Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Jarbidge River Population Segment of Bull Trout

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF01

Endangered and Threatened Wildlife and Plants; Determination of

Threatened Status for the Jarbidge River Population Segment of Bull

Trout

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

threatened status for the Jarbidge River distinct population segment of

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

northern Nevada and southern Idaho, with a special rule, pursuant to

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

River population segment, composed of a single subpopulation with few

individuals, is threatened by habitat degradation from past and ongoing

land

[[Page 17111]]

management activities such as road construction and maintenance,

mining, and grazing; interactions with non-native fishes; and

incidental angler harvest. We based this final determination on the

best available scientific and commercial information including current

data and new information received during the comment period. This

action continues protection for this population segment of the bull

trout which was effective for a 240-day period beginning when we

emergency listed this population segment on August 11, 1998.

EFFECTIVE DATE: This rule is effective on April 8, 1999.

ADDRESSES: The complete administrative file for this rule is available

for inspection, by appointment, during normal business hours at the

U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340

Financial Boulevard, Suite 234, Reno, Nevada 89502-7147.

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

at the above address (telephone 775/861-6300; facsimile 775/861-6301).

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 habitat in the

Jarbidge River basin is a mosaic of land ownership, including Federal

lands administered by the U.S. Forest Service (USFS) and U.S. Bureau of

Land Management (BLM); State lands in Idaho; and private lands.

Bull trout were first described as Salmo spectabilis by Girard in

1856 from a specimen collected on the lower Columbia River (Cavender

1978). Bull trout and Dolly Varden (Salvelinus malma) were previously

considered a single species (Cavender 1978; Bond 1992); however, they

were formally recognized as separate species by the American Fisheries

Society in 1980 (Robins et al. 1980).

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). 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. These habitat components include water

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

elevation, 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 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 individual 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

streams with 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). However, biologists collected young-of-the-year bull

trout in high gradient stream reaches with minimal gravel within the

Jarbidge River basin, indicating that spawning occurred in these areas

or further upstream (Gary Johnson, Nevada Division of Wildlife (NDOW),

pers. comm. 1998a; Terry Crawforth, NDOW, in litt. 1998). Pratt (1992)

reported that increases in fine sediments reduce egg survival and

emergence.

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 (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

(Goetz 1989).

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

as long

[[Page 17112]]

as 12 years. Repeat and alternate year spawning have been reported,

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). 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

(fish eating) and are 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 Jarbidge River basin, bull trout occur with native redband

trout (Oncorhynchus mykiss), mountain whitefish (Prosopium

williamsoni), sculpin, bridgelip sucker (Catostomus columbianus), and

various minnow (Cyprinidae) species. Introductions of non-native

fishes, including brook trout (Salvelinus fontinalis), and hatchery

rainbow trout (O. mykiss), have also occurred within the range of bull

trout in the Jarbidge River basin. These non-native fishes have been

associated with local bull trout declines and extirpations elsewhere in

the species' range (Bond 1992; Ziller 1992; Donald and Alger 1993;

Leary et al. 1993; Montana Bull Trout Scientific Group (MBTSG) 1996a).

Stocked brook trout failed to establish a self-sustaining

population in the Jarbidge River system, but an introduced population

still occurs in Emerald Lake, a high-elevation lake within the Jarbidge

River watershed (T. Crawforth, in litt. 1998; Rich Haskins, NDOW, pers.

comm. 1998; G. Johnson, pers. comm. 1998). Brook trout may spill out of

the lake into the East Fork of the Jarbidge River during peak runoff

events, although the lack of a defined outlet makes such an event

appear unlikely (G. Johnson, pers. comm. 1994). NDOW's rainbow trout

stocking program in the Jarbidge River system has been ongoing since

the 1970s, and the Idaho Department of Fish and Game (IDFG) stocked

rainbow trout in the Idaho portion of the East and West Forks of the

Jarbidge River from 1970 to 1989 (Fred Partridge, IDFG, in litt. 1998).

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 re-

establish extirpated local subpopulations.

Metapopulation concepts of conservation biology theory may be

applicable to the distribution and characteristics of bull trout

(Rieman and McIntyre 1993). 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 reestablishment 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

The best available scientific and commercial information identifies

five distinct population segments (DPSs) of bull trout in the 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. The approach is consistent with

the joint National Marine Fisheries Service and Fish and Wildlife

Service policy for recognizing distinct vertebrate population segments

under the Act, published on February 7, 1996 (61 FR 4722). This final

rule addresses only the Jarbidge River DPS. The Coastal-Puget Sound and

St. Mary-Belly River bull trout DPSs will be the subject of a final

rule expected to be published in June 1999.

Three elements are considered in the decision on whether a

population segment could be treated as threatened or endangered under

the Act--discreteness, significance, and conservation status in

relation to the standards for listing. Discreteness refers to the

isolation of a population from other members of the species and is

based on two criteria--(1) marked separation from other populations of

the same taxon resulting from physical, physiological, ecological, or

behavioral factors, including genetic discontinuity; and (2)

populations delimited by international boundaries. Significance is

determined either by the importance or contribution, or both, of a

discrete population to the species throughout its range. Four criteria

were used to determine significance--(1) persistence of the discrete

population segment in an ecological setting unusual or unique for the

taxon; (2) evidence that loss of the discrete population segment would

result in a significant gap in the range of the taxon; (3) evidence

that the discrete population segment represents the only surviving

natural occurrence of the taxon that may be more abundant elsewhere as

an introduced population outside its historic range; and (4) evidence

that the discrete population segment differs markedly from other

populations of the taxon in its genetic characteristics. If a

population segment is discrete and significant, its evaluation for

endangered or threatened status is based on the Act's standards.

The Jarbidge River in southwest Idaho and northern Nevada is a

tributary in the Snake River basin and contains the southernmost

habitat occupied by bull trout. This population segment is discrete

because it is geographically segregated from other bull trout in the

Snake River basin by more than 240 km (150 mi) of unsuitable habitat

and

[[Page 17113]]

several impassable dams on the mainstem Snake River and the lower

Bruneau River. The occurrence of a species at the extremities of its

range is not necessarily sufficient evidence of significance to the

species as a whole. However, since the Jarbidge River possesses bull

trout habitat that is disjunct from other patches of suitable habitat,

the population segment is considered significant because it occupies a

unique or unusual ecological setting, and its loss would result in a

substantial modification of the species' range.

Status and Distribution

To facilitate evaluation of current bull trout distribution and

abundance for the Jarbidge River population segment, we analyzed data

on a subpopulation basis 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 would be 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, the impassable

waterfall would prevent reestablishment of the subpopulation by

downstream fish. However, a subpopulation residing downstream of the

waterfall would not be considered at risk of extirpation because of

potential reestablishment by fish from upstream. Because resident bull

trout may exhibit limited downstream movement (Nelson 1996), our

estimate of subpopulations at risk of extirpation by natural events may

be underestimated. We based the status of subpopulations 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.

The Jarbidge River DPS is currently believed to contain a single

subpopulation in the East Fork, West Fork, and mainstem Jarbidge River

in Idaho and Nevada, and headwater tributaries in Nevada (Service

1998), however, further definitive genetic analysis of population

structure is needed. This population segment is isolated from other

bull trout by a large expanse of unsuitable habitat. Although accounts

of bull trout in the Jarbidge River basin date to the 1930s, both

sampling and actual collections of bull trout were infrequent (Miller

and Morton 1952; Johnson 1990; Johnson and Weller 1994). Therefore,

historical distribution and abundance data are limited.

The current distribution of bull trout in the Jarbidge River basin

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

(ft)) elevation within the Jarbidge Wilderness Area--the East Fork and

West Fork Jarbidge River and Slide, Dave, Pine, Sawmill, Fall, and

Cougar Creeks (Johnson and Weller 1994; G. Johnson, pers. comm. 1998a).

