This final rule is written to designate a critical habitat for the Klamath River and Columbia River populations of Bull Trout.  The critical habitat designation includes approximately 1,748 miles of streams and 61,235 acres of lakes and marshes.  The reason for this designation is that at the time of listing, there are only seven remaining non-migratory populations of bull trout, and the designation is mandatory pursuant to a court order.  The anticipated outcome of this designation by the FWS is that it will basically have no impact on the species because “in 30 years of implementing the Act, we (FWS) have found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources.”  69 FR 59996.

RULES and REGULATIONS

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI52

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat
for the Klamath River and Columbia River Populations of Bull Trout

Wednesday, October 6, 2004

AGENCY: Fish and Wildlife Service, Interior.

*59996 ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Klamath River and Columbia River populations of bull trout (Salvelinus confluentus) pursuant to the Endangered Species Act of 1973, as amended (Act). For the Klamath River and Columbia River populations of bull trout, the critical habitat designation includes approximately 1,748 miles (mi) (2,813 kilometers (km)) of streams and 61,235 acres (ac) (24,781 hectares (ha)) of lakes and marshes. We solicited data and comments from the public on all aspects of the proposed rule, including data on economic and other impacts of the designation.

DATES: This rule becomes effective November 5, 2004.

ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this final rule, will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Branch of Endangered Species, 911 NE., 11th Avenue, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: John Young, Bull Trout Coordinator, at the above address, (telephone 503/231-6194; facsimile 503/231-6243).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Act (16 U.S.C. 1531 et seq.), we have found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. Our present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. We believe that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

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

While attention to, and protection of, habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, "Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7."
We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. We believe that it is these measures that may make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion, Gifford Pinchot Task Force v. United State Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected us to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves us with little ability to prioritize our activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, our own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left us with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This, in turn, fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis, provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects, and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act of 1969 (NEPA) None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Background

Bull trout (Salvelinus confluentus) are members of the char subgroup of the family Salmonidae and are native to waters of western North America. Bull trout range throughout the Columbia River and Snake River basins, extending east to headwater streams in Montana and Idaho, and into Canada, and in the Klamath River basin of south-central Oregon, but the distribution of populations is scattered and patchy. For additional information on the biology, habitat requirements, threats, and range of the bull trout, please refer to the proposed critical habitat rule (67 FR 71235, November 29, 2002) and final listing rule (June 10, 1998, 63 FR 31647).
Historical records for the Klamath River basin suggest that bull trout in this population segment were once widely distributed and exhibited diverse life-history traits in this part of their range (Ziller 1992). Currently, however, bull trout in this basin are almost entirely nonmigratory, resident fish that are confined to headwater streams (Goetz 1989). At time of listing, there were only *59997 seven naturally occurring, nonmigratory populations (Service 1997, 1998, 1999) occurring in the Upper Klamath Lake, Sprague River, and Sycan Marsh watersheds in Oregon. Since then, two small resident and one remnant fluvial population have been discovered. The extant populations represent an estimated 21 percent of the estimated historic range of bull trout in the Klamath River basin (Quigley and Arbelbide 1997). These known remaining local populations are considered to be quite low in abundance; they are highly isolated from one another as a result of natural and human-caused conditions and are at substantial risk of extirpation due to natural disturbance cycles, random events, and other risk factors (Light et al. 1996).
The Columbia River population segment includes bull trout residing in portions of Oregon, Washington, Idaho, and Montana. Bull trout are estimated to have once occupied about 60 percent of the Columbia River basin; they presently are known or predicted to occur in less than half (approximately 45 percent) of watersheds in the historical range (Quigley and Arbelbide 1997), which amounts to approximately 27 percent of the basin.

Previous Federal Action

On November 29, 2002, we published the court-ordered proposed critical habitat designation for the bull trout Klamath River and Columbia River populations (67 FR 71235). In that proposed rule, we included a detailed summary of previous Federal actions completed prior to publication of that proposal as it related to all bull trout populations. The comment period was open until January 28, 2003. We now provide updated information on the actions that we have completed since the proposed critical habitat designation.
We reopened the comment period on the proposed rule from February 11, 2003, to May 12, 2003 (68 FR 6863). Subsequently, On April 5, 2004, we published a notice in the Federal Register of the availability of the draft economic analysis and reopening of the comment period for 30 days until May 5, 2004 (69 FR 17634).

Summary of Comments and Recommendations

In the proposed rule published on November 29, 2002 (67 FR 71235), we requested that all interested parties submit written comments on the proposal. We also contacted the appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed critical habitat for the Klamath River and Columbia River populations of bull trout. In addition, we held nine public hearings between January 7, 2003, and January 22, 2003, in the following locations: Wenatchee and Spokane, Washington; Polson, Montana; Salmon, Boise, and Lewiston, Idaho; and Eugene, Pendleton, and Klamath Falls, Oregon.
We received a total of 549 written and oral comments during the three comment periods on the proposal published on November 29, 2002 (67 FR 71235), and the draft economic analysis. Of this total number of comments, 137 supported critical habitat, 315 either did not support critical habitat or provided critical comments regarding some portion of the designation, and 97 were neutral in their comments.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited opinions from four individuals who have expertise with the species and the geographic region where the species occurs and are familiar with conservation biology principles. We also contacted and requested assistance in organizing peer review from the following three organizations: American Fisheries Society, Sustainable Ecosystems Institute, and Plum Creek Timber Company. While all three organizations expressed some interest in participating, only the American Fisheries Society provided assistance in organizing our peer review. All four of the peer reviewers generally supported the proposal, but also provided us with many constructive critical comments which we incorporated into the final rule. Key elements of the reviewers' critical comments were relative to the scope of the proposal, the need for greater prioritization of conservation issues that influence critical habitat designation, a greater emphasis on the need for quality habitat to support the migratory life form of bull trout, and the need for more explanation of why some particular habitat, including areas of degraded habitat, are important to bull trout conservation. Additionally, the reviewers provided many technical comments on the appropriateness and bounds of specific geographic areas proposed as critical habitat.
We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the bull trout, and addressed them in the following summary.

