Vol. 76 Tuesday, No. 196 October 11, 2011

Part VI

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition To List the Golden as Endangered; Proposed Rule

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63094 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

DEPARTMENT OF THE INTERIOR practicable, within 90 days after whether listing of the California golden receiving the petition, we make a trout is warranted. On September 22, Fish and Wildlife Service finding as to whether the petition 2003, Trout Unlimited sent a Notice of presents substantial scientific or Intent to sue the Service for violating 50 CFR Part 17 commercial information indicating that the Act by failing to make a 12-month [Docket No. FWS–R8–ES–2011–0089 MO the petitioned action may be warranted. finding within the statutory timeframe. 92210–0–008] In addition, within 12 months of the This 12-month finding resolves that date of the receipt of the petition, we issue. Endangered and Threatened Wildlife must make a finding on whether the Subspecies Information and Plants; 12-Month Finding for a petitioned action is: (a) Not warranted, Petition To List the California Golden (b) warranted, or (c) warranted but Taxonomy and Subspecies Description Trout as Endangered precluded by other pending proposals. The California Section 4(b)(3)(C) of the Act requires ( mykiss aguabonita) AGENCY: Fish and Wildlife Service, that we treat a petition for which the Interior. (formerly known as Volcano Creek requested action is found to be golden trout) is one of three subspecies ACTION: Notice of 12-month petition warranted but precluded as though finding. of (O. mykiss) native to resubmitted on the date of such finding, the basin in Tulare and Kern that is, requiring a subsequent finding to SUMMARY: Counties, California (Behnke 1992, p. We, the U.S. Fish and be made within 12 months. Such 12- 191; Behnke 2002, p. 105; Moyle 2002, Wildlife Service, announce a 12-month month findings are to be published p. 283). The two other subspecies native finding on a petition to list the promptly in the Federal Register. This to this basin are the Little Kern golden California golden trout (Oncorhynchus notice constitutes our 12-month finding trout (O. mykiss whitei), which is found mykiss aguabonita) as endangered on the October 23, 2000, petition to list in the and its under the Endangered Species Act of the California golden trout as tributaries, and the Kern River rainbow 1973, as amended (Act). After review of endangered. all available scientific and commercial trout (O. mykiss gilberti), which is found information, we find that listing the Previous Federal Actions in the Kern River. All three subspecies California golden trout is not warranted On October 23, 2000, we received a most likely originated from successive at this time. However, we ask the public petition dated October 13, 2000, from invasions of primitive to submit to us any new information Trout Unlimited, requesting that the (ancestral rainbow trout) of the Kern that becomes available concerning the California golden trout be listed on an River approximately 10,000 to 20,000 threats to the California golden trout or emergency basis as endangered under years ago (Behnke 1992, p. 189; Behnke its habitat at any time. the Act, and that critical habitat be 2002, p. 107; Moyle 2002, p. 283). These DATES: The finding announced in this designated. Included in the petition was fish gained access to the Kern River document was made on October 11, supporting information on the drainage during glacial cycles and short- 2011. subspecies’ taxonomy, distribution, and term interglacial wet cycles that allowed ecology, as well as information Lake Tulare to overflow and connect the ADDRESSES: This finding is available on Kern River drainage to the San Joaquin the Internet at http://www.regulations. regarding factors considered by the petitioners to threaten the subspecies. River and Pacific Ocean (Behnke 2002, gov at Docket Number FWS–R8–ES– p. 109). These primitive forms of 2011–0089. Supporting documentation We acknowledged receipt of the petition in a letter to Trout Unlimited, dated rainbow trout that became isolated in we used in preparing this finding is the Kern River watershed gave rise to available for public inspection, by November 7, 2000. In that letter, we also stated that we would be unable to the California golden trout, Little Kern appointment, during normal business address the petition until fiscal year River golden trout, and the Kern River hours at the U.S. Fish and Wildlife 2002 or later due to court orders and rainbow trout due to local selective Service, Sacramento Field Office, 2800 judicially approved settlement factors in their environment (Behnke Cottage Way, Sacramento, CA 95825. agreements for listing and critical 2002, p. 111; Moyle 2002, p. 283). Please submit any new information, habitat determinations under the Act, The taxonomy of golden trout in the materials, comments, or questions which required nearly all of our listing Kern River basin has been revised concerning this finding to the above and critical habitat funding for fiscal several times. Originally, four species of address. year 2001. The petitioner filed a trout were described: Salmo aguabonita FOR FURTHER INFORMATION CONTACT: complaint in Federal District Court on from the , S. Karen Leyse, Field Office Listing/ November 29, 2001, resulting in a ruling roosevelti from Golden Trout Creek, S. Critical Habitat Coordinator, on June 21, 2002, ordering us to whitei (Little Kern golden trout) from Sacramento Field Office (see complete the 90-day finding by the Little Kern River, and S. gairdeneri ADDRESSES); by telephone at 916–414– September 19, 2002. We completed the gilberti () from 6600; or by facsimile at 916–414–6712. finding by the requisite date, and the lower Kern River (Moyle 2002, p. If you use a telecommunications device published it in the Federal Register on 284). Trout from the South Fork Kern for the deaf (TDD), please call the September 20, 2002 (67 FR 59241). In River and Golden Trout Creek were later Federal Information Relay Service the finding we determined that the recognized as color variants of S. (FIRS) at 800–877–8339. petition presented substantial scientific aguabonita (Schreck and Behnke 1971, SUPPLEMENTARY INFORMATION: or commercial information to indicate p. 994). More recently, rainbow trout that listing the California golden trout were reclassified as Oncorhynchus Background may be warranted. We also determined mykiss to reflect their relationship to Section 4(b)(3)(B) of the Act (16 that an emergency rule to list was not Pacific salmon, and California golden U.S.C. 1531 et seq.) requires that, for warranted at the time of the 90-day trout in both the South Fork Kern River any petition to revise the Federal Lists finding. We concurrently initiated a and Golden Trout Creek became of Endangered and Threatened Wildlife status review on which to base our recognized as the same subspecies of and Plants, to the maximum extent eventual 12-month finding regarding rainbow trout, Oncorhynchus mykiss

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63095

aguabonita (Behnke 1992, pp. 163, 172). the substrate for eggs) using relatively and that these intergrades may Similarly, Little Kern golden trout small-grained substrate (Knapp and predominate in the lower reaches of the became O. mykiss whitei, and Kern Vredenburg 1996, pp. 528, 529). South Fork Kern River (Sims 2011a). River rainbow trout became O. mykiss For purposes of this finding, we have Such reports have not been gilberti. considered California golden trout to be substantiated with systematic measures California golden trout are well those trout within the native range of of, or comparison with, introgression known for their bright coloration, red to the subspecies (see Distribution section levels or with other morphological or red-orange belly and cheeks, bright gold below) that present the morphological behavioral attributes described above, lower sides, a central lateral band that and behavioral characters listed above. and there are no studies that have is red-orange, and a deep olive-green We do not rely on genetic tests measured the morphological or back (Moyle 2002, p. 283). Typically, 10 indicating levels of genetic introgression behavioral changes in introgressed parr marks (oval colorations) are present (infiltration of genes from one species California golden trout as compared to along the lateral line on both young fish into the gene pool of another species ‘‘pure’’ golden trout. Furthermore, there and adults, but may be lost in older fish through repeated backcrossing of a is no documentation that we are aware under some conditions (Behnke 2002, p. hybrid with one of its parent species) of that indicates that additional meristic 106). The pectoral, pelvic, and anal fins with nonnative trout (see Factor E— measures used to describe California are orange with a white to yellow tip Hybridization section below) to golden trout (such as number of preceded by a black band; dorsal fins determine what constitutes a member of vertebrae, scale counts, and pyloric may also have a white to yellow tip the subspecies because the most recent caeca) have changed with introgression (Moyle 2002, p. 283). Body spotting is genetic analysis of introgression in levels. highly variable, but spots are usually California golden trout populations scattered across the dorsal surface with specifically cautioned against the use of Distribution a few below the lateral line (Moyle strict cutoffs of introgression levels in The historical range of the California 2002, p. 283). California golden trout determining management categories golden trout included only the South from Golden Trout Creek have few spots based on any single genetic test Fork Kern River and Golden Trout Creek on the body, primarily concentrated on (Stephens 2007, p. 55). According to in the upper Kern River basin. Golden and near the caudal peduncle (the this study, the algorithm used by one Trout Creek and upper portions of the muscle before the tail fin), whereas genetic test may result in an estimation South Fork Kern River were once part California golden trout in the South of low levels of introgression where of the same stream, which became Fork Kern River typically have small none actually exist, essentially not separated by volcanic activity in the dark spots present over most of the allowing for an unambiguous region approximately 10,000 years ago length of the body above the lateral line, determination between low levels of (Cordes et al. 2003, p. 20). This led to although a few spots can be found introgression and genetically ‘‘pure’’ Golden Trout Creek and the South Fork below the lateral line (Fisk 1983, p.1; populations (Stephens 2007, p. 56). This Kern River as known today (Evermann Stephens 2001a, p. 4). Golden trout are caution against using single methods for 1906, pp. 11–14) in two adjacent rainbow trout, so the basic rainbow determining cutoffs was due in part to watersheds draining the Kern Plateau of trout characteristics apply to the considerable differences in introgression the southern . subspecies (Moyle 2002, p. 283); estimates for certain populations of The Golden Trout Creek watershed is however, golden trout have the lowest California golden trout, which were 155 square kilometers (km2) (60 square number of vertebrae (59 to 60) and generated by the different miles (mi2)). Golden Trout Creek pyloric caeca (finger-like projections of methodologies and assumptions of the drainage begins around 3,292 meters (m) the intestine (30 to 32)), and the highest various genetic tests that have been used (10,800 feet (ft)) elevation near Cirque number of scales along the lateral line to test those populations (Stephens Peak and extends to 2,135 m (7,000 ft) (170 to 200) of any rainbow trout 2007, p. 72), as well as to the general elevation at the confluence of Golden (Behnke 2002, p. 106). California golden need for an adequate understanding of Trout Creek and the Kern River. The trout in streams can obtain lengths of 19 the variance surrounding introgression headwaters are in the northern section to 20 centimeters (cm) (7.5 to 7.9 inches estimates (Stephens 2007, p. 57). of the Kern Plateau, and several lakes (in)) (Knapp and Dudley 1990, p. 168). However, while we do not rely on (Chicken Spring, Johnson, and Rocky California golden trout remain genetic tests of introgression levels to Basins lakes) drain into the watershed. geographically isolated from Little Kern distinguish California golden trout With the exception of headwater lakes, golden trout and Kern River rainbow populations from nonnative trout, we do and the probable exception of upper trout, but historical planting of consider such genetic information reaches of some tributary streams, nonnative hatchery trout (O. mykiss useful for evaluating the effectiveness of Golden Trout Creek was historically irideus) has resulted in hybridization in measures taken to prevent further occupied by the California golden trout most of the range (see the Hybridization introgression. from the headwaters to a series of section under Factor E below). Hybridization between California waterfalls near the confluence of the California golden trout also present golden trout and nonnative rainbow creek with the Kern River (Evermann behavioral and life-history characters trout is sometimes displayed by an 1906, pp. 12–14; 28, 30). The waterfalls that help distinguish them from other increased number and location of body are impassable and thus isolate subspecies of rainbow trout (see also spots, especially below the lateral line, California golden trout in Golden Trout discussion under the Habitat and Life and a more rainbow trout-like body Creek from fish found in the Kern River. History section below). These include coloration; however, not all hybrid trout Within Golden Trout Creek, California smaller home ranges (Matthews 1996a, display rainbow trout characteristics golden trout currently maintain the p. 84; Matthews 1996b, p. 587), (CDFG et al. 2004a, p. 24). We have same distribution as they did remaining active during both day and anecdotal information that suggests historically. night (Matthews 1996a, pp. 82, 84–85), there are trout that exhibit changed The South Fork Kern River watershed a relatively long lifespan (Knapp and coloration and spotting patterns from covers 1,380 km2 (533 mi2). The South Dudley 1990, p. 169), and the those ascribed to the California golden Fork Kern River begins southeast of construction of redds (depressions in trout (Trout Unlimited 2000, pp. 18, 19) Cirque Peak at approximately 3,170 m

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63096 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

(10,400 ft) in elevation and continues populations present elsewhere as part of select the largest substrates available until it reaches Isabella Reservoir at 794 the listable entity because we do not (Knapp and Vredenburg 1996, pp. 528, m (2,605 ft) in elevation. The consider them to be native populations. 529). headwaters are in the eastern section of Neither the Act nor our implementing Growth of California golden trout the Kern Plateau, starting at South Fork regulations expressly address whether shows a negative correlation with fish and Mulkey Meadows. California golden introduced populations should be density and a positive correlation with trout were historically known in the considered part of an entity being several factors, including the stability of South Fork Kern River from the evaluated for listing, and no Service the stream bed and banks, and the headwaters to the southern boundary of policy addresses the issue. presence of aquatic and streamside the (CDFG et al. Consequently, in our evaluation of vegetation (Knapp and Dudley 1990, pp. 2004a, p. 8). The subspecies currently whether or not to include introduced 165, 170, 171). Aquatic vegetation maintains the same distribution as it did populations in the potential listable provides habitat for small invertebrates historically within the South Fork Kern entity we considered the following: preyed on by the trout, while River; however, the degree of genetic (1) Our interpretation of the intent of overhanging streamside vegetation introgression from nonnative rainbow the Act with respect to the disposition provides habitat for terrestrial trout increases as one proceeds of native populations; invertebrates that can serve as a food downstream from Templeton Barrier (2) A policy used by the National source when they fall in the water (Stephens 2007, pp. 42, 72). There is no Marine Fisheries Service (NMFS) to (Knapp and Dudley 1990, p. 170; Moyle evidence to suggest that the degree of evaluate whether hatchery-origin 2002, p. 285). Streamside vegetation introgression has been sufficient to populations warrant inclusion in the also tends to stabilize banks and to remove morphologically and listable entity; and provide cover for young trout from behaviorally distinct California golden (3) A set of guidelines from another potential predators such as birds (Moyle trout from the southern portion of its organization (International Union for 2002, p. 277). Overhanging vegetation, historical range. Therefore, we are Conservation of Nature (IUCN)) with steep or undercut banks, and deeper considering the subspecies to be present specific criteria for evaluating the streambeds are all needed by trout in its entire historical range for purposes conservation contribution of introduced (Moyle 2002, p. 286), in part because of this finding. The range is completely populations. they provide shade and cooler water within the Inyo and Sequoia National Our interpretation is that the Act is during the day. Average daily water Forests, which are administered by the intended to preserve native populations temperatures can fluctuate from 2 to 22 U.S. Forest Service. in their ecosystems. While hatchery or °C (Knapp and Dudley 1990, p. 163), introduced populations of fishes may while optimal temperatures for trout Range Expansion have some conservation value, this does range from 15 to 18 °C (59 to 64 °F) California golden trout have been not appear to be the case with (Moyle 2002, p. 276). Deeper streambeds widely transplanted outside of their introduced populations of California and steeper banks are associated with historical range, but the history of these golden trout in California and elsewhere greater stream stablity, thus helping to transplants is poorly documented. Most in the United States. These introduced explain the positive correlation between of these transplanted fish came from populations were apparently established stream stability and trout growth found hybridized Cottonwood Lakes stock that to support recreational fisheries without by Knapp and Dudley (1990, pp. 165, was derived from Golden Trout Creek any formal genetic consideration to 171). Stream stability is also likely (Stephens 2007, pp. 54, 55). Fish were selecting and mating broodstock (group important because erosion of unstable transplanted into fishless lakes and of mature fish kept for breeding streams produces higher sediment loads streams within the Golden Trout Creek purposes), and are not part of any that can cover redds and interfere with watershed, the South Fork Kern River conservation program to benefit the feeding by clouding the water (Moyle watershed, and other areas throughout native populations. Consequently, we 2002, p. 278). the Sierra Nevada (such as adjacent to do not consider the introduced California golden trout have been the Kern Plateau, including Ninemile populations of California golden trout in known to live as long as 9 years, and Creek, Cold Creek, Salmon Creek, many California, England, Colorado, Utah, commonly reach 6 to 7 years old (Knapp of the lakes and streams to the north in Montana, New York, and Wyoming to and Dudley 1990, p. 169). This long , and all be part of the listable entity. lifespan is likely due to a short growing tributaries to the Kern River). In season, high fish densities, and a low Habitat and Life History California, planting records and food abundance, all of which promote historical documents indicate that California golden trout reach sexual slow growth rates and old ages of trout California golden trout have been maturity when they are 3 to 4 years old (Knapp and Dudley 1990, p. 169). stocked in Alpine, El Dorado, Nevada, and begin spawning during the spring or California golden trout adapted to the Placer, Sierra, Fresno, Inyo, Madera, early summer when maximum water South Fork Kern River and Golden Mono, Siskiyou, Trinity, Tulare, and temperatures consistently exceed 15 to Trout Creek in the absence of Tuolumne Counties (Fisk 1983, p. 11). 18 degrees Celsius (°C) (59 to 64 degrees competitors, although they probably did Outside of California, golden trout were Fahrenheit (°F)) and average stream coexist with Sacramento suckers sent to England, Colorado, Utah, water temperatures exceed 7 to 10 °C (Catostomus occidentalis) in the South Montana, New York, and Wyoming (45 to 50 °F) (Stefferud 1993, pp. 139– Fork Kern River (Moyle 2002, p. 284). between 1928 and 1937 (McCloud 1943, 140; Knapp and Vredenburg 1996, p. Long isolation of California golden trout p. 194). 528). Spawning begins with female from other species has likely resulted in For the purposes of this finding, we California golden trout moving fine a lack of competitive ability, making are analyzing a petitioned entity that gravel substrate to construct a shallow them vulnerable to replacement by other includes populations of California depression, known as a redd, to lay their trout species (Behnke 1992, p. 191). golden trout considered native to the eggs. Although California golden trout Likewise, the subspecies is thought to South Fork Kern River and Golden can construct redds using gravel of have evolved without substantial Trout Creek in the upper Kern River smaller average diameter than other interspecific predation risk; the birds basin. We do not consider introduced trout species or subspecies, they still and mammals that might have been