There is no definitive information on whether bull trout have been

extirpated from Jarbidge River headwater tributaries. However, recent

surveys indicate that bull trout have likely been extirpated from one

historical tributary, Jack Creek (G. Johnson, pers. comm. 1998a; T.

Crawforth, in litt. 1998).

In 1934, bull trout were first collected in Dave Creek (East Fork

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

and Morton 1952). They were later documented in the East Fork of the

Jarbidge River in 1951 and the West Fork in 1954 (T. Crawforth, in

litt. 1998). Zoellick et al. (1996) compiled survey data from 1954

through 1993 and estimated bull trout population size in the middle and

upper headwater areas of the West and East Forks of the Jarbidge River

at less than 150 fish/km (240 fish/mi). Low numbers of migratory

(fluvial) bull trout were documented in the West Fork of the Jarbidge

River from the 1970s through the mid-1980s (Johnson and Weller 1994).

In 1985, 292 resident-size bull trout were estimated to reside in the

West Fork (Johnson and Weller 1994). In 1993, the abundance of

resident-size bull trout in the East Fork was estimated at 314 fish

(Johnson and Weller 1994). During snorkel surveys conducted in October

1997, no bull trout were observed in 40 pools of the West Fork of the

Jarbidge River. Biologists did not observe bull trout during surveys in

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

and Partridge 1993; Allen et al. 1996). However, traps operated on the

lower East and West Forks, during August through October 1997, captured

a single small bull trout in Idaho on the West Fork. (Zoellick et al.

1996; T. Crawforth, in litt. 1998). The Salvelinus confluentus

Curiosity Society (SCCS), a group of individuals interested in bull

trout conservation, surveyed bull trout in the Jarbidge River in August

1998. During this 1-day survey, a total of approximately 40 stations

were sampled throughout the West Fork of the Jarbidge River, Jack

Creek, Pine Creek and tributaries, Dave Creek, Fall Creek and

tributaries, Slide Creek and tributaries, and Sawmill Creek. A total of

66 adult and juvenile bull trout were reported as either collected or

observed (Selena Werdon, Service, pers. comm. 1998). No bull trout were

found in one historically occupied stream, Jack Creek, despite the

removal of a fish barrier in 1997.

NDOW provided population estimates, based on extrapolations of SCCS

data and NDOW surveys, which totaled about 1,800 fish in the West and

East Forks of the Jarbidge River, and seven other creeks and

tributaries (G. Johnson, pers. comm. 1998a). However, the value of this

data is in question (see our response to ``Issue 2''). Also, it is

estimated that between 50 and 125 bull trout spawn throughout the

Jarbidge River basin annually (G. Johnson, pers. comm. 1998b). Exact

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

1998a). A total of three potential

[[Page 17114]]

resident bull trout redds were observed in the upper West Fork in 1995

and 1997 surveys (Ramsey 1997).

Adequate population trend information for bull trout in the

Jarbidge River subpopulation is not available, although the current

characteristics of bull trout in the basin include low numbers and

disjunct distribution. These characteristics have been described as

similar to that observed in the 1950s (Johnson and Weller 1994). Based

on recent surveys, the bull trout population in the Jarbidge River

basin is considered ``depressed'' in all of the occupied range.

Migratory fish (fluvial) may be present in low abundance, but resident

fish are the predominant life history form. Past and present activities

within the Jarbidge River basin have likely restricted bull trout

migration, thus reducing opportunities for bull trout reestablishment

in areas where the fish are no longer found (Service 1998).

In 1998, the SCCS collected fin clips for genetic analysis from

bull trout within the Jarbidge River basin. Although sample sizes from

each stream varied and were typically small (less than 30 individuals),

preliminary genetic analysis of these tissue samples using DNA

microsatellites indicated that fish in the East and West Forks were

highly differentiated, and that tributaries to the East Fork also

showed differentiation (Jason Dunham, University of Nevada-Reno, in

litt. 1998; Bruce Rieman, USFS, in litt. 1998; Paul Spruell, University

of Montana, in litt. 1998). These preliminary data indicate the

potential presence of multiple, tributary resident bull trout

subpopulations, with limited gene flow among them, within the Jarbidge

River basin (T. Crawforth, in litt. 1998; J. Dunham, in litt. 1998; B.

Rieman, in litt. 1998).

In summary, we considered new, though limited, information

submitted on the abundance, trends in abundance, and distribution of

bull trout in the Jarbidge River population segment. Resident fish

inhabit the East Fork and West Fork of the Jarbidge River and tributary

streams, and extremely low numbers of migratory (fluvial) fish may

still be present in the watershed (Zoellick et al. 1996; K. Ramsey,

USFS, in litt. 1997; L. McLelland, NDOW, in litt. 1998; Crawforth, in

litt. 1998). If the Jarbidge River DPS is extirpated, individuals from

other areas are unlikely to reestablish this DPS due to the presence of

dams downstream on the Snake and Bruneau Rivers and the 240 km (150 mi)

of unsuitable, degraded habitat within these migratory corridors. Past

and present activities within the Jarbidge River basin have likely

restricted bull trout migration, thus reducing opportunities for bull

trout reestablishment in areas where the fish are no longer found

(Service 1998). There is no definitive information on whether bull

trout have been extirpated from Jarbidge River headwater tributaries.

However, recent surveys indicate that bull trout have likely been

extirpated from one historical tributary, Jack Creek.

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 risk of extinction. A 90-day finding, published

on May 17, 1993 (58 FR 28849), 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.

On June 6, 1994, we concluded in our original 12-month finding that

listing of 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 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 (District Court) arguing that the warranted but

precluded finding was arbitrary and capricious. After we ``recycled''

the petition and issued another 12-month finding for the coterminous

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

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 (Circuit Court),

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 District Court

issued an order and opinion remanding the original finding to us for

further consideration. Included in the instructions from the District

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. The

reconsidered 12-month finding based on the 1994 Administrative Record

was delivered to the District Court on March 13, 1997.

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 the plaintiffs and us filed with the District Court

on April 11, 1997, we agreed to issue a proposed rule in 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 District Court ordered us to reconsider

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

the District 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

[[Page 17115]]

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

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

August 11, 1998, we issued an emergency rule listing the Jarbidge River

population 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 (63 FR 42757).

Summary of Comments and Recommendations

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

interested parties to submit comments or information that might

contribute to the final listing determination for bull trout. 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, 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. We

accepted comments on the emergency rule for the Jarbidge River DPS

until the comment period on the proposed rule ended on October 8, 1998.

We received 9 oral and 14 written comments (including electronic

mail) on the proposed rule which pertained to the Jarbidge River DPS;

other comments were generic to all three DPSs. Of those specific to the

Jarbidge River DPS, four written comments also addressed the emergency

rule. We also received comments on the Jarbidge River DPS from two

Federal agencies, two State agencies, one county in Nevada, four

environmental organizations, and nine individuals. We received comments

from a member of the Nevada Congressional delegation. In addition, we

solicited formal scientific peer review of the proposal in accordance

with our July 1, 1994, Interagency Cooperative Policy (59 FR 34270). 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 their comments are also addressed in this section of the

rule.

We considered all comments, including oral testimony presented at

the public hearings, and also the comments from the only peer reviewer

who responded to our request to review the proposed rule. A majority of

comments supported the listing proposal for the Jarbidge River DPS,

while seven 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 USFS (Ben Siminoe, USFS,

in litt. 1998; Dave Aicher, USFS, pers. comm. 1998), BLM (Jim Klott,

BLM, pers. comm. 1998), NDOW (G. Johnson, NDOW, pers. comm. 1998a; R.

