58910 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

DEPARTMENT OF THE INTERIOR EFFECTIVE DATE: December 1, 1999. from a specimen collected on the lower ADDRESSES: The complete file for this Columbia River, and subsequently Fish and Wildlife Service rule is available for inspection, by described under a number of names appointment, during normal business such as Salmo confluentus and 50 CFR Part 17 hours at the Snake River Basin Office, Salvelinus malma (Cavender 1978). Bull RIN 1018±AF01 1387 S. Vinnell Way, Room 368, Boise, trout and Dolly Varden (Salvelinus Idaho 83709. malma) were previously considered a Endangered and Threatened Wildlife FOR FURTHER INFORMATION CONTACT: single species (Cavender 1978; Bond and Plants; Determination of Robert Ruesink, Supervisor, at the above 1992). Cavender (1978) presented Threatened Status for Bull Trout in the address (telephone 208/378–5243; morphometric (measurement), meristic Coterminous United States facsimile 208/378–5262) to make an (counts), osteological (bone structure), and distributional evidence to AGENCY: Fish and Wildlife Service, appointment to inspect the complete file for this rule or for information document specific distinctions between Interior. Dolly Varden and bull trout. ACTION: Final rule. pertaining to the Columbia River population segment; Gerry Jackson, Subsequently, bull trout and Dolly Varden were formally recognized as SUMMARY: We, the U.S. Fish and Manager, Western Washington Office Wildlife Service, determine threatened (telephone 360/753–9440; facsimile separate species by the American Fisheries Society in 1980 (Robins et al. status for all populations of bull trout 360/753–9008) for information 1980). Although bull trout and Dolly (Salvelinus confluentus) within the pertaining to the Coastal-Puget Sound Varden co-occur in several northwestern coterminous United States, with a population segment; Kemper McMaster, Washington River drainages, there is special rule, pursuant to the Endangered Field Supervisor, Montana Field Office little evidence of introgression and the Species Act of 1973, as amended (Act). (telephone 406/449–5225; facsimile two species appear to be maintaining This determination is based on our 406/449–5339) for information distinct genomes (Leary and Allendorf finding that the Coastal-Puget Sound pertaining to the St. Mary-Belly River 1997). and St. Mary-Belly River population population segment; Steven Lewis, Bull trout exhibit both resident and segments are threatened, coupled with Field Supervisor, Klamath Falls Fish migratory life-history strategies through our earlier findings of threatened status and Wildlife Office (telephone 541/885– much of the current range (Rieman and for the Klamath River, Columbia River, 8481; facsimile 541/885–7837) for McIntyre 1993). Resident bull trout and Jarbidge River population segments. information pertaining to the Klamath complete their life cycles in the These population segments are disjunct River population segment; Robert D. tributary streams in which they spawn and geographically isolated from one Williams, Field Supervisor, Nevada and rear. Migratory bull trout spawn in another with no genetic interchange State Office (telephone 775/861–6300; tributary streams, and juvenile fish rear between them due to natural and man- facsimile 775/861–6301) for information from 1 to 4 years before migrating to made barriers. These population pertaining to the Jarbidge River either a lake (adfluvial), river (fluvial), segments collectively encompass the population segment. or in certain coastal areas, saltwater entire range of the species in the SUPPLEMENTARY INFORMATION: (anadromous), to mature (Fraley and coterminous United States. Therefore, Background Shepard 1989; Goetz 1989). Anadromy for the purposes of consultation and is the least studied life-history type in recovery, we recognize these five Bull trout (Salvelinus confluentus), bull trout, and some biologists believe distinct population segments as interim members of the family Salmonidae, are the existence of true anadromy in bull recovery units. With this final rule, the char native to the Pacific northwest and trout is still uncertain (McPhail and bull trout will now be listed as western Canada. They historically Baxter 1996). However, historical threatened throughout its entire range in occurred in major river drainages in the accounts, collection records, and recent ° the coterminous United States. Pacific northwest from about 41 N to evidence suggests an anadromous life- The Coastal-Puget Sound bull trout 60° N latitude, from the southern limits history form for bull trout (Suckley and population segment encompasses all in the McCloud River in northern Cooper 1860; Cavender 1978; McPhail Pacific coast drainages within California and the Jarbidge River in and Baxter 1996; Washington Washington, including Puget Sound. Nevada, north to the headwaters of the Department of Fish and Wildlife The St. Mary-Belly River bull trout Yukon River in Northwest Territories, (WDFW) et al. 1997—formerly the population segment occurs in northwest Canada (Cavender 1978; Bond 1992). To Washington Department of Wildlife Montana. Bull trout are threatened by the west, bull trout range includes Puget (WDW)). Resident and migratory forms the combined effects of habitat Sound, various coastal rivers of may be found together, and bull trout degradation, fragmentation and Washington, British Columbia, Canada, may produce offspring exhibiting either alterations associated with dewatering, and southeast Alaska (Bond 1992; Leary resident or migratory behavior (Rieman road construction and maintenance, and Allendorf 1997). Bull trout are and McIntyre 1993). mining, and grazing; the blockage of relatively dispersed throughout Compared to other salmonids, bull migratory corridors by dams or other tributaries of the Columbia River Basin, trout have more specific habitat diversion structures; poor water quality; including its headwaters in Montana requirements (Rieman and McIntyre incidental angler harvest; entrainment and Canada. Bull trout also occur in the 1993) that appear to influence their (process by which aquatic organisms are Klamath River Basin of south-central distribution and abundance. Critical pulled through a diversion or other Oregon. East of the Continental Divide, parameters include water temperature, device) into diversion channels; and bull trout are found in the headwaters cover, channel form and stability, valley introduced non-native species. This of the Saskatchewan River in Alberta form, spawning and rearing substrates, final determination was based on the and the MacKenzie River system in and migratory corridors (Oliver 1979; best available scientific and commercial Alberta and British Columbia (Cavender Pratt 1984, 1992; Fraley and Shepard information including current data and 1978; Brewin and Brewin 1997). 1989; Goetz 1989; Hoelscher and Bjornn new information received during the Bull trout were first described as 1989; Sedell and Everest 1991; Howell comment period. Salmo spectabilis by Girard in 1856 and Buchanan 1992; Rieman and

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.001 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58911

McIntyre 1993, 1995; Rich 1996; Watson often found in high gradient streams and juvenile bull trout prey on and Hillman 1997). Watson and Hillman that have loose, clean gravel (Fraley and terrestrial and aquatic insects, macro- (1997) concluded that watersheds must Shepard 1989) and water temperatures zooplankton, amphipods, mysids, have specific physical characteristics to of 5 to 9° C (41 to 48° F) in late summer crayfish, and small fish (Wyman 1975; provide the necessary habitat to early fall (Goetz 1989). Pratt (1992) Rieman and Lukens 1979 in Rieman and requirements for bull trout spawning reported that increases in fine sediments McIntyre 1993; Boag 1987; Goetz 1989; and rearing, and that the characteristics reduce egg survival and emergence. Donald and Alger 1993). Adult are not necessarily ubiquitous High juvenile densities were observed migratory bull trout are primarily throughout watersheds in which bull in Swan River, Montana, and tributaries piscivorous, known to feed on various trout occur. Because bull trout exhibit a characterized by diverse cobble trout and salmon species patchy distribution, even in undisturbed substrate and a low percent of fine (Onchorynchus spp.), whitefish habitats (Rieman and McIntyre 1993), sediments (Shepard et al. 1984). (Prosopium spp.), yellow perch (Perca fish would not likely occupy all The size and age of maturity for bull flavescens) and sculpin (Cottus spp.) available habitats simultaneously trout is variable depending upon life- (Fraley and Shepard 1989; Donald and (Rieman et al. 1997). history strategy. Growth of resident fish Alger 1993). Bull trout are typically associated is generally slower than migratory fish; In the Coastal-Puget Sound and St. with the colder streams in a river resident fish tend to be smaller at Mary-Belly River population segments, system, although fish can occur maturity and less fecund (productive) bull trout co-evolved with, and in some throughout larger river systems (Fraley (Fraley and Shepard 1989; Goetz 1989). areas, co-occur with native cutthroat and Shepard 1989; Rieman and Resident adults range from 150 to 300 trout (Oncorhynchus clarki subspecies McIntyre 1993, 1995; Buchanan and millimeters (mm) (6 to 12 inches (in)) (ssp.)), migratory rainbow trout (O. Gregory 1997; Rieman et al. 1997). For total length and migratory adults mykiss ssp.), chinook salmon (O. example, water temperature above 15° C commonly reach 600 mm (24 in) or tshawytscha), coho salmon (O. kisutch), (59° F) is believed to negatively more (Pratt 1985; Goetz 1989). The sockeye salmon (O. nerka), mountain influence bull trout distribution, which largest verified bull trout is a 14.6 whitefish (Prosopium williamsoni), partially explains the generally patchy kilogram (kg) (32 pound (lb)) specimen pygmy whitefish (P. coulteri), and distribution within a watershed (Fraley caught in Lake Pend Oreille, Idaho, in various sculpin, sucker (Catastomidae) and Shepard 1989; Rieman and 1949 (Simpson and Wallace 1982). and minnow (Cyprinidae) species McIntyre 1995). Spawning areas are Bull trout normally reach sexual (Rieman and McIntyre 1993; R2 often associated with cold-water maturity in 4 to 7 years and can live 12 Resource Consultants, Inc. 1993). Bull springs, groundwater infiltration, and or more years. Biologists report repeat trout habitat within the coterminous the coldest streams in a given watershed and alternate year spawning, although United States overlaps with the range of (Pratt 1992; Rieman and McIntyre 1993; repeat spawning frequency and post- several fishes listed as threatened or Rieman et al. 1997). spawning mortality are not well known endangered, and proposed or petitioned All life history stages of bull trout are (Leathe and Graham 1982; Fraley and for listing under the Act, including associated with complex forms of cover, Shepard 1989; Pratt 1992; Rieman and endangered Snake River sockeye salmon including large woody debris, undercut McIntyre 1996). Bull trout typically (November 20, 1991; 56 FR 58619); banks, boulders, and pools (Oliver 1979; spawn from August to November during threatened Snake River spring and fall Fraley and Shepard 1989; Goetz 1989; periods of decreasing water chinook salmon (April 22, 1992; 57 FR Hoelscher and Bjornn 1989; Sedell and temperatures. However, migratory bull 14653); endangered Kootenai River Everest 1991; Pratt 1992; Thomas 1992; trout may begin spawning migrations as white sturgeon (Acipenser Rich 1996; Sexauer and James 1997; early as April, and move upstream as far transmontanus) (September 6, 1994; 59 Watson and Hillman 1997). Jakober as 250 kilometers (km) (155 miles (mi)) FR 45989); threatened and endangered (1995) observed bull trout overwintering to spawning grounds in some areas of steelhead (August 18, 1997; 62 FR in deep beaver ponds or pools their range (Fraley and Shepard 1989; 43937); threatened Puget Sound chinook containing large woody debris in the Swanberg 1997). In the Blackfoot River, salmon (March 9, 1998; 63 FR 11481); Bitterroot River drainage, Montana, and Montana, bull trout began spawning threatened Hood Canal summer-run suggested that suitable winter habitat migrations in response to increasing chum salmon and Columbia River chum may be more restrictive than summer temperatures (Swanberg 1997). salmon (March 25, 1999; 64 FR 14507); habitat. Maintaining bull trout Temperatures during spawning proposed threatened status for populations requires stream channel generally range from 4 to 10° C (39 to southwestern Washington/Columbia and flow stability (Rieman and McIntyre 51° F), with redds (spawning beds) often River coastal cutthroat trout (April 5, 1993). Juvenile and adult bull trout constructed in stream reaches fed by 1999; 64 FR 16397); and westslope frequently inhabit side channels, stream springs or near other sources of cold cutthroat trout in northern Idaho, margins, and pools with suitable cover groundwater (Goetz 1989; Pratt 1992; eastern Washington, and northwest (Sexauer and James 1997). These areas Rieman and McIntyre 1996). Depending Montana (O. c. lewisi) for which a status are sensitive to activities that directly or on water temperature, egg incubation is review is currently underway (June 10, indirectly affect stream channel stability normally 100 to 145 days (Pratt 1992), 1998; 63 FR 31691). and alter natural flow patterns. For and juveniles remain in the substrate Widespread introductions of non- example, altered stream flow in the fall after hatching. Time from egg deposition native fishes, including brook trout may disrupt bull trout during the to emergence may surpass 200 days. Fry (Salmo fontinalis), lake trout (S. spawning period, and channel normally emerge from early April namaycush) (west of the Continental instability may decrease survival of eggs through May depending upon water Divide), and brown trout (Salmo trutta) and young juveniles in the gravel during temperatures and increasing stream and hatchery rainbow trout winter through spring (Fraley and flows (Pratt 1992; Ratliff and Howell (Oncorhynchus mykiss), have also Shepard 1989; Pratt 1992; Pratt and 1992). occurred across the range of bull trout. Huston 1993). Bull trout are opportunistic feeders, These non-native fishes are often Preferred spawning habitat generally with food habits primarily a function of associated with local bull trout declines consists of low gradient stream reaches size and life-history strategy. Resident and extirpations (Bond 1992; Ziller