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63097

likely predators of the California golden Agencies, through the MOA, agreed to point that the species meets the trout occur infrequently in high alpine formally implement and collaborate on definition of threatened or endangered areas where California golden trout are the Conservation Strategy and make any under the Act. found (Moyle 2002, p. 285). One necessary adaptive management In making this finding, information possible indication that California changes as the primary mechanism for pertaining to the California golden trout golden trout adapted without predators the conservation of the California in relation to the five factors in section is the trout’s active behavior during both golden trout. Implementation of many 4(a)(1) of the Act is discussed below. In day and night (Matthews 1996a, pp. 82, tasks described in the Conservation making our 12-month finding on the 84–85). Strategy began while it was under petition, we considered and evaluated California golden trout home ranges development, and have continued since the best available scientific and were calculated as the linear distance its finalization. Those tasks and other commercial information. We reviewed that encompasses 90 percent of trout conservation efforts implemented in the petition, information available in locations, based on movements recorded prior years are summarized below our files, and other available published using radio-telemetry during the months throughout the five-factor analysis. and unpublished information. of July and September (Matthews 1996a, p. 84; Matthews 1996b, p. 587). Summary of Information Pertaining to Factor A. The Present or Threatened California golden trout were found to the Five Factors Destruction, Modification, or have small home ranges that average Section 4 of the Act (16 U.S.C. 1533) Curtailment of the Species’ Habitat or 5 m (16 ft) (Matthews 1996a, p. 84; and implementing regulations (50 CFR Range Matthews 1996b, p. 587). Movements of 424) set forth procedures for adding The petition and our subsequent 26 to 100 m (86 to 328 ft) were observed, species to, removing species from, or investigations have identified several but these constituted less than 1 percent reclassifying species on the Federal habitat-related activities relevant to the of all observations (Matthews 1996b, p. Lists of Endangered and Threatened conservation status of California golden 587). Wildlife and Plants. The Act treats trout, including: Livestock grazing subspecies such as the California golden management, pack stock use, recreation, The Conservation Strategy trout as species for these purposes (16 artificial fish barriers, and beavers. We Since publication of the 90-day U.S.C. 1532(16)). Under section 4(a)(1) address each activity below. finding in 2002 (67 FR 59241; of the Act, a species may be determined Livestock Grazing Management September 20, 2002), the California to be endangered or threatened based on Department of Fish and Game (CDFG), any of the following five factors: The combined effect of current the Forest Service, and the Service (A) The present or threatened livestock grazing activities in the (hereafter referred to collectively as the destruction, modification, or and legacy Agencies) completed a revised curtailment of its habitat or range; conditions from historically excessive Conservation Assessment and Strategy (B) Overutilization for commercial, grazing use have the potential to impact for the California Golden Trout recreational, scientific, or educational habitat and the range of the California (Conservation Strategy) dated purposes; golden trout. The following subsections September 17, 2004 (CDFG et al. 2004a). (C) Disease or predation; discuss the effects of excessive The Conservation Strategy replaced a (D) The inadequacy of existing historical grazing, current grazing previous guidance document known as regulatory mechanisms; or management practices, and habitat the Conservation Strategy for the (E) Other natural or manmade factors restoration and monitoring efforts Volcano Creek (California) Golden Trout affecting its continued existence. within the basins in which the native (1999 Conservation Strategy), which had In considering what factors might stream habitat of the California golden been in effect since April 22, 1999. The constitute threats, we must look beyond trout occurs. the mere exposure of the species to the Agencies also signed a Memorandum of Historical Effects of Excessive Grazing Agreement (MOA) on September 17, factor to determine whether the species 2004, to implement the Conservation responds to the factor in a way that Grazing of livestock in Sierra Nevada Strategy (CDFG et al. 2004b); both the causes actual impacts to the species. If meadows and riparian areas began in Conservation Strategy and MOA are there is exposure to a factor, but no the mid-1700s with the European currently in effect. The purposes of the response, or only a positive response, settlement of California (Menke et al. Conservation Strategy are to: that factor is not a threat. If there is 1996, p. 909). Following the gold rush (1) Protect and restore California exposure and the species responds of the mid-1800s, grazing rose to a level golden trout genetic integrity and negatively, the factor may be a threat that exceeded the carrying capacity of distribution within its native range; and we then attempt to determine how the available range and caused (2) Improve riparian and instream significant a threat it is. If the threat is significant impacts to the grazed habitat for the restoration of California significant, it may drive or contribute to ecosystems (Meehan and Platts 1978, golden trout populations; and the risk of extinction of the species such p. 275; Menke et al. 1996, p. 909). (3) Expand educational efforts that the species warrants listing as Approximately 95 percent of the regarding California golden trout threatened or endangered as those terms California golden trout’s native stream restoration and protection. are defined by the Act. This does not habitat has been subjected to varying The Agencies’ intent has been to necessarily require empirical proof of a intensities of grazing for more than 130 encourage ongoing nongovernmental threat. The combination of exposure and years (CDFG et al. 2004a, p. 31). stakeholder coordination and some corroborating evidence of how the Livestock grazing within the national consultation throughout the species is likely impacted could suffice. forests in the southern and high Sierras implementation phase of the The mere identification of factors that has continued with gradual reductions Conservation Strategy. The could impact a species negatively is not since the 1920s, except for an increase Conservation Strategy is based on sufficient to compel a finding that during World War II (Menke et al. 1996, adaptive management, with tasks being listing is appropriate; we require pp. 909–910, 916–919). removed, added, or adjusted annually as evidence that these factors are operative Livestock can contribute to the new information becomes available. The threats that act on the species to the destabilization of stream banks by

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63098 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

accelerating erosion and increasing bank condition of streams in the Golden Knapp and Matthews (1996, pp. 816– disturbance (Kauffman et al. 1983, pp. Trout Wilderness and adjoining 817) examined the effects of excessive 684–685; Marlow and Pogacnik 1985, p. watersheds in Sequoia National Park. livestock grazing on California golden 279). Livestock grazing in meadows and Her results showed that stream zones in trout and their habitat inside and on stream banks can compact soils, the South Fork Kern River and Golden outside of grazing exclosures in the which reduces water infiltration rates Trout Creek were less stable, had more South Fork Kern River watershed. In the and the soil’s ability to hold water, livestock damage, and were generally in 2-year study, most physical parameters thereby increasing surface runoff rates poorer condition than those in Sequoia of the stream channels showed large into adjacent streams, downcutting National Park, which had not been differences between grazed and streambeds, and lowering the watertable grazed for the preceding 50 years. ungrazed sites, with ungrazed sites (Meehan and Platts 1978, pp. 275–276; Stream reaches with light cattle use had displaying greater canopy shading, Kauffman et al. 1983, pp. 684–685; channel bottoms that were more stable stream depth, bank-full height, and Kauffman and Krueger 1984, pp. 433– (less subject to erosional and narrower stream width. Densities and 434; Bohn and Buckhouse 1985, p. 378; depositional changes) than heavily used biomass of California golden trout per Armour et al. 1994, pp. 7–10). In some reaches (Albert 1982, pp. 48–51). unit area were significantly higher in cases, excessive livestock grazing has Odion et al. (1988, pp. 277–289) ungrazed versus grazed areas in three resulted in the conversion of wet examined the effects of cattle grazing out of four comparisons, but differences meadows into dry flats and in and recovery potential in Templeton were less consistent when density and diminished perennial stream flows and Ramshaw Meadows along the South biomass were calculated using stream (Armour et al. 1994, p. 7). Erosion from Fork Kern River. Vegetation change was length. Other findings of this study trampling causes stream bank collapse monitored inside and outside of indicate a significant decrease in stream and an accelerated rate of soil exclosures that were established along width in the upper Ramshaw Meadows movement from land into streams riparian areas within the range of exclosure between 1984 and 1993, and (Meehan and Platts 1978, pp. 275–276). California golden trout. Odion et al. a greater number of willow plants inside Accelerated rates of erosion lead to (1988, pp. 277–289) concluded that exclosures than outside. elevated instream sediment loads and livestock trampling and defoliation Not all studies found differences in depositions, and changes in channel caused a breakdown of the protective grazed and ungrazed areas. Sarr (1995, morphology, which alter the structure of sod layer in the meadows, allowing pp. 97, 104) did not find significant the aquatic environment used by fish for streams to incise (where the streambed differences in stream morphology in his spawning (Meehan and Platts 1978, pp. channel downcuts in elevation, study between grazed and ungrazed 275–276; Kauffman and Krueger 1984, reducing habitat quality and quantity), reaches on the South Fork Kern River. pp. 433–434; Bohn and Buckhouse produce gullies, and lower the water In a movement and habitat use study, 1985, p. 378). These effects to the table. Subsequently, plants adapted for California golden trout were monitored aquatic ecosystem increase with a dry habitat, such as sagebrush, with radio transmitters inside and increases in the intensity of grazing invaded the altered meadows. Results of outside of grazing exclosures on the (Meehan and Platts 1978, pp. 275–276). density monitoring indicated that cattle Livestock grazing can cause a nutrient South Fork Kern River (Matthews trampling impaired colonization of loading problem due to urination and 1996a, pp. 78–85). No differences in plant species important in stabilizing defecation in or near the water, and distance moved or home range were elevate bacteria levels in areas where substrate on stream banks, thus found between California golden trout cattle are concentrated near water reducing the natural revegetation inside and outside exclosures, and most (Meehan and Platts 1978, p. 276; potential of bare stream bank habitat fish were found within 5 m (16.4 ft) of Stephenson and Street 1978, p. 152; (Odion et al. 1988, p. 283). their previously recorded location. Kauffman and Krueger 1984, p. 432). Matthews (1996b, pp. 579–589) used Current Levels of Grazing Use The nutrient status of streams can create radio transmitters to determine habitat a cause and effect relationship between selection and movement patterns of Many grazing impacts to the Kern nutrient levels, bacterial growth, and California golden trout in two stream Plateau were originally caused by insect mortality (Lemly 1998, p. 234). reaches with different levels of habitat unmanaged grazing practices dating Growth of filamentous bacteria on the recovery on Mulkey Creek. The study back to the late 1800s, during which bodies and gills of aquatic insects was areas were differentiated by high and tens of thousands of cattle were grazed demonstrated to be an effect of nutrient low coverage of Carex rostrata (beaked over long periods of time (CDFG et al. loading in livestock-use pastures, sedge) along the stream banks. Low 2004a, p. 31). Grazing use has been significantly lowering the density of coverage areas were typically associated greatly reduced since then in order to insect occurrences at downstream sites with signs of cattle degradation, such as restore natural habitat conditions (CDFG (Lemly 1998, pp. 234–235). Aquatic widened stream channels, collapsed et al. 2004a, p. 34). Additionally, during insects suffered extensive mortality banks, and a reduction in areas with the past decade the because of this bacterial growth in undercut banks. In both low and high has completely restricted grazing on two laboratory and field studies, indicating sedge reaches, California golden trout of its four grazing allotments. In that elevated bacteria levels can more often selected undercut banks, February of 2001, a Decision Notice was negatively influence stream insect aquatic vegetation, and sedge while signed that implemented a 10-year populations (Lemly 1998, pp. 234–235, avoiding bare and collapsed banks period of rest on the Templeton and 237), which can result in detrimental caused by livestock grazing. They were Whitney grazing allotments to facilitate effects to prey species important to fish. most commonly found in pools and recovery of watershed and channel Several studies have documented the runs (slow moving areas in a stream), conditions. The notice indicated that environmentally detrimental impacts of where they used habitat features such as grazing on the two allotments would be historical grazing practices in areas undercut banks, aquatic vegetation, and reconsidered at the end of the 10-year within the range of the California golden sedges, all of which typically can be period (USFS 2001a, p. 5). The USFS trout. Albert (1982, pp. 29–47) studied damaged by excessive cattle grazing expects to reach a decision on this issue factors influencing the riparian along stream banks. in June of 2012 (USFS 2011, p. 10).