Haskins, NDOW, in litt. 1998), and IDFG (F. Partridge, IDFG, 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. 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: One respondent questioned our subpopulation definition and

asked whether absolute reproductive isolation was required or only some

level of population structuring that means reduced gene flow and some

local adaptation. Several respondents questioned our single

subpopulation designation for the Jarbidge River DPS given preliminary

new genetic information which indicates the potential presence of

multiple local tributary subpopulations, with limited gene flow. Some

respondents also suggested that the bull trout in the Jarbidge River

may better fit the definition of a metapopulation, as described in the

proposed rule (63 FR 31693). Respondents pointed out that genetic

information and changes in DPS population structuring have implications

for risk assessment, as well as management and recovery strategies.

Our Response: We selected subpopulations as a convenient unit to

analyze bull trout within population segments, and defined a

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 was an appropriate consideration

for identifying subpopulations.

We reviewed preliminary new genetic and other biological data

developed since the June 10, 1998 (63 FR 31693), proposed rule and

determined that there is insufficient information available to further

divide the Jarbidge River DPS into more than one subpopulation at this

time. We believe that barriers to movement (including unsuitable

habitat) were an appropriate consideration for identifying

subpopulations. However, we believe that additional samples of genetic

data for several tributaries are needed to accurately define bull trout

population structure within the Jarbidge River basin. We still consider

this DPS to contain one subpopulation based on the following: (1)

conclusive genetic data are not available due to limited sample sizes

from many of the tributaries; (2) bull trout in these tributaries are

not

[[Page 17116]]

physically reproductively isolated; and (3) barriers to movement exist.

We did consider this new genetic information and potential

metapopulation structure in assessing the overall level of threat to

this DPS. Although the existence of a potential metapopulation may

reduce the risk of extinction for this DPS as a whole, the potential

presence of unique genetic material in each tributary further elevates

their individual relative importance within the DPS. The genetic

diversity of all bull trout within the basin will be fully considered

in future management and recovery planning in the Jarbidge River basin.

As more complete genetic data become available, management and recovery

actions may change accordingly.

Issue 2: Numerous respondents provided conflicting comments on the

status and trend of bull trout in the Jarbidge River DPS. Respondents

variously claimed that population status is either stable, increasing,

or uncertain. Some respondents questioned the amount and reliability of

survey data and sampling methodologies. One respondent noted that we

did not evaluate the listing criteria with objective and quantitative

methods, making it difficult to interpret new information in a

consistent manner. The reviewer also noted 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 listed in section 4(a)(1) of

the Act (see the ``Summary of Factors Affecting the Species'' section).

The Act requires us to base listing determinations on the best

available commercial and scientific information.

The listing process includes an opportunity for the public to

comment and provide new information for us to evaluate and consider

before making a final decision. Aside from previously cited studies and

reports in the proposed and emergency rules, we reviewed and considered

new information regarding bull trout distribution and abundance for the

Jarbidge River basin from NDOW (G. Johnson, pers. comm. 1998a; T.

Crawforth, in litt. 1998) and the SCCS (S. Werdon, pers. comm. 1998).

Data are often not available to make statistically rigorous inferences

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

distribution). Historical and recent collections have consisted of a

few, sporadic presence and absence-type surveys occurring years or

decades apart, each reflecting a single point-in-time. No regular,

standardized, quantitative surveys designed to detect population trends

of bull trout over a period of time, with statistical testing to

qualify data accuracy, have been done.

NDOW provided us with population estimates for streams in the

Jarbidge River basin which they derived by extrapolating the number of

bull trout collected or observed (via single-pass electrofishing or

snorkeling) within 30-m (100-ft) stations to kilometers (miles) of

stream habitat. For example, one bull trout per station equaled an

average population density of 85 bull trout/km (52.8 bull trout/mi) in

a particular stream reach. We believe these extrapolations are

inaccurate since past surveys confirm that bull trout exhibit patchy

distributions, and comparisons of such population estimates among years

does not provide an accurate analysis of population trends. We

specifically requested additional information from NDOW during the

comment period, however, they did not provide information on the actual

number of bull trout collected or observed, the sizes or life-stages of

the fish, or the specific locations where fish were collected during

1998 surveys. This information would be useful for comparison with

prior distribution and abundance data. Nevertheless, we believe overall

numbers in the subpopulation are low, and that concentrations of fish

are found in only a few headwater streams where suitable habitat

remains. Overall, we found sufficient evidence exists that demonstrates

the Jarbidge River population segment is threatened by a variety of

past and on-going threats and is likely to become endangered in the

foreseeable future.

Issue 3: Numerous respondents provided conflicting comments on the

validity and level of impact from threats identified in the proposed

and emergency rules. Some respondents also suggested additional threats

to this population.

Our Response: Threats identified in the proposed rule for the

Jarbidge River DPS include habitat degradation from past and ongoing

land management activities such as road construction and maintenance,

mining, and livestock grazing. Additional threats we evaluated included

non-native rainbow trout stocking, angling for other fish species,

migration barriers, and future natural events. We emergency listed the

population due to habitat destruction on the West Fork of the Jarbidge

River associated with unauthorized road construction, and the

substantial risk of continued loss of bull trout habitat through

additional unauthorized road construction. We believe the threats

identified in the proposed and emergency rules threaten the continued

existence of bull trout in the Jarbidge River system. However,

respondents may have misconstrued our perceived level of threat

associated with certain activities, livestock grazing in particular. We

recognize that existing levels of livestock grazing provide relatively

minor impacts to bull trout habitat throughout the Jarbidge River

basin; however, all potential threats must be considered during the

listing process.

Many of the threats addressed in the proposed rule were associated

with residual effects from historical activities within the basin

(e.g., mining) and some respondents felt they were no longer valid

threats. We recognize that overall watershed conditions have improved

from early this century, but impacts to bull trout habitat from such

historical activities still exist (e.g., elevated water temperatures

from mine adit discharges). Road construction and associated

maintenance activities, especially those occurring within riparian

areas or adjacent to occupied bull trout streams, have documented

impacts on bull trout habitat conditions and thereby threaten bull

trout.

Issue 4: Many respondents provided comments regarding prior and

ongoing beneficial management and/or habitat rehabilitation measures

for bull trout throughout the Jarbidge River watershed. Some

respondents also stated that overall watershed conditions in the

Jarbidge River basin are improving.

Our Response: Section 4(b)(1)(A) of the Act, requires us to make

listing decisions solely on the best scientific and commercial data

available after conducting a review of the status of the species. The

Act also instructs us to consider existing regulatory mechanisms,

including efforts by State, local and other entities to protect a

species, including conservation plans or practices.

We recognize that numerous individual conservation actions and

restoration projects have been undertaken by the USFS, BLM, States,

conservation groups, and other entities for bull trout in the Jarbidge

River basin. For example, the Jarbidge Bull Trout Task Force,

established in 1994, completed a project to restore access for bull

trout to Jack Creek in 1997. However, no bull trout were found in Jack

Creek in 1998. The USFS has fenced some springs to protect riparian

[[Page 17117]]

areas and improve water quality, and implemented reclamation of old

mine sites. Idaho and Nevada State angler harvest regulations for bull

trout have also become more restrictive.

We are required to evaluate the current status and existing threats

to bull trout in the Jarbidge River DPS in making this final listing

determination. Altogether, watershed habitat recovery and actions taken

to date are encouraging for initiating long-term bull trout

conservation. However, we have found no documentation of changes in

abundance and distribution of bull trout as a result of such actions.

For example, surveys conducted by biologists did not find bull trout in

Jack Creek during 1997 or 1998 after the removal of a culvert barrier.