Public Comments

Comments Related to the Biology and Process of Critical Habitat

1. Comment: The proposed critical habitat for the bull trout fails to account for the importance of habitat connectivity.
Our Response: The draft bull trout Recovery Plan (Service 2002) (draft Recovery Plan), the critical habitat proposal, and the listing rules for bull trout all reflect the scientific literature for this species relative to its conservation needs. The scientific literature indicates that bull trout were likely to have exhibited patchy distribution historically, prior to the arrival of European settlers, due to their habitat requirements and the effects of multiple episodes of glaciation. The critical habitat proposal, therefore, reflects the draft Recovery Plan's objective of ensuring the persistence of self-sustaining and interacting groups of bull trout distributed across their native range, within the limits of existing geographical impediments and subject to the biological characteristics of the species.
2. Comment: One commenter suggested that we choose appropriate knowledgeable, unbiased peer reviewers, and suggested that the critical habitat proposal be reviewed by the National Academy of Sciences (Academy) to help ensure an adequate, unbiased panel of reviewers, and to inspire more public confidence in the science behind the proposal.
Our Response: We agree that peer review provided by knowledgeable, unbiased scientists is important. While a National Academy of Sciences review is always appreciated, they are not the only entity capable of providing scientific review. Peer review for the bull trout critical habitat proposal was coordinated by the Western Division of the American Fisheries Society, a professional society dedicated to furthering scientific research and management on fish and other aquatic species in the U.S. Two of the peer reviewers work as research scientists for the U.S. Forest Service (USFS), one as a research scientist for the U.S. Geological Survey (USGS), and one as a research scientist at Colorado State University. All four reviewers have extensive backgrounds in fishery biology and science.
3. Comment: Are the current delineations of distinct population segments (DPSs) of the bull trout appropriate?
Our Response: Evaluating DPSs of the bull trout is not part of critical habitat rule-making process. We are required to *59998 designate critical habitat for the species rangewide due to a court settlement and this rule covers the Columbia and Klamath portions of the species' range. However, we are currently conducting a 5 year review of the species' status, and information developed and considered during this review will help us evaluate the appropriateness of DPSs for the bull trout.
4. Comment: Many commenters suggested additional streams be designated as critical habitat for the bull trout. Others believed that the proposed designation included inappropriate streams or was excessive in scope.
Our Response: We believe that this designation is based on the best scientific and commercial information available, and includes only that habitat essential to the conservation of the Columbia and Klamath populations of the bulltrout. Comments documenting that proposed stream segments were not essential were evaluated and, when appropriate, used to refine the final designation.
Only those streams, lakes, and reservoirs that we believed to be essential to the conservation of the Columbia and Klamath populations of bull trout, based on the best scientific and commercial data available at the time the proposal was being developed, were included in the proposed critical habitat designation. This does not mean that streams not included in this designation cannot or will not contribute to bull trout recovery, but rather that they were not determined to be essential to the species' conservation.
Those areas that did not contain the physical or biological features essential to the conservation of the Columbia and Klamath populations of bull trout were removed from the designation of critical habitat. For further information refer to the Summary of Changes from the Proposed Rule section below.
5. Comment: How do State water quality standards relate to the proposed critical habitat rule and the concept of adverse modification?
Our Response: The Environmental Protection Agency (EPA) and the States share joint responsibility for implementing the Federal Clean Water Act (CWA). Under the CWA, each State develops its own programs to meet minimum Federal requirements and requires EPA to work with the States to ensure compliance. There are two ways in which State water quality standards relate to the designation of critical habitat. First, to the degree that they are influencing the current condition of designated critical habitat, these standards will be addressed in our biological opinions as part of the analysis required under section 7(a)(2) of the Act for any Federal action that may affect critical habitat. That analysis includes a general evaluation of the factors influencing the condition of the entire critical habitat area designated, as well as a more specific analysis of such factors within the critical habitat area affected by the proposed Federal action.
Secondly, States are required under the Federal Clean Water Act to periodically review their water quality standards to determine if they need to be revised. If a State proposes to revise or establishes a standard, that action is subject to approval by the U.S Environmental Protection Agency (EPA). If the proposed standard may affect critical habitat, the EPA is required to formally consult with us under section 7(a)(2) of the Act to ensure that this action does not destroy or adversely modify critical habitat.
6. Comment: Those most affected by the designation have not been involved in this designation of critical habitat for the Columbia and Klamath populations of the bull trout.
Our Response: We have strived to include those interested in the designation of critical habitat for the Columbia and Klamath populations of the bull trout in the rule-making process. We developed Recovery Unit Teams comprised of land owners, land managers, scientists, representatives of States, Tribes, and industry, and distributed a draft Recovery Plan outlining recovery objectives. Throughout the process of designating critical habitat, we have attempted to solicit and incorporate comments from those affected by this final rule. We solicited public comment through three public comment periods and nine public hearings, which we accepted oral and written comments. We tried to be responsive to the concerns raised, and diligently tried to address those concerns during the development of this final designation. Unfortunately, our ability to accept comment and work with stakeholders is limited by deadlines imposed by the Court as part of settlement agreements.
7. Comment: There are inconsistent unit descriptions between the draft Recovery Plan, draft economic analysis (DEA), and the proposed critical habitat rule.
Our Response: We agree that there are areas where the proposed rule and the DEA do not precisely follow the organization presented in the draft Recovery Plan. We regret any confusion this may have caused. Because the proposed rule and the draft Recovery Plan analysis are related, the organization of units between the two documents is similar. However, chapter one of the draft Recovery Plan has no counterpart in the critical habitat proposal, so subsequent Recovery Plan chapters (e.g., chapters 2, 3, 4, etc.) do not correspond with critical habitat unit descriptions (e.g., units 1, 2, 3, etc.). Additionally, the Columbia and Snake Rivers are treated as critical habitat units 24 and 25 in the proposed and final rule. There are no counterpart chapters in the draft Recovery Plan as the relationship of the Snake and Columbia Rivers to the individual population units are discussed within the appropriate individual chapters.
8. Comment: A number of commenters believed that the critical habitat proposal was speculative, not based on scientific principle, had insufficient supporting documentation, and reliance on the draft Recovery Plan was not in compliance with the requirements of the Act.
Our Response: Our proposal was based on the best available data at the time of development. We agree that much of the information is incomplete and the conclusions we reached were based on assumptions we were required to make in the absence of historic or recent data. However, we were required to identify critical habitat based on that information, and we have done so.
The bull trout critical habitat designation is based on the science and information behind the Recovery Plan, not on the Recovery Plan itself. The proposed designation was peer-reviewed by four individuals who have expertise with the species, the geographic region where the species occurs, and are familiar with conservation biology principles. Key elements of the reviewers' critical comments were relative to the scope of the proposal, the need for greater prioritization of conservation issues that influence critical habitat designation, a greater emphasis on the need for quality habitat to support the migratory life form of bull trout, and the need for more explanation of why some particular habitat, including areas of degraded habitat, are important to bull trout conservation. Additionally, the reviewers provided many technical comments on the appropriateness and bounds of specific geographic areas proposed as critical habitat. We incorporated the reviewers' comments into the final rule as well as applicable comments received during the comment period.
Recovery criteria identified in the draft Recovery Plan include trend data and the conservation of the species' distribution, abundance, population, and hydrological connectivity. Shortly *59999 after the species was listed in 1998, we initiated development of a recovery plan for bull trout and convened 27 individual Recovery Unit Teams throughout five States to begin gathering information on the status and conservation needs of the species. These teams were composed of experts in biology, hydrology, forestry, in addition to resource users, and other stakeholders with interest in and knowledge of bull trout and the habitats they depend on for survival. Where available, we incorporated existing State-sponsored bull trout aquatic conservation plans and planning processes to support our information. The recovery planning process generated a considerable body of new information on the specific management and biological needs of bull trout
9. Comment: All references to bull trout sightings from unreliable or unsubstantiated sources should be eliminated from the decisionmaking process.
Our Response: We agree. Under the Act, we are required to use the best available information when making our decisions. We critically review all information provided to us. We have received numerous comments from the public and from State and Federal agency personnel relative to specific water bodies and the veracity of supporting documentation regarding bull trout use of such areas. The various data that we collect are weighted based on their verifiability, for example, anecdotal evidence and opinion have less weight than results from published studies or long-term or ongoing monitoring. If we receive information that appears to be "unsubstantiated," we evaluate it as such in the context of all comments received. However, in some cases, information from an "unsubstantiated source" may be the best available information we have for a particular stream. We have modified the proposal accordingly.
10. Comment: Reliance upon conservation biology and metapopulation dynamics are invalid assumptions upon which to base a designation of critical habitat as these are theoretical approaches.