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63099

Within the additional requirements may apply to excluding cattle from areas where they from 2001 to 2004, two of the three specific management areas with unique would otherwise be grazing. Exclosures available grazing allotments had little or characteristics. For example, range in the Whitney and Templeton no grazing, while the third utilized up management direction for the Golden allotments, which are currently being to 65 percent of the total livestock Trout Management Area (#19) amends rested from grazing, will only begin to permitted (CDFG et al. 2004a, p. 19). grazing allotment plans to include actively exclude cattle if and when Grazing use levels in the Sequoia necessary mitigation measures and grazing is resumed on those allotments. National Forest are lower than corrective actions if grazing is Research by Knapp and Matthews permitted largely because of remoteness significantly impacting fish habitat (1996, pp. 816–817) in Mulkey and and inaccessibility (Anderson 2006), (USFS 1988a, p. 236). Ramshaw Meadows showed that areas whereas in the Inyo National Forest, a On the Sequoia National Forest, within exclosures display greater 1995 amendment (typically referred to LRMP grazing standards and guidelines canopy shading, stream depth, bankful as Amendment 6, discussed below) to applicable to all streams within the height, and narrower stream width. the Forest-wide grazing utilization habitat of the California golden trout Studies by Odion et al. (1988, p. 277) in standards of the Forest’s Land and were amended in 2004 (subsequent to Ramshaw and Templeton Meadows Resource Management Plan (LRMP) has the October 13, 2000, petition to list the indicated that exclosures allowed apparently resulted in reduced cattle California golden trout) by the adoption significantly more pioneer species to use (CDFG et al. 2004a, p. 34). of the Sierra Nevada Forest Plan colonize areas that were bare from Amendment (SNFPA) (CDFG et al. disturbance. Photo-points recorded Current Grazing Management Practices 2004a, p. 23). The new standards and between 1989 and 2005 within a In 1995, Amendment 6 to the Inyo guidelines, established for the number of these exclosures indicate National Forest LRMP was developed to protection of rare aquatic populations recovery in many areas that were once establish forest-wide grazing utilization such as the California golden trout, degraded by grazing (Sims 2006a). For standards, which are requirements in require habitat managers to implement these reasons, livestock exclosures have addition to existing utilization the following conservation measures: contributed to restoring habitat, standards contained in grazing permits (1) Prevent disturbance to meadow- reducing the effects of grazing, and (USFS 1995, pp. 13, 14). The forest-wide associated streambanks and natural lake preventing future damage to these standards were designed, in part, to and pond shorelines caused by resource habitats for the subspecies. Because improve the existing condition of activities from exceeding 20 percent of exclosures require maintenance, streams supporting California golden stream reach or 20 percent of natural activities conducted pursuant to annual trout in grazed watersheds (USFS 1995, lake and pond shorelines. work plans within the Conservation pp. 27, 28). The Amendment allows (2) Limit livestock utilization of grass Strategy have included annual Forest Service personnel to tailor and grass-like plants to a maximum maintenance of cattle exclosure fencing grazing utilization standards to maintain consumption of 30 percent of each plant (McGuire and Sims 2006, p. 17; Sims or improve hydrologic and meadow by volume (or minimum 6 in (15 cm) and McGuire 2006, p. 12). conditions. Grazing utilization stubble height) for meadows in early In addition to monitoring and cattle standards establish an upper limit of seral status; limit livestock utilization of exclusion efforts, Inyo National Forest forage that grazing cattle may consume grass and grass-like plants to a has completed numerous projects to before being moved to a new area (Sims maximum consumption of 40 percent of stabilize soil and prevent erosion (USFS 2011b, p. 1). Inyo National Forest each plant by volume (or minimum of 2005 in McGuire and Sims 2006, p. 35). personnel conduct annual monitoring of 4 in (10 cm) stubble height for meadows In addition to preventing further representative meadows to determine in late seral status). degradation, such treatments can direct whether utilization standards have been (3) Determine ecological status on all stream flows to reestablish stream exceeded. If they do find that standards key areas monitored for grazing characteristics beneficial to California have been exceeded they adjust the utilization prior to establishing golden trout, such as overhanging banks standards downwards in following years utilization levels. and vegetation. These restoration and to allow recovery. The utilization (4) Limit browsing to no more than 20 stabilization projects generally involve standards themselves are reassessed percent of the annual leader growth of placing materials such as rocks or logs every 5 to 10 years to ensure that they mature riparian shrubs and no more at key points of eroding streams in a avoid habitat degradation (including the than 20 percent of individual seedlings given area to catch sediments and degradation of stream habitat) (Sims (CDFG et al. 2004a, pp. 23, 84, 87). prevent further erosion. Since 1996, 2011b, p. 1). such projects have been completed at 19 Habitat Restoration and Monitoring The Inyo National Forest LRMP also sites (USFS 2005 in McGuire and Sims restricts trampling of streambanks to 10 Efforts 2006, pp. 35, 37). Between 1933 and the percent of the streambank length along The Inyo National Forest has installed mid-1980s, approximately 800 erosion State trout waters (which include most several exclosures in riparian areas control structures were installed in the of the streams supporting California within the range of the California golden Golden Trout Wilderness (USFS 1988a, golden trout), and to 20 percent along trout to protect and restore portions of p. 236; CDFG et al. 2004a, p. 34). other waters (USFS 1988a, pp. 78–79). the South Fork Kern River, Mulkey Conservation activities that have been As with utilization standards, annual Creek, Ninemile Creek, and Golden conducted for the benefit of the monitoring of representative Trout Creek from grazing impacts (see California golden trout are described in streambanks helps assure these also Historical Effects of Excessive the report titled, ‘‘Watershed standards are not exceeded, and allows Grazing section above). Livestock Restoration and Monitoring grazing prescriptions to be adjusted to exclosures totaling several miles exist Accomplishments on the Kern Plateau’’ promote recovery of the streambanks if on numerous stream reaches in all four (Kern Plateau Report) (USFS 2005 in the standards are exceeded (Sims 2011b, grazing allotments within Inyo National McGuire and Sims 2006, pp. 32–42), p. 1). Additionally, salt provided for Forest. Exclosures in the Monache and which summarizes watershed cattle must be located at least 0.25 mi Mulkey allotments, where grazing is improvement and monitoring projects (0.4 km) away from riparian areas, and currently allowed, are currently within the grazing allotments on the

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63100 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

Kern Plateau since the 1930s. For threat is identified, then the Agencies Currently, pack stock use within example, from 2002 to 2003, the Forest will be notified within 30 days and a Golden Trout and South Sierra Service implemented intensive meeting will be held to determine the Wilderness Areas overlaps with monitoring and data collection over a course of action (CDFG et al. 2004b, p. historical and current livestock grazing wide area of the South Fork Kern River 4). Thus, in the event of a change in locations, thus making it difficult to and Golden Trout Creek watersheds to future conditions that result in an identify impacts to vegetation that are assist in determining watershed unacceptable level of impacts due to due specifically to pack stock use (USFS condition trends (USFS 2005 in excessive grazing, appropriate changes 2006b, p. 3–13). Monitoring of pack McGuire and Sims 2006, p. 32). A wide- in management can occur. stock grazing impacts on meadows within the California golden trout’s scale headcut monitoring effort was Summary of Livestock Grazing range shows a general trend of initiated in 2003 at various parts of the Management Kern Plateau on both active and rested decreasing impacts to stream bank grazing allotments. Photo-points have In summary, historical excessive stability. This trend is believed to be been established at various locations on grazing practices have affected the due to restoration efforts and the the Kern Plateau to monitor trends in stream habitat in nearly the entire native cancellation of cattle grazing permits stream bank stability, headcut range of the California golden trout. (USFS 2006b, p. 3–12). migration, and vegetation patterns, with Habitat degradation has been addressed Allowable pack stock uses are limited data collected indicating recovery in in recent decades with numerous in the Inyo National Forest by the same many areas that were affected by grazing conservation efforts, such as reducing restrictions discussed above for cattle, (Sims 2006a, p. 1). The Kern Plateau the season of use and number of cattle such as the Amendment 6 forest-wide Report also identifies opportunities for allowed to graze on an allotment, grazing utilization standards and the 10 monitoring and evaluating the implementing grazing standards and percent limit to bank trampling along effectiveness of management practices. guidelines in the LRMPs, resting of State trout waters (USFS 200b, p. 3– Recent results from these monitoring grazing allotments, implementing 353). Pack stock grazing is also efforts showed significant improvement watershed monitoring, and completing prohibited in specific meadows, in meadow condition and streambank restoration projects. Monitoring of including Volcano Meadow, South Fork stability for the two allotments rested Golden Trout Creek and upper South Meadow (at the headwaters of the South from grazing (Templeton and Whitney), Fork Kern watersheds has found that Fork of the Kern River), and parts of implementing these conservation efforts and a positive trend in meadow and Ramshaw Meadow. As discussed above, has improved meadow and streambank streambank conditions for the Mulkey these restrictions have resulted in conditions for three of four grazing allotment (Weixelman 2011, p. 12). No improved conditions for the majority of allotments, and has stabilized sites were shown to decline in condition monitored habitat for which we have conditions in the fourth grazing (Ettema and Sims 2010, p. 63). Overall, monitoring results, and stabilized allotment (Ettema and Sims 2010, p. 63; 64 percent of sites in grazed allotments conditions for the remainder of that Weixelman 2011, p. 12). Based on our and 74 percent in ungrazed allotments habitat (Ettema and Sims 2010, p. 63; evaluation of current practices and of are now meeting desired conditions Weixelman 2011, p. 12). Accordingly, recent and ongoing restoration (good to excellent) (Weixelman 2011, we consider current habitat activities, we do not consider livestock pp. 3, 12). management practices sufficient to grazing to present a significant threat to prevent pack stock use from posing a The Conservation Strategy also the California golden trout now or into significant threat to the California includes monitoring of the effectiveness the future. golden trout. of best management practices (BMPs) to determine their effectiveness in Pack Stock Use Recreation protecting California golden trout Similar to cattle, horses and mules Recreational activities that include habitat, with an annual report may significantly overgraze, trample, or , camping, and off-road vehicle completed for inclusion in the annual pollute streamside habitat if too many (ORV) use take place throughout the accomplishment reports (CDFG et al. are concentrated in riparian areas too Sierra Nevada and can have impacts on 2004a, p. 54). BMPs are a practice or often or for too long. Commercial pack fish and wildlife and their habitats combination of practices that are the stock trips are permitted in national (impacts from fishing are discussed most effective and practical means of forests within the Sierra Nevada, below under Factor B—Overutilization preventing or reducing water pollution providing transport services into for Commercial, Recreational, Scientific, from non-point sources. We also note wilderness areas with the use of horses or Educational Purposes section). that the MOA commits the signatories of or mules. Use of pack stock in the Sierra Impacts to wilderness areas can vary in the Conservation Strategy to meet Nevada increased after World War II as their extent, longevity, and intensity annually to evaluate the effectiveness of road access, leisure time, and disposable (Cole and Landres 1996, pp. 169–170). the strategy, determine whether the income increased (Menke et al. 1996, In easily accessible areas, heavy foot goals and objectives are being p. 919). The Inyo National Forest has traffic in riparian areas can trample adequately achieved, and discuss permitted commercial pack operators vegetation, compact soils, and whether the strategy requires any since the 1920s (USFS 2006a, p. 1). physically damage stream banks adaptive changes to better conserve the Current commercial pack stock use is (Kondolf et al. 1996, pp. 1014, 1019). California golden trout (CDFG et al. approximately 27 percent of the level of Human foot, horse, bicycle, or ORV 2004b, p. 3). This means that changes in use in the 1980s reflecting a decline in trails can replace riparian habitat with management can occur if conditions or the public’s need and demand for pack compacted soil (Kondolph et al. 1996, results of monitoring indicate there is a stock trips. From 2001 to 2005, pp. 1014, 1017, 1019), lower the water negative change to the California golden commercial pack stock outfitters within table, and cause increased erosion. trout’s habitat or range. The MOA also the Golden Trout and South Sierra Recreation is the fastest growing use contains a provision that if any element Wilderness Areas averaged 28 percent of of national forests (USFS 2001b, p. 453). of the Conservation Strategy is their current authorized use (USFS Because of an increasing demand for determined infeasible, or if any new 2006b, p. 3–18). wilderness recreational experiences,

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63101

wilderness land management now by anglers, whose use of the stream habitat loss due to recreational activity includes standards for wilderness banks can lead to collapsed undercut does not currently present a significant conditions, implementing permit banks, compacted soils, and disturbed threat to the California golden trout, and systems, and other visitor management riparian vegetation (Stephens 2001a, we do not expect it to become a techniques to reduce impacts to habitat, p. 64). significant threat in the future. including riparian habitat (Cole 2001, Although recreational impacts are Artificial Fish Barriers pp. 4–5). These wilderness land expected to continue, they are localized management techniques are currently to a few areas within the native range of Three barriers have been constructed being used on the Inyo and Sequoia the California golden trout. In addition, on the South Fork Kern River to prevent National Forests where they are the Forest Service and CDFG have upstream migration of nonnative trout expected to benefit California golden implemented measures identified in the species, and thereby to reduce their trout by reducing impacts on its habitat. Conservation Strategy to offset introgression and competition with All of the current range of the recreational impacts to the subspecies. California golden trout. Between 1970 California golden trout, with the Restoration and stabilization projects and 1973, the Ramshaw Barrier was exception of the Monache Meadow and were implemented adjacent to and constructed in a gorge at the upper end Kennedy Meadow areas, is within the Monache Allotment in 2004 of Ramshaw Meadows; it is located encompassed within the federally to address ORV impacts to the meadow farthest upstream from the other barriers designated Golden Trout, South Sierra, habitat in the South Fork Kern River on the South Fork Kern River. In 1973, and Domeland Wilderness areas, where drainage. A brochure for recreational the Templeton Barrier was constructed access is difficult and impacts from users was produced in 2005 and 2006 of rock, chain-link fencing, and filter recreation are lower than in easily that informed the public about fishing fabric at the head of Templeton Gorge, accessible areas. Recreational use and requested help with restoration located approximately 11.3 km (7 mi) currently is low and well-dispersed in projects aimed at protecting the downstream of the Ramshaw Barrier at these areas. The Forest Service monitors California golden trout; it is available for the eastern end of Templeton Meadows. wilderness use levels and limits recreational users at area ranger stations, In 1980, Templeton Barrier was wilderness use if recreation levels are visitor centers, and local flyfishing replaced with a rock-filled gabion determined to be high (Sims 2006a, shops. Information regarding volunteer structure across the river that resembled p. 1). Recreational impacts are field activities, opportunities for public a small dam. In 1981, the Schaeffer ameliorated by the implementation of involvement, subspecies information, Barrier was constructed 11.3 km (7 mi) various management actions, such as and agency contacts is also posted on downstream from the Templeton Barrier camping restrictions, wilderness ranger the California Trout and Trout at the upper end of Monache Meadows. presence, and permit requirements. Unlimited web pages. Through these Although the Ramshaw Barrier has Camping within the Golden Trout volunteer field activities, Trout been impassable to fish since 1973, both Wilderness is not allowed within 100 ft Unlimited, California Trout, and the the Templeton and Schaeffer barriers (30 m) of lakes or streams, and a permit Federation of Flyfishers have assisted were determined in 1994 to be on the is required by the Sequoia National CDFG and the Forest Service to protect verge of collapse (Stephens 2001a, p. 33; Forest for overnight use. These and restore California golden trout and CDFG et al. 2004a, p. 36). In 1996, the measures minimize impacts to the fish’s their habitat. gabion dam at Templeton was replaced habitat. Additionally, Federal In summary, recreational activities with a rock and concrete dam designation of an area as Wilderness have the potential to negatively impact immediately downstream and in contact prohibits the use of motorized or the habitat and range of the California with the existing structure (CDFG et al. mechanized equipment by the public, golden trout through trampling and 2004a, p. 37). In 2003, Schaeffer Barrier with limited exceptions, and therefore vegetation loss due to use by pack stock, was replaced with a reinforced concrete provides protection from ORV impacts humans, and ORVs. We believe that dam that is 2 ft (0.6 m) higher than the within these areas. some adverse effects to the California old barrier and includes a concrete On National Forest lands outside of golden trout from recreation at high-use apron below the spillway to prevent the federally designated wilderness areas, areas outside of federally designated formation of a jump pool below the California golden trout stream habitat Wilderness Areas will continue; barrier (CDFG et al. 2004a, p. 37). As a occurs in high-use areas, such as however, these effects are expected to result of these modifications, all three Monache and . In remain localized and not rise to a level barriers now effectively prevent these areas, recreational impacts are that would significantly affect the upstream fish passage (CDFG et al. occurring and are expected to continue. subspecies as a whole. We conclude that 2004a, p. 37; Lentz 2011, p. 1). Recreational use occurs primarily on the current wilderness land management The construction of these fish barriers South Fork Kern River through standards afford considerable protection and subsequent modifications likely Monache Meadows on the Inyo National from a variety of potential recreational have had some negative effect on Forest and Kennedy Meadows on the impacts to habitat of the California California golden trout by altering their Sequoia National Forest. Motorized golden trout in wilderness. stream habitat. Dams, water diversions, access in Monache Meadows is Implementation of management and their associated structures can alter restricted to use of a single 4-wheel- activities by the Forest Service and the natural flow regime both upstream drive road that enters to the south of the CDFG have offset recreational impacts and downstream of dams. However, meadow. Camping, fishing, and hunting to California golden trout habitat in because the barriers have been are the primary uses, as well as access several high-use recreational areas constructed to prevent passage of for pack stock (CDFG et al. 2004a, p. 21). outside of designated wilderness. nonnative fish and to protect the Kennedy Meadows is easily accessed by Activities such as public outreach and California golden trout rather than to road and receives heavy use during the stakeholder involvement have been, and impound water, we expect that their trout season for fishing and camping continue to be, conducted to help limit effect on stream conditions and activities. Easily accessible and popular potential recreational impacts over the hydrology are limited to localized areas fishing areas, such as Monache and native range of the California golden where the barriers are placed. The Kennedy Meadows, are being impacted trout. Consequently, we conclude that barriers have the potential to fragment