Although impacts to bull trout from historical and on-going activities

still exist, we recognize that overall watershed conditions in the

Jarbidge River basin have improved, and we are now finalizing our

listing of bull trout as threatened, rather than as endangered (see

``Issue 6'' for further discussion).

Issue 5: Several respondents opposed the Federal listing entirely,

while others supported listing the population as threatened or

endangered. One respondent commented that we proposed this listing as a

result of a lawsuit, rather than sound scientific evidence, as required

by the Act.

Our Response: Although the timing of recent listing actions were

prompted by petitions and legal action, we previously had substantial

information on biological vulnerability and threats on file to support

preparation of a bull trout listing proposal, and the decision to list

was based solely on scientific data and threats identified during the

status review process.

Issue 6: One respondent stated that the August 11, 1998, emergency

listing was ``inappropriate based on the level of threat'' posed by

unauthorized road reconstruction activities to reopen 2.4 km (1.5 mi)

of road.

Our Response: Road construction and maintenance activities,

especially those occurring within riparian areas or adjacent to

streams, have substantial documented adverse impacts on bull trout

habitats. The threats to bull trout from the unauthorized road

construction activities on the West Fork of the Jarbidge River include

both direct and indirect impacts. These activities occurred on a

migratory corridor during the period when bull trout migrate and spawn.

Migratory or resident bull trout may have been stranded and killed when

the entire river was diverted and the existing wetted channel was

filled. Elko County did not use Best Management Practices (BMPs) to

protect instream aquatic habitat during construction, and large

quantities of sediment from the disturbed area settled out in the river

immediately downstream, filling in pools and interstitial spaces. The

sediment plume traveled at least 5.6 km (3.5 mi) downstream (B.

Siminoe, pers. comm. 1998), within known bull trout habitats. The newly

created channel provided minimal instream or overhead cover, with few

resting areas for migratory or resident fish, and at low flow, would

impede bull trout migrations. We also anticipated long-term residual

impacts such as sedimentation from the new roadbed, floodplain

vegetation destruction, slope cuts, and channel instability. Elko

County expressed their intentions to continue road reconstruction

despite being informed of various regulatory prohibitions. The threat

of continued unauthorized road reconstruction without the use of BMPs

was considered in the emergency listing.

Issue 7: Several respondents opposed the proposed listing of the

Jarbidge River population segment and expressed concerns because of

possible restrictions on local activities such as road construction,

livestock grazing, and mining, which might impact local residents. One

respondent stated that human use and bull trout conservation were

``mutually compatible goals.'' Another respondent stated that future

actions needed for bull trout will be the same whether it is listed or

remains a ``sensitive species.''

Our Response: Section 7(a)(2) of the Act, as amended, requires

Federal agencies to insure that activities that they authorize, fund,

or carry out are not likely to jeopardize the continued existence of a

listed species or to destroy or adversely modify its critical habitat.

This could include Federal activities such as road construction,

livestock grazing management, and mining permit issuance. If a Federal

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

responsible Federal agency must enter into formal consultation with us.

Portions of the Jarbidge River population segment occur on lands

administered by the USFS and BLM. We have already consulted with these

Federal agencies for several such projects in the Jarbidge River basin

during the emergency listing period. Federal and private actions that

we authorize through section 7 consultation or through section 10 of

the Act (Habitat Conservation Plans) will not result in significant

impacts to bull trout. Future impacts to local residents from this

final listing determination are expected to be minimal when compared

with the requirements of existing laws, regulations, and procedures.

See ``Available Conservation Measures'' section for a list of actions

that would not result in a take of this species.

Issue 8: A respondent noted that we are probably correct in stating

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, are 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. 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, providing

suitable water temperatures, limiting sediment delivery, and other

habitat management activities.

Our Response: Section 3 of the Act defines critical habitat to

include the specific areas within the geographic area occupied by the

species at the time it is listed, on which are found those physical or

biological features essential to the conservation of the species and

which may require special management considerations or protection.

Critical habitat may also include specific areas outside of the

geographic 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 Jarbidge River population segment. We appreciate

the comments and believe that information on patterns in fish

distribution will likely be useful in future critical habitat

designations. This and other habitat considerations will also be

important during development of the recovery plan.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we determine that the Jarbidge River population segment of

bull trout should be classified as a 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 Jarbidge River population segment of bull

trout (Salvelinus confluentus) are as follows:

[[Page 17118]]

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

of Its Habitat or Range

Land and water management activities that degrade and continue to

threaten all of the bull trout population segments in the coterminous

United States include dams, forest management practices, livestock

grazing, agriculture and agricultural diversions, roads, and mining

(Furniss et al. 1991; Meehan 1991; Nehlsen et al. 1991; Sedell and

Everest 1991; Frissell 1993; McIntosh et al. 1994; MBTSG 1995a,b;

1996a,b).

Ongoing threats affecting bull trout habitat have maintained

degraded conditions in the West Fork of the Jarbidge River (McNeill et

al. 1997; J. Frederick, pers. comm. 1998a; Kathy Ramsey, USFS, pers.

comm. 1998a). McNeill et al. (1997) indicates that at least 11.2 km (7

mi) of the West Fork of the Jarbidge River is affected by over a

century of human activities such as road development and maintenance,

mining, stream channelization and removal of large woody debris,

residential development, and road and campground development on USFS

lands. These activities removed the riparian canopy and much of the

upland forest, reduced recruitment of large woody debris, and decreased

channel stability (McNeill et al. 1997; K. Ramsey, in litt. 1997; J.

Frederick, in litt. 1998a), which can lead to increased stream

temperatures and bank erosion, and decreased long-term stream

productivity. However, there is little documentation of increased

stream temperatures and bank erosion and decreased stream productivity

in the Jarbidge River system, but there is documentation of these kinds

of degradation in other systems within the range of the bull trout.

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). Bull trout

distribution in the Jarbidge River population segment is likely

affected by elevated stream temperatures as a result of past forest

practices. Although timber was historically removed from the Jarbidge

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

currently affecting bull trout habitat. However, existing habitat

conditions still reflect the impacts of past harvesting practices.

Road construction and maintenance account for a majority of human-

induced 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 and

the loss of pool-forming structures such as boulders and large wood

reduces quantities of large, deep pools (USDA et al. 1993). Increasing

stream basin road densities and associated effects have been shown to

cause declines in bull trout (Quigley and Arbelbide 1997). Fewer bull

trout are present within highly roaded basins, and bull trout are less

likely to use highly roaded basins for spawning and rearing (Quigley

and Arbelbide 1997).

Road densities within the Jarbidge Canyon are currently

characterized as moderate (Ramsey 1998). Bull trout habitats in

portions of the Jarbidge River basin are negatively affected by the

presence and maintenance of roads, especially those immediately

adjacent to or crossing occupied streams. The unauthorized road

construction and associated alterations to the West Fork of the

Jarbidge River within the Humboldt-Toiyabe National Forest by the Elko

County (Nevada) Road Department prompted our emergency listing of the

Jarbidge River DPS on August 11, 1998 (63 FR 42757). On July 22, 1998,

a USFS employee observed a 5.6-km (3.5-mi) plume of sediment in the

West Fork, which extended downstream from a site where Elko County was

using heavy equipment to reconstruct part of a USFS road that washed

out during a flood in 1995 (B. Siminoe, pers. comm. 1998). By the

following day, Elko County road crews reconstructed approximately 275 m

(300 yards (yds)) of road. To create the road, sections of river were

loosely filled with material from adjacent hillsides and floodplain

debris. The entire river flow was diverted into a straight channel

created with a bulldozer and/or front-end loader. This channel lacked

pools and had minimal cover, as mature trees adjacent to the new

channel and other riparian vegetation were removed during channel

construction. Sedimentation in the river downstream of the construction

area was substantial. Federal agencies have implemented channel and

floodplain habitat restoration and stabilization practices, but impacts

from the road reconstruction to bull trout habitat will likely remain

for years. Impacts from County road maintenance practices within the

Jarbidge Canyon and elsewhere, such as surface grading and dumping fill

directly into the river to stabilize the road also continue to

negatively impact bull trout habitat.