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.003 pfrm02 PsN: 01NOR2 58912 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

1992; Donald and Alger 1993; Leary et Distinct Population Segments St. Mary-Belly River Population al. 1993; Montana Bull Trout Scientific Segment Using the best available scientific and Group (MBTSG) 1996a,h). East of the The St. Mary-Belly River DPS is Continental Divide, in the St. Mary- commercial information, we identified five distinct population segments (DPSs) located in northwest Montana east of Belly River drainage, bull trout co- the Continental Divide. Both the St. of bull trout in the coterminous United evolved with lake trout and westslope Mary and Belly rivers are tributaries of States—(1) Klamath River, (2) Columbia cutthroat trout (Fredenberg 1996). In the Saskatchewan River Basin in this portion of their range, bull trout and River, (3) Coastal-Puget Sound, (4) Alberta, Canada. The population lake trout have apparently partitioned Jarbidge River, and (5) St. Mary-Belly segment is discrete because it is habitat with lake trout dominating lentic River. The final listing determination for segregated from other bull trout by the (i.e., lake) systems, relegating bull trout the Klamath River and Columbia River Continental Divide and is the only bull to riverine systems and the fluvial life- bull trout DPSs on June 10, 1998 (63 FR trout population found east of the history form (Donald and Alger 1993). 31647), includes a detailed description Continental Divide in the coterminous Bull trout habitat in the coterminous of the rationale behind the DPS United States. The population segment United States is found in a mosaic of delineation for those two population is significant because its loss would land ownership, including Federal, segments. The Jarbidge River DPS final result in a significant reduction in the State, Tribal, and private lands. For the listing determination was made on April range of the taxon within the Coastal-Puget Sound population 8, 1999 (64 FR 17110). However, the coterminous United States. Bull trout in segment, over half of the bull trout DPS policy, published on February 7, this population segment migrate across habitat occurs on non-Federal lands. For 1996 (61 FR 4722), is intended for cases the international border with Canada the St. Mary-Belly River population where only a segment of a species’ range (Clayton 1998). segment, about two-thirds of the habitat needs the protections of the Act, rather occurs on Federal land (Glacier National Status and Distribution than the entire range of a species. Park) and about a third on Tribal lands Although the bull trout DPSs are To facilitate evaluation of current bull of the Blackfeet Indian Nation. disjunct and geographically isolated trout distribution and abundance for the Migratory corridors link seasonal from one another with no genetic Coastal-Puget Sound and St. Mary-Belly habitats for all bull trout life-history River population segments, we analyzed interchange between them due to forms. The ability to migrate is data on a subpopulation basis within natural and man-made barriers, important to the persistence of local bull each population segment because trout subpopulations (Rieman and collectively, they include the entire fragmentation and barriers have isolated McIntyre 1993; Mike Gilpin, University distribution of the bull trout in the bull trout. A subpopulation is of California, in litt. 1997; Rieman and coterminous United States. In considered a reproductively isolated Clayton 1997; Rieman et al. 1997). accordance with the DPS policy, our bull trout group that spawns within a Migrations facilitate gene flow among authority to list DPSs is to be exercised particular area(s) of a river system. In local subpopulations if individuals from sparingly. Thus a coterminous listing is areas where two groups of bull trout are different subpopulations interbreed appropriate in this case. In recognition separated by a barrier (e.g., an when some return to non-natal streams. of the scientific basis for the impassable dam or waterfall, or reaches Migratory fish may also reestablish identification of these bull trout of unsuitable habitat) that may allow extirpated local subpopulations. population segments as DPSs, and for only downstream access (i.e., one-way Metapopulation concepts of the purposes of consultation and passage), both groups were considered conservation biology theory may be recovery planning, we will continue to subpopulations. In addition, applicable to the distribution and refer to these populations as DPSs. subpopulations were considered at risk characteristics of bull trout (Rieman and These DPSs will serve as interim of extirpation from natural events if they McIntyre 1993; Kanda 1998). A recovery units in the absence of an were: (1) Unlikely to be reestablished by metapopulation is an interacting approved recovery plan. individuals from another subpopulation network of local subpopulations with (i.e., functionally or geographically varying frequencies of migration and Coastal-Puget Sound Population isolated from other subpopulations); (2) gene flow among them (Meffe and Segment limited to a single spawning area (i.e., Carroll 1994). Metapopulations provide spatially restricted); and (3) The Coastal-Puget Sound bull trout a mechanism for reducing risk because characterized by low individual or DPS encompasses all Pacific Coast the simultaneous loss of all spawner numbers; or (4) consisted drainages within the coterminous subpopulations is unlikely. Although primarily of a single life-history form. local subpopulations may become United States north of the Columbia For example, a subpopulation of extinct, they can be reestablished by River in Washington, including those resident fish isolated upstream of an individuals from other local flowing into Puget Sound. This impassable waterfall would be subpopulations. However, because bull population segment is discrete because considered at risk of extirpation from trout exhibit strong homing fidelity it is geographically segregated from natural events if it had low numbers of when spawning and their rate of other subpopulations by the Pacific fish that spawn in a relatively restricted straying appears to be low, natural re- Ocean and the crest of the Cascade area. In such cases, a natural event such establishment of extinct local Mountain Range. The population as a fire or flood could eliminate the subpopulations may take a very long segment is significant to the species as subpopulation, and, subsequently, time. Habitat alteration, primarily a whole because it is thought to contain reestablishment of the subpopulation through construction of impoundments, the only anadromous forms of bull trout from fish downstream would be dams, and water diversions, has in the coterminous United States, thus, prevented by the impassable waterfall. fragmented habitats, eliminated occurring in a unique ecological setting. However, a subpopulation residing migratory corridors, and isolated bull In addition, the loss of this population downstream of the waterfall would not trout, often in the headwaters of segment would significantly reduce the be considered at risk of extirpation tributaries (Rieman et al. 1997). overall range of the taxon. because of potential reestablishment by

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.004 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58913 fish from upstream. Because resident Bull trout and Dolly Varden can be basins, habitat degradation in the past bull trout may exhibit limited differentiated by both genetic and has adversely affected other salmonids downstream movement (Nelson 1996), morphological-meristic (measurements (Phinney and Bucknell 1975; Hiss and our estimate of subpopulations at risk of and counts) analyses, of which Knudsen 1993; WDFW 1997a). Habitat natural extirpation may be biologists have conducted one or both degradation in these basins is assumed underestimated. The status of analyses on 15 of the 34 subpopulations. to have similarly affected bull trout. subpopulations was based on modified To date, we have documented bull trout Although ‘‘native char’’ are believed to criteria of Rieman et al. (1997), in 12 of 15 subpopulations investigated be relatively more abundant in the including the abundance, trends in (five with only bull trout, three with Quinault River, extensive portions of abundance, and the presence of life- only Dolly Varden, and seven with both the Basin have been degraded by past history forms of bull trout. species), and it is likely that bull trout forest management (Phinney and We considered a bull trout occur in the majority of the remaining Bucknell 1975; WDFW 1997a). subpopulation ‘‘strong’’ if 5,000 19 subpopulations (Service 1998a). Most ‘‘native char’’ subpopulations in individuals or 500 spawners likely Although we only documented three of the northwestern coastal area occur occur in the subpopulation, abundance the tested ‘‘native char’’ subpopulations appears stable or increasing, and life- as containing Dolly Varden at this time, partially within Olympic National Park, history forms historically present were we are not yet confident in excluding which contains relatively undisturbed likely to persist. A subpopulation was these subpopulations from the listing. habitats. However, outside Olympic considered ‘‘depressed’’ if less than We believe it would be premature to National Park, ‘‘native char’’ habitat has 5,000 individuals or 500 spawners conclude that bull trout do not exist in been severely degraded by past forest likely occur in the subpopulation, these subpopulations given the limited practices in the Queets River and Hoh abundance appears to be declining, or a sample sizes used in the analyses, the River basins (Phinney and Bucknell life-history form historically present has location of the subpopulations, and the 1975; WDFW 1997a). Non-native brook been lost (Rieman et al.1997). If there evidence that bull trout and Dolly trout have been stocked in many of the was insufficient abundance, trend, and Varden can frequently co-exist together. high lakes and streams in the Olympic life-history information to classify the In order to identify trends that may be National Park. Brook trout are present in status of a subpopulation as either specific to certain geographic areas, the the upper Sol Duc subpopulation and ‘‘strong’’ or ‘‘depressed,’’ the status was 34 ‘‘native char’’ subpopulations were threaten this subpopulation from considered ‘‘unknown.’’ It should be grouped into five analysis areas— competition and hybridization (Service noted that the assignment of Coastal, Strait of Juan de Fuca, Hood 1998a). Data collected while seining for Canal, Puget Sound, and ‘‘unknown’’ status implies only a outmigrating salmon smolts on the Transboundary. deficiency of available data to assign a Queets River indicate a decline in subpopulation as ‘‘strong’’ or Coastal Analysis Area ‘‘native char’’ catch rate from 3.3 fish/ ‘‘depressed,’’ not a lack of information Ten ‘‘native char’’ subpopulations day in 1977 to 1 fish/day by 1984 regarding the threats. Section 4 of the occur in five river basins in the Coastal (WDFW 1997a). From 1985 to the time Act requires us to make a determination analysis area (number of seining was discontinued in 1991, catch solely on the best scientific and subpopulations)—Chehalis River-Grays rate remained relatively stable at commercial data available. Harbor (1), Coastal Plains-Quinault approximately 1.5 fish/day. The WDFW Coastal-Puget Sound Population River (5), Queets River (1), Hoh River- believes that the Hoh River may have Segment Goodman Creek (2), and Quillayute the largest subpopulation of ‘‘native River (1). Recent efforts to determine char’’ on the Washington coast, The Coastal-Puget Sound bull trout species composition in three although their numbers have greatly population segment encompasses all subpopulations documented bull trout declined since 1982 (WDFW in litt. Pacific coast drainages within in at least two, the upper Quinault River 1992; WDFW 1997a). Reasons for the Washington, including Puget Sound. No and Queets River (Leary and Allendorf decline are unknown, but overfishing is bull trout exist in coastal drainages 1997; WDFW 1997a). Biologists believed to be a contributing factor south of the Columbia River. Within this identified only Dolly Varden in the (WDFW 1997a; WDFW, in litt. 1997). area, bull trout often occur with (i.e., are upper Sol Duc River to date (Cavender Forty-one and 31 adult ‘‘native char’’ sympatric) Dolly Varden. Because the 1978, 1984; WDFW 1997a). were observed during snorkel surveys of two species are virtually impossible to Subpopulations of ‘‘native char’’ in a 17.6-km (11-mi) section of the South visually differentiate, the WDFW the southwestern portion of the coastal Fork Hoh River in 1994 and 1995, currently manages bull trout and Dolly area appear to be in low abundance Varden together as ‘‘native char.’’ based on anecdotal information respectively (WDFW 1997a). We Previously, we delineated a total of 35 (Mongillo 1993). Because this is the consider the Hoh River subpopulation subpopulations of ‘‘native char’’ (bull southern extent of coastal bull trout and ‘‘depressed.’’ The status of the trout, Dolly Varden, or both species) Dolly Varden, abundance may be remaining nine ‘‘native char’’ within the Coastal-Puget Sound naturally low in systems like the subpopulations in the coastal analysis population segment published on June Chehalis, Moclips, and Copalis rivers area is ‘‘unknown’’ because insufficient 10, 1998 (63 FR 31693). Upon further (WDFW 1997a). In recent years, there abundance, trend, and life-history review, we revised the total number of have been even fewer reports of information is available (Service 1998a). subpopulations to 34. In order to be incidental catches of ‘‘native char’’ in Although the status of these fully consistent with the defined the Chehalis River Basin. In 1997, a subpopulations is unknown, we believe subpopulation criteria, we concluded single juvenile was captured in a that anecdotal information, such as that the Puyallup River Basin only has downstream migrant trap on the described for the Chehalis River-Grays two subpopulations as opposed to three, mainstem of the Chehalis River (WDFW Harbor and Queets River which are the upper Puyallup River and 1998a). Although little historical and subpopulations, indicate declines in the lower Puyallup (includes Carbon current information is known abundance in other subpopulations River and White River). concerning bull trout in these river within the coastal analysis area.