Our Response: The critical habitat determination is based on many factors and did not rely directly on metapopulation dynamics. Available information on conservation biology and metapopulation dynamics were factored in along with all of the other information available on specific segments. We acknowledge that there is not universal agreement on application of the metapopulation theory to bull trout populations or group of populations within a watershed. However, several studies indicate existing metapopulation dynamics in bull trout and other char (Rieman and McIntyre 1993; Dunham and Rieman 1999; Spruell et al. 1999; Morita et al. 2002; Whitely et al. 2003).
In the classic view, metapopulations are considered collections of roughly equivalent local populations with similar, but independent, risks of extinction through environmental variability. In the simplest models, local extinctions are balanced by migration and recolonization from extant populations. In recent years, metapopulation models have been extended to consider a variety of more complex systems, including substantial variation in the characteristics and dynamics of local populations, and the patterns and rates of dispersal among them. In the current view, structuring and partial independence of local populations are the fundamental concepts that distinguish a metapopulation from a simple panmictic (mingled) group in a patchy environment.
Any controversy around application of metapopulation theory is how rigidly to apply it. The primary value of metapopulation theory is in understanding the relevance of diversity and complexity of the species to which it is being applied--that salmonid complex life history is a reflection of the diversity of habitats they live in. Metapopulation theory is useful in trying to understand and conserve processes such as dispersal and linkages between landscapes, life history, genetic diversity, and habitat size requirements. Occasional or rare instances of metapopulation dynamics for a species is an implicit component of the concept.
Independent fishery scientist peer review of the draft Recovery Plan and critical habitat proposal, as well as a separate peer review of the Service Science Team Report (Whitesel et al. 2004) addressing key issues of bull trout recovery planning (including application of metapopulation theory), did not take issue relative to the application of metapopulation theory to bull trout conservation efforts.
11. Comment: One commenter wanted to know whether the description of reservoirs and lakes "at full pool" or "when full" reflected potential conservation concerns when pool levels were less than full, and how designating reservoirs at full capacity as critical habitat is scientifically supported. Also, there were concerns regarding minimum pool requirements at the Boise and Payette Reservoirs that would affect irrigation supply, economics, and groundwater supply.
Our Response: The use of those phrases was meant to delineate the area of the reservoir or lake by means of the high water mark, given that their volumes and areas vary with the seasons as water levels change. No implication as to the conservation benefits of various lake and reservoir levels or effects to proposed critical habitat for bull trout were intended.
12. Comment: Several commenters believed that large rivers such as the Columbia and Klamath Rivers are inappropriate as bull trout critical habitat.
Our Response: The Klamath River itself has not been proposed as bull trout critical habitat because we do not have any historical or current data to suggest this river has been used by bull trout. The mainstem Columbia and Snake Rivers have been excluded from critical habitat under Section 4(b)(2) in support of multiple management actions being undertaken in these reaches through the Federal Columbia Power System. The benefits of excluding critical habitat for these areas exceeded the benefits of designating critical habitat.
Segments of large rivers such as the Columbia and Snake Rivers are important to the conservation of the bull trout, because they are interconnected with tributaries that support bull trout and they provide important FMO habitat. Bull trout use of the Columbia River has been well documented by recent radio-tagging studies conducted by the Service (Service 2001, 2002c) and the Chelan, Douglas, and Grant County Public Utility Districts (Kreiter 2001, 2002; BioAnalysts, Inc. 2002). Recoveries of tagged bull trout in the Bonneville Pool that originated from the Hood River (Wachtel 2000) have shown that bull trout are using the mainstem reach of the lower Columbia River as well. Radiotelemetry studies by the Oregon Department of Fish and Wildlife (ODFW) (Hemmingsen et al., 2001a, b), and Idaho Power Company (IPC) (Chandler and Richter 2000) have verified movements of bull trout between tributary streams and the mainstem Snake River. Current bull trout presence in the mainstem Columbia River reflects the strength of the local populations within tributaries and its value as migration corridors between the tributaries.
13. Comment: Critical habitat for the Columbia and Klamath populations of the bull trout should be extended to the entire hydrologic watershed.
Our Response: We acknowledged in the proposed rule that upstream habitat, *60000 as well as adjacent terrestrial habitat, can influence the quality of aquatic habitat downstream and downslope. However, due to the complexity and variability of upstream habitat, and the difficulty in mapping that habitat, we are designating only the water bodies that have been determined to be essential to the conservation of the species
14. Comment: We received several comments indicating that hybridization is occurring between bull trout and other fish species (e.g., cutthroat trout (Oncorhynchus clarki) and brook trout (Salvelinus fontinalis)). Some commenters also suggested that the emphasis on connectivity in the draft Recovery Plan, and the identification of migratory corridors as proposed critical habitat, could exacerbate the hybridization issue by providing invasion routes for nonnative species known to hybridize with bull trout, such as brook trout.
Our Response: We acknowledge this concern, and for that reason, are not designating connectivity corridors where we cannot be sure that competing species will not be introduced. Because cutthroat trout and bull trout are not of the same genus, have different spawning periods, and evidence of hybridization between the two has not been previously documented, we believe that hybridization between the two species is unlikely to occur.
Brook trout are known to displace native bull trout populations in some cases. We agree that, in some instances, the potential negative effects of brook trout introduction into habitat occupied by bull trout following the removal of barriers to migration could outweigh the benefits of providing access to expanded foraging, spawning, migratory, and over wintering (FMO) habitat for bull trout. In such cases, a site-specific evaluation should occur before barriers are removed. Areas above barriers were not included in critical habitat if site-specific evaluations had not been completed indicating that these areas were essential to bull trout and that barrier removal would not result in increased risk to the species.
15. Comment: Brook, lake trout (Salvelinus namaycush), brown (Salmo trutta), and rainbow (Oncorhynchus mykiss) trout have been introduced into bull trout habitat. These species compete with, and displace, bull trout and may be responsible for its decline. Given the competition between these species and bull trout, how will critical habitat improve this situation?
Our Response: Regardless of whether critical habitat contributes to and aids the conservation of the bull trout, we are required to designate critical habitat for species listed under the Act. One way that critical habitat may improve the nonnative competitor threat is through increased awareness of important bull trout habitat. Direct improvement of this situation may come about through decreases in the introductions of nonnative competitors and fishery management activities aimed at controlling or eradicating these species in bull trout habitat.
16. Comment: Several commenters suggested that bull trout are predators or competitors that have negative effects on other native and nonnative species.
Our Response: Bull trout are opportunistic predators that feed largely on other species of fish, both native and nonnative. Prey species consumed by bull trout vary considerably, depending on the location and time period. Bull trout evolved with other native species and, in some instances, because their habitat requirements are somewhat different, there is a limited area of overlapping distribution between them, at least temporally. We are not aware of any published scientific studies or other convincing evidence indicating bull trout predation is the leading cause in the decline of other native or introduced species. Therefore, we believe that any conservation of bull trout will not significantly affect the status of other species across the range of the bull trout. However, in some limited circumstances, local increases in bull trout populations may result in local decreases in other species upon which they prey.
17. Comment: One commenter suggested that we should encourage the development of an umbrella Safe Harbor Agreement (SHA) for a broad area such as an irrigation district.
Our Response: We agree. We actively seek the development of appropriate SHAs or other conservation measures and programs.
18. Comment: Several commenters stated that HCPs should not be excluded; others believed that excluding HCPs was appropriate.
Our Response: We have determined that lands covered under an existing or pending HCP as discussed, should be excluded from the designation of critical habitat because the benefits of excluding the lands covered by these management plans outweighs the benefits to the species by including them in the designation. Please refer to our discussion concerning the exclusion of approved HCPs later in the rule in the section Relationship to Section 4(b)(2) of the Act.
19. Comment: Several commenters questioned the affect of critical habitat on restricting the use of public lands, such as mining, and the impact on private lands.
Our Response: Critical habitat does not create a preserve or prevent access to private land, streams, lakes, or reservoirs. There is no connection between the designation of critical habitat and the use of private land unless there is a Federal nexus. A Federal nexus exists if activities on private lands are funded, authorized, or permitted by a Federal agency. Section 7(a)(4) of the Act requires Federal agencies to consult with us on any action that is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of designated critical habitat. As part of the consultation process, we will offer "reasonable and prudent alternatives" as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
While it is true that mining activities may currently be restricted in some areas (e.g., inwater work periods), these are existing restrictions required by the States and Federal land management agencies to protect natural resources, such as fish, and not due to the designation of critical habitat for bull trout.
20. Comment: Several commenters were concerned that the bull trout critical habitat designation will result in greater adverse effects to people, their communities, and their livelihoods than we have indicated.
Our Response: We agree. As a result, a significant portion of the designation has been removed for these reasons and others.