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. The steep terrain of the Jarbidge River basin is a deterrent to

livestock grazing (J. Frederick, in litt. 1998a). Approximately 40

percent of public and private lands within the watershed are grazed,

and ongoing livestock grazing is affecting about 3.2 km (2 mi) of the

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

Creek by increasing sediment input, removing riparian vegetation, and

trampling banks (J. Frederick, pers. comm. 1998; G. Johnson, pers.

comm. 1998b). However, the effects are localized, and livestock grazing

is considered only a minor localized threat to bull trout habitat in

the Jarbidge River basin.

Mining can degrade aquatic systems by generating sediment and heavy

metals pollution, altering water pH levels, and changing stream

channels and flow. Although not currently active, the effects of past

mining in the Jarbidge River basin continue to adversely affect

streams. Cyanide and/or mercury amalgamation mills were operated

directly on the river, and spoil piles are still located adjacent to

the river. These piles may be sources of sediment, acidity, and heavy

metals. In addition, some old mine adits continue to discharge

thermally-elevated groundwater. Water quality and temperatures

associated with historical mining are still of concern.

Migration barriers have precluded natural recolonization by bull

trout in the Jarbidge River basin into historically occupied sites. For

example, an Elko County road culvert had prevented upstream movement of

bull trout in Jack Creek, a tributary to the West Fork of the Jarbidge

River, for approximately 17 years. Private and public funding was used

to replace the culvert with a bridge in the fall of 1997 (J. Frederick,

in litt. 1998b), but bull trout have yet to return to this stream. In

addition to structural barriers, stream habitat conditions (e.g., water

temperature) are likely barriers to bull trout movement within the

Jarbidge River basin.

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 all waters in Idaho and Nevada. Similar restrictive regulations

resulted in an increase in recent observations of adult bull trout in

other areas of their range. However,

[[Page 17119]]

illegal harvest and incidental harvest still threaten bull trout.

Overutilization by angling is a concern for the Jarbidge River DPS

of bull trout. Idaho prohibited harvest of bull trout in the Jarbidge

River basin as of 1995 and has shortened fishing seasons and

implemented a two trout limit. Until recently, Nevada allowed harvest

of up to 10 trout per day, including bull trout. Anglers harvested an

estimated 100 to 400 bull trout annually in the Jarbidge River basin

(Johnson 1990; Pat Coffin, Service, pers. comm. 1994; P. Coffin, in

litt. 1995). On the West Fork of the Jarbidge River in Nevada, fishing

pressure is between 1,500 to 3,500 angler days per year; the East Fork

annually receives 500 to 1,500 angler days (P. Coffin, pers. comm.

1996). Nevada State fishing regulations were recently amended to

prohibit harvest of bull trout effective March 1, 1998 (Gene Weller,

NDOW, in litt. 1997; G. Johnson, pers. comm. 1998b). In addition,

Nevada reduced the daily and possession limits for other trout species

in the Jarbidge River basin from 10 to 5 trout. We anticipate that

these regulation changes will have a long-term positive effect on the

conservation of bull trout. Inaccurate identification of bull trout by

anglers could result in unauthorized harvest, further impacting already

low population levels in this DPS. Even though State regulations now

require all bull trout incidentally captured to be released

immediately, some residual injuries or mortality are likely associated

with capture and handling.

Overutilization for scientific purposes can be a concern for the

Jarbidge River DPS of bull trout in the long-term. State regulations

require a scientific collection permit to collect bull trout for

educational and scientific purposes, but permit application and

reporting requirements are minimal. Although many bull trout collected

for scientific purposes may be documented as released alive (e.g.,

after taking fin clips for genetic analysis), collection techniques

such as electrofishing, have documented short- and long-term harmful

effects on salmonids, including mortality, physical damage, behavioral

changes, and physiological disturbances. Other types of permitted

scientific research (e.g., implantation of radio tags) may also result

in the loss of individual bull trout.

C. Disease or Predation

Diseases affecting salmonids are likely to be present in the

Jarbidge River population segment, 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; Donald and Alger 1993; Leary et

al. 1993; MBTSG 1996a; J. Palmisano and V. Kaczynski, Northwest

Forestry Resources Council, in litt. 1997).

The NDOW and IDFG have introduced non-native salmonids, including

brook trout and hatchery rainbow trout within the range of bull trout

in the Jarbidge River basin. However, brook trout stocked in Nevada

failed to establish a self-sustaining population in the Jarbidge River

system and the NDOW has not stocked brook trout since 1960 (Johnson and

Weller 1994; G. Johnson, pers. comm. 1998b; T. Crawforth, in litt.

1998). In the West Fork of the Jarbidge River, only approximately 1

percent of the angler harvest from the 1960s through the 1980s was

brook trout (Johnson 1990). Hatchery-reared rainbow trout have been

stocked annually for decades in both Nevada and Idaho portions of the

basin. IDFG stocked a total of approximately 52,783 hatchery rainbow

trout in the East (75 percent) and West (25 percent) forks of the

Jarbidge River from 1970 through 1989 (F. Partridge, in litt. 1998),

but then discontinued their stocking program. NDOW's average annual

catchable rainbow trout stocking numbers on the West Fork of the

Jarbidge River were 4,242 fish in the1970s; 3,287 fish from 1980 to

1986; and 3,000 fish from 1987 to 1994 (except 1991) (Johnson and

Weller 1994). NDOW's rainbow trout stocking program continued through

1998, however, NDOW will not stock rainbow trout in the Jarbidge River

system in 1999 (Gene Weller, NDOW, pers. comm. 1999).

D. The Inadequacy of Existing Regulatory Mechanisms

The implementation and enforcement of existing Federal and State

laws designed to conserve fishery resources, maintain water quality,

and protect aquatic habitat have not been sufficient to prevent past

and ongoing habitat degradation leading to bull trout declines and

isolation. Regulatory mechanisms, including the National Forest

Management Act, the Federal Land Policy and Management Act, the Public

Rangelands Improvement Act, the Clean Water Act, the National

Environmental Policy Act, Federal Power Act, State Endangered Species

Acts and numerous State laws and regulations oversee an array of land

and water management activities that affect bull trout and their

habitat.

Regulatory mechanisms have been inadequate to protect bull trout

habitat in the Jarbidge River basin. The Jarbidge Canyon Road parallels

the West Fork of the Jarbidge River for much of its length and includes

at least seven undersized bridges for the stream and floodplain.

Maintenance of the road and bridges requires frequent channel and

floodplain modifications that affect bull trout habitat, such as

channelization; removal of riparian trees and beaver dams; and

placement of rock, sediment, and concrete (McNeill et al. 1997; J.

Frederick, pers. comm. 1998a; J. Frederick, in litt. 1998a). Periodic

channelization in the Jarbidge River by unknown parties has occurred

without oversight by the U.S. Army Corps of Engineers (COE) Clean Water

Act section 404 regulatory program (Mary Jo Elpers, Service, pers.

comm. 1998), and the USFS. Illegal road openings, such as the removal

of road barriers and unauthorized grading, have also occurred within

the Humboldt-Toiyabe National Forest.

In 1995, a flood event washed out a 2.4-km (1.5-mi) portion of the

upper Jarbidge Canyon road, which led to the Jarbidge Wilderness Area

boundary. The USFS conducted an environmental analysis on options for

restoring access to the wilderness and initially planned to reconstruct

the road in the floodplain, which would have included channelizing the

river (McNeill et al. 1997). After an appeal, the USFS subsequently

completed additional environmental analyses and issued an environmental

assessment on June 29, 1998, with construction of a hillside trail as

the preferred alternative.

