to result from such activity. We do not consider these lists to

be exhaustive and provide them as information to the public.

Direct your questions regarding whether specific activities may

constitute a violation of section 9 to the Supervisor, Western

Washington Office, 510 Desmond Drive SE, Suite 102, Lacey, Washington

98503 (telephone 360/753-9440; facsimile 360/753-9518) for the Coastal-

Puget Sound population segment; the Montana Field Office, 100 N. Park,

Suite 320 Helena, Montana 59601 (telephone 406/449-5225; facsimile 406/

449-5339) for the St. Mary-Belly River population segment.

Special Rule

Section 4(d) of the Act provides that when a species is listed as

threatened, we are to issue such regulations as are necessary and

advisable to provide for the conservation of the species. We have

generally done so by adopting regulations (50 CFR 17.31) applying with

respect to threatened species the same prohibitions that under the Act

apply with respect to endangered species. Those prohibitions generally

make it illegal to import, export, take, possess, ship in interstate

commerce, or sell a member of the species. The ``take'' that is

prohibited includes harassing, harming, pursuing, hunting, shooting,

wounding, killing, trapping, capturing, or collecting the wildlife, or

attempting to do any of those things. However, we may also issue a

special rule tailored to

[[Page 58930]]

a certain threatened species, establishing with respect to it only

those particular prohibitions that are necessary and advisable for its

conservation. In that case, the general prohibitions in 50 CFR 17.31 do

not apply to that species, and the special rule contains all the

prohibitions and exceptions that do apply. Typically, such special

rules incorporate all the prohibitions contained in 50 CFR 17.31, with

additional exceptions for certain forms of take that we have determined

are not necessary and advisable to prohibit in order to provide for the

conservation of that particular species.

The special rule in this final determination for bull trout will

apply to bull trout wherever found in the coterminous lower 48 States,

except in the Jarbidge River basin in Nevada and Idaho. The principal

effect of the special rule is to allow take in accordance with State,

NPS, and Native American Tribal permitted fishing activities. Since we

are finalizing the listing of bull trout as a coterminous listing, we

are essentially adding the special rule we had proposed for the

Coastal-Puget Sound and St. Mary-Belly River population segments to the

existing special rule for the Klamath and Columbia River population

segments published on June 10, 1998 (63 FR 31647). The resultant

special rule is effectively identical to the proposed rule for the

Coastal-Puget Sound and St. Mary-Belly population segments and does not

change the existing special rule for the Klamath and Columbia River

population segments. The special rule for the Jarbidge River population

segment is effectively identical to the special rule for the other four

population segments except that it is only valid until April 9, 2001,

and thus, will remain separate.

We believe that statewide angling regulations have become more

restrictive in an attempt to protect bull trout in Washington, Idaho,

Oregon, California, and Montana, and are adequate to provide continued

conservation benefits for bull trout in the Klamath River, Columbia

River, Coastal-Puget Sound and the St. Mary-Belly River population

segments. The State of Washington closed fishing in 1994 for ``native

char'' in most waters within the Coastal-Puget Sound population. Legal

angler harvest in the St. Mary-Belly River DPS in Montana occurs only

on the Blackfeet Indian Reservation. Legal harvest of bull trout in the

Klamath River basin was eliminated in 1992 when the Oregon Department

of Fish and Wildlife imposed a fishing closure. State management

agencies in Idaho, Oregon, Montana, and Washington have suspended

harvest of bull trout in the Columbia River basin, except in Lake Billy

Chinook (Oregon) and Swan Lake (Montana). Since the States and many

Tribal governments have demonstrated a willingness to adjust their

regulations to reduce fishing pressures where needed, we do not believe

it is necessary and advisable for the conservation of the species to

prohibit take through regulated fishing of subpopulations of bull trout

that are exhibiting stable or increasing numbers of individuals and

where habitat conditions are not negatively depressing local fish

stocks. Using discretion when applying 4(d) exemptions can foster

incentives for States and Tribes to expedite conservation efforts by

providing rewards for restoring stocks and allowing regulated harvest

prior to delisting. For example, Washington has only two systems in the

Coastal-Puget Sound population segment that are open for bull trout

fishing. These systems have a two fish limit with a minimum 508 mm (20

in.) size limit to allow females to spawn at least once. Also, as long

as these systems are closely monitored, we are gaining valuable

information about the life history, relative abundance, and

distribution of bull trout, which will be important for working towards

the recovery of the species. We intend to continue to work with the

States and Tribes in assessing whether current fishing regulations are

adequate to protect bull trout, and in developing management plans and

agreements with the objective of recovery and eventual delisting of the

species.

In accordance with the June 1997 Secretarial Order on Federal-

Tribal trust responsibilities and the Act, we will work with Tribal

governments that manage bull trout streams to restore ecosystems and

enhance Tribal management plans affecting the species. We believe that

the special rule is consistent with the Secretarial Order designed to

enhance Native American participation under the Act and will allow more

efficient management of the species on Tribal lands.