21. Comment: Critical habitat could restrict fire prevention and suppression, flood control, and governmental land use planning, as well as interfere with the management of public roadways and bridges.
Our Response: Human safety is a priority for both the Service and the Department. The Service issued "Endangered Species and Fire Policy Clarification" on September 21, 1995 that emphasizes that firefighter safety *60001 comes first and that responses to wildfire should not be delayed for ESA considerations. The Secretary of the Interior provided guidance on Firefighter and public safety on August 20, 2001 that states that "in the event of an emergency, no emergency response is to be delayed or obstructed because of ESA considerations." In emergencies, response to emergencies is first priority and any consultation requirements are addressed after the emergency is over.
22. Comment: A number of commenters felt the Service neglected or violated a variety of regulatory or other requirements, including the National Environmental Policy Act of 1969 (NEPA), Small Business Regulatory Enforcement Fairness Act (SBREFA), Title VI of the Civil Rights Act, the Data Quality Act (Pub. L. 106-554), Unfunded Mandates Reform Act, Regulatory Flexibility Act (RFA), and other laws, regulations, orders, and local ordinances.
Our Response: We are not required to prepare an environmental assessment or an environmental impact statement, as defined under the authority of NEPA, in connection with regulations adopted pursuant to section 4(a) of the Act, and in states under the jurisdiction of the 9th Circuit Court. A notice outlining our reason for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244). This position has been upheld by the Ninth Circuit Court of Appeals in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995).
We have addressed all the relevant required regulatory determinations in this rule (see Required Determinations section below). We are not required to address Title VI specifically in our rule but believe this rule to be in full compliance with all appropriate laws and regulations. Relative to the Data Quality Act, our intent is to ensure that the most applicable scientific information has been applied in the development of the proposed rule. Both public and peer review of the proposed rule further ensures that the final designation will meet this standard.
23. Comment: The Service must take into account the Forest and Fish Report (FFR) law that protects aquatic habitat and water quality on State and private lands.
Our Response: Washington State law H.B. 2091, which codified the FFR, is a science-based plan that protects water quality and fish habitat on over 8 million ac (3.2 million ha) of non-Federal forestland in Washington State. Implementing regulations, developed by the Washington Forest Practices Board, require (1) establishment and retention of riparian buffers along streams to provide shade, large woody debris, and bank stability; (2) a bull trout temperature overlay strategy for streams located in the hotter, dryer environments east of the Cascade Crest; (3) using methods for construction and maintenance of roads and stream crossings that will maintain stream connectivity for fish passage, and shunt road-generated sediments from streams, and repairs to failing roads, bridges, and culverts within specific time frames.
With respect to the PCEs for bull trout critical habitat, we determined that forest practices conducted under the FFR regulations should result in improved water quality, which will promote bull trout reproduction, growth, and survival. Furthermore, implementing these regulations should maintain the thermal regimes of streams within the range of normal variation, contribute to the maintenance of complex stream channels, maintain appropriate substrates, natural hydrograph, ground-water sources and subsurface connectivity, migratory corridors, and provide abundant food sources for bull trout. Because bull trout will benefit from the implementation of the FFR regulations, we have excluded stream segments protected by these regulations. See Washington State Forest Practices Rules and Regulations, as amended by the Forest and Fish Law (FFR) under the Lands to be Excluded from Critical Habitat section below for more information.
24. Comment: Several commenters wanted to understand how critical habitat would affect ongoing projects including state water quality standards, flood control, habitat restoration, and hydropower.
Our Response: The designation affects these and other types of projects in two ways. First, the recognition value associated with the designation is intended to influence voluntary modifications, where appropriate, to these activities that would make them compatible with the proper functioning of the critical habitat.
Secondly, where a Federal agency has continuing discretionary involvement or control over the action, compliance with section 7 of the Act is required. If the on-going project may affect critical habitat, the Federal agency is required to formally consult with the Services under section 7(a)(2) of the Act to ensure that this action does not destroy or adversely modify critical habitat.
Because of potentially serious public health and safety issues that could arise as a result of third party lawsuits questioning reservoir operation, this designation does not include them.
25. Comment: Given that only the stream reach is being designated as critical habitat, it is unclear what area of land the agencies will view as potentially impacting that stream segment.
Our Response: Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that the value of critical habitat for both the survival and recovery of bull trout is appreciably reduced. The degree of any potential effect will vary with the type of action, the location, and timing of where it occurs. Other variables include the status and extent of critical habitat, and the relationship of the critical habitat segment in question to the population of bull trout that it supports. Where upstream or upslope activities may affect downstream areas of critical habitat, consultation is required.
26. Comment: The PCEs are ambiguous and not scientifically defensible. They are not mutually exclusive, nor is it clear how many are essential to bull trout.
Our Response: The proposed bull trout PCEs represent those physical and biological features essential to the conservation of the species and in need of special management or consideration, as required under regulations at 50 CFR 424.12. All the PCEs are essential to the conservation of bull trout, but not all PCEs need to be present at every location within the designated critical habitat. Different PCEs may be important for only certain lifestages or at certain times of the year. Critical habitat needs to have only enough of the PCEs present to allow normal biologic function of the bull trout. We believe that PCEs represent the conservation needs of the species as indicated by the scientific literature. We agree that they are not mutually exclusive.
27. Comment: Proposed critical habitat areas, such as the Crooked River in Oregon, lack the physical and biological features essential for the conservation of the species.
Our Response: We agree and have removed that portion of the designation.
28. Comment: None of the PCEs are likely to occur in pristine environments, and places where they do are likely to change as a result of natural disturbances. Even in pristine environments, you may not have all the PCEs, and these are likely to change as a result of natural disturbances.
Our Response: We agree that pristine environments may not contain all of the PCEs, and that they can be affected by natural disturbances. In order to be designated as critical habitat, we must first determine if an area is "essential to *60002 the conservation of the species," that is, contains primary constituent elements essential for the life cycle needs of the species. See our response to the comment above.
29. Comment: Water quality temperature criteria for bull trout currently do not incorporate critical factors such as their ability to survive in higher water temperatures in the laboratory when unlimited food supplies are present, and competition with other species is controlled.
Our Response: The identified range of temperatures where bull trout commonly occur in the wild is supported by the scientific literature, as indicated in the preamble to the proposed rule. We also acknowledge in the preamble that bull trout are known to occur in waters outside of this temperature range for short durations or seasonally. We note that migratory fish may utilize colder micro-environments such as thermal refugia at the mouths of tributary streams, or employ other mechanisms to survive passage through waters not generally suitable for the species. The PCEs reflect those primary biological components essential to the conservation of the species in question in the wild. We are unaware of any circumstances where existing bull trout habitat would replicate the laboratory conditions described. This rule expressly excludes any habitat that currently does not meet the temperature range included in our definition of the primary constituent elements for at least some portion of the year.
30. Comment: The proposal does not describe what "special management considerations or protection" are necessary for proposed bull trout critical habitat, and much of the critical habitat designation overlaps with habitat that is already protected.
Our Response: Special management considerations or protection are those measures necessary to provide for the maintenance of the PCEs of bull trout critical habitat. These include maintaining water quality, providing for stable stream channels and flow regimes, maintaining the complexity of stream channels, and maintaining existing connected migratory corridors free from fish passage barriers. We agree that much of the habitat proposed as bull trout critical habitat is already protected. As we undertake the process of designating critical habitat for a species, we first evaluate lands defined by those physical and biological features essential to the conservation of the species for inclusion in the designation pursuant to section 3(5)(A) of the Act. Secondly, we then evaluate lands defined by those features to assess whether they may require special management considerations or protection. Refer to the Special Management Considerations or Protections section below for further information.
31. Comment: Several commenters felt that current Federal land management practices are sufficient to preclude bull trout critical habitat designation for bull trout. Such designation is a duplication of effort since Federal actions, such as allotment management plans, already undergo formal consultation.
Our Response: As specified in the proposed rule, the USFS and Bureau of Land Management (BLM) prepare land management plans which generally guide activities on the National Forest and BLM Districts. These plans provide some level of conservation benefit to species and the habitat they are known to occupy, often a very high level of conservation. Federal lands managed under the Northwest Forest Plan or managed in accordance with PACFISH/INFISH have been excluded under Section 4(b)(2).
32. Comment: Scientific applications developed under the Interior Columbia Basin Ecosystem Management Project (ICBEMP) should not be referenced in the critical habitat proposal because ICBEMP was never submitted for regulatory analysis.
Our Response: Although, ICBEMP has not been submitted for regulatory analysis we believe that there is important scientific information that is valuable to the conservation of bull trout that is appropriate to consider.
33. Comment: All Warm Springs Reservation lands should be exempted from the proposal.