On July 15, 1998, the Elko County Board of Commissioners passed a

resolution directing the Elko County Road Department to reconstruct the

road. On July 22, 1998, the USFS discovered that road construction was

in progress and observed a 5.6-km (3.5-mi) plume of sediment downstream

from the construction site. Prior to the issuance of cease and desist

orders from the COE and Nevada Division of Environmental Protection

(NDEP) on July 23, 1998, the County partially reconstructed

approximately 275 m (300 yds) of road, created a new river channel, and

diverted the flow of the river into the new channel. The County failed

to implement BMPs and damaged or destroyed habitat within the river

channel and floodplain. Elko County continues to publicly assert that

it has jurisdiction over the road, but the Service, USFS, and Elko

County are cooperatively exploring alternatives for public access in

the area that would not adversely impact bull trout habitat.

The Nevada water temperature standards throughout the Jarbidge

River

[[Page 17120]]

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

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

F) change for beneficial uses (NDEP, in litt. 1998). Water temperature

standards for May through October exceed temperatures conducive to bull

trout spawning, incubation, and rearing (Rieman and McIntyre 1993;

Buchanan and Gregory 1997). Also, several old mines are releasing small

quantities of warm groundwater and potential contaminants into the West

Fork of the Jarbidge River.

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

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

force is open to individuals from Elko and Owyhee counties, the towns

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

private landowners, conservation organizations, NDOW, IDFG, BLM, USFS,

and the Service. The task force was successful in 1997 in obtaining

nearly $150,000 for replacing the Jack Creek culvert with a concrete

bridge to facilitate bull trout passage into Jack Creek. However, the

task force has not yet developed a comprehensive conservation plan

addressing threats to bull trout in the Jarbidge River basin.

In 1995, the USFS amended its Forest Plan for the Humbolt National

Forest to include the Inland Native Fish Strategy, which was developed

by the USFS to provide an interim aquatic conservation strategy for

inland native fish in eastern Oregon and Washington, Idaho, western

Montana, and portions of Nevada. This strategy sets a ``no net loss''

objective and is guiding USFS actions within bull trout habitat in the

Jarbidge River basin.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Natural and human factors affecting the continued existence of bull

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

compete with bull trout; 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 has resulted in declines in abundance, local

extirpations, and hybridization of bull trout (Bond 1992; Howell and

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

Huston 1993; MBTSG 1995b; 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 (Pratt

1992; 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).

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

bull trout remaining in the Jarbidge River basin) likely face a higher

risk'' of extirpation by natural events relative to other bull trout

populations (Rieman et al. 1997). One such risk factor is fire. In

1992, a 4,850 hectare (12,000 acre) fire (Coffeepot Fire) occurred at

elevations up to 2,280 m (7,500 ft), in areas adjacent to the Bruneau

River basin and a small portion of the Jarbidge River basin. Although

the Coffeepot Fire did not affect areas currently occupied by bull

trout, similar conditions likely exist in nearby areas where bull trout

occur. Adverse effects of fire on bull trout habitat may include loss

of riparian canopy, increased water temperature and sediment, loss of

pools, mass wasting of soils, altered hydrologic regime and debris

torrents. Fires large enough to eliminate one or two suspected spawning

streams are more likely at higher elevations where bull trout are

usually found in the Jarbidge River basin (J. Frederick, in litt.

1998a; K. Ramsey, pers. comm. 1998b).

Other natural risks have been recently documented. The Jarbidge

River Watershed Analysis indicates that 65 percent of the upper West

Fork of the Jarbidge River basin has a 45 percent or greater slope

(McNeill et al. 1997). Debris from high spring runoff flows in the

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

Bonanza gulches provide the West Fork of the Jarbidge River with large

volumes of angular rock material. This material has moved down the

gulches at regular intervals, altering the river channel and damaging

the Jarbidge Canyon road, culverts, and bridge crossings. Most of the

river flows are derived from winter snowpack in the high mountain

watershed, with peak flows corresponding with spring snowmelt,

typically in May and June (McNeill et al. 1997). Rain-on-snow events

earlier in the year (January and February) can cause extensive flooding

problems and have the potential for mass-wasting, debris torrents, and

earth slumps, which could threaten the existence of bull trout in the

upper Jarbidge River and tributary streams. In June 1995, a rain-on-

snow event triggered debris torrents from three of the high gradient

tributaries to the Jarbidge River in the upper watershed (McNeill et

al. 1997). The relationship between these catastrophic events and the

history of intensive livestock grazing, burning to promote livestock

forage, timber harvest and recent fire control in the Jarbidge River

basin is unclear. Debris torrents may potentially affect the long-term

viability of the Jarbidge River bull trout subpopulation.

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by the Jarbidge River population segment of bull trout in

determining to issue this rule. This population segment is

characterized by low numbers of resident and migratory fish comprising

a single, isolated subpopulation, within marginal habitat conditions

for the species at the southern-most extremity of its range. The

Jarbidge River DPS is vulnerable to extinction due to threats from

activities such as road construction and maintenance, recreational

fishing (intentional and unintentional harvest), rainbow trout

stocking, mining, and grazing. Although some of these activities have

been modified or discontinued in recent years, the lingering effects

from these activities continue to affect water quality, contribute to

channel and bank instability, and inhibit habitat and species recovery.

We emergency listed the Jarbidge River population segment of bull

trout as endangered on August 11, 1998 (63 FR 42757), due to channel

alteration associated with unauthorized road construction to repair the

Jarbidge Canyon Road, damaged by a 1995 flood, on the West Fork of the

Jarbidge River, and the substantial risk that such construction would

continue. The construction activity had completely destroyed all

aquatic habitat in this area, and introduced a significant amount of

sediment into the river. Continued unauthorized reconstruction of the

2.4 km (1.5 mi) of the Jarbidge Canyon Road would have impacted 27

percent of the known occupied bull trout habitat in the West Fork

Jarbidge River, which has among the highest reported densities of bull

trout within the Jarbidge River DPS (Johnson and Weller 1994). The road

construction would have also indirectly impacted an additional 21 km

(13 mi) of bull trout habitat downstream of the construction site in

the West Fork Jarbidge River, and potentially 45 km (28 mi) in the

mainstem Jarbidge River.

[[Page 17121]]

Since the emergency listing of the Jarbidge River population

segment, the USFS has restored some of the habitat. We have consulted

with Federal agencies for several projects in the Jarbidge River basin

such as old mining site reclamations, the creation of off-stream

livestock watering sites, and fencing streams from livestock, that have

helped reduce sedimentation into the Jarbidge River system. Following

the issuance of a cease and desist order by the State of Nevada and COE

to Elko County, the USFS hired stream restoration specialists to

restore the damaged portion of the West Fork Jarbidge River. The

specialists designed a plan to stabilize and enhance the river channel

in its new location. Work crews removed the fine sediment in the river

created by the road construction and placed large material such as

woody debris, large rocks and boulders back into the river for bull

trout habitat. The fine sediment removed from the river was used to

repair floodplain damage upslope, and the streambanks were partially

revegetated. The USFS will implement additional revegetation and

erosion control measures in 1999. These restoration actions have helped

to ameliorate some of the effects of the road construction on bull

trout habitat. A residual, inaccessible road still exists, but the

Service, USFS, and Elko County are cooperatively looking at

alternatives for public access in the area that would not adversely

impact bull trout habitat.