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63102 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

the California golden trout’s stream by CDFG in the 1940s and 1950s as a Conservation efforts related to reducing habitat because they generally prevent tool to restore meadow habitat degraded the effects of livestock grazing the upstream movement of fish, by livestock grazing. Beavers can have (including reduced seasonal use, including California golden trout. positive and negative effects on trout reduced numbers of cattle grazed, However, California golden trout may be habitat. Beaver ponds can provide pool resting of grazing allotments, and somewhat insulated from these effects habitat for fish, reduce severe ice installation of livestock exclosures) have because they generally do not move far conditions, and increase populations of improved habitat conditions for the from where they were hatched, except bottom-dwelling invertebrates suitable California golden trout, resulting in under unusually high flood flows for trout to eat (Gard 1961, p. 240). improvements to the majority of (Stephens 2003, p. 5). The barriers also However, siltation resulting from beaver monitored habitat for which we have facilitate the restoration of natural prey dams can also degrade spawning habitat results and stabilization of the and competitor conditions in the for California golden trout, which remainder of that habitat (Ettema and California golden trout’s stream habitat require gravel for spawning (Knapp and Sims 2010, p. 63; Weixelman 2011, p. by preventing population of the streams Vredenburg 1996, pp. 528, 529). In a 12). Pack stock use has a minimal effect by nonnative (Salmo study conducted on Sagehen Creek on on the habitat of the California golden trutta). The effects of artificial fish the eastern slope of the Sierra Nevada, trout, and those effects are subject to the barriers on movement of brown trout are Gard (1961, pp. 240–241) concluded same protections governing livestock discussed below under Factor C— that beavers were a benefit to trout in use. Current wilderness land Disease or Predation. Effects on this high-elevation creek because they management standards, restoration movement of hybridized trout are improved fish habitat, forage, spawning activities, and public outreach and discussed under Factor E—Other activities, and population numbers. stakeholder involvement have reduced Natural or Human Factors. Currently, large beaver populations potential threats of recreational In summary, the three artificial fish occur in upper and lower Ramshaw activities. Although artificial fish barriers that have been placed on the Meadows. Additional populations of barriers have locally altered the stream South Fork Kern River are expected to unknown size also exist at other habitat of the California golden trout, have localized effects to the stream locations within the Kern River Plateau these structures perform a crucial role in habitat of the California golden trout, (CDFG et al. 2004a, p. 33). As of 2004, the prevention of upstream migration of and are also expected to benefit the negative effects of beaver activity within nonnative brown trout and introgression subspecies in the future by allowing the native range of the California golden with nonnative rainbow trout. Finally, restoration of natural predator and prey trout have not been documented (CDFG available information does not indicate relationships within the habitat. We et al. 2004a, p. 33). Additionally, we are that beaver activity is a concern to the conclude that the barriers do not currently unaware of any additional California golden trout. Based on the constitute a significant threat to information that document negative best available scientific and commercial California golden trout at this time or in effects of beaver within the range of the information, we have determined that the future. California golden trout. The the California golden trout is not Conservation Strategy discusses the Beavers currently threatened by the present or beaver as a potential issue for the threatened destruction, modification, or Beavers (Castor canadensis) currently California golden trout; therefore, CDFG curtailment of its habitat or range such exist within the native range of the and the Inyo National Forest monitor that it warrants listing under the Act, California golden trout. Although and evaluate the effect of beaver activity nor do we anticipate it posing a threat beavers were native to California’s within the native range of the California in the future. Central Valley in the early 19th century, golden trout. For example, beaver they were not generally known from the populations were monitored in 2004, Factor B. Overutilization for Sierra Nevada except where introduced 2005, and 2008 at areas on Golden Trout Commercial, Recreational, Scientific, or by humans (Tappe 1942, pp. 7, 8, 13, 14, Creek and Ramshaw Meadow that are Educational Purposes 20). Native beaver populations considered to have the highest potential There is no commercial fishing for experienced great declines during the impacts from beaver on golden trout California golden trout; however, early exploration of California by traders habitat (CDFG and USFS 2006a, pp. 16– recreational fishing is permitted by and trappers (Tappe 1942, p. 6). 17; CDFG and USFS 2006b, p. 11; CDFG. In the Golden Trout Wilderness, Subsequent reestablishment and McGuire et al. 2009, p. 11). At the fishing season begins on the last introductions have extended their Ramshaw, two active dams were Saturday in April and ends November original range (CDFG 2006, observed in 2008 and the beaver 15. CDFG regulations allow anglers to p. 1). In the Sierra Nevada and Cascade population appeared stable since the possess five California golden trout, Mountain ranges, beavers inhabit previous monitoring in 2005. At Golden which is a bag limit guided by State streams, ponds, and lake margins from Trout Creek, a single beaver dam had policy to maintain wild trout stocks Modoc County south to Inyo County been maintained since 2003. No (CDFG 1979, p. 1). Regulations allow (CDFG 2006, pp. 1, 2). Beavers negative impacts from the beaver anglers to use only artificial lures with commonly inhabit riparian areas of populations were documented. barbless hooks. Angler harvest is light in mixed coniferous-deciduous forests and Therefore, we conclude that beaver most areas within the native range of deciduous forests containing abundant activity does not currently constitute a California golden trout except at beaver forage and lodge-building threat to the California golden trout, nor Monache Meadows, Kennedy Meadows, material, including Salix spp. (willows), do we expect it to in the future. and a few other easily accessible areas Alnus spp. (alders), and Populus spp. (Stephens 2001a, p. 64). Angler harvest (cottonwoods) (Allen 1983, p. 1; CDFG Summary of Factor A does appear to have depressed the 2006). California golden trout stream habitat population numbers at these heavily There is debate over whether beavers has historically been adversely affected used locations (Stephens 2001a, pp. 64, are native to the Kern River basin by livestock grazing and, to a lesser 65); however, impacts appear to be (Townsend 1979, pp.16–20; CDFG et al. degree, pack stock use, recreational localized, well-regulated, and small 2004a, p. 33). Beavers were introduced activities, and artificial fish barriers. enough to allow sustainable

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63103

populations. Angling regulations are types has not been quantified for the showed less compacted soils and was in posted in fishing areas and enforced South Fork Kern River. The presence of the process of reverting to a more boggy (McGuire et al. 2009, p. 15). Knapp and brown trout in the South Fork Kern meadow, with channel flows focusing Matthews (1996, p. 805) reported that River is likely due to stocking of the more towards Strawberry Creek rather California golden trout densities were species at Kennedy Meadows carried than towards the ‘‘connection’’ area. generally among the highest ever out by CDFG in 1940, 1941, and 1996 This indicates the likely elimination of recorded for a stream-dwelling trout in (McGuire 2011, pp. 2, 3). The stocking a possible passage for brown trout the western United States. Surveys program predates the construction of the around the Templeton Barrier during conducted at Templeton Meadow on the Ramshaw, Templeton, and Schaeffer high water flows (Sims and McGuire South Fork Kern River indicate that fish barriers by at least 30 years (see 2006, p. 7). California golden trout population Factor A—Artificial Fish Barriers Annual monitoring of the South Fork numbers increased from 2,000 trout per section above). Kern River indicates that brown trout mile in 1985 to about 7,000 trout per CDFG and Inyo National Forest have are still not present above the mile in 1999 (Stephens 2001b, p. 2). attempted to eradicate brown trout from Templeton Barrier (Sims and McGuire This indicates that California golden the upper reaches of the California 2006, p. 6; Lentz 2011, p. 2). Brown trout population numbers were at a high golden trout range a number of times by trout are currently found in the South density in 1999 and not at risk from using piscicides (pesticides specific for Fork Kern River below Templeton overutilization from recreational fishing. fish) and then restocking the areas with Barrier, however, which includes over We are currently unaware of any California golden trout. In 1969, brown 483 km (300 mi) of the stream distance information that demonstrates a trout were present throughout the that comprises the historical range of decrease in fish densities or impacts drainage and even in the headwaters of the California golden trout (Stephens from overutilization from recreational the South Fork Kern River where brown 2001a, p. 43). The remaining stream fishing as compared to 1999. trout outnumbered golden trout by length in the historical range above the Accordingly, the relatively limited approximately 50 to 1 (CDFG et al. Templeton Barrier is approximately 161 harvest of California golden trout does 2004a, pp. 28, 37). Installation of the km (100 mi). The competitive success of not appear to pose a significant threat to Ramshaw Barrier, in combination with brown trout, where present, over the survival of the subspecies now or in chemical treatments, resulted in California golden trout is likely due to the future. removal of brown trout from the the fact that brown trout prey on all life California golden trout are utilized in headwaters. Chemical treatments were stages of California golden trout, and are a nonlethal way for scientific purposes. conducted from the Ramshaw to a superior competitor for limited food Specifically, CDFG, together with Templeton barriers in 1981, and the last and habitat resources (Stephens 2001a, conservation partners and volunteers, treatments from the Templeton to p. 43). The South Fork Kern River below has been collecting trout fin tissue Schaeffer barriers in 1987. Subsequent Schaeffer barrier has never been treated samples since 2003 to conduct genetic monitoring of the treated reach of South to remove brown trout. Consequently, evaluations necessary to restore native Fork Kern River indicated that the brown trout have been present in the golden trout populations. The genetic treatment was ineffective due to barrier lower South Fork Kern River more than studies require a small clipping from a deterioration, which is now repaired 70 years. Successful sampling of fin, and this process rarely results in the (CDFG et al. 2004a, p. 38). Movie California golden trout populations for death of an individual fish. Because Stringer Creek, a western tributary to the genetic status has been conducted along scientific collection is being conducted South Fork Kern River upstream of the South Fork Kern River (and its for the betterment of the subspecies and Templeton Barrier, was chemically tributaries) below Schaeffer Barrier, because it rarely results in death of fish, treated in 2000; no other chemical demonstrating that the species remains we conclude that overutilization for treatments have occurred since then. in sufficient numbers to maintain The Strawberry Connection was a scientific purposes is not a threat to reproducing populations in these lower constructed diversion on Strawberry California golden trout across its range, reaches, despite the presence of brown Creek that facilitated a possible nor do we anticipate overutilization for trout. hydrologic route for brown trout to enter There is a potential threat of illegal commercial, recreational, scientific or the South Fork Kern River above the fish transportation due to the ease of education purposes posing a threat in Templeton Barrier. This diversion was vehicular access to Monache Meadows, the future. removed in 1999, and efforts have been the recreational popularity of this area, Factor C. Disease or Predation made to restore Strawberry Creek to its and the presence of nonnative historic channel. The Conservation salmonids in downstream portions of Predation and Competition With Brown Strategy indicates some concern that the South Fork Kern River. However, Trout brown trout may still be able to access enforcement of State fish and game laws Brown trout are not native to waters upstream of the Templeton are ongoing, and conservation efforts are California. They have been introduced Barrier during high flows (CDFG et al. occurring to inform and educate the to the South Fork Kern River and have 2004a, p. 25); however, no brown trout public about the conservation needs of established populations there, but they have been located above the barrier to the California golden trout. CDFG have not established populations in date. Subsequent to completion of the wildlife protection personnel and Golden Trout Creek. Brown trout have Conservation Strategy, the Inyo National National Forest law enforcement been noted to thrive in sections of many Forest conducted an evaluation of the personnel continue to inform visitors of major west slope streams in the Sierra Strawberry Connection during runoff regulations, including the illegality of Nevada mountain range, although their events to map hydrologic flow (Sims possession and transportation of live distribution, even in small streams, is and McGuire 2006, p. 7). The evaluation trout within the California golden noted to be often quite discontinuous, noted that, due in part to the absence of trout’s range. CDFG also produced with pools and quieter waters thought to cattle for the previous 5 years, the brochures in 2005 and 2006 to inform be more to their liking (Dill and Strawberry Connection may be the public about the restoration Cordone 1997, p. 100). Brown trout converting back to its natural state (Sims program. The brochures were distribution within specific habitat and McGuire 2006, p. 7). The area distributed to Forest Service offices and

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63104 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

visitor centers, and also to local Whirling Disease whirling disease has not been found in flyfishing shops, thereby informing the Whirling disease is caused by California golden trout to date. public that transplanting fish is illegal Myxobolus cerebralis, a metazoan Therefore, we conclude that predation and subject to a fine. parasite that penetrates the head and (and competition) with brown trout and whirling disease do not currently pose Summary of Predation and Competition spinal cartilage of fingerling trout, a threat to the California golden trout With Brown Trout where it multiplies very rapidly and puts pressure on the organ of throughout its range, nor do we The risk of predation and interspecific equilibrium. This causes the fish to anticipate these to become threats in the competition from nonnative trout have swim erratically (whirl) and have future, such that listing under the Act is been addressed through establishment difficulty feeding and avoiding warranted. and repair of the three fish barriers, predators. In severe infections, the Factor D. The Inadequacy of Existing elimination of CDFG-sanctioned brown disease can cause high rates of mortality Regulatory Mechanisms trout stocking within the native range of in young-of-the-year fish. Those that the California golden trout, and various survive until the cartilage hardens to Federal Regulations treatments (described above) to bone can live a normal lifespan, but are Management of habitat for the eliminate brown trout above the marred by skeletal deformities. Fish can California golden trout falls under the established barriers. The Forest Service reproduce without passing on the direction of the Sequoia and Inyo and CDFG have been monitoring parasite to their offspring. Rearing National Forests. Existing Federal barriers, conducting surveys, and ponds used in many trout hatcheries regulatory mechanisms that are relevant eradicating brown trout. Electrofishing provide conditions where the second to providing protection for the surveys above and below Templeton host of the parasite (the oligochaete California golden trout in the Sierra and Schaeffer Barriers are being worm Tubifex tubifex) can thrive. Nevada include the following: National conducted annually to assess the Myxobolus cerebralis has never been Environmental Policy Act (NEPA) (42 effectiveness of the barriers, determine found in any golden trout sampled in U.S.C. 4321 et seq.), of the current status and distribution of California streams (Cox 2006, p. 1; Lentz 1964 (16 U.S.C. 1131–1136), Wild and brown trout, and reduce brown trout 2011, p. 1). The only fish currently Scenic Rivers Act (16 U.S.C. 1271– numbers at the upstream extent of their stocked within the native range (sterile 1287), Multiple-Use Sustained-Yield distribution (Lentz 2011, p. 2). Although trout stocked in Kennedy Meadows) are Act of 1960 (MUSY) (16 U.S.C. 528– the goals of completely controlling raised in a hatchery that is certified free 531), Federal Land Policy and brown trout in the South Fork Kern of disease (Stephens 2006, p. 1). Management Act of 1976 (FLPMA) (43 River are yet to be achieved, we Because hatchery-raised California U.S.C. 1701 et seq.), National Forest nonetheless consider active programs by golden trout are no longer stocked Management Act of 1976 (NFMA) (16 the Forest Service and CDFG to within the native range of this U.S.C. 1601 et seq.), Land and Resource discourage illegal transport, and to subspecies, it is extremely unlikely that Management Plans for the Inyo and monitor for and remove brown trout whirling disease could be spread to wild Sequoia National Forests (USFS 1988a; from California golden trout waters, to California golden trout populations. The CDFG et al. 2004a, pp. 79–82), as be reasonable and effective approaches disease has not been found in California amended by the SNFPA, and the Clean for addressing the threat of brown trout. golden trout to date, and there has been Water Act (CWA) (33 U.S.C. 1344). No brown trout have been found no documented loss or decline in National Environmental Policy Act above the Templeton Barrier since they California golden trout populations due (NEPA) (42 U.S.C. 4321 et seq.) were eradicated in the early 1980s to the disease. Although it could (McGuire and Sims 2006, p. 10; Sims represent a future threat to the NEPA requires all Federal agencies to and McGuire 2006, p. 6). Mark- California golden trout, at this time the formally document, consider, and recapture tests of golden trout hybrids best scientific and commercial publicly disclose the environmental captured below the Schaeffer Barrier information does not indicate that it is impacts of major Federal actions and subsequent to its improvement in 2003 a threat now nor likely to be a threat in management decisions significantly failed to find any fish that had the future. affecting the human environment. NEPA successfully navigated past the barrier, documentation is provided in an indicating that brown trout are also Summary of Factor C environmental impact statement, an incapable of passing the barrier (Sims Although predation by, and environmental assessment, or a and McGuire 2006, p. 6). Subsequent competition with, brown trout have categorical exclusion, and may be elimination of brown trout between the posed a threat to the California golden subject to administrative or judicial Schaeffer and Templeton barriers (a goal trout in the past, continuing appeal. The California golden trout has of the Conservation Strategy (CDFG et conservation measures implemented by been identified as a sensitive species by al. 2004a, p. 28)) is, therefore, possible. the State, cooperating agencies, and the Region 5 (Pacific Southwest Region) Additionally, current information other interested groups have reduced Regional Forester. As part of Forest available to us does not indicate a this threat to manageable levels. Service policy, an analysis will be population-level effect of brown trout Continued improvements of barriers conducted to evaluate potential predation or competition that would have eliminated brown trout from the management decisions under NEPA, warrant listing. Therefore, we conclude upper reaches of the South Fork Kern including preparation of a biological that, due to the management efforts River where they were previously evaluation to determine the potential being implemented, risk of predation identified as a threat to the California effect of potential Forest Service actions and competition from brown trout does golden trout. In the lower reaches of the on this sensitive subspecies. However, not pose a significant threat to the South Fork Kern River, our best the Forest Service is not required to California golden trout throughout its information indicates that populations select an alternative having the least range, nor do we anticipate predation descended from California golden trout significant environmental impacts and posing and competition from brown have not sustained population-level may select an action that will adversely trout posing a threat in the future. declines due to brown trout. Finally, affect sensitive species provided that