Our Response: We met with the Confederated Tribes of Warm Springs Reservation of Oregon (CTWS) several times to discuss their ongoing management strategies for bull trout. During the course of these meetings, it became clear that their management was largely compatible with bull trout conservation, and we have excluded their lands under section 4(b)(2) of the Act. Refer to the Tribal Lands under the Lands to be Excluded from Critical Habitat section below for more information.
34. Comment: Multiple commenters noted that the Service proposed streams for critical habitat that do not currently support bull trout, but did not provide justification as to why these streams were proposed, and excluded areas where they are more likely to exist without an explanation for these exclusions.
Our Response: We based the designation of critical habitat on the science and information behind the Recovery Plan. However, the necessity of reestablishment in some areas is identified as necessary for recovery in the draft Recovery Plan. Critical habitat was proposed in those areas to assist in providing for the conservation of the species. We have received substantial comments from the public, Federal and State agencies, and peer reviewers on this subject, and have critically reviewed our proposal accordingly and made appropriate changes to this rule. Areas of unknown occupancy and unoccupied habitats were not included in the final designation.
Due to the extent of the designation and supporting information, the final rule includes a summary of the scientific basis of the designation. Refer to the Summary of Changes from the Proposed Rule section for additional information. A complete record of the information is contained in the administrative record for the rule.
35. Comment: One commenter thought that the Service did not accurately list the miles of stream or acres of lakes and reservoirs that are currently unoccupied by bull trout. They asked for a recalculation to determine if the numbers were accurate.
Our Response: We received numerous comments on the accuracy of specific stream, river, lake, and reservoir specifications as well as associated biological information. All stream distances and lake or reservoir acreages were calculated using Geographic Information System (GIS) mapping from multiple sources including: the StreamNet GIS database for Idaho, Oregon, Washington, and Montana; and State databases of bull trout distribution. Based on comments, we have made revisions in this rule. For the purposes of this critical habitat rule, the term "occupied" was applied to streams where there is credible documentation of bull trout sighted within recent historical times (i.e., 20 years). Unoccupied habitat was removed from the designation. Under the ESA, the Secretary of the Interior may include unoccupied lands if she finds that those lands are essential to the conservation of the species. In the case of bull trout, and based on the best scientific data available, it was not possible for the Secretary to make such a determination at this time.
36. Comment: Neither the draft Recovery Plan nor the critical habitat proposal describes the scientific basis for determining that bull trout should be recovered into many potential historic habitats.
*60003 Our Response: The Draft Recovery Plan does present the basis for determining which populations are in need of expanded adult abundance to be considered recovered. The specific rationale is unique to each core area and management unit identified in the various chapters of the plan. However, the overall basis can generally be stated as the need to maintain complex interacting groups of bull trout distributed across their current range to reduce risk of extirpation from random events, to maintain an effective population size at levels where genetic risks associated with low effective population size are minimized, and to provide for expression of the migratory life history form.
37. Comment: A few sightings of bull trout in a water body does not mean it is occupied. Potential historic habitat is not the same as habitat that was actually occupied.
Our Response: We disagree that the presence of bull trout does not indicate that habitat is occupied by bull trout, at least temporally. A published survey protocol for juvenile and resident forms was not developed until 2002, no similar survey protocol for adult migratory forms has yet been developed, and many bull trout sightings are merely the incidental result of surveys for other species without consideration for the specific habits of bull trout. Therefore, an incidental sighting of a single or a few bull trout is often the only information that is available until a concentrated survey for bull trout is conducted. With the increasing availability of radio telemetry data, we are finding for many of the populations that have been studied that the extent of habitat bull trout occupy is often greater than was previously known from incidental observations. We agree that potential historic habitat is not the same as habitat that was previously documented as occupied.
38. Comment: A number of commenters felt that the duration of the comment period was too short and occurred during a holiday season.
Our Response: The public comment period was open for 210 days. The first comment period was open for 90 days from November 29, 2002, until January 28, 2003 (67 FR 71235). Because of the concern that there was not sufficient time to review such a large proposed rule, we reopened the comment period an additional 90 days from February 11, 2003, to May 12, 2003 (68 FR 6863). We reopened the comment period a third time for the public to provide comments on both the proposed rule and the DEA from April 5, 2004, until May 5, 2004 (69 FR 17634). We were unable to extend the comment period further due to our court-ordered deadline of September 21, 2004.
39. Comment: A commenter asked that the Service consider ongoing or potential activities that might negatively affect bull trout critical habitat.
Our Response: When designating critical habitat we are limited to identifying those areas essential to the conservation of the species. Ongoing or potential future activities that may negatively affect bull trout critical habitat are not addressed during the critical habitat rule making process, but during subsequent processes, such as section 7 consultations with Federal agencies.
40. Comment: One commenter stated that specific numerical habitat standards for critical habitat must be included along with critical habitat designations.
Our Response: The PCEs identified in the proposed critical habitat rule include numeric standards indicative of habitat essential to the conservation of bull trout when appropriate. We also recognize that, historically, bull trout existed in habitat that may not have contained all of the PCEs all of the time. Migratory forms of bull trout may have evolved, in part, to adjust to this situation and take advantage of more suitable habitat, at least seasonally.
41. Comment: Riparian and upland areas should be included as critical habitat. There is no scientific basis for this exclusion, nor is it a credible approach to designating critical habitat.
Our Response: Because of the widespread distribution of bull trout across varied landscapes, ranging from the moist, steep western slopes of the Cascade Mountain range to the high desert environment of southern Idaho, to the western slopes of the Rocky Mountains, we were unable to generally describe riparian and upland areas important to the aquatic function of streams, lakes, and reservoirs. Additionally, we believe a critical habitat rule should be easily interpretable to the public, including the provision of specific maps. Because of these factors, we chose to limit the critical habitat proposal to those aquatic environments essential to the conservation of bull trout.
However, the proposal recognizes that the quality of aquatic habitat within stream channels, lakes, and reservoirs, is intrinsically related to the character of the flood plains and associated riparian and upland zones. Activities that occur outside the aquatic environment can have demonstrable effects on its physical and biological features. Activities that may destroy or adversely modify critical habitat are identified as those that alter the PCEs to an extent that the value of critical habitat for both the survival and recovery of the bull trout is appreciably reduced, including alterations of stream flows, riparian function, stream bank conditions, and water quality. Therefore, although areas outside of the aquatic environment are not included as proposed critical habitat, the proposal does recognize the scientific basis for linking the quality of the aquatic environment with the physical processes that occur outside of that environment.
42. Comment: The Service should designate critical habitat for a number of "source water" streams; these are predominantly steep, small streams not occupied by bull trout but that are key sources of cold, clean water that feed bull trout habitat downstream.
Our Response: Our determination of bull trout critical habitat is limited to areas that bull trout utilize (or could utilize) for some portion of their life cycle. Areas that contribute an important resource, but do not provide essential habitat for bull trout, are not being considered for designation.
43. Comment: A commenter wanted to know if bull trout critical habitat will affect Native American treaty fishing rights or access to fishing areas.
Our Response: The bull trout critical habitat rule will not affect Native American treaty fishing rights or access to fishing areas. Critical habitat does not set up a preserve or prevent access to streams, lakes, or reservoirs. When we published the final rule listing the bull trout on November 1, 1999 (64 FR 58910), we also published a special 4(d) rule that applied wherever bull trout occur in the coterminous lower 48 States, except in the Jarbidge River basin in Nevada and Idaho. The principal effect of this special rule is to allow take in accordance with State, National Park Service, and Tribal permitted fishing activities.
44. Comment: We must consult with Native American Tribes prior to the publication of a final economic analysis (FEA).
Our Response: We have been and will continue to consult with those Tribes affected by the critical habitat designation. We contacted Native American Tribes where proposed bull trout critical habitat occurred on, or adjacent to, Tribal lands. We discussed the critical habitat proposal with representatives of the Tribes and worked with them to address their concerns.
45. Comment: Several commenters felt that Tribal lands should be *60004 excluded; other commenters felt that Tribal lands should not be excluded.
Our Response: In accordance with the President's memorandum of April 29, 1994, "Government-to-Government Relations with Native American Tribal Governments" (59 FR 22951), Executive Order 13175, and 512 DM 2, we coordinate with federally recognized Tribes on a government-to-government basis. Further, Secretarial Order 3206, "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act" (1997) provides that critical habitat should not be designated in an area that may impact Tribal trust resources unless it is determined to be essential to the conservation of a listed species. We, therefore, are obligated to consult with Tribes based on their unique relationship with the Federal government, and to evaluate the appropriateness of designating Tribal lands within the framework of the above mentioned directives. In addition, we evaluate Tribes past and on-going efforts for species conservation and the benefits of including or excluding Tribal lands in the designation under section 4(b)(2).