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.006 pfrm02 PsN: 01NOR2 58914 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

Strait of Juan de Fuca Analysis Area abundance, trend, and life-history Sound analysis area (number of information is available (Service 1998a). subpopulations)—Nisqually River (1), Five ‘‘native char’’ subpopulations Puyallup River (2), Green River (1), Lake Hood Canal Analysis Area occur in three river basins in the Strait Washington Basin (2), Snohomish River- of Juan de Fuca analysis area (number Three ‘‘native char’’ subpopulations Skykomish River (1), Stillaguamish of subpopulations)—Elwha River (2), occur in the Skokomish River Basin in River (1), Skagit River (4), and Nooksack Angeles Basin (1), and Dungeness River the Hood Canal analysis area. Surveys River (3). Recent surveys of seven (2). Recent efforts to determine species by Brown (1992) and Brenkman (1996 in ‘‘native char’’ subpopulations have composition in three subpopulations WDFW 1997) documented bull trout in documented bull trout in at least six— have documented bull trout in at least Cushman Reservoir, and Leary and lower Puyallup (Carbon River), Green two, the upper Elwha River and lower Allendorf (1997) and WDFW (1997a) River, Chester Morse Reservoir, Dungeness River-Gray Wolf River (Leary documented bull trout in the South Snohomish River-Skykomish River, and Allendorf 1997; WDFW 1997a). Fork-lower North Fork Skokomish lower Skagit River, and upper Middle Only Dolly Varden have been identified River. Due to the construction of Fork Nooksack River (R2 Resource in the upper Dungeness River Cushman Dam on the North Fork Consultants, Inc. 1993; Samora and subpopulation to date (WDFW 1997a). Skokomish River, bull trout in Cushman Girdner 1993; Kraemer 1994; Michael Reservoir are isolated and restricted to The two subpopulations in the Barclay, Cascades Environmental an adfluvial life-history form. Spawner Dungeness River Basin occur partially Services, Inc., pers. comm. 1997; Leary surveys, which began in 1973, indicate within Olympic National Park and and Allendorf 1997; Eric Warner, a decline in adult bull trout through the Muckleshoot Indian Tribe, pers. comm. Buckhorn Wilderness Area, and likely 1970s, subsequent increases from 4 benefit from the relatively undisturbed 1997). Leary and Allendorf (1997) adults in 1985 to 412 adults in 1993, identified only Dolly Varden in the habitats located there. However, non- and relatively stable numbers of 250 to native brook trout occur in some Canyon Creek (tributary to the Nooksack 300 spawning adults in recent years River) subpopulation. streams in the park. Large portions of (WDFW 1997a). The increase in adult the Dungeness River Basin lie outside of bull trout from 1985 to 1993 is likely The current abundance of ‘‘native Olympic National Park, and have been related to harvest closure on Cushman char’’ in southern Puget Sound is likely severely degraded by past forest and Reservoir and upper North Fork lower than occurred historically and agricultural practices (Williams et al. Skokomish River in 1986 (Brown 1992). declining (Tom Cropp, WDW, in litt. 1975; WDFW 1997a). Within Olympic Recent surveys indicate low numbers of 1993; Fred Goetz, U.S. Army Corps of National Park, the lower and upper bull trout in tributaries of the South Engineers (COE), pers. comm. 1994a,b). Elwha River subpopulations are isolated Fork Skokomish River such as Church, Historical accounts from southern Puget by dams. Biologists have observed few Pine, Cedar, LeBar, Brown, Rock, Flat, Sound indicate that anadromous ‘‘native ‘‘native char’’ in the lower Elwha and Vance creeks, as well as in the char’’ entered rivers there in ‘‘vast subpopulation in recent years. Since mainstem (Larry Ogg, Olympia National numbers’’ during the fall and were 1983, one or two individuals have been Forest (ONF), in litt. 1997). Past forest harvested until Christmas (Suckley and seen each year in a chinook salmon and agricultural practices and Cooper 1860). ‘‘Native char’’ are now rearing channel located in the lower hydropower development have severely rarely collected in the southern Elwha River (WDFW 1997a). A creel degraded habitat in the South Fork- drainages of the area (T. Cropp, in litt. census, conducted in 1981 and 1982 on lower North Fork Skokomish River 1993; F. Goetz, pers. comm. 1994a,b). the Elwha River reservoirs of the upper (Williams et al. 1975; Hood Canal There is only one recent record of a Elwha River subpopulation, reported Coordinating Council (HCCC) 1995; ‘‘native char’’ being collected in the that ‘‘native char’’ were found in low WDFW 1997a). The upper North Fork Nisqually River. A juvenile char was numbers (WDFW 1997a). Although Skokomish River subpopulation occurs collected during a stream survey for ‘‘native char’’ are believed to be within Olympic National Park and salmon in the mid-1980s (George widespread in some basins within the habitat is relatively undisturbed. We Walter, Nisqually Indian Tribe, pers. analysis area, such as the Dungeness consider the South Fork-lower North comm. 1997; WDFW 1997a). In the and Gray Wolf rivers, fish abundance is Fork Skokomish River subpopulation Puyallup River (lower Puyallup thought to be ‘‘greatly reduced in ‘‘depressed,’’ because fewer than 500 subpopulation), ‘‘native char’’ are numbers’’ (WDW, in litt. 1992; WDFW spawners and fewer than 5,000 occasionally caught by steelhead anglers 1997a). Electrofishing surveys individuals likely occur in the (WDW, in litt. 1992; WDFW 1997a). In conducted in four sections of the upper subpopulation. Although the number of the White River (lower Puyallup Dungeness River subpopulation during spawning adult bull trout appears to subpopulation), counts of upstream 1996 recorded an overall ‘‘native char’’ have been relatively stable in the migrating ‘‘native char’’ at the Buckley density of 0.78 fish/meter (2.56 fish/ Cushman Reservoir subpopulation since diversion dam have averaged 23 adults foot) for the four sections (WDFW 1990, under our analysis, this since 1987. Although trapping effort has 1997a). These preliminary surveys population is consider ‘‘depressed’’ varied during the past 11 years, annual indicate that the upper Dungeness River based on the criteria used to determine counts have generally been poor to subpopulation may be ‘‘strong.’’ We subpopulation status (i.e., less than 500 moderate, ranging from a low of 8 to a consider the lower Elwha River spawning adults). The status of the high of 46 adult ‘‘native char’’ (WDFW subpopulation ‘‘depressed’’ because less upper North Fork Skokomish 1998a). In the Green River, ‘‘native than 500 spawners likely occur in the subpopulation is considered char’’ are rarely observed (T. Cropp, in subpopulation, and the lower ‘‘unknown’’ because insufficient litt. 1993; F. Goetz, pers. comm. 1994a,b; Dungeness River-Gray Wolf River abundance, trend, and life-history E. Warner, pers. comm. 1997). Aquatic ‘‘depressed’’ because abundance has information is available (Service 1998a). habitat in the Nisqually, Puyallup, and declined. The remaining three ‘‘native Green rivers has been variously char’’ subpopulations in the Strait of Puget Sound Analysis Area degraded by logging, agriculture, road Juan de Fuca coastal analysis area have Fifteen ‘‘native char’’ subpopulations construction, and urban development. ‘‘unknown’’ status because insufficient occur in eight river basins in the Puget In the Chester Morse Reservoir