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63105

these effects were known and identified to protect certain outstanding rivers range rehabilitation, protection, and in a NEPA document. The NEPA from the harmful effects of new Federal improvement, including all forms of process in itself is not likely to be projects, such as dams, hydroelectric rangeland betterment, including fence considered a regulatory mechanism that facilities, bank armoring, and bridges. construction, water development, and is certain to provide significant Rivers are classified as wild, scenic, or fish and wildlife enhancement. Half of protection for the California golden recreational, and fishing is permitted in the appropriated amount must be spent trout. components of the system under within the national forest where such applicable Federal and State laws. The monies were derived. FLPMA, as Wilderness Act of 1964 (16 U.S.C. 1131– South Fork Kern River is designated as amended, is a regulatory mechanism 1136) Wild and Scenic throughout 66 river km that provides for some rangeland The Wilderness Act of 1964 (41 mi) as the river passes through the improvements intended for the long- established a National Wilderness South Sierra, Golden Trout, and term betterment of forage conditions Preservation System made up of Federal Domeland Wildernesses. This regulatory and resulting benefits to wildlife, lands designated by Congress as mechanism, along with the Wilderness watershed protection, and livestock ‘‘wilderness areas’’ for the purpose of Act, thus protects approximately 10 production, which if implemented can preserving and protecting designated percent of the California golden trout’s result in various habitat improvements areas in their natural condition, ‘‘where range from new Federal projects such as and protections for the California golden the earth and its community of life are those listed above. trout. untrammeled by man, where man himself is a visitor who does not Multiple-Use Sustained-Yield Act of National Forest Management Act of remain.’’ The native range of the 1960 (MUSY) (16 U.S.C. 528–531) 1976 (NFMA) (16 U.S.C. 1601 et seq.) California golden trout within the South The Multiple-Use Sustained-Yield Act National Forest Management Act of Fork Kern River lies within three of 1960 (MUSY) provides direction that 1976 (NFMA) provides the primary legal wilderness areas: Golden Trout, South the national forests be managed using foundation for Forest Service Sierra, and Domeland. The Domeland principles of multiple-use and that the management of the public lands under Wilderness was designated in 1964 and forests produce a sustained yield of its jurisdiction. NFMA includes a is just south of the South Sierra products and services. Specifically, provision that planning regulations will Wilderness (the road to Kennedy MUSY provides policy that the national include guidelines for land management Meadows separates these two forests are established and shall be plans that provide for diversity of plant wildernesses). The Golden Trout administered for outdoor recreation, and communities based on the Wilderness was designated in 1978 range, timber, watershed, and wildlife suitability and capability of the specific specifically to provide protection for and fish purposes. MUSY directs land area in order to meet overall California golden trout; Golden Trout resource management not to impair the multiple-use objectives. Current Creek is wholly within this wilderness productivity of the land while giving planning regulations direct that forests area. The was consideration to the relative values of manage fish and wildlife habitat to designated in 1984 and is adjacent to the various resources, though not maintain viable populations of existing and south of the Golden Trout necessarily in terms of the greatest native and nonnative vertebrate species. Wilderness. financial return or unit output. MUSY Within each planning area, the provided Grazing of livestock is permitted provides direction to the Forest Service habitat must support at least a minimum within wilderness areas if it was that fish and wildlife is a value that number of reproductive individuals (36 established prior to the passage of this must be managed for, though discretion CFR 219.20). The Forest Service Act. The Wilderness Act does not is given to each forest when considering published new proposed planning specifically mention fish stocking, the value of fish and wildlife relative to regulations on February 14, 2011, which though it does state that the Wilderness the other uses for which it is managing. are intended ‘‘to guide the collaborative Act shall not affect the jurisdiction or Because the entire range of the and science-based development, responsibilities of States with wildlife California golden trout falls within amendment, and revision of land and fish responsibilities in the national lands administered by the Forest management plans that promote forests. Fish stocking in wilderness Service, this regulatory mechanism aids healthy, resilient, diverse, and areas is a controversial issue (Bahls in the conservation of the subspecies in productive national forests and 1992, pp. 2568–2578, p. 2568; Landres that fish are an important benefit for grasslands’’ (76 FR 8480, pp. 8480, et al. 2001, pp. 287–294); however, which management must occur. 8481). The proposed regulations specify wilderness designation generally has that plans must maintain viable Federal Land Policy and Management not limited fish stocking in the Sierra populations of species of conservation Act of 1976 (FLPMA) (43 U.S.C. 1701 et Nevada (Knapp 1996, pp. 3–12). The concern within the plan area to the seq.) Wilderness Act has direction for extent that it is within the authority of managing designated wilderness to The Federal Land Policy and the Forest Service or the inherent protect natural ecological processes and Management Act was enacted in 1976, capability of the plan area to do so (76 is a regulatory mechanism that protects and as amended by the Public FR 8480, p. 8518). Revisions to the Inyo California golden trout habitat from Rangelands Improvement Act of 1978 and Sequoia National Forest LRMPs development or other types of habitat (43 U.S.C. 1901–1908), provides the would follow the regulations conversions, such as commercial primary legal foundation for how the established by this proposed rule, if enterprise, road construction, use of Forest Service manages livestock made final. motorized vehicles or other equipment, grazing under its jurisdiction. This Act Land and Resource Management Plans and structural developments. requires that a percentage of all monies received through grazing fees collected (LRMPs) for the Inyo and Sequoia Wild and Scenic Rivers Act (16 U.S.C. on Federal lands (including the Forest National Forests 1271–1287) Service-administered lands within the The 1988 Inyo National Forest LRMP, Congress established the National range of the California golden trout) be as amended (USFS 1995), and the 1988 Wild and Scenic Rivers System in 1968 spent for the purpose of on-the-ground Sequoia National Forest LRMP, were

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63106 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

both amended by the SNFPA (USFS and Sequoia National Forests is affected maintain and restore riparian habitat 2004) and provide management by the SNFPA (USFS 2004). and species. direction for the California golden trout. Relevant to the California golden The SNFPA ROD also includes two The Inyo National Forest is expecting to trout, the SNFPA aims to protect and designations for aquatic and riparian revise its LRMP in 2014 (Sims 2011c, p. restore aquatic, riparian, and meadow areas: Critical Aquatic Refuges (CARs) 1), while the date for revision of the ecosystems and to provide for the and Riparian Conservation Areas (RCAs) Sequoia National Forest LRMP is viability of its associated native species (CDFG 2004a, p. 23). CARs are sub- uncertain (Galloway 2011, p. 1) Specific through an Aquatic Management watersheds that contain either known direction under the current LRMPs is Strategy (AMS). The AMS is a general locations of threatened, endangered, or described in the following paragraphs. framework with broad goals for sensitive species, highly vulnerable The Sequoia National Forest LRMP watershed processes and functions, populations of native plant or animal provides direction for managing general habitats, attributes, and populations. species, or localized populations of rare aquatic and riparian species to increase There are nine goals associated with the aquatic or riparian-dependent plant or the diversity of the animal communities. AMS: animal species. RCAs are the lands Riparian areas are managed to maintain (1) Maintenance and restoration of around aquatic features where special or restore habitats for riparian species water quality to comply with the Clean standards and guidelines exist to and those species associated with late Water Act and the Safe Drinking Water conserve those features. RCA standards successional stages of vegetation. Act. and guidelines apply in CARs except The Inyo National Forest LRMP has (2) Maintenance and restoration of where an overlapping land allocation direction specific for managing a variety habitat to support viable populations of has a greater restriction on management of resources. Specific standards and native and desired nonnative riparian- activities. The width of an RCA is 91 m guidelines concerning grazing are dependent species and to reduce (300 ft) on each side of the stream for presented in Factor A above, but in negative impacts of nonnative species perennial streams, and 46 m (150 ft) on each side of intermittent and ephemeral brief, they include trampling standards, on native populations. (3) Maintenance and restoration of streams, both being measured from the direction for developing range species diversity in riparian areas, bankfull edge of the stream (the edge of Allotment Management Plans, wetlands, and meadows to provide the channel slope descending from the conducting annual utilization checks, desired habitats and ecological floodplain). An RCA width of 91 m (300 and locating salt outside of riparian functions. ft) is applicable to the California golden areas. Direction specific for managing (4) Maintenance and restoration of the trout because it exists in perennial riparian resources includes forest-wide distribution and function of biotic streams. Several CARs occur within the standards and guidelines aimed at communities and biological diversity in native range of the California golden maintaining or enhancing riparian- special aquatic habitats (such as springs, trout. Two CARs occur on the Sequoia dependent resources and includes (but seeps, vernal pools, fens, bogs, and National Forest, and one CAR occurs on is not limited to): Giving priority to the marshes). the Inyo National Forest. rehabilitation of riparian areas when (5) Maintenance and restoration of Clean Water Act (CWA) (33 U.S.C. 1344) planning range, wildlife habitat, and spatial and temporal connectivity for watershed improvements; using aquatic and riparian species within and The Clean Water Act (CWA) is the Allotment Management Plans as a between watersheds to provide primary mechanism in the United States vehicle for ensuring protection of physically, chemically, and biologically for surface water quality protection. It riparian areas from unacceptable unobstructed movement for their establishes the basic structure for impacts from grazing; and rehabilitating survival, migration, and reproduction. regulating discharges of pollutants into or fencing riparian areas that (6) Maintenance and restoration of waters of the United States. It employs consistently show resource damage. hydrologic connectivity between a variety of regulatory and On January 12, 2001, a record of floodplains, channels, and water tables nonregulatory tools to reduce direct decision (ROD) was signed by the Forest to distribute flood flows and to sustain water quality impacts, finance water Service for the SNFPA Final diverse habitats. treatment facilities, and manage Environmental Impact Statement (USFS (7) Maintenance and restoration of polluted run-off. The Forest Service is 2001b). The SNFPA addresses five watershed conditions as measured by the designated water quality problem areas: Old-forest ecosystems favorable infiltration characteristics of management agency under the CWA and associated species; aquatic, soils and diverse vegetation cover to Section 208 Management Agency riparian, and meadow ecosystems and absorb and filter precipitation and to Agreement. Under this Agreement, the associated species; fire and fuels; sustain favorable conditions of stream Forest Service is required to implement noxious weeds; and lower west-side flows. State-approved BMPs and other hardwood ecosystems. Subsequent to (8) Maintenance and restoration of in- measures to achieve full compliance the establishment of management stream flows sufficient to sustain with all applicable State water quality direction by the SNFPA ROD, the desired conditions of riparian, aquatic, standards. Project-level analysis Regional Forester assembled a review wetland, and meadow habitats and to conducted under NEPA is required to team to evaluate specific plan elements. keep sediment regimes within the demonstrate compliance with CWA and The review was completed in March natural range of variability. State water quality standards (USFS 2003, and as a result the Final (9) Maintenance and restoration of the 2004). Waterbodies that do not meet Supplemental Environmental Impact physical structure and condition of water quality standards with Statement was issued in January 2004 stream banks and shorelines to implementation of existing management (USFS 2004). Forest Plans were minimize erosion and sustain desired measures are listed as impaired under amended to be consistent with the new habitat diversity. section 303(d) of the CWA. Waters (2004) ROD, and all subsequent project Riparian conservation objectives were within California golden trout habitat decisions fall under the 2004 direction. developed to implement the Aquatic are not listed as impaired by the State Within the native range of the California Management Strategy. These objectives (Strand 2006), indicating that, in golden trout, management of the Inyo contain standards and guidelines to implementing this regulatory

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63107

mechanism, the Forest Service designs environmental impacts, as it is exempt (McGuire 2009, p. 9; McGuire 2011, p. land management activities so that from CEQA under Article 19 section 3). existing levels of water quality and 15301(j). However, as discussed Section 200 of the Fish and Game beneficial uses are maintained and elsewhere stocking of nonnative trout Code delegates to the Commission the protected. has been discontinued within the power to regulate the taking or species’ range. possession of fish. California Sport State Regulations Fishing Regulations include the State regulatory mechanisms that California Fish and Game Code (14 California golden trout and require a could provide some protection for the C.C.R. § 1 et seq.) sport fishing license and the use of California golden trout and its habitat The California Fish and Game barbless hooks to take a maximum of include the California Endangered Commission, a separate entity from five California golden trout in the Species Act (CESA), California CDFG, is a five-member group Golden Trout Wilderness (CDFG 2011a, Environmental Quality Act (CEQA) appointed by the Governor and p. 13). Outside the Golden Trout (Pub. Resources Code § 21000 et seq.), confirmed by the Senate. The Wilderness, a fisherman may possess up and the California Fish and Game Code Commission has set up several policies to 10 California golden trout, but may (14 C.C.R. § 1 et seq.). Applicable regarding the California golden trout. only take 5 per day (CDFG 2011b, p. 2). sections are discussed below. In Pursuant to section 703 of the Fish and These limits, coupled with the remote addition, the California Fish and Game Game Code, the Commission has backcountry condition of much of the Commission (Commission) has designated certain State waters to be subspecies’ range, appear sufficient to regulatory powers to decide policy such managed exclusively for wild trout. prevent angling pressure from posing a as season, bag limits, and methods of Those waters include the entire Golden threat (see Factor B—Overutilization for take for sport fish. Trout Creek watershed and the majority Commercial, Recreational, Scientific, or California Endangered Species Act of the South Fork Kern watershed from Educational Purposes section above). Section 1603(a) of the California Fish (CESA) the headwaters to the southern end of the South Sierra Wilderness. and Game Code necessitates a permit The California golden trout was In 1952, the Commission developed from CDFG for any activity that may designated as the State freshwater fish the Golden Trout Policy that covers the alter the bed, channel, or bank of any of California in 1947 and was listed as three subspecies of golden trout in the river, stream, or lake. The permit may a fish species of special concern by Sierra Nevada. In summary, the policy incorporate measures to minimize CDFG in 1995. The status of ‘‘species of states the following: adverse impacts to fish and wildlife; special concern’’ applies to that (1) Certain waters within the high therefore, this regulation may offer are not listed under the Act or the mountainous areas of Madera, Fresno, protection to California golden trout California Endangered Species Act Inyo, Mono, and Tulare Counties may habitat. The extent to which this (CESA) but meet the following criteria: be designated by CDFG as ‘‘Golden regulation has provided the California Populations are low, scattered, or highly Trout Waters of California’’ and shall be golden trout with protection is localized and require active maintained in as genetically pure state unknown, as much of the range of this management to prevent them from as possible, and rainbow trout and other subspecies is protected under becoming threatened or endangered species of trout shall not be planted in management of federally protected areas species (Moyle et al. 1995, p. 3). these designated golden trout waters. where few habitat modifications subject California Environmental Quality Act (2) A brood stock shall be maintained to this permit have been proposed. (CEQA) (Pub. Resources Code § 21000 et in lakes set aside for the sole purpose of Section 6400 of the California Fish and seq.) egg production to provide fingerlings for Game Code declares it unlawful to planting waters. place, plant, or cause to be placed or CEQA is the principal statute (3) Hatchery-reared or wild fingerlings planted in any waters of California any mandating environmental assessment of may be used for initial stocking in live fish without permission from projects in California. The purpose of streams and lakes designated by CDFG, CDFG. Violation could result in a fine CEQA is to evaluate whether a proposed and whenever practicable, the range of of up to $50,000 and 1 year project may have an adverse effect on golden trout will be extended through imprisonment, with revocation of the environment (including native fish wild fish or fingerling plantings in fishing privileges. In addition, violators and wildlife species), to disclose that native waters, or in other waters would be held liable for damages. information to the public, and to possessing adequate spawning grounds. Rewards of up to $50,000 may be determine whether significant adverse (4) The Golden Trout Policy prevails offered for information leading to the effects can be reduced or eliminated by over the general Trout Policy if the two conviction of persons violating Section pursuing an alternative course of action are in conflict. 6400, pursuant to Section 2586. or through mitigation. CEQA applies to Contrary to the Golden Trout Policy Thus, State regulations provide projects proposed to be undertaken or that ‘‘rainbow trout and other species of protections primarily through State Fish requiring approval by State and local trout shall not be planted in designated and Game Codes, and enforcement of public agencies. CEQA requires full golden trout waters,’’ rainbow trout these regulations by both CDFG wildlife disclosure of the potential have been stocked in the South Fork protection personnel and by Forest environmental impacts of public or Kern River at Kennedy Meadows since Service law enforcement personnel private projects carried out by or about 1947. To prevent additional (CDFG et al. 2004a, pp. 57–58; McGuire authorized by non-Federal agencies hybridization, CDFG began planting and Sims 2006, p. 18; Sims and within the State of California. As such, triploid rainbow trout in 2004, of which McGuire 2006b, p. 13). CEQA provides some protection for the 99 to 100 percent are sterile (CDFG et California golden trout, should projects al. 2004a, p. 52; McGuire 2011, p. 3). Summary of Factor D that would be subject to CEQA be Although the trout planting has been Some Federal and State regulations proposed within the native range of the popular with some members of the afford protections for the California species. Fish stocking is not subject to angling public, CDFG discontinued the golden trout and their habitat. full disclosure of its potential stocking program entirely in 2009 Implementation of LRMPs, as amended