We have carefully assessed the best scientific and commercial

information available regarding past, present, and future threats faced

by this species in determining to make this rule final. Based on this

evaluation, we have determined that the Jarbidge River population

segment of bull trout should be listed as threatened. We emergency

listed this species as endangered due to the threats posed by road

construction in the West Fork of the Jarbidge River. Because of the

restoration activity that has occurred in the West Fork of the Jarbidge

River to repair the road construction damage, we believe this distinct

population segment fits the definition of threatened as defined by the

Act. Therefore, the action is to list the bull trout as threatened in

the Jarbidge River population segment.

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, 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 such would result in the extinction

of the species.

We find that the designation of critical habitat is not

determinable for this distinct population segment 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 in the Jarbidge River bull

trout population segment during the open comment period including the

five public hearings. The biological needs of bull trout in this

population segment are 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 the distinct population

segment. In addition, we have not identified the extent of habitat

required and specific management measures needed for recovery of this

fish. This information is considered essential for determining critical

habitat for this population segment. Therefore, we find that

designation of critical habitat for the Jarbidge River population

segment is not determinable at this time. We will protect bull trout

habitat through enforcement of take prohibitions under section 9 of the

Act, through the recovery process, through section 7 consultations to

determine whether Federal actions are likely to jeopardize the

continued existence of the species, and through the section 10 process

for activities on non-Federal lands with no Federal nexus.

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 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 insure 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 Jarbidge River bull trout population segment occurs on lands

administered by the USFS and the BLM, and on various State-owned

properties in Idaho, and on private lands. 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

[[Page 17122]]

dredging projects subject to section 404 of the Clean Water Act (33

U.S.C. 1344); 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.

The Act and its implementing regulations found at 50 CFR 17.31 set

forth a series of general trade 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 (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,

or collect; or attempt any of these), import or export, ship in

interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

is also illegal to possess, sell, deliver, carry, transport, or ship

any such wildlife that has been taken illegally. Certain exceptions

apply to our agents and State conservation agencies.

We may issue permits under section 10(a)(1) of the Act, to carry

out otherwise prohibited activities involving threatened wildlife under

certain circumstances. Regulations governing permits are at 50 CFR

17.32. Such permits are available for scientific purposes, to enhance

the propagation or survival of the species, and/or for incidental take

in connection with otherwise lawful activities. Permits are also

available for zoological exhibition, educational purposes, or special

purposes consistent with the purpose of the Act. You may address your

requests for copies of the regulations concerning listed plants and

animals, and general inquiries regarding prohibitions and permits, to

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, published in the Federal Register on July 1, 1994

(59 FR 34272), to identify to the maximum extent practicable at the

time a species is listed those activities that would or would not

constitute a violation of section 9 of the Act. The intent of this

policy is to increase public awareness of the effect of this listing on

proposed and ongoing activities within the species' range. 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

any existing regulations and permit requirements:

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

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

Federal agency when the action is conducted in accordance with an

incidental take statement issued by us pursuant to section 7 of the

Act;

(2) Incidental catch and immediate release of Jarbidge River

population segment bull trout in accordance with applicable State fish

and wildlife conservation laws and regulations in effect on April 8,

1999 (see Special Rule section);

(3) State, local and other activities approved by us under section

4(d) and section 10(a)(1) of the Act.

With respect to the Jarbidge River bull trout population segment,

the following actions likely would be considered a violation of section

9:

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

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

capturing, or collecting, or attempting any of these actions, except in

accordance with applicable State fish and wildlife conservation laws

and regulations within the Jarbidge River bull trout population

segment;

(2) To possess, sell, deliver, carry, transport, or ship illegally

taken bull trout;

(3) Unauthorized interstate and foreign commerce (commerce across

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

discussed earlier in this section);

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

hybridize with, or prey on bull trout;

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

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

or other activities that result in the destruction or degradation of

cover, channel stability, substrate composition, temperature, and

migratory corridors used by the species for foraging, cover, migration,

and spawning;

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

pollutants into waters supporting bull trout that result in death or

injury of the species; and

(7) Destruction or alteration of riparian habitat and adjoining

uplands of waters supporting bull trout by recreational activities,

timber harvest, grazing, mining, hydropower development, or other

developmental activities that result in destruction or 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.

Questions regarding whether specific activities may constitute a

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

our Nevada Fish and Wildlife Office (see ADDRESSES section) for the

Jarbidge River population segment.

Special Rule

Section 4(d) of the Act provides authority for us to promulgate

special rules for threatened species that would relax specific

prohibitions against taking. The final special rule included with this

final listing allows for take of bull trout within the Jarbidge River

DPS associated with certain activities for a period of 24 months. The

special rule allows take for educational purposes, scientific purposes,

the enhancement of propagation or survival of the species, zoological

exhibition, and other conservation purposes consistent with the Act.

The special rule also allows take that is incidental to recreational

fishing activities, when conducted in accordance with State

regulations, and provided that any bull trout caught are immediately

returned to the stream. This special rule shall be in effect until

April 9, 2001. At that time, all take prohibitions of the Act will be

reinstated for the Jarbidge River population segment of the bull trout.

We believe that existing angling regulations and other bull trout

conservation measures developed independently by the States (see

following paragraphs) are adequate to provide continued short-term

conservation of bull trout in the Jarbidge River DPS. However, we

believe that the development by the States of Idaho and Nevada of a

management and conservation plan covering the entire range of bull

trout in the Jarbidge River DPS with the objective of recovery and

eventual delisting of this DPS would most effectively protect bull

trout from excessive taking, and thereby ensure the future continuation

of State sport fisheries programs in the Jarbidge River system.

Therefore, it is our intent to propose, in the near future, another

special rule that would provide the States of Idaho and Nevada the

opportunity to develop a management and conservation plan for the

Jarbidge River population segment of the bull trout that, if approved,

could extend the exceptions to the take prohibitions provided by the

special rule included in

[[Page 17123]]

this final listing. Such a plan would be developed with public input

(e.g., Jarbidge Bull Trout Task Force), peer-reviewed by the scientific

community, and presented to the appropriate State Fish and Game/

Wildlife Commissions. We would provide public notice in the Federal

Register upon our approval of the plan.

We find that State angling regulations have become more restrictive

in an attempt to protect bull trout in the Jarbidge River DPS in Idaho

and Nevada. Bull trout harvest prohibitions and reduced daily/

possession limits on other trout within the basin are currently in

place throughout the Jarbidge River system, and the fishing season has

been shortened in Idaho. The States, to varying extent, have also

initiated public/angler awareness and education efforts relative to

bull trout status, biology, and identification. IDFG has not stocked

rainbow trout in the Jarbidge River system since 1989. NDOW will not

stock rainbow trout in the Jarbidge River system in 1999 (Gene Weller,

NDOW, pers. comm. 1999).

IDFG has prepared a State-wide Bull Trout Conservation Program Plan

(Hutchinson et al. 1998). In the plan, IDFG commits to 1) ensuring that

management, research, hatchery, and scientific permitting programs are

consistent with the Endangered Species Act, and 2) implementing bull

trout recovery actions in Idaho.

NDOW has a Bull Trout Species Management Plan that recommends

management alternatives to ensure that human activities will not

jeopardize the future of bull trout in Nevada (Johnson 1990). The

recommended program identifies actions including bull trout population

and habitat inventories, life history research, and potential

population reestablishment; State involvement in watershed land use

planning; angler harvest impact assessment; official State sensitive

species designation for regulatory protection; and non-native fish

stocking evaluation/prohibition and potential non-native fish

eradications. NDOW scheduled these activities for implementation from

1991 to 2000, but many have yet to be initiated or fully implemented.

In the special rule for fishes we are making a minor editorial

correction in the paragraph designations.