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.007 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58915 subpopulation, biologists observed to 159) during 1988 through 1996, with 1997a). Little information is available fewer than 10 redds as recently as 1995 75 or fewer redds observed between for ‘‘native char’’ in the Chilliwack and 1996; and fry abundance was low 1993 and 1996 (WDFW 1997a). A total River-Selesia Creek subpopulation in spring 1996 and 1997 (Dwayne Paige, of 170 redds were counted in 1997 (Service 1998a). The current status of Seattle Water Department, in litt. 1997). (WDFW 1998a). Redd counts in the the ‘‘native char’’ subpopulations in the Logging and extensive road construction North Fork Skykomish River index Transboundary analysis area is have occurred within the Basin (Foster reach have been more variable between ‘‘unknown’’ because insufficient Wheeler Environmental 1995; WDFW years than the South Fork Sauk River abundance, trend, and life-history 1997a), and likely affected bull trout in index reach. The upper Skagit River is information is available (Service 1998a). fragmented into three reservoirs from Chester Morse Reservoir. Only two St. Mary-Belly River Population the construction of Gorge, Diablo, and ‘‘native char’’ have been observed Segment during the past 10 years in the Issaquah Ross dams (WDFW 1997a). The primary Creek drainage and none have been spawning area for the Gorge Reservoir Much of the historical information observed in the Sammamish River subpopulation is said to be the lower regarding bull trout in the St. Mary- system, which are occupied by the Steattle Creek and a portion of the Belly River DPS is anecdotal and Sammamish River-Issaquah Creek Skagit River below Diablo Dam (WDFW abundance information is limited. Bull subpopulation. It is questionable 1997a). The primary spawning areas for trout probably entered the system via whether a viable subpopulation the Diablo Reservoir subpopulation is postglacial dispersal routes from the remains. Habitat in the Sammamish thought be in the Thunder Arm area, Columbia River through either the River and Issaquah Creek drainages has including Fisher Creek (WDFW 1997a), Kootenai River or Flathead River been negatively affected by although WDFW et al. (1997) did not systems (Fredenberg 1996). The St. urbanization, road building and locate any ‘‘native char’’ adults or Mary River system historically associated poor water quality (Williams juveniles upstream of the mouth of contained native bull trout, lake trout, et al. 1975; Washington Department of Thunder Creek during snorkel and and westslope cutthroat trout. Although Ecology (WDOE) 1997). We consider the electrofishing surveys. Within Ross abundance of these fishes is unknown, Nisqually River, Green River, Chester Reservoir, it is reported that spawning the presence of lake trout suggests that Morse Reservoir, Sammamish River- occurs in lower reach areas of at least migratory bull trout were restricted Issaquah Creek, and lower Puyallup six tributaries, in addition to a portion primarily to streams and rivers and not common in lakes (Donald and Alger subpopulations ‘‘depressed’’ based on of the upper Skagit River in Canada 1993). Within the St. Mary River system, fewer than 500 spawning adults and a (WDFW 1997a). Biologists have historic accounts of bull trout date to decline in general abundance. documented ‘‘native char’’ spawning in at least seven creeks in the the 1930s (Fredenberg 1996). In the Drainages in the northern Puget Stillaguamish River subpopulation and Belly River, historic distribution of bull Sound area appear to support larger in five creeks and several mainstem trout in the Basin is limited but subpopulations of ‘‘native char’’ than areas of the Lower Nooksack River migratory bull trout from Canada likely the southern portion (F. Goetz, pers. subpopulation. Biologists have also spawned in the North Fork and comm. 1994a, b; Steve Fransen, Service, observed ‘‘native char’’ in at least four mainstem Belly rivers. pers. comm. 1997). The WDFW creeks in the upper Middle Fork Both migratory (fluvial) and resident conducts redd counts in two index Nooksack River subpopulation. Neither life-history forms are present reaches of the northern Puget Sound; a adult count data nor redd count data is (Fredenberg 1996), although bull trout reach in the upper South Fork Sauk available for these six subpopulations within the St. Mary-Belly River DPS are River that is included in the lower (WDFW 1997a). Within the Puget Sound isolated and fragmented by irrigation Skagit River subpopulation, and a reach analysis area, we consider the lower dams and diversions (Fredenberg 1996; in the upper North Fork Skykomish Skagit River subpopulation ‘‘strong,’’ Clayton 1998; Robin Wagner, Service, River that is included in the Snohomish based on a large number of spawning pers. comm. 1998). Bull trout that River-Skykomish River subpopulation. adults and high overall abundance. We migrate across the international border These areas are said to have healthy consider five subpopulations within the are dependent upon the relatively habitats supporting stable numbers of Puget Sound analysis area ‘‘depressed’’ undisturbed water quality and spawning ‘‘native char’’ (Kraemer 1994). Biologists and the status of the remaining nine habitat located in the upper St. Mary have conducted redd surveys since 1988 ‘‘native char’’ subpopulations in the and Belly rivers and their tributaries in both index reaches. In the upper Puget Sound analysis area ‘‘unknown’’ within the coterminous United States South Fork Sauk River, WDFW (1997a) because insufficient abundance, trend, (Fredenberg 1996). observed a substantial increase in redds and life-history information is available Based on natural and artificial barriers in 1991, a year after a minimum (Service 1998a). to fish passage within the St. Mary-Belly 508-mm (20-in) harvest restriction was River DPS, we identified four bull trout implemented; and redd numbers have Transboundary Analysis Area subpopulations—(1) Upper St. Mary remained relatively stable at or above One ‘‘native char’’ subpopulation River (from the U.S. Bureau of 34. The State implemented harvest occurs in the Chilliwack River Basin in Reclamation (USBR) diversion structure restrictions in the Skagit River and its the Transboundary analysis area. The on lower St. Mary Lake upstream to St. tributaries in 1990. ‘‘Native char’’ in the Chilliwack River is a transboundary Mary Falls, including Swiftcurrent and lower Skagit River subpopulation have system flowing into British Columbia, Boulder creeks below Lake Sherburne, access to at least 38 documented or Canada. We have not determined the and Red Eagle and Divide creeks); (2) suspected spawning tributaries (WDFW species composition of this Swiftcurrent Creek (including et al. 1997) with the number of adults subpopulation. In Washington, portions tributaries and Lake Sherburne and estimated to be 8,000 to 10,000 fish of the Chilliwack River are within the Cracker Lake); (3) lower St. Mary River (Curt Kraemer, WDFW, pers. comm. North Cascades National Park and a (St. Mary River downstream of the 1998). The number of redds in the upper tributary, Selesia Creek, are within the USBR diversion structure including North Fork Skykomish River index Mount Baker Wilderness where the Kennedy, Otatso, and Lee creeks); and reach have averaged 78 redds (range 21 habitat is relatively undisturbed (WDFW (4) Belly River (mainstem and North

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.009 pfrm02 PsN: 01NOR2 58916 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

Fork Belly River) (Service 1998b). Based subpopulations as ‘‘strong’’ or the 1994 administrative record, and on 1997 and 1998 trapping of post- ‘‘depressed.’’ incorporate any emergency listings or spawning adults, fewer than 100 fish high magnitude threat determinations Previous Federal Action existed in the Boulder Creek and into current listing priorities. We Kennedy Creek spawning populations On October 30, 1992, we received a delivered the reconsidered 12-month (Lynn Kaeding, Service, in litt. 1998). petition to list the bull trout as an finding based on the 1994 These two streams include the strongest endangered species throughout its range Administrative Record to the Court on known spawning runs in the upper St. from the following conservation March 13, 1997. We concluded in the Mary River and lower St. Mary River organizations in Montana: Alliance for finding that two populations of bull subpopulations, respectively, and the Wild Rockies, Inc., Friends of the trout warranted listing (Klamath River evaluation of these streams is Wild Swan, and Swan View Coalition and Columbia River population continuing. Based on studies conducted (petitioners). The petitioners also segments). in 1996 and 1997, the Belly River requested an emergency listing and On March 24, 1997, the plaintiffs filed drainage is thought to contain fewer concurrent critical habitat designation a motion for mandatory injunction to than 100 adult bull trout (Clayton 1998). for bull trout populations in select compel us to issue a proposed rule to The status of the upper St. Mary River, aquatic ecosystems where the biological list the Klamath River and Columbia lower St. Mary River, and North Fork information indicated that the species River bull trout populations within 30 Belly River bull trout subpopulations is was in imminent danger of extinction. days based solely on the 1994 ‘‘depressed’’ because fewer than 500 In our 90-day finding, published on May Administrative Record. On April 4, spawning adults or 5,000 total bull trout 17, 1993 (58 FR 28849), we determined 1997, we requested 60 days to prepare occur in the subpopulations. The status that the petitioners had provided and review the proposed rule. In a of the Swiftcurrent Creek subpopulation substantial information indicating that stipulation between us and plaintiffs is ‘‘unknown’’ because insufficient listing of the species may be warranted. filed with the Court on April 11, 1997, abundance, trend, and life-history We initiated a rangewide status review we agreed to issue a proposed rule information is available (Service 1998b). of the species concurrent with within 60 days to list the Klamath River In summary, we considered the publication of the 90-day finding. population of bull trout as endangered information received during the public In our June 10, 1994, 12-month and the Columbia River population of comment period on the abundance, finding (59 FR 30254), we concluded bull trout as threatened based solely on trends in abundance, and distribution of that listing the bull trout throughout its the 1994 record. bull trout in the Coastal-Puget Sound range was not warranted due to We proposed the Klamath River and St. Mary-Belly River population unavailable or insufficient data population of bull trout as endangered segments. The Coastal-Puget Sound regarding threats to, and status and and Columbia River population of bull population segment includes the only population trends of, the species within trout as threatened on June 13, 1997 (62 anadromous bull trout found in the Canada and Alaska. However, we FR 32268). The proposal included a 60- coterminous United States. The determined that sufficient information day comment period and gave notice of population segment is composed of 34 on the biological vulnerability and five public hearings in Portland, ‘‘native char’’ subpopulations of which threats to the species was available to Oregon; Spokane, Washington; bull trout have been documented in 12 support a warranted 12-month finding Missoula, Montana; Klamath Falls, of 15 subpopulations examined. The to list bull trout within the coterminous Oregon; and Boise, Idaho. The comment remaining 19 subpopulations consist of United States, but this action was period on the proposal, which originally ‘‘native char’’ that may include bull precluded due to higher priority closed on August 12, 1997, was trout, Dolly Varden, or both species. At listings. extended to October 17, 1997 (62 FR this time, the only ‘‘native char’’ On November 1, 1994, Friends of the 42092), to provide the public with more documented in three of the Wild Swan, Inc. and Alliance for the time to compile information and submit subpopulations is Dolly Varden. Of the Wild Rockies, Inc. (plaintiffs) filed suit comments. 34 subpopulations, we believe one is in the U.S. District Court of Oregon On December 4, 1997, the Court ‘‘strong,’’ 10 are ‘‘depressed,’’ and (Court) arguing that the warranted but ordered us to reconsider several aspects insufficient abundance, trends in precluded finding was arbitrary and of the 1997 reconsidered finding. On abundance, and life-history information capricious. After we recycled the February 2, 1998, the Court gave us exists to assign either category to the petition and issued a new warranted but until June 12, 1998, to respond. The remaining 23 subpopulations. precluded 12-month finding for the final listing determination for the The St. Mary-Belly River population coterminous population of bull trout on Klamath River and Columbia River segment of bull trout is composed of June 12, 1995 (60 FR 30825), the Court population segments of bull trout and four subpopulations and represents the issued an order declaring the plaintiffs’ the concurrent proposed listing rule for only area of bull trout range east of the challenge to the original finding moot. the Coastal-Puget Sound, St. Mary-Belly Continental Divide within the The plaintiffs declined to amend their River, and Jarbidge River DPSs coterminous United States. Migratory complaint and appealed to the Ninth constituted our response. fish occur in three of the subpopulations Circuit Court of Appeals, which found We published a final rule listing the and the life-history form in the fourth that the plaintiffs’ challenge fell ‘‘within Klamath River and Columbia River subpopulation is unknown. Bull trout the exception to the mootness doctrine population segments of bull trout as subpopulations in the St. Mary River for claims that are capable of repetition threatened on June 10, 1998 (63 FR Basin are isolated by impassable yet evading review.’’ On April 2, 1996, 31647). On the same date, we also diversion structures. Three of the four the Circuit Court remanded the case published a proposed rule to list the subpopulations are ‘‘depressed’’ due to back to the District Court. On November Coastal-Puget Sound, Jarbidge River, low abundance of fish, and the status of 13, 1996, the Court issued an order and and St. Mary-Belly River population one subpopulation is ‘‘unknown’’ opinion remanding the original finding segments of bull trout as threatened (63 because insufficient abundance, trends to us for further consideration. Included FR 31693). On August 11, 1998 (63 FR in abundance, and life-history in the instructions from the Court were 42757), we issued an emergency rule information exists to categorize the requirements that we limit our review to listing the Jarbidge River population