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63108 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

by the SNFPA, provides protections (2000, pp. 20–24) cites the past stocking under the Act (i.e., subspecies, DPSs) through management direction for the of hybridized California golden trout in requires the Service to address these subspecies and the aquatic, riparian, the fishless headwater lakes, Johnson situations on a case-by-case basis. In and meadow ecosystems that it relies Lake, Rocky Basin Lakes 1, 2, 3, and 4, some cases, introgressive hybridization on. State regulations provide some and Chicken Spring Lake, as potential (infiltration of genes from one species protections through the Golden Trout sources of hybridization. In the South into the gene pool of another species Policy and the Fish and Game Code. Fork Kern River watershed, the petition through repeated backcrossing of a Therefore, based on the best scientific (Trout Unlimited 2000, p. 18) states that hybrid with one of its parents) may be and commercial information available, hybridization has resulted from the considered a natural evolutionary we find that the California golden trout extensive official and unofficial stocking process reflecting active speciation or is not currently threatened by the of rainbow trout that has occurred at simple gene exchange between naturally inadequate regulatory mechanisms various places throughout the sympatric species (or those species that throughout its range, nor do we watershed. occupy the same or overlapping anticipate inadequate regulatory geographic areas without interbreeding). Hybridization in Relation to mechanisms posing a threat in the Introgressed populations may contain Implementing the Endangered Species future. unique or appreciable portions of the Act genetic resources of an imperiled or Factor E. Other Natural or Manmade The Act does not directly address listed species. For example, populations Factors Affecting the Continued questions related to species that have with genes from another taxon at very Existence of the Species some degree of hybridization. The low frequencies may still express Potential Factor E threats include purpose of the Act is to conserve important behavioral, life-history, or hybridization, fire suppression threatened and endangered species and ecological adaptations of the indigenous activities, invasion of California golden the ecosystems on which those species population or species within a trout waters by the New Zealand depend. The definition of species under particular geographic area. In other mudsnail (Potamopyrgus antipodarum), the Act includes any taxonomic species cases, human-caused or facilitated and climate change. With regard to or subspecies, and distinct population hybridization may threaten the hybridization, this potential threat segments of vertebrate species. Key existence of a taxon, either because involves introduced nonnative rainbow issues for this status review are the native genes are lost due to sheer trout breeding with the California scientific criteria used by professional numbers of introgressing genes, or golden trout. For purposes of this zoologists and field biologists to because hybridized individuals have review, ‘‘hybridization’’ refers to the taxonomically classify individuals, and lowered fitness (Rhymer and Simberloff creation of hybrid individuals due to populations of interbreeding 1996, pp. 85–86, 92). Consequently, the matings between California golden trout individuals, as members of the Service carefully evaluates the long- and nonnative rainbow trout (in this California golden trout subspecies term conservation implications for each case introduced hatchery trout, (Oncorhynchus mykiss aguabonita). taxon separately on a case-by-case basis Oncorhynchus mykiss spp.) or due to Previous Service positions regarding where introgressive hybridization may matings between California golden trout hybridization, based upon have occurred. The Service performs and hybrid trout. Genetic introgression interpretations in a series of opinions by these evaluations objectively based on refers to the movement of genes the U.S. Department of the Interior, the best scientific and commercial originally indicative of nonnative trout Office of the Solicitor, generally information available consistent with into the gene pool of California golden precluded conservation efforts under the intent and purpose of the Act. trout populations. Because native the authorities of the Act for progeny, or A potential dichotomy thus exists California golden trout, introduced their descendants, produced by matings under the Act between: (a) The need to rainbow trout, and hybrid offspring between taxonomic species or protect the genetic resources of a species interbreed, hybridization leads to subspecies (O’Brien and Mayr 1991, pp. in which introgression has occurred, genetic introgression, and the threats 1–3). However, advances in biological and (b) the need to minimize or (discussed below) of both hybridization understanding of natural hybridization eliminate the threat of hybridization and introgression are treated the same. (such as Arnold 1997, pp. 182–183) posed by another taxon. Implementing prompted withdrawal of those opinions. Hybridization actions under the Act that distinguish The reasons for that action were between these two alternatives is The petition states that hybridization, summarized in two sentences in the difficult when imperiled species are due to the substantial stocking of withdrawal memorandum involved because a large number of rainbow trout and hybridized golden (Memorandum from Assistant Solicitor populations may have experienced trout during the past 100 years, is the for Fish and Wildlife, U.S. Department varying amounts of genetic introgression most immediate and destructive threat of the Interior, to Director, U.S. Fish and from another taxon. With regard to the that California golden trout faces (Trout Wildlife Service, dated December 14, California golden trout, an acceptable Unlimited 2000, pp. 17–18). 1990): ‘‘New scientific information level of hybridization has not yet been Hybridization and consequent concerning genetic introgression has defined. introgression is thought to dilute the convinced us that the rigid standards set fundamental genetic characteristics of out in those previous opinions should Hybridization as a Potential Threat to California golden trout populations be revisited. In our view, the issue of California Golden Trout (CDFG et al. 2004a, p. 24). If the ‘‘hybrids’’ is more properly a biological In Golden Trout Creek, which hybridization and introgression issue than a legal one.’’ contains approximately 82 km (51 mi) of continue at large enough rates, those Our increasing understanding of the native range, movement and fundamental genetic characteristics wide range of possible outcomes reproduction of introgressed California could be lost entirely, leading to resulting from exchanges of genetic golden trout from headwater lakes into ‘‘genetic extinction’’ (Rhymer and material between taxonomically distinct downstream reaches has resulted in Simberloff 1996, p. 100). In the Golden species and between entities within introgression at low levels, estimated at Trout Creek watershed, Trout Unlimited taxonomic species that also can be listed 0 to 8 percent on average (Cordes et al.

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63109

2006, pp. 110, 117; Stephens 2006, p. 2). levels of hybridization in the lower place to address risks of illegal fish Higher introgression rates (10 to 12 reaches from those less hybridized in stocking (Sims and McGuire 2006, percent on average) were found in the the upper reaches, and to maintain and pp. 6, 7). We expect that due to the headwater lakes (Cordes et al. 2006, p. expand remaining pure populations if management actions taken to isolate 117), which had been stocked with these are identified. If no pure California golden trout from nonnative hybridized California golden trout. populations are found, then Cordes et trout within their native range, that, for Since 1995, managers have concentrated al. (2003, p. 22) recommend the species as a whole, the level of efforts to remove the hybridized trout preservation of the existing South Fork introgression should not increase and from these lakes (Johnson Lake, Rocky Kern River populations with the lowest may decrease over time. Therefore, we Basin Lakes, and Chicken Spring Lake) levels of introgression. Currently, determine that existing levels of (Cordes et al. 2001, p. 15). Survey introgression levels measured at barrier introgression within the subspecies do results indicate that the six lakes are sites (41 percent at Schaeffer Barrier, 17 not constitute a significant threat, and now fishless (Sims and McGuire 2006, percent at Templeton Barrier, which is that management actions have lowered p. 4; McGuire et al. 2009, p. 3). Thus, upstream) indicate that separation of the extent and likelihood of further the source for future introgression has lower levels of introgression above hybridization, such that introgression is been removed. The removal of these Schaeffer Barrier has been successful. unlikely to become a significant threat source populations of introgressed fish As both the petition and the in the future. will allow rainbow trout alleles to Conservation Strategy note, illegal Fire Suppression Activities become less common in the watershed transport of nonnative or introgressed (Cordes et al. 2001, p. 15). Eventually, trout into areas that currently have low Potential adverse effects to the many of the rainbow trout alleles may introgression levels, is a serious concern California golden trout resulting from drop out of the population altogether (Trout Unlimited 2000, pp. 26, 27; fire suppression activities include due to genetic drift (Cordes et al. 2001, CDFG et al. 2004a, pp. 57, 58). However, changed forest structure; direct p. 15). Within the Golden Trout Creek as discussed above under under Factor mortality due to water drafting (taking watershed, the Volcano Creek C—Predation and Competition with of water) from occupied drainages; population, representing the only Brown Trout,’’ we consider the hybridization and competition with known pure population to date, management actions that have been and nonnative trout that may arise from contains approximately 8 km (5 mi) of are being undertaken to address this dropping water from a helicopter within stream habitat. This population is threat to be effective. Additionally, the Golden Trout Creek and South Fork isolated from introgressed trout by a although the petition indicated that the Kern River watersheds using water that natural bedrock barrier near its mouth. Schaeffer barrier (the farthest may contain trout not native to the Cordes et al. (2001, p. 15) found that downstream of the three) has watersheds; and contamination due to this population had reduced genetic historically been ineffective at use of fire retardants for fire variability and are genetically distinct preventing upstream movement (Trout suppression. Unlimited 2000, p. 6), the barrier was from other populations in Golden Trout In some areas within the range of the Creek; however, these samples only repaired in 2003, and is now considered impassable (CDFG et al. 2004a, p. 37; California golden trout, long-term fire came from one reach of stream, suppression has changed forest necessitating the need for additional Lentz 2011, p. 1). See Factor A— Artificial Fish Barriers above. In structure and conditions, resulting in analysis. addition, all fish stocking has been the potential for increased fire severity In the South Fork Kern River, which discontinued within the native range of and intensity (McKelvey et al. 1996, p. comprises approximately 644 km (400 the California golden trout; at Kennedy 1038). Fire can cause direct mortality of mi) of native range, genetic tests Meadows Reservoir, stocking of fertile fish and aquatic invertebrates within indicate that all California golden trout rainbow trout ended in 2003 and aquatic ecosystems. However, even in have detectable levels of introgression stocking of sterile rainbow trout ended the case of high-severity fires, local with rainbow trout, with the in 2008 (McGuire 2011, p. 3). extirpations of fish have been patchy, downstream populations exhibiting the Once more genetic information allowing for relatively rapid highest known levels, congruent with becomes available, the Conservation recolonization (Gresswell 1999, p. 193). the known historical management of Strategy describes management actions Lasting adverse effects of fire on fish these populations (Cordes et al. 2003, that can be undertaken, starting with the populations have consequently been pp. 16, 40; Stephens 2007, p. 72). Prior development and implementation of a limited to areas where native to construction and improvement of the peer-reviewed genetics management populations had declined for reasons manmade barriers, there were no plan (CDFG et al. 2004a, p. 47). The other than fire, and were already small upstream impediments to fish genetics management plan is currently and isolated prior to the fire (Gresswell movement in the mainstem South Fork in development, with an expected 1999, pp. 193, 212). In contrast, Kern. Currently, there are relatively low completion date of December 31, 2011. California golden trout typically show levels of introgression in the headwater In summary, the best available relatively high population densities reaches, and percentages of rainbow scientific and commercial data, as where they occur (Knapp and Dudley trout alleles are fairly uniform in described above, indicates that 1990, p. 169), and known populations samples collected above Templeton California golden trout in Volcano Creek are not typically isolated from each Barrier, likely reflecting the and Golden Trout Creek are not other (Stephens 2007, p. 72). In 2000, homogenizing effect of previous threatened by hybridization to the point the Manter Fire burned on the Sequoia chemical treatments and restocking where listing is warranted. Stocking of National Forest, and surveys found dead efforts (Cordes et al. 2003, p. 12). With nonsterile fish has ceased; all fish have California golden trout on Fish Creek no pure populations known to exist been removed from the headwater lakes and the South Fork Kern River. Since within this watershed, Cordes et al. of Golden Trout Creek; barriers in the live fish were seen in these areas after (2003, p. 22) recommend that South Fork Kern River to prevent the fire, it is likely that the fire did not management focus should be to isolate migration of hybridized fish have been result in total mortality of the local the California golden trout with high repaired and tested; and measures are in population (Strand 2006).