Paperwork Reduction Act for the Listing

This listing 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.

a. This 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 promulgate special rules for

threatened species that would relax the prohibition against taking. We

find that State angling regulations have become more restrictive in an

attempt to protect bull trout in the Jarbidge River in Idaho and

Nevada. Bull trout harvest prohibitions and reduced daily/possession

limits on other trout within the basin are currently in place

throughout the Jarbidge River system, and the fishing season has been

shortened in Idaho. The States, to varying extent, have also initiated

public/angler awareness and education efforts relative to bull trout

status, biology, and identification. We believe that existing angling

regulations and other bull trout conservation measures developed

independently by the States are adequate to provide continued short-

term conservation of bull trout in the Jarbidge River. As a result,

this special rule will allow recreational angling to take place in the

Jarbidge River during the next 24 months under existing State

regulations. The economic effects discussion addresses only the

economic benefits that will accrue to the anglers who can continue to

fish in the Jarbidge River.

This special rule will remove the threat of a take prohibition

under section 9 of the Act and allow continued angling opportunities in

Idaho and Nevada under existing State regulations. Data on the number

of days of fishing under new State regulations are available for the

East and West forks of the Jarbidge River in Nevada. We used these data

to calculate angling days per river mile which was applied to the river

segment in Idaho. 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 fishing were

prohibited in the Jarbidge River. Since there are substitute sites

nearby where fishing is available, this measure of consumer surplus is

a conservative estimate and would be a maximum estimate. The range of

angling days in Nevada is from 2,000 to 5,000 (figures combine angler

days in the East and West Fork of the Jarbidge River) annually. We

estimate for Idaho a range of 3,600 to 9,000 angling days per year. A

consumer surplus of $19.35 (1999 $) per day for trout fishing in Idaho

and Nevada results in a range of benefits of $109,000 to $271,000 per

year. The consumer surplus is a measurement of the satisfaction that an

angler gets from pursuing the sport of fishing. Since this special rule

will only be in place for 24 months, there is little need for

discounting. Consequently, this special rule will have a small economic

benefit on the United States economy, and even in the worst case, will

not have an annual effect of $100 million or more for a significant

rule making action.

b. This special rule will not create inconsistencies with other

agencies' actions. The special rule allows for continued angling

opportunities in accordance with existing State regulations.

c. This special rule will not materially affect entitlements,

grants, user fees, loan programs, or the rights and obligations of

their recipients. This special rule does not affect entitlement

programs.

d. This special rule will not raise novel legal or policy issues.

There is no indication that allowing for continued angling

opportunities in accordance with existing State regulations would raise

legal, policy, or any other issues.

The Department of the Interior certifies that the final rule will

not have a significant economic effect on a substantial number of small

entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601

et seq.). A Regulatory Flexibility Analysis is not required.

Accordingly, a Small Entity Compliance Guide is not required. No

individual small industry within the United States will be

significantly affected by allowing for continued angling opportunities

in accordance with existing State regulations in the Jarbidge River for

24 months.

The special rule is not a major rule under 5 U.S.C. 801 et seq.,

the Small

[[Page 17124]]

Business Regulatory Enforcement Fairness Act. This special rule:

a. Does not have an annual effect on the economy of $100 million or

more. Trout fishing in the Jarbidge River basin generates, on average,

expenditures by local anglers ranging from $168 thousand to $519

thousand per year. Consequently, the maximum benefit of this rule for

local sales of equipment and supplies is no more than $519 thousand per

year and most likely smaller because all fishing would not cease in the

area even if the Jarbidge River were closed to fishing. The

availability of numerous substitute sites would keep anglers spending

at a level probably close to past levels.

b. Will not cause a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions. This special rule allows the

continuation of fishing in the Jarbidge River and, therefore, allows

for the usual sale of equipment and supplies by local businesses. This

special rule will not affect the supply or demand for angling

opportunities in southern Idaho or northern Nevada and therefore should

not affect prices for fishing equipment and supplies, or the retailers

that sell equipment.

c. Does not have significant adverse effects on competition,

employment, investment productivity, innovation, or the ability of

United States based enterprises to compete with foreign-based

enterprises. The recreational spending of a small number of affected

anglers, ranging from just over 600 to slightly over 1,500 anglers,

will have only a small beneficial economic effect on the sportfish

industry.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,

et seq.):

a. This special rule will not ``significantly or uniquely'' affect

small governments. A Small Government Agency Plan is not required.

b. This special rule will not produce a Federal mandate of $100

million or greater in any year; that is, it is not a ``significant

regulatory action'' under the Unfunded Mandates Reform Act.

Takings Implication

We have determined that this special rule has no potential takings

of private property implications as defined by Executive Order 12630.

The special rule would not restrict, limit, or affect property rights

protected by the Constitution.

Federalism

This special rule will not have substantial direct effects on the

States, in their relationship between the Federal Government and the

States, or on the distribution of power and responsibilities among

various levels of government. Therefore, in accordance with Executive

Order 12612, we have determined that this special rule does not have

sufficient federalism implications to warrant a Federalism Assessment.

Civil Justice Reform

The Department of the Interior has determined that this special

rule meets the applicable standards provided in sections 3(a) and

3(b)(2) of Executive Order 12988.

National Environmental Policy Act

We have determined that an Environmental Assessment and

Environmental Impact Statement, as defined under the authority of the

National Environmental Policy Act of 1969, need not be prepared in

connection with regulations adopted pursuant to section 4(a) of the

Act. We published a notice outlining our reasons for this determination

in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited herein is available upon

request from the Nevada Fish and Wildlife Office (see ADDRESSES

section).

Author. The primary author of this proposed rule is Selena Werdon,

Nevada Fish and Wildlife Office, Reno, Nevada.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50

of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

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

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

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

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

order under FISHES, to the List of Endangered and Threatened Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate

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

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

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

* * * * * * *

Fishes

* * * * * * *

Trout, bull.................. Salvelinus U.S.A. (Pacific Jarbidge R. Basin T 659 NA 17.44(x)

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

Territories).

* * * * * * *

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

3. Amend Sec. 17.44 by redesignating paragraph (v) bull trout as

paragraph (w).

4. Amend Sec. 17.44 by adding paragraph (x) to read as follows:

Sec. 17.44 Special rules--fishes.

* * * * *

(x) Bull trout (Salvelinus confluentus), Jarbidge River population

segment.

(1) Prohibitions. Except as noted in paragraph (x)(2) of this

section, all prohibitions of 50 CFR 17.31 and exemptions of 50 CFR

17.32 apply to the bull trout in the Jarbidge River

[[Page 17125]]

population segment within the United States.

(2) Exceptions. No person may take this species, except in the

following instances in accordance with applicable State fish and

wildlife conservation laws and regulations relevant to protection of

bull trout in effect on April 8, 1999.

(i) For educational purposes, scientific purposes, the enhancement

of propagation or survival of the species, zoological exhibition, and

other conservation purposes consistent with the Act;

(ii) Incidental to State-permitted recreational fishing activities,

provided that any bull trout caught are immediately returned to the

stream.

(iii) The exceptions in paragraphs (x)(2) (i) and (ii) of this

section will be in effect until April 9, 2001. At that time, all take

prohibitions of the Act will be reinstated for the Jarbidge River

population segment unless exceptions to take prohibitions are otherwise

provided through a subsequent special rule.

(3) Any violation of applicable State fish and wildlife

conservation laws or regulations with respect to the taking of this

species is also a violation of the Endangered Species Act.

(4) No person may possess, sell, deliver, carry, transport, ship,

import, or export, any means whatsoever, any such species taken in

violation of this section or in violation of applicable State fish and

conservation laws and regulations.

(5) It is unlawful for any person to attempt to commit, solicit

another to commit, or cause to be committed, any offense defined in

paragraphs (x)(2) through (4) of this section.

Dated: April 5, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-8850 Filed 4-7-99; 8:45 am]

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