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.011 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58917 segment of bull trout as endangered due addressed their comments in this trouble. Another respondent noted we to river channel alteration associated section of the rule. did not evaluate listing criteria with with unauthorized road construction on We considered all comments for the objective and quantitative methods, the West Fork of the Jarbidge River, proposed rule for the Coastal-Puget making it difficult to interpret new which we found to imminently threaten Sound, St. Mary-Belly River, and information in a consistent manner. The the survival of the distinct population Jarbidge River population segments, respondent also said that, although segment. On April 8, 1999 (64 FR including oral testimony presented at quantitative data are lacking for many 17110), we published the final rule to the public hearings and the comments local populations of bull trout, sufficient list the Jarbidge River population from the peer reviewer who responded information exists to design an segment as threatened in the Federal to our request to review the proposed inventory program to describe their Register. rule. The majority of comments current distribution, relative abundance, supported the listing proposal and nine and population structure. Summary of Comments and comments were in opposition. Our Response: A species may be Recommendations Opposition was based on several determined to be an endangered or In the June 10, 1998 (63 FR 31693), concerns, including possible negative threatened species due to the five proposed rule, we requested interested economic effects from listing bull trout; factors identified in section 4(a)(1) of parties to submit comments or potential restrictions on activities; lack the Act and addressed in the ‘‘Summary information that might contribute to the of solutions to the bull trout decline that of Factors Affecting the Species’’ final listing determination for bull trout. would result from listing; and section. The Act requires us to base The proposed rule included the Coastal- interpretation of data concerning the listing determinations on the best Puget Sound, St. Mary-Belly River, and status of bull trout and their threats in available commercial and scientific Jarbidge River bull trout DPSs. We sent the three population segments. The U.S. information. Data are often not available announcements of the proposed rule Forest Service (USFS) (B. Siminoe, to make statistically rigorous inferences and notice of public hearings to at least USFS, in litt. 1998); National Park about a species’ status (e.g., abundance, 800 individuals, including Federal, Service (NPS) (David Morris, NPS, in trends in abundance, and distribution). State, county and city elected officials, litt. 1998), Idaho Department of Fish and Overall, we found that sufficient State and Federal agencies, interested Game (IDFG) (F. Partridge, IDFG, in litt. evidence exists in each of the private citizens, and local area 1998; Partridge and Warren 1998), population segments that demonstrate newspapers and radio stations. We also Nevada Division of Wildlife (NDOW) (T. they are threatened by a variety of past published announcements of the Crawforth, NDOW, in litt. 1998; R. and ongoing threats, and are likely to proposed rule in 10 newspapers, which Haskins, NDOW, in litt. 1998), (Bruce become endangered in the foreseeable included the Idaho Statesman, Boise, Crawford, WDFW, in litt. 1998; WDFW future. Idaho; the Times-News, Twin Falls, 1998a), and Alberta Environmental In making this final determination, we Idaho; the Glacier Reporter, Browning, Protection (AEP) (Duane Radford, AEP, took into account the overall status of Montana; the Daily Inter Lake; Kalispell, in litt. 1998) provided us with bull trout in the coterminous United Montana; the Great Falls Tribune, Great information on respective agency efforts States. We acknowledge that three north Falls, Montana; the Elko Daily Free to assess, evaluate, monitor, and Puget Sound subpopulations of bull Press, Elko, Nevada; the Bellingham conserve bull trout in habitats affected trout (lower Skagit River, Stillaguamish Herald, Bellingham, Washington; the by each agency’s management for the River, and Snohomish River-Skykomish Olympian, Olympia, Washington; the three DPSs. Comments specific to the River supopulations) appear to be in Spokesman-Review, Spokane, Jarbidge River population segment were better condition than subpopulations in Washington, and the Seattle Post- addressed in the final rule other areas of the Coastal-Puget sound Intelligencer, Seattle, Washington. We determination for that DPS (April 8, population segment. We determined held public hearings on July 7, 1998, in 1999; 64 FR 17110). Comments specific that the lower Skagit subpopulation was Lacey, Washington; July 9, 1998, in to the Coastal-Puget Sound and St. ‘‘strong.’’ The WDFW has identified Mount Vernon, Washington; July 14, Mary-Belly River population segments ‘‘native char’’ spawning areas in a 1998, in East Glacier, Montana; and July are addressed in this rule. Because number of tributaries in the 21, 1998, in Jackpot, Nevada. The multiple respondents offered similar Stillaguamish River subpopulation, and comment period on the proposed rule comments, we grouped comments of a reported them as stable or expanding closed on October 8, 1998. similar nature or point. These comments based on limited spawner surveys of We received 12 oral and 40 written and our responses are presented below. Boulder Creek and the upper comments on the proposed rule. These Issue 1: Several respondents opposed Stillaguamish River (WDFW 1997a). included comments from two Federal the Federal listing, while others However, Mongillo (1993) and WDFW agencies, one Native American Tribe, supported it. Some respondents (1997a) identified other areas of the three State agencies, one county in requested that we delay or preclude Stillaguamish subpopulation, Nevada, three cities in Washington, and Federal listing until additional data on specifically Deer Creek and Canyon two private companies. In addition, we the Coastal-Puget Sound population Creek, as declining. Although the 1997 solicited formal scientific peer review of segment are collected and considered, redd count for the Snohomish- the proposal in accordance with our and one respondent based this on the Skykomish River subpopulation was the July 1, 1994 (59 FR 34270), Interagency belief that some subpopulations within highest since an index reach was Cooperative Policy on Peer Review. We the north Puget Sound region and the established in 1988 (WDFW 1998a), requested six individuals, who possess Olympic Peninsula appear to be stable redd counts have been highly variable expertise in bull trout biology and or increasing, and other subpopulations over this time period, possibly salmonid ecology, and whose occur in excellent or pristine habitat. A indicating an unstable population. affiliations include academia and respondent asked if complete status and There is scant evidence that Federal, State, and provincial agencies, trend information is not available, subpopulations within the Nooksack to review the proposed rule by the close whether changes in habitat or threats are River are increasing or stable, although of the comment period. One individual sufficient to list a species, even if there much of the habitat within the responded to our request and we have is no indication that a population is in Nooksack River drainage has been

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.012 pfrm02 PsN: 01NOR2 58918 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations severely degraded (WDFW 1998a). The on which to evaluate the status of within the coterminous United States, of Cushman Reservoir subpopulation, on ‘‘native char’’ subpopulations, the which loss of the population segment the Olympic Peninsula, appears to have method should be used with caution. would result in elimination of all bull an adult spawner return that has For example, in analyzing counts of bull trout east of the Continental Divide. stabilized around 300 fish for the past trout redds in Idaho and Montana, Mogen (1998) noted genetic work that 7 years (WDFW 1998a). The available Rieman and Myers (1997) found that indicated bull trout from the upper St. spawning habitat for this subpopulation variability of counts in individual Mary River drainage in Glacier National lies primarily within Olympic National streams reduces the ability to detect Park and the Belly River in Alberta form Park and WDFW considers it to be in trends, especially with data sets for a genetically similar group, and bull excellent condition (WDFW 1998a). In relatively short periods. They caution trout collected from other areas in contrast, bull trout in the South Fork- that detection of trends will often southern Alberta form another (Thomas lower North Fork Skokomish River require more than 10 years of sampling, et al. 1997, cited in Mogen 1998). occur in low numbers with no known even where declines could be large, and Genetic analysis of tissue samples spawning sites. Habitat in the south for many bull trout spawning reaches, collected in the St. Mary River drainage Fork and lower North fork Skokomish declining trends may not be statistically during 1997 is not complete (Mogen River is severely degraded (WDFW evident until numbers drop to critically 1998). 1998a). low levels. Given the lack or limitations Regarding governmental relations, a Conversely, we have ample of statistically rigorous data for bull June 1997 Secretarial Order on Federal- information regarding threats to the trout in the Coastal-Puget Sound Tribal trust responsibilities and the Act, Coastal-Puget Sound population population segment, our review of the clarifies responsibilities of agencies segments. Many of the threats are status of ‘‘native char’’ subpopulations relative to Tribal lands, rights, and trust similar to those described for the is based on the generally low number of resources in implementing the Act. A threatened Klamath River and Columbia individuals observed in several cooperative agreement among us, the River bull trout population segments subpopulations throughout the Blackfeet Tribe, and Bureau of (June 10, 1998; 63 FR 31647). We population segment, and the apparent Reclamation establishes a partnership acknowledge that available information declines reported in others. focused on the conservation and is insufficient to designate many of the Issue 2: A respondent noted that the restoration of native salmonids and subpopulations within the Coastal-Puget proposed rule considered that loss of habitat in the St. Mary River drainage. Sound population segment as ‘‘strong’’ the St. Mary-Belly River population Mogen (1998) presents results of a study or ‘‘depressed.’’ However, because bull segment would constitute a significant to investigate bull trout spawning areas trout display a high degree of sensitivity reduction in the range of the taxon. and fish abundance conducted pursuant to environmental disturbance and are They asked what portion of the range is to the cooperative agreement. We have referred to as an indicator species, we significant, and would the statement be met with representatives of the believe that bull trout are significantly true for the St. Mary-Belly River Blackfeet Tribe to address concerns impacted by past and current habitat population segment if fish in Canada about bull trout and government-to- degradation within the Coastal-Puget were considered. They also inquired government relations. Sound population segment, similar to whether bull trout in the population other listed and sensitive species (i.e., segment are distinct from fish east of the Issue 3: One respondent noted that salmon). Habitat loss and degradation is Continental Divide in Canada. Because criteria we used to determine the status acknowledged as a significant factor a large portion of the St. Mary-Belly of subpopulations were adopted from limiting salmon and trout populations River population segment occurs on the Rieman et al. (1997), who originally within Washington (Washington Blackfeet Reservation, another developed them to apply to 6th field Department of Fisheries (WDF) et al. respondent requested that we establish watersheds in the Interior Columbia 1993; Weitkamp et al. 1995; Busby et al. government-to-government relations Basin Ecosystem Management Project 1996; Spence et al. 1996; WDFW 1997a, with the Blackfeet Tribe, expressing (ICBEMP). Because fish in 6th field b). Although a number of concern that Tribal comments and watersheds are roughly equivalent to subpopulations have documented interactions with us were considered local populations (see Rieman and spawning and rearing habitat in similarly to those from the general McIntyre 1995), using the criteria may protected areas of watersheds, the public and not on a government-to- be inconsistent with subpopulations as spawning and rearing habitats of many government basis. defined in the proposed rule. Also, other subpopulations are not identified. Our Response: We considered both several respondents were concerned In addition, habitats used by other life- biological (available data) and about applying the criteria to the history stages for migration, administrative (international boundary) Coastal-Puget Sound population overwintering, sub-adult rearing, are issues in determining distinct segment for evaluating whether a degraded, and all life-history stages are population segments. Policy used to subpopulation is ‘‘strong’’ or required for a species to persist. See the guide determination of distinct ‘‘depressed.’’ One respondent asked ‘‘Summary of Factors Affecting the population segments is described in the whether our definition of subpopulation Species’’ section for a more complete joint National Marine Fisheries Service designation required absolute discussion of threats affecting bull trout. (NMFS) and Service policy for reproductive isolation or only some Because the location of spawning recognizing distinct vertebrate level of structuring that means reduced areas for many bull trout population segments under the Act gene flow and some local adaptation, subpopulations are not well known for (February 7, 1996; 61 FR 4722). and whether subpopulations can the Coastal-Puget Sound population Although we are not including bull compose a larger metapopulation or if a segment, we have been funding efforts trout in Canada in the St. Mary-Belly metapopulation is equivalent to a to determine the distribution of River population segment, fish are subpopulation. Another respondent spawning areas in various Coastal-Puget believed to migrate across the contended that some dams were not Sound subpopulations. Although international boundary. Determination isolating mechanisms for estimates of bull trout abundance based of a significant reduction in range was subpopulations (Middle Fork Nooksack, on redd counts will provide information based only on bull trout occurring Skagit, and Nisqually rivers) because