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63110 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

The Federal Wildland Fire Policy and and the Sequoia National Forests’ (Sims 2006b, p. 1; Lentz 2011, p. 2). Program Review, which is a fishery biologists have been These NZMS were located in 2000 at the comprehensive Federal fire policy for coordinating with fire personnel to lower Owens River near Bishop; since the Departments of the Interior and ensure that measures contained in the 2000, NZMS has moved throughout the Agriculture, was created in 1995 and plans are implemented (McGuire and Owens drainage including Hot Creek, recognizes the essential role of fire in Sims 2006, p. 8; Sims and McGuire Rush Creek, and Lone Pine Creek. maintaining natural systems. Wildland 2006, p. 5). One such avoidance Because NZMS can survive on waders fire use is a management option on measure identifies the need to prevent for several days, human transport of the Federal lands and is available to Federal water transfers from nonnative water organism to the California golden trout’s agencies with an approved land use bodies into California golden trout habitat would be likely if precautions plan and a fire management plan (USDA waters during fire suppression are not taken by anglers. The Inyo and USDOI 2005, p. 2; USDA and activities, or any other management National Forest requires all permitted USDOI 2009, pp. 8, 9). The Sequoia activity that would use large quantities fishing guides to follow appropriate National Forest has begun using of water. disinfection methods for their gear wildland fire on a case-by-case basis as While fire suppression activities have (Sims 2006b, p. 1). a tool to reduce fuel loading in the potential to affect the California Several conservation measures reduce wilderness areas, most recently in 2010 golden trout, evidence indicates that the likelihood that this invasive species on the Big Sheep Fire (Lang 2011, p. 1). lasting adverse effects on fish will enter the native waters, including In 2004, the Forest Service completed populations are rare. Although the cooperative effort between the Inyo the Fisheries and Aquatic Input for inadvertent application of fire and Sequoia National Forests and CDFG Wildland Fire Suppression Planning suppression chemicals could negatively to ensure that the transfer of water from Specific to Golden Trout Management affect some isolated populations, the nonnative waterbodies does not occur (McGuire and Sims 2006, pp. 22–25). potential for this is lessened by during fire suppression activities. Also, Criteria include avoiding moderate to implementation of the national a brochure has been distributed that extreme fire intensities within the direction on aerial applications of these informs the public about how to prevent Golden Trout watershed, avoiding water fire retardants. Furthermore, the Forest the spread of nuisance species, with an transfers in key areas, and using small Service has incorporated measures into Internet link provided to a NZMS Web intake screens when drafting from water fire suppression planning documents, site. sources. and implementation of these measures In summary, NZMSs have not been Fire retardants and suppressant reduces the effects that fire management found within the native range of the chemicals are used extensively in the activities would otherwise have on California golden trout. While it is United States for suppression and California golden trout. Therefore, we possible that this invasive species will control of range and forest fires, and are conclude that fire suppression activities continue to spread, ongoing efforts are often applied in environmentally are not a threat to the California golden occurring to address the risk of spread sensitive areas (Hamilton et al. 1996, trout. of NZMS to habitat of the California introduction). Laboratory tests of these golden trout. Consequently, we New Zealand Mudsnail (Potamopyrgus chemicals have shown that they cause conclude NZMS is not a threat to the antipodarum) mortality in fishes and aquatic subspecies. The New Zealand mudsnail (NZMS) invertebrates by releasing surfactants Climate Change and ammonia when added to water is an invasive nonnative mollusk that (Hamilton et al. 1996, pp. 1–5). Fire can impact the food chain of native ‘‘Climate’’ refers to an area’s long-term retardant chemicals dropped in or near trout by competing with native average weather statistics (typically for California golden trout habitat could invertebrates (including native at least 20- or 30-year periods), have negative effects on individuals or mollusks) for food and space, and including the mean and variation of isolated populations. On April 20, 2000, through altering the physical surface variables such as temperature, direction was given to all national characteristics of the streams (Aquatic precipitation, and wind, whereas forests in regard to fire retardant use Nuisance Species Task Force 2006, p. ‘‘climate change’’ refers to a change in during wildland fire suppression 1). NZMS are able to withstand a variety the mean and/or variability of climate activities. Guidance includes avoiding of temperature regimes and can stay properties that persists for an extended aerial application of retardant or foam alive out of water under moist period (typically decades or longer), within 91 m (300 ft) of waterways. conditions for 5 or more days, and are whether due to natural processes or Further details concerning delivery from small enough that anglers can human activity (Intergovernmental different types of aircraft, interactions inadvertently transfer this species Panel on Climate Change (IPCC) 2007a, with threatened and endangered between different waterbodies (Aquatic p. 78). Although changes in climate species, and exceptions are given in the Nuisance Species Task Force 2006, pp. occur continuously over geological time, document. These guidelines are updated 1, 2; Sims 2006b, p. 1). Since they changes are now occurring at an annually and published in the reproduce clonally, one introduced accelerated rate. For example, at Interagency Standards for Fire and Fire NZMS can begin a new population. continental, regional, and ocean-basin Aviation Operations (National NZMS has the ability to reproduce scales, recent observed changes in long- Interagency Fire Center 2006, Chapter quickly and mass in high densities term trends include: A substantial 12, pp. 1–6) for the Bureau of Land (Aquatic Nuisance Species Task Force increase in precipitation in eastern parts Management, Forest Service, National 2006, p. 1). of North America and South America, Park Service, and the Service. The closest location of NZMS to the northern Europe, and northern and The Forest Service, through the California golden trout is in the Owens central Asia, and an increase in intense direction of the Conservation Strategy, River drainage, which is approximately tropical cyclone activity in the North created written plans for integration of a 2-hour drive to Horseshoe Meadow Atlantic since about 1970 (IPCC 2007a, California golden trout populations and trailhead and an hour hike into p. 30); and an increase in annual habitat protection in Forest Service fire California golden trout habitat, or about average temperature of more than 2 °F suppression planning. Both the Inyo a 4-hour drive to Monache Meadows (1.1 °C) across the United States since

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63111

1960 (Global Climate Change Impacts in such as melting of Arctic sea ice scales used to assess impacts to a given the United States (GCCIUS) 2009, p. 27). (Comiso et al. 2008, p. 1; Polyak et al. species (see Glick et al., 2011, pp. 58– Examples of observed changes in the 2010, p. 1797), and since 2000 the 61). With regard to the area of analysis physical environment include: An observed emissions of greenhouse gases, for the California golden trout, increase in global average sea level, and which are a key influence on climate downscaled projections are not declines in mountain glaciers and change, have been occurring at the mid- available. average snow cover in both the northern to higher levels of the various emissions Climate change may potentially and southern hemispheres (IPCC 2007a, scenarios developed in the late 1990’s impact California golden trout p. 30), substantial and accelerating and used by the IPPC for making populations by affecting water reductions in Arctic sea-ice (such as projections (such as Raupach et al. temperature, water availability, or the Comiso et al. 2008, p. 1), and a variety 2007, Figure 1, p. 10289; Manning et al. timing of flows. California golden trout of changes in ecosystem processes, the 2010, Figure 1, p. 377; Pielke et al. 2008, prefer temperatures below 60 °F (15 °C), distribution of species, and the timing of entire). Also, the best scientific and but can endure daytime temperatures seasonal events (such as GCCIUS 2009, commercial data available indicate that ranging into the 70’s °F (21 °C) so long pp. 79–88). average global surface air temperature is as temperatures cool again at night The IPCC used Atmosphere-Ocean increasing and several climate-related (CDFG 2004a, pp. 11–12). Stretches of General Circulation Models and various changes are occurring and will continue the South Fork Kern can currently reach greenhouse gas emissions scenarios to for many decades even if emissions are up to 77 °F (25.2 °C) (CDFG 2004a, p. make projections of climate change stabilized soon (such as Meehl et al. 55). Stream temperatures are being globally and for broad regions through 2007, pp. 822–829; Church et al. 2010, monitored, as required by the the 21st century (Meehl et al. 2007, p. pp. 411–412; Gillett et al. 2011, entire). Conservation Strategy, but a detailed 753; Randall et al. 2007, pp. 596–599), Changes in climate can have a variety report has not yet been produced and reported these projections using a of direct and indirect impacts on (McGuire et al. 2009, p. 11). framework for characterizing certainty species, and can exacerbate the effects Both the Golden Trout Creek and (Solomon et al. 2007, pp. 22–23). of other threats. Rather than assessing South Fork Kern watersheds are high- Examples include: (1) It is virtually ‘‘climate change’’ as a single threat in elevation watersheds strongly certain there will be warmer and more and of itself, we examine the potential influenced by snowmelt. The extent of frequent hot days and nights over most consequences to species and their water contained in the spring snowpack of the earth’s land areas; (2) it is very habitats that arise from changes in likely there will be increased frequency environmental conditions associated (typically measured as the snow water of warm spells and heat waves over with various aspects of climate change. equivalent on April 1st) is thus an most land areas, and the frequency of For example, climate-related changes to important predictor of summer heavy precipitation events will increase habitats, predator-prey relationships, streamflow and temperatures (Mote et over most areas; and (3) it is likely that disease and disease vectors, or al. 2005, p. 40). Most areas in the increases will occur in the incidence of conditions that exceed the physiological western United States have shown extreme high sea level (excludes tolerances of a species, occurring decreases since 1950 in the amount of tsunamis), intense tropical cyclone individually or in combination, may water contained in their spring activity, and the area affected by affect the status of a species. snowpacks (Mote et al. 2005, p. 41). droughts (IPCC 2007b, p. 8, Table Vulnerability to climate change impacts However, the water content of spring SPM.2). More recent analyses using a is a function of sensitivity to those snowpacks in the southern Sierras different global model and comparing changes, exposure to those changes, and (including the areas surrounding the other emissions scenarios resulted in adaptive capacity (IPCC 2007, p. 89; Golden Trout Creek and South Fork similar projections of global temperature Glick et al. 2011, pp. 19–22). As Kern watersheds) have actually change across the different approaches described above, in evaluating the status increased over that same time (Mote et (Prinn et al. 2011, pp. 527, 529). of a species, the Service uses the best al. 2005, pp. 41, 42; Ray et al. 2010, p. All models (not just those involving scientific and commercial data 16). Mote et al. (2005, pp. 46, 47) climate change) have some uncertainty available, and this includes attributed this effect to an increase in associated with projections due to consideration of direct and indirect precipitation, combined with relatively assumptions used, data available, and effects of climate change. As is the case mild temperature increases at the high features of the models; with regard to with all potential threats, if a species is elevations involved. Mote et al. (2005, climate change this includes factors currently affected or is expected to be p. 40) compared the water content of such as assumptions related to affected by one or more climate-related spring snowpacks across the American emissions scenarios, internal climate impacts, this does not necessarily mean West, both as measured from 1950 to variability, and differences among the species is a threatened or 1997 and as predicted by a hydrologic models. Despite this, however, under all endangered species as defined under the model called the Variable Infiltration global models and emissions scenarios, Act. If a species is listed as threatened Capacity (VIC). The VIC accounts for the overall projected trajectory of or endangered, this knowledge vegetation, soil layers, and the surface air temperature is one of regarding its vulnerability to, and interaction of water and heat energy at increased warming compared to current impacts from, climate-associated the land surface. They found general conditions (Meehl et al. 2007, p. 762; changes in environmental conditions agreement between the model and Prinn et al. 2011, p. 527). Climate can be used to help devise appropriate observations, except that the model, models, emissions scenarios, and strategies for its recovery. while correctly predicting an increase in associated assumptions, data, and While projections from global climate snowpack water content for the analytical techniques will continue to model simulations are informative and southern Sierras (Mote et al. 2005, pp. be refined, as will interpretations of in some cases are the only or the best 41, 42), still under-predicted the amount projections, as more information scientific information available, various of snowpack water content due to a lack becomes available. For instance, some downscaling methods are being used to of meteorological information for the changes in conditions are occurring provide higher resolution projections highest elevations (Mote et al. 2005, pp. more rapidly than initially projected, that are more relevant to the spatial 41, 43).

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63112 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

Changes in timing of flows may be Conservation Strategy (CDFG et al. discontinuation of brown trout stocking, possible despite predicted trends in 2004a, p. 87), Interagency Standards for construction and improvement of fish springtime snowpack. For instance the Fire and Fire Aviation Operations barriers, chemical treatments, and snowpack may be maintained by (National Interagency Fire Center 2006, annual surveys to keep brown trout out increased snowfall, despite earlier chapter 12, pp. 1–6), and the Wildland of cleared areas. Hybridization concerns melting of some portion of that Fire Use Implementation Procedures have been addressed under the snowpack (Stewart et al. 2005, p. 1144). Reference Guide (USDA and USDOI Conservation Strategy through the This may advance the timing of 2005, entire) adequately address both discontinuation of fish stocking in the relatively warm water entering the the direct potential impacts of fire California golden trout’s home range, Golden Trout Creek and South Fork suppression activities and the indirect the removal of hybridized fish from Kern watersheds. California golden trout habitat impacts that may result from Golden Trout Creek headwater lakes, spawn when water temperatures fuels buildup in the lack of fire. The and the restoration of fish barriers on consistently exceed 59 °F (15 °C) threat that the New Zealand mudsnail the South Fork Kern River. In the South (Knapp and Vredenburg 1996, p. 1). may be introduced into California Fork Kern River, introgression levels They also tend to spawn more actively golden trout waters is relatively low due appear to be generally uniform in stream during times of day when the water is to distance to source areas, and is sections that are separated by barriers, warmest. Earlier meltwater runoff from addressed by public education efforts. indicating that in general, particular the snowpack might reasonably cause Available data also indicate that water populations are insulated from the minimum spawning temperatures to temperature and availability issues increased introgression. In Golden Trout be reached earlier in the year. As the related to climate change will not Creek, the source of introgression has Conservation Strategy notes, California threaten the subspecies. Based on the been removed. California golden trout golden trout tend to grow slowly, in part above, we conclude that the California densities have generally been among the because of cold water temperatures and golden trout is not currently threatened highest ever recorded for a stream- a short growing season (CDFG 2004a, by other natural or manmade factors dwelling trout in the western United p. 12). Earlier meltwater runoff may, affecting its continued existence States (Knapp and Matthews 1996, p. therefore, have a positive effect on throughout its range, nor do we 805). Population surveys conducted at California golden trout populations. anticipate other natural or manmade Templeton Meadow on the South Fork In summary, modeled and observed factors posing a threat in the future. Kern River have indicated that data indicate that the water content of population numbers increased between Finding snowpacks in the southern Sierras is 1985 and 1999 (Stephens 2001b, p. 2), likely to increase or at least remain the As required by the Act, we considered indicating that in general golden trout same in the future. Streams supporting the five factors in assessing whether the population numbers are at a high California golden trout are, therefore, California golden trout is threatened or density and do not appear to be at risk. likely to remain supplied year round endangered throughout all or a Based on our review of the best with water in the temperature ranges significant portion of its range. We available scientific and commercial required by the subspecies. We examined the best scientific and information pertaining to the five conclude that global climate change commercial information available factors, we find that the threats are not does not pose a threat to the subspecies, regarding the past, present, and future of sufficient imminence, intensity, or either now or in the future. threats faced by the California golden magnitude to indicate that the California trout. We reviewed the petition, Summary of Factor E golden trout is in danger of extinction information available in our files, other (endangered), or likely to become Although California golden trout have available published and unpublished endangered within the foreseeable historically been adversely affected by information, and we consulted with future (threatened), throughout its range several manmade or human exacerbated recognized California golden trout at this time. factors, those potential threats have experts and other Federal and State been well-addressed by conservation agencies. Distinct Vertebrate Population Segment efforts. Threats of increased The primary potential threats to the Under the Service’s Policy Regarding hybridization resulting from natural fish subspecies include livestock grazing at the Recognition of Distinct Vertebrate movement and interbreeding in areas levels that are environmentally harmful, Population Segments Under the that are currently less-hybridized have competition and predation from Endangered Species Act (61 FR 4722; been ameliorated by conservation efforts introduced brown trout, and February 7, 1996), three elements are that include repair and maintainance of hybridization with nonnative trout. considered in the decision concerning the three fish barriers on the South Fork These potential threats are all addressed the establishment and classification of a Kern River, removal of all fish from the by a Conservation Strategy and possible DPS. These are applied headwater lakes of Golden Trout Creek, Memorandum of Agreement that we, the similarly for additions to or removal and various genetic monitoring efforts. USFS, and CDFG are currently from the Federal List of Endangered and While these efforts do not eliminate implementing (CDFG et al. 2004a, Threatened Wildlife. These elements introgression that has already occurred, entire; CDFG et al. 2004b, entire). include: they prevent areas of low introgression, Impacts from environmentally (1) The discreteness of a population in such as the upper reaches of the South detrimental grazing practices have been relation to the remainder of the species Fork Kern River, from being further greatly reduced through the resting of to which it belongs; introgressed by hybridized fish coming grazing allotments and establishment of (2) The significance of the population upstream from lower reaches. This cattle exclosures, by the implementation segment to the species to which it stabilization of the threat has allowed of standards for maintaining desired belongs; and management efforts, including vegetative and habitat conditions, and (3) The population segment’s elimination of introgressed populations, by significant reductions in the number conservation status in relation to the to proceed in a well-considered manner. of cattle using the area. Act’s standards for listing, delisting, or Fire suppression planning and Predation and competition with reclassification (i.e., is the population guidance documents, including the brown trout have been addressed by the segment endangered or threatened).