Unit Specific Comments

Unit 1: Klamath River Basin

46. Comment: Using radio-telemetry, we have found that bull trout reside only in the stream channel and do not move into wetland areas associated with Sycan Marsh. Radio telemetry data obtained during the fall of 1999 and spring of 2000 by the Klamath Bull Trout Working Group is incorrect.
Our Response: Bull trout radio telemetry studies in the Sycan Marsh Core Area (Long Creek) have had very limited success. Of four fish tagged in 1999, three died shortly thereafter. Until the tag ceased transmitting, telemetry data indicated the remaining fish moved onto private lands along lower Long Creek and remained there through the winter. In 2000, the surviving, previously tagged fish was recaptured and the tag replaced. Telemetry data indicated it migrated upstream in Long Creek, and then returned to the same location as the previous winter. Two data points (from the same animal) are inadequate to develop informative trends (C. Bienz, The Nature Conservancy, pers. comm. 2002).
47. Comment: Drought conditions over the past 3 years, with low flow and high stream temperatures, make the Upper Sycan Watershed uninhabitable for bull trout.
Our Response: Current drought conditions have undoubtedly had an effect on bull trout habitat and distribution, as have anthropogenic activities. Flows should improve as efforts to restore watershed conditions in the Upper Sycan Watershed are implemented by land and resource managers and agencies. However, all waterways will continue to be influenced by climatic factors.
48. Comment: The inclusion of Deming Creek within proposed critical habitat conflicts with Oregon's policy regarding installation and operation of positive barrier fish screens at water diversion locations. Deming Creek is diverted into a canal with limited amount of water left in stream. The bull trout population no longer exists in the stream and has established itself in the canal. The area affected by these artificial canals, headgates, diversions, and irrigation facilities should not be included within the critical habitat designation.
Our Response: The Deming Creek population is the last remaining stronghold of bull trout in the Klamath Basin. As such, they provide a potential source for expanding the numbers and distribution of bull trout in the basin. More individuals distributed across a broader landscape will reduce risk of extirpation from random events, contribute to maintaining an effective population size at levels where genetic risks associated with low effective population size are minimized, and provide for expression of the migratory life history form. We note that the irrigation canal identified in this comment is not included in the critical habitat designation. In addition, unoccupied habitat has also been removed from the final designation.
49. Comment: The proposal fails to reveal that Deming Creek has been channelized, and does not explain how this channelization affects the use of these canals for migration, spawning, and/or rearing.
Our Response: Only the lower 1.0 to 1.5 mi (1.6 to 2.4 km) section of Deming Creek has been channelized. From the trailhead to its headwaters, the creek remains in the natural channel and relatively untouched. Because stream flows become subsurface below Anderson Field, Deming Creek bull trout are isolated from the rest of the Basin. Therefore, it is unlikely that Deming Creek bull trout will develop a migratory life form, and will remain a stronghold of native resident fish.
50. Comment: There is concern relative to migrating fish being exposed to Ceratomyxa shasta if they migrated into Agency Lake or to other sites with C. shasta. If the fish were to migrate downstream into the lake, there could be significant mortality to the larger juvenile and adult bull trout as well as a source of infection to other stream reaches on the return migrations. If bull trout are in fact not resistant to C. shasta, then the theory of winter migration among watersheds would be clearly false and there would be no scientific basis to designate these areas as critical habitat
Our Response: Ceratomyxa shasta is a microscopic myxosporean protozoan parasite that afflicts salmonid fish of the Pacific Northwest (Bartholomew et al. 1989). Its life cycle is not fully understood. Progression of infection and mortality is temperature dependent and native salmonid stocks exhibit varied resistance to it (Bartholomew 1998). Chinook salmon (Oncorhynchus tshawytscha) do not appear to be affected by C. shasta when water temperatures remain below 60 ° F (15 ° C) (PacifiCorp 2002), indicating migrating bull trout may not be affected. More information is needed to determine whether bull trout are resistant to C. shasta and to monitor the impacts and extent of it within the Basin. If research reveals that bull trout are not resistant to C. shasta, then we may need to consider revising critical habitat at a later time.
51. Comment: The proposed critical habitat includes Threemile Creek as a winter migration corridor for bull trout that connects to Agency Lake. Threemile Creek has been redirected and currently flows into a series of canals, and does not directly enter Agency Lake or provide any form of hydraulic continuity for bull trout migration.
Our Response: Threemile Creek connects to Agency Lake via Crane Creek, Fourmile Creek, and the Westside and Sevenmile Canals. Threemile creek has been excluded from the final designation.
52. Comment: It is unlikely that bull trout will move downstream into Agency Lake and then migrate into tributaries not currently occupied. As has been demonstrated in streams in Montana, bull trout will not migrate through warm water to spawning beds. Absent careful analysis of the temperature regimes of the various streams, it is impossible to determine whether bull trout will use the currently unoccupied areas for migration downstream to Agency Lake and then into other streams, given their strong homing fidelity.
Our Response: Although resident and rearing juvenile bull trout are typically found in colder headwater reaches that meet the conditions necessary for spawning and rearing, larger migratory bull trout are more tolerant of wider *60005 temperature regimes. In the Klamath Basin, large bull trout have repeatedly migrated from cold water refugia through warm waters (69 ° F (21 ° C) upstream to spawning grounds, and returned (B. Quick, ODFW, pers. comm. 2000; C. Bienz, The Nature Conservancy, pers. comm. 2001).
In addition, some habitat, particularly FMO habitat, may only be seasonally occupied. Bull trout seek cold water refugia as water temperatures raise near or beyond preferred thermal regimes. Throughout the range of bull trout there are segments of stream systems that are not occupied in summer months because of warm water temperatures but serve as FMO habitat when water temperatures cool during fall, winter, and spring (Idaho Department of Environmental Quality (IDEQ) 1998).
In the Upper Klamath Lake CHSU, bull trout historically occupied several streams that drained into Agency and Klamath Lakes (Goetz 1992; Light et al. 1997; Buchanan 1998) until human actions altered aquatic habitat (Bond 1992; Cross and Everest 1995; Light et al. 1997; Quigley et al. 1997), leading to the extinction of most local populations in the Basin. Only two, small, isolated subpopulations remain in the Upper Klamath Lake CHSU. As recovery actions in the Klamath Basin improve habitat, and as bull trout populations grow, behavioral traits such as colonization and migratory life forms will likely be expressed. This may lead to the utilization of riverine and lacustrine habitats in Agency Lake and adjacent streams, at least seasonally.
53. Comment: Clarify the boundaries of critical habitat, and specify which database, or base map, that units were derived from, and when possible use specific geographic reference points. Land managers need to be able to know and reproduce the legal boundaries.
Our Response: Critical habitat maps were compiled from various sources. Rather than try and piece together many small data sets with varying degrees of accuracy and resolution, we relied predominantly on StreamNet as it is the largest and most readily available database. USFS databases were also used where stream data were not available in StreamNet. Legal descriptions of critical habitat units are provided in this rule and maps are available on our bull trout Web site: http://www.r1.fws.gov/bulltrout/colkla/index.htm, and our Field Offices can provide further clarification (Klamath Falls Fish and Wildlife Office (FWO), Oregon FWO, Western Washington FWO, Upper Columbia FWO, Snake River FWO, and Central Washington Field Office).
54. Comment: The Service cites a study that found "historical records for the Klamath Basin suggest that bull trout in this distinct population segment were once widely distributed and exhibited diverse life-history traits in that part of their range" (Ziller 1992). However, Ziller's study focused on the Sprague River subbasin. Did that study specifically address the presence of migratory bull trout in the area of northern Upper Klamath Lake and Agency Lake?
Our Response: Although Ziller (1992) was cited several times in the draft Recovery Plan in relation to distribution surveys, population size and abundance estimates, extirpation, and displacement of bull trout by brook trout the statement: "Limited historical references suggest that bull trout were once widely spread throughout the Klamath River system." was attributed to Buchanan et al. (1997).

Unit 2: Clark Fork River Basin

55. Comment: Several commenters expressed concern that bull trout recovery and critical habitat designation will negatively impact the Montana economy and tourism by impeding resource and recreation opportunities.
Our Response: As stated in our economic analysis, recreation and tourism are not formally recognized economic sectors with directly measurable income and employment data. Rather, direct employment related to recreation and tourism is found primarily within various components of the retail trade and service sectors. However, it is more likely that the long-term benefits of appropriate resource management will positively affect those parts of Montana's economy that are based on resources and recreation. This is at least partly due to the enhanced recreational angling opportunities afforded by bull trout recovery, as well as appropriate bull trout management being compatible with sustainable resource practices.

Unit 4: Willamette River Basin

56. Comment: Why was critical habitat not designated on the Clackamas River?
Our Response: Based on limited historical information, it is unknown whether reproducing bull trout populations existed previously in the Clackamas River. Bull trout are not known to currently inhabit the Clackamas River, but their presence was documented historically. Based on this information, the Clackamas River was not identified as essential to the conservation of the species. The Recovery Unit Team believes that the sub-basin has the necessary habitat elements to support the reintroduction of bull trout.