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.013 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58919 they believe the dams were constructed and defined subpopulation as ‘‘a from future forest management practices at natural barriers. reproductively isolated group of bull for the Coastal-Puget Sound population Our Response: In adopting the trout that spawns within a particular segment. Only about 32 percent of the criteria, we considered a bull trout area of a river system.’’ We identified Coastal-Puget Sound population subpopulation ‘‘strong’’ if 5,000 subpopulations based on documented or segment is covered by either one of individuals or 500 spawners likely likely barriers to fish movement (e.g., these two plans. An additional 15 occur in the subpopulation, abundance impassable barriers to movement and percent of the population segment appears stable or increasing, and life- unsuitable habitat). To be considered a resides on National Park lands. Bull history forms historically present were single subpopulation, two-way passage trout in this population segment will likely to persist; and ‘‘depressed’’ if less at a barrier is required, otherwise bull continue to be negatively affected by than 5,000 individuals or 500 spawners trout upstream and downstream of a severely degraded habitats in many likely occur in the subpopulation, barrier are each considered a subbasins where ‘‘native char’’ occur abundance appears to be declining, or a subpopulation. Because it is likely that (e.g., increased stream temperatures and life-history form historically present has fish above a barrier could pass sedimentation, altered stream flows, and been lost (see Rieman et al. 1997). If downstream and mate with fish lack of instream cover). These effects are there was insufficient abundance, trend, downstream, absolute reproductive expected to continue because many and life-history information to classify isolation was not required to be river basins affected by past, poor forest the status of a subpopulation as either considered a subpopulation. practices that contain ‘‘native char’’ will ‘‘strong’’ or ‘‘depressed,’’ we considered We viewed metapopulation concepts take decades to fully recover. status as ‘‘unknown.’’ (see Rieman and McIntyre 1993) as Approximately 45 percent of the We used these criteria because they useful tools in evaluating bull trout, but, Coastal-Puget Sound population represent the best available information in querying biologists both within the segment occurs on lands under private and were used in evaluating bull trout Service and elsewhere, we found ownership. Timber harvest activities on in the Klamath River and Columbia considerable variability in the definition lands in forest production are subject to River population segments. We of a metapopulation and the types of Washington State Forest Practice Rules acknowledge the criteria were originally data suggestive of a metapopulation. (WFPR). Although State rules and developed for application to salmonids Some biologists may consider a regulations governing forested land in the Columbia River Basin, but their subpopulation, as defined by us, as a management activities on private lands underlying premises are based on metapopulation if it has multiple are improving, we believe they are not concepts of conservation biology. spawning areas. Likewise, adequate to conserve and recover bull Whether a subpopulation is ‘‘strong’’ or subpopulations without reciprocal trout or remedy the effects of past ‘‘depressed’’ relative to its potential may interactions (i.e., individuals from damage to bull trout habitats (U.S. vary among population segments. upstream of a barrier may mingle with Department of Interior (USDI) et al. However, we were unable to refine these individuals downstream, but not vice 1996a). The WFPR are currently being criteria, either higher or lower, based on versa) may be considered components of renegotiated, and it is anticipated that the available data. Designating a a metapopulation consisting of more there will be some improvements over subpopulation as ‘‘strong’’ or than one subpopulation. Because little past rules. Because the State has not ‘‘depressed’’ is only one of several genetic and detailed movement issued new rules, we are unable to factors that we considered in evaluating information exists throughout bull trout evaluate their adequacy to conserve and the overall status of a bull trout range in the population segments recover bull trout on private lands subpopulation in a given population addressed in the proposed rule, we within the Coastal-Puget Sound area. If segment. believe that barriers to movement is an improved sufficiently, these rules could Regarding the use of 6th field appropriate consideration for form the basis for a delisting, 4(d) rule, watersheds, we acknowledge the identifying subpopulations. or HCP. different spatial scales used in applying Relative to dams, the WDFW (1998a) Issue 5: The U.S. Forest Service criteria developed by Rieman et al. believes that bull trout were able to proposed that we issue a special rule (1997) for ICBEMP in our evaluation of commingle on both the Middle Fork pursuant to section 4(d) of the Act that bull trout subpopulations. Nooksack River and the Skagit River would relax the prohibition against Subpopulations identified in the prior to construction of the dams. There incidental take associated with Federal population segments for bull trout in the may have been a natural barrier between actions consistent with the NFP. coterminous United States (see June 10, La Grande and Alder dams on the Another respondent requested that we 1998; 63 FR 31647) ranged in size from Nisqually River. Because the existence develop a special rule that was a portion of a single watershed unit of ‘‘native char’’ above Alder Dam is not sufficiently protective to address any used by ICBEMP to several watersheds. established, we chose not to identify threat to bull trout from a specific For example, the best available this area as a separate subpopulation. development project. information concerning bull trout and Regardless, the DPS discreteness Our Response: Under section 4(d) of ‘‘native char’’ in the Coastal-Puget criterion can be satisfied by natural or the Act, we have the authority to issue Sound population segment was based man-made barriers. regulations as deemed necessary and on a spatial scale consisting of up to Issue 4: Several respondents believed advisable to provide for the several ICBEMP watershed units. the Federal listing was not necessary conservation of a species listed as Although the spatial scale of most due to current and recently improved threatened. We recognize that on-going subpopulations identified in the regulations related to forest land and future land-use activities will occur proposed rule occupy multiple ICBEMP management. on non-Federal lands and that these watershed units, we believe that the Our Response: We believe that activities may result in take of bull criteria offered useful information in implementation of the Northwest Forest trout. Elsewhere in today’s Federal evaluating the status of bull trout. Plan (NFP) and Washington Department Register we have published a Notice of We selected subpopulations as a of Natural Resources (WDNR) Habitat Intent to prepare another special rule convenient unit on which to analyze Conservation Plan (HCP) should limit pursuant to section 4(d) of the Act for bull trout within population segments, further degradation to aquatic habitats bull trout within the coterminous

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.015 pfrm02 PsN: 01NOR2 58920 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

United States (see ‘‘Special Rule’’ biologists have investigated (12 of 15 escapement goals set for anadromous section). The special rule would address subpopulations). We are funding WDFW salmon and steelhead are at levels that two categories of non-Federal activities to collect and analyze bull trout tissue may limit bull trout. A threat would affecting bull trout: (1) Habitat samples in an effort to determine the clearly exist where anadromous fish restoration; and (2) regulations that genetic identity of ‘‘native char’’ in the stocks are no longer accessible to a bull govern land and water management 19 subpopulations that biologists have trout subpopulation, and it is activities. Special regulations not evaluated. Information from these determined that an alternative forage addressing both categories would studies may eventually be used to base does not exist. provide for the conservation of bull exclude stream systems with only Dolly Issue 8: One respondent questioned trout. We have already issued two Varden from the listing, if we are the rationale of our exclusion of bull special rules, one for Jarbidge River satisfied that bull trout are not present trout in Canada in delineating distinct population segment on April 8, 1999, in the system. Based on the available population segments. The respondent and the other for the Klamath and evidence, we believe there is a high stated that bull trout in Canada were Columbia River population segments on likelihood that bull trout occur in the excluded because fish there are outside June 10, 1998. In general, these special majority of the remaining 19 the jurisdiction of the Act or that listing rules exempt from the take prohibition subpopulations. For subpopulations that would not have much effect on the fishing and activities that are conducted contain both bull trout and Dolly Canadian government, as opposed to the in accordance with State, Tribal, and Varden it is completely appropriate to explanation in the proposed rule that NPS laws and regulations governing fish include those subpopulations in the data for bull trout in Canada are limited and wildlife conservation. The special listing. and suggested we should clarify the rule for the Coastal Puget-Sound and St. Bull trout and Dolly Varden are issue. Mary-Belly population segments, virtually indistinguishable based upon Our Response: We acknowledge that described in the ‘‘Special Rule’’ section, physical appearance (Service 1998a) additional information concerning the will also exempt from the take and share similar life-history strategies status and threats to bull trout in prohibition fishing and activities and habitat requirements. Because of Canada has been compiled in recent conducted in accordance with State, these similarities, the WDFW manage years. Some of the available data Tribal, and NPS laws and regulations. the two species as one (WDFW 1998a), indicate a decline of bull trout in several A proposal to relax the prohibition and we can evaluate the threats to areas in Canada. Although we recognize against incidental taking of bull trout subpopulations currently known only as that more data on bull trout in Canada associated with Federal actions ‘‘native char.’’ Although the listing currently exist than we originally consistent with the NFP Aquatic currently does not include Dolly Varden considered, this new information did Conservation Strategy (ACS) is an under the similarity of appearance rule, not lead us to conclude that listing the option we may address in the future. the coexistence of Dolly Varden and bull trout in Canada is necessary at this There are a number of issues regarding bull trout within a certain time. We believe that addressing bull the interpretation of ACS objectives and subpopulation would not be trout only in the coterminous United ACS components that are being justification to preclude listing of bull States relative to the Act is appropriate. discussed at an interagency level, but trout in that particular subpopulation. We acknowledge that for threatened or currently remain unresolved. It would Finally, there is no evidence endangered species that cross not be prudent for us to consider a 4(d) demonstrating strong Dolly Varden international boundaries, recovery is rule until these discussions are subpopulations coexisting with more complex. For areas where bull concluded and the issues are depressed bull trout subpopulations. trout subpopulations cross international satisfactorily resolved. The NFP applies Issue 7: One respondent said we boundaries, we intend to work with all to Federal lands in the Coastal-Puget failed to identify and properly address appropriate jurisdictional entities, Sound population segment. Although other threats to bull trout, primarily the Tribal, provincial and Federal Canadian we have not finalized a programmatic reduction in the bull trout forage base as agencies and all entities in the United biological opinion, we have re-initiated a result of the commercial and States, in developing and implementing programmatic consultations with three recreational harvest of returning salmon a recovery plan for bull trout. National Forests, including and steelhead. Issue 9: One respondent noted that conferencing on bull trout with the Our Response: Ratliff and Howell critical habitat is presently not USFS regional office for those three (1992) suggest that due to its highly determinable. They noted that National Forests. Thus, we will address piscivorous nature, bull trout may have consistent patterns in juvenile fish Federal actions consistent with the NFP been adversely affected by declines in distribution, primarily with respect to either through section 7 of the Act or prey species. They present the example stream elevation and water temperature, through a 4(d) rule. of declining bull trout populations is useful in predicting patches of Issue 6: One respondent felt it was occurring above Hells Canyon Dam, spawning and rearing habitats, which inappropriate to include in the final rule where there is no longer anadromous are probably sensitive to land use and those streams or stream segments where salmon and steelhead production. We important for the overall productivity of only ‘‘native char’’ or both bull trout acknowledge that the depressed status local populations. Another respondent and Dolly Varden are documented to or declining abundance of anadromous asked us to consider including as date. One respondent suggested the fish stocks in some river basins may critical habitat, streams that contribute listing of bull trout will be a (de facto) have negatively affected bull trout to the water quality of Puget Sound, but listing of Dolly Varden, due to their through a decreased prey base. are not part of the current known similarities in appearance and life- However, we are unable to determine distribution of bull trout. Several history characteristics. from the available information whether respondents encouraged us to consider Our Response: It is true that species this is a threat or just a suppressing several issues, such as designating all composition is not yet known in many factor to bull trout since they are historic and existing bull trout habitat as streams in Washington containing opportunistic feeders and forage on a critical, protecting roadless and riparian ‘‘native char.’’ However, bull trout are wide variety of prey. In addition, we are areas, establishing standards for water documented in most streams that unable to determine whether current temperature, sediment delivery, and