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63113

Discreteness discrete population segment’s listing as endangered or threatened. As Under the DPS policy, a population importance to the taxon to which it a result, no further analysis under the segment of a vertebrate taxon may be belongs. Since precise circumstances are DPS policy is necessary. likely to vary considerably from case to considered discrete if it satisfies either Significant Portion of the Range and case, the DPS policy does not describe one of the following conditions: Distinct Vertebrate Population all the classes of information that might (1) It is markedly separated from other Segments populations of the same taxon as a be used in determining the biological and ecological importance of a discrete After assessing whether the California consequence of physical, physiological, golden trout is threatened or endangered ecological, or behavioral factors. population. However, the DPS policy describes four possible classes of throughout its range, we next consider Quantitative measures of genetic or information that provide evidence of a whether either a significant portion of morphological discontinuity may population segment’s biological and the California golden trout’s range or a provide evidence of this separation. ecological importance to the taxon to distinct population segment (DPS) of the (2) It is delimited by international which it belongs. As specified in the species meets the definition of governmental boundaries within which DPS policy (61 FR 4722), this endangered or is likely to become differences in control of exploitation, consideration of the population endangered in the foreseeable future management of habitat, conservation segment’s significance may include, but (threatened). status, or regulatory mechanisms exist is not limited to, the following: Significant Portion of the Range that are significant in light of section (1) Persistence of the discrete 4(a)(1)(D) of the Act. population segment in an ecological The Act defines ‘‘endangered species’’ If the population meets the first two setting unusual or unique to the taxon; as any species which is ‘‘in danger of criteria under the DPS policy, we then (2) Evidence that loss of the discrete extinction throughout all or a significant proceed to the third element in the population segment would result in a portion of its range,’’ and ‘‘threatened process, which is to evaluate the significant gap in the range of a taxon; species’’ as any species which is ‘‘likely population segment’s conservation (3) Evidence that the discrete to become an endangered species within status in relation to the Act’s standards population segment represents the only the foreseeable future throughout all or for listing as an endangered or surviving natural occurrence of a taxon a significant portion of its range.’’ The threatened species. The DPS evaluation that may be more abundant elsewhere as definition of ‘‘species’’ is also relevant in this finding concerns the California an introduced population outside its to this discussion. The Act defines the golden trout that we were petitioned to historic range; or term ‘‘species’’ as follows: ‘‘The term list as endangered. (4) Evidence that the discrete ‘species’ includes any subspecies of fish In the threats assessment performed population segment differs markedly or wildlife or plants, and any distinct above, we concluded that in relation to from other populations of the species in population segment [DPS] of any the entire range of the California golden its genetic characteristics. species of vertebrate fish or wildlife trout, none of the activities identified as A population segment needs to satisfy which interbreeds when mature.’’ The potential threats, either singly or in only one of these conditions to be phrase ‘‘significant portion of its range’’ combination, constitute a level of risk considered significant. Furthermore, (SPR) is not defined by the statute, and serious enough to bring a local other information may be used as we have never addressed in our population to the point where it would appropriate to provide evidence for regulations: (1) The consequences of a be in danger of extinction, either now or significance. determination that a species is either in the foreseeable future. California golden trout in Golden endangered or likely to become so Under the DPS Policy, California Trout Creek and the South Fork Kern throughout a significant portion of its golden trout in both Golden Trout Creek River could each be considered to meet range, but not throughout all of its and the South Fork Kern River each the significance criterion of the DPS range; or (2) what qualifies a portion of could meet the criterion for discreteness policy because the evidence indicates a range as ‘‘significant.’’ as a markedly separate population that the loss of either population Two recent district court decisions because while the two drainages were segment could result in a significant gap have addressed whether the SPR connected in the geologic past, they in the range of the subspecies. language allows the Service to list or became separated by volcanic activity in However, since it is our conclusion protect less than all members of a the region approximately 10,000 years that, based on the best information defined ‘‘species:’’ Defenders of Wildlife ago (Cordes et al. 2003, p. 20). This led available, recent management actions v. Salazar, 729 F. Supp. 2d 1207 (D. to Golden Trout Creek and the South and restoration activities have Mont. 2010), concerning the Service’s Fork Kern River as known today ameliorated the risks presented by these delisting of the Northern Rocky (Evermann 1906, pp. 11–14) in two potential threats to the extent that they Mountain gray wolf (74 FR 15123, April adjacent watersheds draining the Kern do not present a concentrated level of 2, 2009); and WildEarth Guardians v. Plateau of the southern Sierra Nevada. risk to California golden trout anywhere Salazar, 2010 U.S. Dist. LEXIS 105253 in its range, including in Golden Trout (D. Ariz. Sept. 30, 2010), concerning the Significance Creek and the South Fork Kern Service’s 2008 finding on a petition to If a population segment is considered watershed, we conclude that there is no list the Gunnison’s prairie dog (73 FR discrete under one or more of the geographic concentration of threats and 6660, Feb. 5, 2008). The Service had conditions described in the Service’s thus no need to proceed further with an asserted in both of these determinations DPS policy, its biological and ecological evaluation of potential DPSs within the that it had authority, in effect, to protect significance will be considered in light range of the subspecies. Even if only some members of a ‘‘species,’’ as of Congressional guidance that the populations of California golden trout defined by the Act (i.e., species, authority to list DPSs be used were found to meet the distinctness and subspecies, or DPS), under the Act. Both ‘‘sparingly’’ while encouraging the significance criteria of the DPS Policy, courts ruled that the determinations conservation of genetic diversity. In we have already found that the were arbitrary and capricious on the making this determination, we consider conservation status of these entities grounds that this approach violated the available scientific evidence of the would not meet the Act’s standards for plain and unambiguous language of the

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 63114 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules

Act. The courts concluded that reading species. For this reason, we describe the of the range in question became the SPR language to allow protecting threshold for ‘‘significant’’ in terms of extirpated (extinct locally). only a portion of a species’ range is an increase in the risk of extinction for We recognize that this definition of inconsistent with the Act’s definition of the species. We conclude that a ‘‘significant’’ establishes a threshold ‘‘species.’’ The courts concluded that biologically based definition of that is relatively high. On the one hand, once a determination is made that a ‘‘significant’’ best conforms to the given that the consequences of finding species (i.e., species, subspecies, or purposes of the Act, is consistent with a species to be endangered or threatened DPS) meets the definition of judicial interpretations, and best in an SPR would be listing the species ‘‘endangered species’’ or ‘‘threatened ensures species’ conservation. Thus, for throughout its entire range, it is species,’’ it must be placed on the list the purposes of this finding, a portion important to use a threshold for in its entirety and the Act’s protections of the range of a species is ‘‘significant’’ ‘‘significant’’ that is robust. It would not applied consistently to all members of if its contribution to the viability of the be meaningful or appropriate to that species (subject to modification of species is so important that, without establish a very low threshold whereby protections through special rules under that portion, the species would be in a portion of the range can be considered sections 4(d) and 10(j) of the Act). danger of extinction. ‘‘significant’’ even if only a negligible Consistent with that interpretation, We evaluate biological significance increase in extinction risk would result and for the purposes of this finding, we based on the principles of conservation from its loss. Because nearly any portion interpret the phrase ‘‘significant portion biology using the concepts of of a species’ range can be said to of its range’’ in the Act’s definitions of redundancy, resiliency, and contribute some increment to a species’ ‘‘endangered species’’ and ‘‘threatened representation. Resiliency describes the viability, use of such a low threshold species’’ to provide an independent characteristics of a species that allow it would require us to impose restrictions basis for listing; thus there are two to recover from periodic disturbance. and expend conservation resources situations (or factual bases) under which Redundancy (having multiple disproportionately to conservation a species would qualify for listing: a populations distributed across the benefit: listing would be rangewide, species may be endangered or landscape) may be needed to provide a even if only a portion of the range of threatened throughout all of its range; or margin of safety for the species to minor conservation importance to the a species may be endangered or withstand catastrophic events. species is imperiled. On the other hand, threatened in only a significant portion Representation (the range of variation it would be inappropriate to establish a of its range. If a species is in danger of found in a species) ensures that the threshold for ‘‘significant’’ that is too extinction throughout an SPR, it, the species’ adaptive capabilities are high. This would be the case if the species, is an ‘‘endangered species.’’ conserved. Redundancy, resiliency, and standard were, for example, that a The same analysis applies to representation are not independent of portion of the range can be considered ‘‘threatened species.’’ Therefore, the each other, and some characteristic of a ‘‘significant’’ only if threats in that consequence of finding that a species is species or area may contribute to all portion result in the entire species’ endangered or threatened in only a three. For example, distribution across a being currently endangered or significant portion of its range is that the wide variety of habitats is an indicator threatened. Such a high bar would not entire species shall be listed as of representation, but it may also give the SPR phrase independent endangered or threatened, respectively, indicate a broad geographic distribution meaning, as the Ninth Circuit held in and the Act’s protections shall be contributing to redundancy (decreasing Defenders of Wildlife v. Norton, 258 applied across the species’ entire range. the chance that any one event affects the F.3d 1136 (9th Cir. 2001). We conclude, for the purposes of this entire species), and the likelihood that The definition of ‘‘significant’’ used in finding, that interpreting the SPR phrase some habitat types are less susceptible this finding carefully balances these as providing an independent basis for to certain threats, contributing to concerns. By setting a relatively high listing is the best interpretation of the resiliency (the ability of the species to threshold, we minimize the degree to Act because it is consistent with the recover from disturbance). None of these which restrictions will be imposed or purposes and the plain meaning of the concepts is intended to be mutually resources expended that do not key definitions of the Act; it does not exclusive, and a portion of a species’ contribute substantially to species conflict with established past agency range may be determined to be conservation. But we have not set the practice (i.e., prior to the 2007 ‘‘significant’’ due to its contributions threshold so high that the phrase ‘‘in a Solicitor’s Opinion), as no consistent, under any one of these concepts. significant portion of its range’’ loses long-term agency practice has been For the purposes of this finding, we independent meaning. Specifically, we established; and it is consistent with the determine if a portion’s biological have not set the threshold as high as it judicial opinions that have most closely contribution is so important that the was under the interpretation presented examined this issue. Having concluded portion qualifies as ‘‘significant’’ by by the Service in the Defenders that the phrase ‘‘significant portion of asking whether, without that portion, litigation. Under that interpretation, the its range’’ provides an independent the representation, redundancy, or portion of the range would have to be basis for listing and protecting the entire resiliency of the species would be so so important that current imperilment species, we next turn to the meaning of impaired that the species would have an there would mean that the species ‘‘significant’’ to determine the threshold increased vulnerability to threats to the would be currently imperiled for when such an independent basis for point that the overall species would be everywhere. Under the definition of listing exists. in danger of extinction (i.e., would be ‘‘significant’’ used in this finding, the Although there are potentially many ‘‘endangered’’). Conversely, we would portion of the range need not rise to ways to determine whether a portion of not consider the portion of the range at such an exceptionally high level of a species’ range is ‘‘significant,’’ we issue to be ‘‘significant’’ if there is biological significance. (We recognize conclude, for the purposes of this sufficient resiliency, redundancy, and that if the species is imperiled in a finding, that the significance of the representation elsewhere in the species’ portion that rises to that level of portion of the range should be range that the species would not be in biological significance, then we should determined based on its biological danger of extinction throughout its conclude that the species is in fact contribution to the conservation of the range if the population in that portion imperiled throughout all of its range,

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Proposed Rules 63115

and that we would not need to rely on presented by each of these potential based on the best available scientific the SPR language for such a listing.) threats has, in the past, been highest in and commercial information, we Rather, under this interpretation we ask the South Fork Kern watershed. conclude that the California golden whether the species would be in danger However, recent management actions trout is not threatened or endangered in of extinction everywhere without that and restoration activities have a significant portion of its range. portion, i.e., if that portion were ameliorated the risks presented by these Moreover, the subspecies currently completely extirpated. potential threats to the extent that they exists throughout its historical range The range of a species can do not present a concentrated level of (see Distribution section above), so there theoretically be divided into portions in risk to California golden trout anywhere is no need to address the question of an infinite number of ways. However, in its range, including the South Fork whether lost historical range is a there is no purpose to analyzing Kern watershed. Efforts in place to significant portion of the species’ range. portions of the range that have no address these potential threats include reasonable potential to be significant the development and implementation of Conclusion of 12-Month Finding and threatened or endangered. To the Conservation Strategy, with its We do not find the California golden identify only those portions that warrant associated management and monitoring trout (or any DPS) to be in danger of further consideration, we determine requirements (CDFG et al. 2004a, pp. 1– extinction now, nor is this species likely whether there is substantial information 4; McGuire et al. 2009, entire; Lentz to become endangered within the indicating that: (1) The portions may be 2011, pp. 1, 2); the ongoing foreseeable future throughout all or a ‘‘significant,’’ and (2) the species may be development of a genetics management significant portion of its range. in danger of extinction there or likely to plan scheduled for completion in June Therefore, listing this species as become so within the foreseeable future. 2012 (Lentz 2011, p. 2); the construction threatened or endangered under the Act Depending on the biology of the species, and renovation of the three fish passage is not warranted at this time. its range, and the threats it faces, it barriers restricting movement of brown might be more efficient for us to address trout and hybridized fish (Lentz 2011, We request that you submit any new the significance question first or the pp. 1, 2); the eradication of brown trout information concerning the status of, or status question first. Thus, if we above the Templeton barrier (Lentz threats to, the California golden trout to determine that a portion of the range is 2011, p. 2); the curtailment of stocking our Sacramento Ecological Services not ‘‘significant,’’ we do not need to of brown and rainbow trout (with the Field Office (see ADDRESSES section) determine whether the species is exception of sterile triploid rainbow whenever it becomes available. New endangered or threatened there; if we trout at Kennedy Meadows) (CDFG et al. information will help us monitor the determine that the species is not 2004a, p. 52; Lentz 2011, p.1); and California golden trout and encourage endangered or threatened in a portion of extensive grazing restrictions and its conservation. If an emergency its range, we do not need to determine effects-monitoring across the range situation develops for the California if that portion is ‘‘significant.’’ In (USFS 1988a, pp. 78–79, 236; USFS golden trout or any other species, we practice, a key part of the portion status 1995, pp. 2, 27; Knapp and Mathews will act to provide immediate analysis is whether the threats are 1996, pp. 816, 817; CDFG et al. 2004a, protection. geographically concentrated in some p. 34; McGuire and Sims 2006, p. 17; References Cited way. If the threats to the species are Ettema and Sims 2010, pp. 58–64). essentially uniform throughout its Of the additional potential threats to A complete list of references cited is range, no portion is likely to warrant California golden trout discussed above available on the Internet at http:// further consideration. Moreover, if any under the Summary of Information www.regulations.gov and upon request concentration of threats applies only to Pertaining to the Five Factors section, from the Sacramento Fish and Wildlife portions of the species’ range that some are more applicable to the South Office (see ADDRESSES section). clearly would not meet the biologically Fork Kern watershed (recreation, fish Authors based definition of ‘‘significant’’, such barriers, beavers, angling, illegal trout portions will not warrant further transplants, fish stocking, and the New The primary authors of this notice are consideration. Zealand mud snail), while others are the staff members of the Sacramento The most serious of the potential equally applicable to both watersheds Fish and Wildlife Office. threats to California golden trout (pack stock use, collection of fin tissue discussed above in the Summary of samples, whirling disease, fire Authority Information Pertaining to the Five suppression activities, and climate The authority for this section is Factors section are livestock grazing, change). However, for the reasons section 4 of the Endangered Species Act predation and competition from brown discussed above in relation to the entire of 1973, as amended (16 U.S.C. 1531 et trout, and hybridization issues with range of the subspecies, none of these seq.). rainbow trout. These potential threats activities (either singly or in generally occur across the species range combination) constitute a level of risk Dated: September 22, 2011. and are not concentrated in any areas. serious enough to bring a local Rowan Gould, Even areas that may currently lack one population to the point where it would Acting Director, Fish and Wildlife Service. or more of these potential threats remain be in danger of extinction, either now or [FR Doc. 2011–25652 Filed 10–7–11; 8:45 am] at some risk from them. The level of risk in the foreseeable future. Accordingly, BILLING CODE 4310–55–P

VerDate Mar<15>2010 21:55 Oct 07, 2011 Jkt 226001 PO 00000 Frm 00023 Fmt 4701 Sfmt 9990 E:\FR\FM\11OCP4.SGM 11OCP4 srobinson on DSK4SPTVN1PROD with PROPOSALS4