Unit 5: Hood River Basin

57. Comment: One commenter questioned the consistent use of the term "occupied" and how this fits into the rational of why the Service did not designate the Sandy River, and how that differs from the West Fork and East Fork Hood Rivers, which were included in the proposed rule. Although the commenter supports designating the West Fork Hood River, they believe the West Fork Hood River is not currently occupied.
Our Response: For the purposes of this critical habitat rule, the term "occupied" applies to streams where there is credible documentation of bull trout sighted within recent historical times (i.e., 20 years). Documentation of bull trout occurrence was deemed credible if recorded by a biologist working for a State, Federal, Tribal, Public Utility District, University, or other entity. Vague descriptions of "trout" or "salmon-sized fish with orange spots" in the ethnographic literature or other similar sources were not deemed to be reliable and were not used to document occupancy.
Using this definition, unoccupied habitat was removed from the designation. Under the ESA, the Secretary of the Interior may include unoccupied lands if she finds that those lands are essential to the conservation of the species. In the case of bull trout, and based on the best scientific data available, it was not possible for the Secretary to make such a determination at this time.
The Sandy River basin has been identified as core habitat (encompasses spawning and rearing habitat for resident populations, as well as FMO habitat for migratory populations) in the draft Hood River Recovery Plan due to recent bull trout sightings and suitable habitat conditions, but additional research on bull trout use of the Sandy River is needed. Sufficient information is not available to determine the source of bull trout observed in the Sandy River, or to define any local populations and their respective core areas. The draft Recovery Plan has identified the extent of bull trout use of the Sandy River as a primary research need. Because of this lack of information it was determined to not be essential to the conservation of bull trout at this time. The Sandy River basin, therefore, is not designated as critical habitat. Since the publication of the draft Recovery Plan, the East Fork of the Hood River has been excluded as habitat *60006 essential to the conservation of the species based on the information received from members of the Hood Recovery Unit Team. Past bull trout sightings in the East Fork Hood River are considered rare, and bull trout use of the East Fork Hood River is thought to be unlikely due to unsuitable habitat conditions and absence of bull trout sightings during surveys.
The Hood Recovery Unit Team has identified the West Fork Hood River as important to the conservation of bull trout and a potential local population has been identified for this basin. Based on temperature observations from USFS (1996b), suitable bull trout habitat is present in the mainstem of the West Fork Hood River, and bull trout were historically distributed in a short reach of the West Fork Hood River (Buchanan et al. 1997). Current bull trout use of the West Fork Hood River is thought to be primarily used as FMO habitat. We believe the West Fork Hood River will allow for population expansion and that it provides essential habitat. Lands managed in accordance with the Northwest Forest Plan and PACFISH/INFISH were excluded from the designation under Section 4(b)(2).

Unit 8: John Day River Basin

58. Comment: One commenter suggested that although Granite Creek was historic spawning and rearing habitat, it currently serves as FMO habitat.
Our Response: We agree.
59. Comment: One commenter suggested that although Clear Creek is essential habitat necessary to recover bull trout, it is not currently an occupied spawning area.
Our Response: There have been many anecdotal reports of bull trout and the presence of bull trout in the upper reaches of the watershed to suggest that they are using Clear Creek, but we agree there is not evidence of current spawning. Habitat within the John Day River Basin has been excluded under provisions of Section 4(b)(2) based on management actions associated with the Federal Columbia River Power System.

Unit 9: Umatilla / Walla Walla River Basins

60. Comment: Several commenters did not think it was appropriate to combine the Umatilla River Basin and the Walla Walla River Basin into the same critical habitat unit (CHU). They suggest that we split them into separate units.
Our Response: The CHU boundaries are based on bull trout recovery units as defined in the draft Recovery Plan that were based on the State of Oregon's Bull Trout Working Group and conservation efforts which were initiated and established years before the listing of bull trout. We felt it was most expedient to overlay our Federal process on the already established State efforts. These unit boundaries were not considered in the process used to determine what habitat areas are essential for bull trout. So, the areas included in the critical habitat designation would be the same, regardless of whether the Umatilla and Walla Walla river basins are combined or split into separate units.

Unit 10: Grande Ronde River Basin

61. Comment: One commenter noted that the inclusion of Sheep Creek and Five Points Creek as proposed critical habitat appears to be based purely on speculation that these streams have potential habitat to expand existing bull trout distribution in the Grande Ronde Recovery Unit.
Our Response: Unoccupied areas for both Sheep Creek and Five Points Creek were removed from the final designation. Lands managed under PACFISH/INFISH were excluded under Section 4(b)(2).
Surveys for bull trout have not been done in Sheep Creek and East Sheep Creek. Spawning and rearing habitat in the upper portion of Sheep Creek and East Sheep Creek are characterized by high water quality and low water temperatures. Because we cannot confirm at this time that bull trout currently occupy the lower portion of Sheep Creek, and we have no data to verify historical occupation, we deleted this section from final critical habitat designation. Bull trout have been sighted in the lower 0.5 mi (0.8 km) of Five Points Creek. Also, several creeks with spawning and rearing habitat drain into Five Points Creek.
Recovery objective #2 in the draft Grande Ronde River Recovery Unit Plan states that for the Grande Ronde River Core Area, "Increased population abundance is expected to occur by securing the distribution in the Hurricane and Looking Glass creeks as well as the Wenaha River, and by securing and expanding seasonal distribution in the Upper Grande Ronde, Minam/Deer and Lostine/Bear complexes, as well as Catherine and Indian creeks." Sheep and Five Points Creeks and associated tributaries are within the upper Grande Ronde River local population and are essential for bull trout population and distribution expansion necessary to achieve conservation. FMO and spawning and rearing habitat exist in these stream systems.