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.016 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58921 other habitat parameters and other development are thought to be major majority of sediment loads to streams in management activities. factors affecting ‘‘native char’’ in the forested areas (Shepard et al. 1984; Our Response: The definition of Coastal-Puget Sound DPS (Service Cederholm and Reid 1987; Furniss et al. critical habitat as stated in section 3 of 1998a). Bull trout are often migratory 1991). Sedimentation affects streams by the Act holds that critical habitat may (Fraley and Shepard 1989; Pratt 1992; reducing pool depth, altering substrate include specific areas outside of the Rieman and McIntyre 1993; Oregon composition, reducing interstitial space, geographical area occupied by the Department of Fish and Wildlife and causing braiding of channels species at the time it is listed, upon (ODFW) 1995; McPhail and Baxter (Rieman and McIntyre 1993), which determination that such areas are 1996), and migratory ‘‘native char’’ reduce carrying capacity. Sedimentation essential for the conservation of the exhibit anadromous, adfluvial, and negatively affects bull trout embryo species. At this time, we find that fluvial strategies in the Coastal-Puget survival and juvenile bull trout rearing critical habitat is not determinable for Sound DPS. Factors affecting ‘‘native densities (Shepard et al. 1984; Pratt the Coastal-Puget Sound and St. Mary- char’’ may preclude or inhibit migratory 1992). In National Forests in Belly River population segments. We behavior or contribute to degradation of Washington, large deep pools have been appreciate the comments and believe aquatic habitats used by ‘‘native char’’ reduced 58 percent due to that patterns in fish distribution will (Rieman and McIntyre 1993; Spence et sedimentation and loss of pool-forming likely be useful in determining future al. 1996; WDFW 1997a). structures such as boulders and large critical habitat designations. This and Past forest management activities wood (USDA et al. 1993). The effects of other habitat considerations will be have contributed to degraded watershed sedimentation from roads and logging important issues to be considered conditions, including increased are prevalent in 10 basins containing during development of the recovery sedimentation of bull trout habitat (Salo ‘‘native char’’ subpopulations plan. and Cundy 1987; Meehan 1991; Bisson (Nooksack, Skykomish, Stillaguamish, et al. 1992; USDA et al. 1993; Henjum Puyallup, upper Cedar, Skokomish, Summary of Factors Affecting the et al. 1994; Spence et al. 1996). Past Species Dungeness, Hoh, Queets, and Coastal activities continue to negatively affect Plain-Quinault basins) (HCCC 1995; After a thorough review and ‘‘native char’’ in the Coastal-Puget Olympic National Forest 1995a,b; consideration of all information Sound population segment. Timber Sandra Noble and Shelley Spalding, available, we determine the Coastal- harvest and road building in riparian Service, in litt. 1995; WDFW 1997a, Puget Sound and St. Mary-Belly River areas reduce stream shading and cover, WDOE 1997). Bull trout are documented population segments of bull trout to be channel stability, large woody debris in six of these basins (upper Cedar, threatened species. We followed recruitment, and increase sedimentation Skokomish, Dungeness, Queets, procedures found at section 4(a)(1) of and peak stream flows (Chamberlin et Quinault, and Skykomish basins). We the Act and regulations (50 CFR part al. 1991). These can alternatively lead to consider five subpopulations within 424) implementing the listing increased stream temperatures and bank these basins to be ‘‘depressed’’. These provisions of the Act. A species may be erosion, and decreased long-term stream are the Chester Morse Reservoir, lower determined to be an endangered or productivity. Over 35 percent of natural Puyallup River, South Fork-lower North threatened species due to one or more forested areas in Puget Sound have been Fork Skokomish River, lower of the five factors described in section eliminated (WDFW 1997b). Dungeness-Gray Wolf, and Hoh River Strict cold water temperature 4(a)(1). These factors and their subpopulations. The remaining six requirements make bull trout application to the Coastal-Puget Sound affected subpopulations found in particularly vulnerable to activities that and St. Mary-Belly River population Canyon Creek, upper Middle Fork warm spawning and rearing waters segments of bull trout (Salvelinus Nooksack River, Snohomish River- confluentus) are as follows: (Goetz 1989; Pratt 1992; Rieman and McIntyre 1993). Increased temperature Skykomish River, Stillaguamish River, A. The Present or Threatened reduces habitat suitability, which can Queets River, and lower Quinault River Destruction, Modification, or exacerbate fragmentation within and are considered ‘‘unknown.’’ Curtailment of Its Habitat or Range between subpopulations (Rieman and A recent assessment of the interior Land and water management McIntyre 1993). Of the 34 ‘‘native char’’ Columbia Basin ecosystem revealed that activities that degrade bull trout habitat subpopulations in the Coastal-Puget increasing road densities were and continue to threaten all of the bull Sound population segment, 11 are likely associated with declines in four non- trout population segments in the affected by elevated stream anadromous salmonid species (bull coterminous United States include temperatures resulting from past forest trout, Yellowstone cutthroat trout, dams, forest management practices, practices (lower Nooksack River, westslope cutthroat trout, and redband livestock grazing, agriculture and Stillaguamish River, Snohomish River- trout) within the Columbia River Basin, agricultural diversions, roads, and Skykomish River, Green River, lower likely through a variety of factors mining (Beschta et al. 1987; Chamberlin Puyallup, Nisqually River, South Fork- associated with roads (Quigley and et al. 1991; Furniss et al. 1991; Meehan lower North Fork Skokomish, River, Arbelbide 1997). Bull trout were less 1991; Nehlsen et al. 1991; Sedell and Goodman Creek, Copalis River, Moclips likely to use highly roaded basins for Everest 1991; Craig and Wissmar 1993; River, and Chehalis River-Grays Harbor) spawning and rearing, and if present, Frissell 1993; Henjum et al. 1994; (Phinney and Bucknell 1975; Williams were likely to be at lower population McIntosh et al. 1994; Wissmar et al. et al. 1975; Hiss and Knudsen 1993; levels (Quigley and Arbelbide 1997). 1994; USDA and USDI 1995, 1996, WDFW 1997a; WDOE 1997). Bull trout Quigley et al. (1996) demonstrated that 1997; Light et al. 1996; MBTSG 1995a– are documented in three of these when average road densities were e, 1996a–h). ‘‘native char’’ subpopulations (Green between 0.4 to 1.1 km/km2 (0.7 and 1.7 River, South Fork-lower North Fork mi/mi2) on USFS lands, the proportion Coastal-Puget Sound Population Skokomish River, and Snohomish River- of subwatersheds supporting ‘‘strong’’ Segment Skykomish River). populations of key salmonids dropped Barriers, timber harvesting, The effects of road construction and substantially. Higher road densities agricultural practices, and urban associated maintenance account for a were associated with further declines.

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.017 pfrm02 PsN: 01NOR2 58922 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

When USFS lands were compared to al. 1996). Improper livestock grazing These diversions and dams are located lands administered by all other entities can promote streambank erosion and on the Middle Fork Nooksack, Skagit, at a given road density, the proportion sedimentation, and limit the growth of Green, Puyallup, and Nisqually rivers. of lands supporting ‘‘strong’’ bull trout riparian vegetation important for These seven facilities currently affect populations was lower on lands temperature control, streambank the lower Nooksack River, upper Middle administered by other entities. Although stability, fish cover, and detrital input. Fork Nooksack River, lower Skagit this assessment was conducted east of In addition, grazing often results in River, Gorge Reservoir, Diablo the Cascade Mountain Range, some increased organic nutrient input in Reservoir, Ross Reservoir, lower effects from high road densities may be streams (Platts 1991). Eight ‘‘native Puyallup, upper Puyallup River more severe in western Washington. char’’ subpopulations in the Coastal- subpopulations. Projects in the Green Higher precipitation west of the Cascade Puget Sound DPS (lower Puyallup, and Nisqually rivers block fish passage Mountains increases the frequency of Stillaguamish River, lower Skagit River, in the upper stream reaches of these surface erosion and mass wasting (USDI lower Nooksack River, Green River, basins, although ‘‘native char’’ use of et al. 1996b). Limited data concerning South Fork-lower North Fork the river areas above the facilities road densities are available for the Skokomish River, Dungeness River-Gray remains unconfirmed. Various fish Coastal-Puget Sound DPS. It is known, Wolf River, and Chehalis River-Grays surveys conducted in the upper Green however, that two bull trout Harbor) are subject to the effects of past River watershed above the facility, did subpopulations (lower Dungeness River- or ongoing agricultural or livestock not detect ‘‘native char’’ (Ed Connor and Gray Wolf River and Chester Morse grazing practices (Williams et al. 1975; Phil Hilgert, R2 Resource Consultants, Reservoir) occur in basins with road Hiss and Knudsen 1993; WDF et al. Inc., in litt. 1998). Surveys of the upper densities greater than 1.1 km/km2 (1.7 1993; HCCC 1995; ONF 1995b; WDFW Nisqually River watershed are mi/mi2), and the effects of 1997a). Species composition has been underway (WDFW 1998a). Dams on the sedimentation from high road density examined in five of these Skokomish and Elwha rivers are also on aquatic habitat is likely a subpopulations, and bull trout are barriers to upstream fish migration and contributing factor to the ‘‘depressed’’ documented in four (Green River, lower have fragmented populations of ‘‘native status of these two ‘‘native char’’ Puyallup, South Fork-lower North Fork char’’ within the Coastal-Puget Sound subpopulations. Because basins in Skokomish River, and Dungeness River- DPS. FERC published an Environmental portions of the Queets River drainage Gray Wolf River). Impact Statement (EIS) for three contain high road densities, ranging proposed hydroelectric projects on Dams constructed with poorly from 1.5 to 3.0 km/km2 (2.4 to 4.8 mi/ Skagit River tributaries. The final EIS designed fish passage or without fish mi2) (ONF 1995a; Cederholm and Reid recommends two proposed passage create barriers to migratory 1987), we believe that the Queets River hydroelectric projects on the lower ‘‘native char,’’ precluding access to ‘‘native char’’ subpopulation is affected Nooksack River, affecting two suitable spawning, rearing, and by high road density. subpopulations, the lower Skagit River migration habitats. Dams disrupt the At least 22 ‘‘native char’’ and the lower Nooksack River. We subpopulations within the Coastal-Puget connectivity within and between consider the status of these Sound DPS are affected by past or watersheds essential for maintaining subpopulations ‘‘strong’’ and present forest management activities. aquatic ecosystem function (Naiman et ‘‘unknown,’’ respectively. Remaining subpopulations not affected al.1992; Spence et al. 1996) and bull Urbanization has led to decreased by such activities occur primarily trout subpopulation interaction (Rieman habitat complexity (uniform stream within National Parks or Wilderness and McIntyre 1993). Natural channels and simple nonfunctional Areas. For example, five ‘‘native char’’ recolonization of historically occupied riparian areas), impediments and subpopulations lie completely within sites can be precluded by migration blockages to fish passage, increased National Parks and Wilderness Areas barriers (e.g., McCloud Dam in surface runoff (more frequent and severe withdrawn from timber harvest. These California (Rode 1990)). Within the flooding), and decreased water quality include the upper Quinault River, upper Coastal-Puget Sound DPS, there are at and quantity (Spence et al. 1996). In the Sol Duc River, Gorge Reservoir, Diablo least 41 existing or proposed Puget Sound area, human population Reservoir, and Ross Reservoir hydroelectric projects regulated by the growth is predicted to increase by 20 subpopulations. Although the status of Federal Energy Regulatory Commission percent between 1987 and 2000, these ‘‘native char’’ subpopulations is (FERC) within watersheds supporting requiring a 62 percent increase in land considered ‘‘unknown’’ at this time, all ‘‘native char’’ (Gene Stagner, Service, in area developed (Puget Sound Water except the upper Quinault River litt. 1997). Of the 41 existing or Quality Authority (PSWQA) 1988 in subpopulation are threatened by non- proposed projects, 17 are currently Spence et al.1996). The effects of native brook trout (see Factor E). operating and most are run-of-the-river urbanization, concentrated at the lower Agricultural practices and associated small hydroelectric projects. Negotiated most reaches of rivers within Puget activities also affect ‘‘native char’’ and instream flows for these projects are Sound, primarily affect ‘‘native char’’ their aquatic habitats. Irrigation based primarily on resident cutthroat migratory corridors and rearing habitats. withdrawals including diversions can trout or rainbow trout flow Five ‘‘native char’’ subpopulations in dewater spawning and rearing streams, requirements, and may not meet the Coastal-Puget Sound DPS (lower impede fish passage and migration, and seasonal migratory flow requirements of Dungeness River-Gray Wolf River, lower cause entrainment. Discharging bull trout (Tim Bodurtha, Service, in litt. Puyallup River, Green River, pollutants such as nutrients, agricultural 1995). Fish passage has not been Sammamish River-Issaquah Creek, and chemicals, animal waste and sediment addressed for 28 of the existing or Stillaguamish River) are negatively into spawning and rearing waters is also proposed projects (G. Stagner, in litt. affected by urbanization (Williams et al. detrimental (Spence et al. 1996). 1997). We are aware of at least seven 1975; WDFW 1997a). Agricultural practices regularly include water diversions or other dams Mining can degrade aquatic systems stream channelization and diking, large currently operating in watersheds with by generating sediment and heavy woody debris and riparian vegetation ‘‘native char,’’ and none currently metals pollution, altering water pH removal, and bank armoring (Spence et providing for upstream fish passage. levels, and changing stream channels