Elsewhere in today's Federal Register we have published a Notice of

Intent which outlines our intent to develop, through section 4(d) of

the Act, another special rule for bull trout that would provide

conservation benefits to the species, while ensuring the future

continuation of land management actions. The special rule would address

two categories of activities affecting bull trout: (1) Habitat

restoration; and (2) regulations that govern land and water management

activities. Please refer to the notice for further information and if

you wish to provide comments to us.

Similarity of Appearance

Section 4(e) of the Act authorizes the listing of a non-threatened

or endangered species based on similarity of appearance to a threatened

or endangered species if--(A) the species so closely resembles in

appearance an endangered or threatened species that enforcement

personnel would have substantial difficulty in differentiating between

the listed and unlisted species; (B) the effect of this substantial

difficulty is an additional threat to an endangered or threatened

species; and (C) such treatment will substantially facilitate the

enforcement and further the policy of the Act.

Within the Coastal-Puget Sound population segment, bull trout occur

sympatrically within the range of the Dolly Varden. These two species

so closely resemble one another in external appearance that it is

virtually impossible for the general public to visually differentiate

the two. Currently, WDFW manages bull trout and Dolly Varden together

as ``native char.'' Fishing for bull trout and Dolly Varden is open in

four subpopulations within the Coastal-Puget Sound population segment,

two under WDFW regulations, and two under Native American Tribal

regulations. These ``native char'' fisheries may adversely affect these

subpopulations of bull trout. However, under current harvest

management, there is no evidence that the specific harvest for Dolly

Varden creates an additional threat to bull trout within this

population segment. Therefore, a similarity of appearance rule is not

being issued for Dolly Varden at this time. However, if bull trout and

Dolly Varden are managed in Washington State as separate species in the

future, we may consider, at that time, the merits of proposing Dolly

Varden under the similarity of appearance provisions of the Act.

Section 7 Consultation

Although this rule consolidates the five bull trout DPSs into one

listed taxon, based on conformance with the DPS policy for purposes of

consultation under section 7 of the Act, we intend to retain

recognition of each DPS in light of available scientific information

relating to their uniqueness and significance. Under this approach,

these DPSs will be treated as interim recovery units with respect to

application of the jeopardy standard until an approved recovery plan is

developed. Formal establishment of bull trout recovery

[[Page 58931]]

units will occur during the recovery planning process.

Paperwork Reduction Act for the Listing

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. An agency may not conduct or sponsor, and a

person is not required to respond to a collection of information,

unless it displays a currently valid control number. For additional

information concerning permit and associated requirements for

threatened species, see 50 CFR 17.32.

Required Determinations for the Special Rule

Regulatory Planning and Review, Regulatory Flexibility Act, and Small

Business Regulatory Enforcement Fairness Act

The special rule was not subject to Office of Management and Budget

(OMB) review under Executive Order 12866.

This special rule will not have an annual economic effect of $100

million or adversely affect an economic sector, productivity, jobs, the

environment, or other units of the government. Therefore, a cost-

benefit and full economic analysis is not required.

Section 4(d) of the Act provides authority for us to issue

regulations necessary to provide for the conservation of species listed

as threatened. We find that State, NPS, and Native American Tribal

angling regulations have become more restrictive in an attempt to

protect bull trout in the coterminous United States. We believe that

existing angling regulations developed independently by the States,

National Park Service, and Native American Tribes are adequate to

provide continued conservation benefits for the bull trout in the

coterminous United States. As a result, the special rule will allow

angling to take place in the river systems within the Klamath River,

Columbia River, Coastal-Puget Sound, and St. Mary-Belly River DPSs

under existing State regulations. The Jarbidge River DPS has a separate

special rule that was made final on April 8, 1999 (64 FR 17110), and

continues to remain in effect for that DPS. The economic effects

discussion addresses only the economic benefits that will accrue to the

anglers who can continue to fish in river systems within the Klamath

River, Columbia River, Coastal-Puget Sound and St. Mary-Belly River

population segments. Although the special rule for the Klamath River

and Columbia River DPSs was finalized on June 10, 1998 (63 FR 31647),

and continues to remain in effect, they are included in this ``Required

Determinations for the Special Rule'' section since the special rule

applies to all four DPSs (see ``Special Rule'' section for further

discussion of this issue).

This special rule will allow continued angling opportunities in

Washington, Idaho, Oregon, California, and Montana under existing

State, NPS, and Native American Tribal regulations. Data on the number

of days of trout fishing under new State regulations are available by

State from the 1996 National Survey of Fishing, Hunting, and Wildlife

Associated Recreation. These data pertain to total trout fishing in

each State. In order to develop an estimate of angling days preserved

by this rule, we used the proportion of the river miles in this rule to

total river miles of coldwater running rivers and streams in each State

to estimate the portion of total trout angling days affected by this

rule. Because of the lack of definitive data, we decided to do a worst

case analysis. We analyzed the economic loss in angling satisfaction,

measured as consumer surplus, if all trout fishing were prohibited in

the Klamath, Columbia, St. Mary-Belly rivers and the Coastal-Puget

Sound. Since there are substitute sites in each State where fishing is

available, this measure of consumer surplus is a conservative estimate

and would be a maximum estimate. The total estimated angling days

a

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