Unit 12: Hells Canyon Complex

62. Comment: The primary limiting factors for bull trout in the Powder River Basin are the Hells Canyon and other dams that deprive bull trout of an important prey base. Critical habitat designation will do little or nothing to address these obstacles, while interfering with water use practices that improve conditions for bull trout.
Our Response: We agree that bull trout have lost a major food source with the elimination of anadromous salmon from the Snake River system above Hells Canyon dam. While salmon were an important food source for bull trout, salmon were not the only prey base used by bull trout. Bull trout are opportunistic feeders and will generally prey upon whatever they can catch. The food habits of bull trout are primarily a function of size and life-history strategy. We have addressed restoration of anadromous fish by including task 3.1.3 in the Recovery Measures Narrative of the Draft Recovery Plan. Task 3.1.3 recommends restoration of the historical prey base for bull trout by reestablishing viable populations of anadromous fish. The designation of critical habitat should not interfere with efforts to improve conditions for bull trout because beneficial actions for bull trout should support the PCEs.
63. Comment: Watershed enhancement projects are currently taking place on National Forest System lands, and on private lands along Cracker, Fruit, and Little Cracker creeks, and along the Powder River. The county ensures that county roads do not impact water quality in streams; the USFS, State and county, along with miners, permittees, ranchers, farmers, and recreationists, are all working with the goal of improvement of the county's rivers and streams. Why are these streams designated?
Our Response: The value of these efforts have been recognized and considered in the final designation. Management of lands under PACFISH/INFISH guidelines have been recognized and these lands have been excluded under Section 4(b)(2). Unoccupied habitat has been removed from the final designation as have small segments (less that 0.5 miles) that are in private ownership. The remaining lands in this area have been determined to contain PCEs and be essential to the conservation of bull trout.
64. Comment: Historical data available in Baker County gives an account of Powder and Burnt Rivers, along with the majority of their tributaries, as being dry in late summer prior to the installation of water storage *60007 facilities. Presently, stored water, used primarily for irrigation, keeps streams and rivers flowing all year. Late in the summer, however, the water level drops and water temperatures increase. This condition is pervasive in all watersheds in Baker County.
Our Response: The Powder River is not included in the final designation because it is not currently occupied. Some tributaries to the Powder River are currently occupied and do contain PCEs and these remain in the final designation. The Burnt River and its tributaries were not designated as bull trout critical habitat because this basin has not been identified as necessary for recovery of bull trout within the Hells Canyon Complex Recovery Unit (Service, in prep. 2004a), and also because historical population documentation is lacking (Ratliff and Howell 1992; Buchanan et al. 1997).
65. Comment: There is no evidence that any resource industries such as logging and grazing have been harmful to the bull trout in this unit, and these practices may be important management tools for the species.
Our Response: Habitat fragmentation and degradation are likely the primary threats for bull trout throughout the Hells Canyon Complex Recovery Unit. Some resource practices that have historically adversely impacted bull trout have ceased or been altered to reduce impacts to waterways. We agree that logging and grazing can be compatible management practice if conducted appropriately.
66. Comment: Given the inherent problems in developing fish passage around dams, the Hells Canyon Complex is not essential for preservation of the species since there are many other areas within the Pacific Northwest region that have less formidable obstacles. Designating this area as critical habitat, places too large a burden on the residents and particularly the agricultural community.
Our Response: We acknowledge that providing fish passage around hydroelectric or water storage facilities can be challenging. It is important to individually assess each facility relative to the conservation needs of the species of concern, potential benefits to the species, and economic costs associated with the action. Providing for fish passage does not mean that expensive alterations to concrete facilities is the only solution. In some instances trap and haul operations may be sufficient, in others spilling water or channeling water through sluiceways may be the preferred operation. In other instances, fish passage may not be the preferred alternative. Reservoirs were excluded from the final designation due to concerns about possible third party actions.
67. Comment: Will critical habitat designation result in the elimination of irrigation in Baker County?
Our Response: No. The designation of critical habitat does not create a regulatory burden for private landowners unless there is a Federal nexus (i.e., the private action is connected with a Federal action). However, we realize that many irrigation projects do have a nexus with the Bureau of Reclamation or the U.S. Army Corps of Engineers. When there is a nexus, adverse effects to critical habitat will need to be addressed through formal section 7 consultations. Federal actions will be evaluated on a case-by-case basis. If the Service finds that a proposed Federal action would result in destruction or adverse modification of critical habitat, the Service will develop one or more Reasonable and Prudent Alternatives to the proposed action that (1) avoid the likelihood of adverse modification, (2) can be implemented in a manner consistent with the intended purpose of the action, (3) can be implemented consistent with the scope of the action agency's legal authority and jurisdiction, and (4) are economically and technologically feasible. Given these four elements, we do not foresee a Reasonable and Prudent Alternative consisting of the elimination of irrigation in Baker County.
68. Comment: Historically, not all the river systems mentioned have had native bull trout populations. Because of high water temperatures and low dissolved oxygen in many of streams and rivers, such as the lower section of the Powder River, bull trout can't be supported.
Our Response: All creeks included in the draft Hells Canyon Complex Recovery Plan are within the historical range of bull trout. Bull trout use of the mainstem Powder River is most likely as FMO habitat during the late fall and winter. During this time, flows in the Powder River are significantly higher than during the late spring and summer, when irrigation withdrawals occur. The water is also cooler, and most likely contains higher oxygen levels compared with warmer summer flows. We believe that the mainstem Powder River can continue to serve as FMO habitat for bull trout in a recovered condition.
69. Comment: Why was there no communication from the recovery teams regarding bull trout critical habitat designation to any potentially impacted groups affected within this unit?
Our Response: During the recovery planning process, we actively encouraged stakeholder involvement through contacting watershed council representatives and requesting their participation. We have made a concerted effort to increase stakeholder participation in the recovery planning process for the Hells Canyon Complex by meeting with the Baker County Bull Trout Response Team to learn about concerns and try to incorporate those concerns into the critical habitat designation. Mining, agriculture, sport fishing, and landowner interests have all been represented at meetings we have held between the publication of the draft and the final recovery plan chapter for this unit.
70. Comment: What was the time-frame that the Recovery Unit Team was working under?
Our Response: Coordination between the Service and ODFW has been occurring informally since 1993. At the first formal working group in 1997, the USFS, ODFW, and BLM biologists and hydrologists met to share information on bull trout, discuss critical data needs, and coordinate activities that would lead toward development of a conservation strategy for bull trout in the Pine Creek basin. Recovery Unit Team organization began in 1999 with an invitation sent to agencies and watershed councils to attend a series of workshops in eastern Oregon to begin work on the recovery plan after the bull trout was listed in 1998.

Unit 13: Malheur River Basin

71. Comment: Two commenters asked about the suitability of habitat for bull trout on the Little Malheur River due to elevated water temperatures.
Our Response: Historical presence of bull trout in the Little Malheur River has been documented by the USFS (1967). Documentation of bull trout occupancy has also been provided by the Burns Paiute Tribe as part of a life history study using telemetry techniques. We agree that stream temperatures are high in the summer in the lower reaches of the stream. However, water temperatures are cool enough during the migration and overwintering time periods to provide habitat for bull trout in the Little Malheur River. The Malheur River Basin unit was excluded from critical habitat based on economic considerations under provisions of Section 4(b)(2).
72. Comment: Are Summit Creek, Big Creek, and Lake Creek suitable for bull trout? Does Crooked Creek provide suitable spawning and rearing habitat?
Our Response: In defining spawning and rearing habitat versus FMO habitat *60008 for the proposed designation, we considered the areas for rearing as those areas used by sub-adults, associated with a spawning area. Summit Creek, Big Creek, and Lake Creek are suitable habitat for bull trout from their confluences with the Malheur River to their sources. All three creeks provide spawning and rearing habitat, and all are occupied based on spawning surveys conducted by the USFS, ODFW, and the Burns Pauite Tribe. Bull trout also have been detected in Summit Creek, Big Creek, and Lake Creek during creel surveys conducted since 1968. In the case of Summit Creek, where there is potential spawning habitat in the upper reach, we assume that rearing for at least portions of the year is possible throughout the length of the stream. In effect, there is an overlap in habitat used by sub-adult fish between the definitions for spawning and rearing and FMO habitat.
We recognize that habitat restoration would need to occur to provide good quality rearing habitat. Habitat in Crooked Creek is currently below optimal conditions for bull trout and requires habitat restoration. Crooked Creek has documented bull trout occurrences, and has been identified as essential to conservation of bull trout and to provide for habitat expansion in the draft Recovery Plan. Because bull trout have been documented rearing in Crooked Creek, we know they expand their range into the stream when the opportunity arises. Use of Crooked Creek would primarily occur in the spring time when water temperatures are low, stream flows are high, and bull trout migrate into tributary streams to forage. Only habitat degradation including increased water temperatures and poor substrate conditions prevent them from inhabiting the stream on a regular basis. The habitat in Crooked Creek would primarily be inhabited by rearing and foraging bull trout during seasons of year when bull trout are able to access the habitat. The Malheur River Basin unit was excluded from critical habitat based on economic considerations under provisions of Section 4(b)(2).
73. Comment: One commenter asked about the suitability of Bluebucket Creek for bull trout, and another about Warm Springs Reservoir.
Our Response: We anticipate increased bull trout use in the lower reaches of the Middle Fork Malheur River as habitat is restored and the bull trout population increases. The Malheur River Basin unit was excluded from critical habitat based on economic considerations under provisions of Section 4(b)(2).

Unit 15: Clearwater River Basin

74. Comment: Silver, Twentymile, and Wing creeks were documented as occupied by bull trout in the South Fork Clearwater Landscape Assessment done by the Nez Perce National Forest. The map in the proposed rule lists these streams as Dl, D2, and D3, although they are not shown on the map.
Our Response: Silver and Twentymile creeks are documented as occupied bull trout FMO habitat. Wing Creek is unoccupied and is not associated with a local or potential population and was removed from the final designation. In addition, the Clearwater River Basin Unit which includes these creeks has been excluded from the final critical habitat designation under provisions of Section 4(b)(2) because of cooperative efforts being undertaken as part of the Snake River Basin adjudication.
75. Comment: Why is Freeman Creek listed as critical habitat for bull trout? It is a small tributary of Dworshak Reservoir. There are many other larger tributaries to Dworshak Reservoir that are appropriately not listed as critical habitat for bull trout.
Our Response: Freeman Creek is occupied FMO habitat, but not associated with a local or potential population. The stream is essential as a cold water refugia and foraging habitat during some portions of the summer when the water temperatures of Dworshak Reservoir rise. The Clearwater River Basin Unit which includes Freeman Creek has been excluded from the final critical habitat designation under provisions of Section 4(b)(2) because of cooperative efforts being undertaken as part of the Snake River Basin adjudication.
76. Comment: Three commenters stated that rural basin community economies in the Clearwater have experienced serious downturns that are tied to low elk herd populations, no significant timber harvest on either national forest, and that critical habitat could result in timber harvest prohibitions. Elk herds need the early seral conditions that occur after burning, timber harvest, and mechanical treatment of brush fields.
Our Response: There is no landscape prohibition to ti