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.018 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58923 and flow (Martin and Platts 1981). loss through entrainment of bull trout spawn at least once before harvest Although not currently active, mining in (R. Wagner, pers. comm. 1998). (WDFW 1997a), and evidence suggests the Nooksack River Basin, where Similarly, the irrigation dam on that more females are allowed to spawn ‘‘native char’’ occur, has adversely Swiftcurrent Creek (Lake Sherburne) in these two systems where the affected streams. For example, the seasonally dewaters the creek regulation is in place (WDFW 1998b). Excelsior Mine on the upper North Fork downstream, effectively eliminating However, the minimum size limit Nooksack River was active at the turn of habitat (Fredenberg 1996; R. Wagner, allows the selective harvest of larger, the century and mining spoils were pers. comm. 1998). mature fish that are more fecund (Jim placed directly into Wells Creek (Mt. Johnston, WDFW, pers. comm. 1995). B. Overutilization for Commercial, Baker-Snoqualmie National Forest Regulations on the Quinault Indian Recreational, Scientific, or Educational (MBSNF) 1995), a known spawning Reservation in the lower Quinault River Purposes stream for ‘‘native char.’’ Spoils in and and Queets River systems offer less bull adjacent to the stream may continue to Declines in bull trout abundance have trout conservation opportunity because be sources of sediment and heavy prompted States to institute restrictive there is no minimum size limit to allow metals. fishing regulations and eliminate the most females to reach maturity before harvest of bull trout in most waters in being subject to harvest. Consistent with St. Mary-Belly River Population Idaho, Oregon, Montana, Nevada, and the June 1997 Secretarial Order on Segment Washington. These more restrictive Tribal-Federal Trust responsibilities and Forest management practices, regulations resulted in an increase in the Act, we will continue to assess the livestock grazing, and mining are not recent observations of adult bull trout in effects of these regulations and work thought to be major factors affecting bull some areas of their range. However, with the Tribes to assure that the trout in the St. Mary-Belly River DPS. illegal harvest and incidental hook and conservation needs of bull trout are met. However, bull trout subpopulations are release of ‘‘native char’’ in fisheries The State of Washington has closed fragmented and isolated by dams and targeting other species still threaten bull areas of the lower Quinault River and diversions (Fredenberg 1996; Clayton trout in some areas. Queets River watersheds outside of the 1998; Mogen 1998). Specifically, the Coastal-Puget Sound Population Quinault Indian Reservation to harvest USBR diversion at the outlet of lower St. Segment of ‘‘native char’’ (WDFW 1997a). Mary Lake is an unscreened trans-Basin In 1993, WDFW increased the catch diversion (i.e., transferring water to the Fishing for ‘‘native char’’ is currently limit for brook trout in order to reduce Missouri River drainage via the Milk closed in most of the waters within the interactions with bull trout (WDFW River) that threatens the species in the Coastal-Puget Sound population 1995). The increased brook trout catch St. Mary River Basin (upper St. Mary segment. The State of Washington has the potential to increase the River, lower St. Mary River, and implemented most of these closures in incidental harvest of bull trout due to Swiftcurrent Creek subpopulations). 1994. Harvest of ‘‘native char’’ is still misidentification by anglers. For This diversion restricts upstream bull allowed in the area of the lower Skagit example, only 40 percent of Montana trout passage into the upper St. Mary River subpopulation in the mainstem anglers surveyed correctly identified River. Consequently, migratory (fluvial) Skagit River and several of its tributaries bull trout out of six species of salmonids bull trout are prevented from reaching (Cascade, Suiattle, Whitechuck and found locally (Mack Long and Sean suitable spawning habitat in Divide and Sauk rivers) (508 mm (20 in.) minimum Whalen, Montana Fish Wildlife and Red Eagle creeks (Fredenberg 1996; R. size limit and two fish daily bag limit); Parks, in litt. 1997). Wagner, pers. comm. 1998). Similarly, the Snohomish River-Skykomish River Poaching is still a factor that threatens the irrigation dam on Swiftcurrent Creek subpopulation in the Snohomish River ‘‘native char’’ in nine drainages within (Lake Sherburne) physically blocks bull mainstem and the Skykomish River the Coastal-Puget Sound population trout passage into the upper watershed below the forks (508 mm (20 in.) segment. These are the South Fork (Fredenberg 1996; R. Wagner, pers. minimum size limit and two fish daily Nooksack River, North Fork Nooksack comm. 1998), affecting the three St. bag limit) (WDFW 1997a); and portions River (above and below the falls), Sauk Mary River subpopulations. In the Belly of the Quinault and Queets rivers that River and tributaries, North Fork River drainage, two adult bull trout are within the Quinault Indian Skykomish River, Chester Morse implanted with radio transmitters that Reservation (QIN) boundary (4 fish daily Reservoir, lower Dungeness River-Gray spawned in the North Fork Belly River bag limit with no minimum size Wolf River, Hoh River, Goodman Creek, near the international border in 1997 restriction) (Scott Chitwood, Quinault and Morse Creek (WDW, in litt. 1992; were subsequently passed down the Indian Nation, pers. comm. 1997; Mongillo 1993; WDFW 1997a; Service Mountain View Irrigation District Canal WDFW 1997a). Olympic National Park 1998a). and captured (Terry Clayton, Alberta has recently closed fishing for ‘‘native Conservation Association (ACA), in litt. char’’ in all park waters (D. Morris, in St. Mary-Belly River Population 1998). litt. 1998). Fishing for bull trout in Segment In addition to the dams physically Mount Rainier National Park is Historically, the harvest of bull trout isolating subpopulations, the associated prohibited. There is likely some in the St. Mary-Belly River DPS was diversions seasonally dewater the mortality from incidental hook and considered ‘‘extensive’’ (Fredenberg streams, effectively decreasing available release of ‘‘native char’’ in fisheries 1996). Currently, legal angler harvest in habitat for migratory and resident bull targeting other species, especially in the St. Mary-Belly River DPS occurs trout (Fredenberg 1996). The diversion streams where restrictive angling only on the Blackfeet Indian at the outlet of lower St. Mary Lake may regulations (i.e., artificial flies or lures Reservation, which has a five fish per result in a reduction (up to 50 percent) with barbless single hook, bait day limit with only one fish over 508 of instream flow of the St. Mary River, prohibited) are not established. mm (20 in.) (Fredenberg 1996). possibly affecting juvenile and adult The objective of the 508 mm (20 in.) In 1994, the Blackfeet Tribe reported bull trout (R. Wagner, pers. comm. minimum size limit in the Skagit River harvest of at least 19 adult and subadult 1998). The diversion is unscreened and and Snohomish-Skykomish River bull trout in gill nets set for a recent information suggests downstream systems is to allow most females to commercial fishery for lake whitefish

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.019 pfrm02 PsN: 01NOR2 58924 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

(Coregonus clupeaformis) in lower St. may be a potential threat to bull trout, watersheds, watershed analysis, and Mary Lake (Blackfeet Tribe, in litt. we do not have specific information on habitat restoration. Approximately 35 1998). Given the apparent low it at this time. percent of the total acreage within the abundance of adult bull trout in the Predation is not considered a primary Coastal-Puget Sound bull trout upper St. Mary Lake subpopulation and factor in the decline of Coastal-Puget population segment are Federal lands restricted migration opportunities over Sound ‘‘native char.’’ The only subject to Northwest Forest Plan the USBR diversion on lower St. Mary exception may be largemouth bass standards and guidelines (U.S. Lake, any harvest of bull trout from this (Micropterus salmoides) in Cushman Geological Survey (USGS), in litt. 1996). subpopulation represents a threat. Reservoir on the Skokomish River that In 1994, an assessment panel Record-keeping by the two commercial may potentially affect the bull trout determined that the proposed standards fishers is a requirement of the Blackfeet subpopulation (Sam Brenkman, Oregon and guidelines in the Northwest Forest Tribal Fish and Game Commission, but State University, pers. comm. 1997; Plan would result in an 85 percent is not strictly enforced. As discussed in WDFW 1997a). future likelihood of attaining sufficient Issue 2 in the ‘‘Summary of Comments St. Mary-Belly River Population aquatic habitat to support well- and Recommendations section’’, a Segment distributed populations of bull trout on cooperative agreement exists among us, Federal lands (USDA and USDI 1994b). the Blackfeet Tribe, and the Bureau of Disease and predation are not known Prior to 1997, most projects developed Reclamation which establishes a to be factors affecting the survival of under the Northwest Forest Plan in this partnership focused on the conservation bull trout in the St. Mary-Belly River DPS were determined to have ‘‘no and restoration of native salmonids and Basin. Whirling disease has been impact’’ on bull trout and its habitat. habitat in the St. Mary River drainage. documented in numerous Missouri However, these determinations were We have recently met with the Blackfeet River watersheds in central Montana, made prior to the development of Tribe to address our concerns about bull though not in the Saskatchewan River specific criteria (Service 1998c) to trout. We will continue to assess the drainage where the St. Mary-Belly River evaluate the effects of Forest Service effects of their harvest regulations and, bull trout subpopulations occur. activities on bull trout and their habitat. in accordance with the June 1997 D. The Inadequacy of Existing Because existing aquatic habitat Secretarial Order on Tribal-Federal Regulatory Mechanisms conditions are severely degraded in Trust responsibilities and the Act, we Although varying efforts are many subbasins, the effects from past will continue work with the Tribe to land management activities can be assure that the conservation needs of underway to assist in conserving bull trout throughout the coterminous expected to continue into the bull trout are met. Specifically, the foreseeable future in the form of ongoing research carried out under the United States (e.g., Batt 1996; Light et al. 1996; Robert Joslin, USFS, in litt. 1997; increased stream temperatures, altered cooperative agreement is evaluating stream flows, sedimentation, and lack of movement patterns, population status, Allan Thomas, BLM, in litt. 1997; Montana Bull Trout Restoration Team instream cover. These effects are often and genetic structure of the bull trout in exacerbated by landslides, road failures, the St. Mary River drainage. We will 1997), the implementation and enforcement of existing Federal and and debris torrents. Many of these utilize the results as a basis to develop aquatic systems will require decades to future management recommendations. State laws designed to conserve fishery resources, maintain water quality, and fully recover (USDA et al. 1993). Until C. Disease or Predation protect aquatic habitat have not been then, future habitat losses can be Diseases affecting salmonids are sufficient to prevent past and ongoing expected due to past activities, present or likely present in both habitat degradation leading to bull trout potentially resulting in local population segments, but are not declines and isolation. Statutory extirpations, migratory barriers, and thought to be a factor threatening bull mechanisms, including the National reduced reproductive success (Spence et trout. Instead, interspecific interactions, Forest Management Act, the Federal al. 1996). including predation, likely negatively Land Policy and Management Act, the Washington State Forest Practice affect bull trout where non-native Public Rangelands Improvement Act, Rules (WFPR) apply to all State, city, salmonids are introduced (Bond 1992; the Clean Water Act, the National county, and private lands not currently Ziller 1992; Donald and Alger 1993; Environmental Policy Act, Federal covered under a Habitat Conservation Leary et al. 1993; MBTSG 1996a; J. Power Act, State Endangered Species Plan (HCP) or other conservation Palmisano and V. Kaczynski, Northwest Acts and numerous State laws and agreement in Washington. Forestry Resources Council, in litt. regulations oversee an array of land and Approximately 45 percent of the 1997). water management activities that affect Coastal-Puget Sound population bull trout and their habitat. segment is held under private Coastal-Puget Sound Population ownership and 1.5 percent under city or Segment Coastal-Puget Sound Population county ownership. Bull trout and their Disease is not believed to be a factor Segment habitats continue to face threats from in the decline of bull trout in the In April 1994, the Secretaries of ongoing and future timber harvest Coastal-Puget Sound DPS. Outbreaks of Agriculture and Interior adopted the activities on many of these lands. The the parasite Dermocystidium salmonis Northwest Forest Plan for management WFPR set forth timber harvest in the lower Elwha River may negatively of late-successional forests within the regulations for non-Federal and non- affect ‘‘native char’’ in years of high range of the northern spotted owl (Strix Tribal forested lands in the State of chinook salmon returns (Kevin Amos, occidentalis caurina) (USDA and USDI Washington. These rules set standards WDFW, pers. comm. 1997). The 1994a). This plan set forth objectives, for timber harvest activities in and susceptibility of bull trout to the standards, and guidelines to provide for around riparian areas, in an effort to parasite is unknown. There is concern a functional late-successional and old- protect aquatic resources. These riparian about whirling disease (Myxobolus growth forest ecosystem. Included in the management zone widths, as specified cerebralis), which occurs in wild trout plan is an aquatic conservation strategy by the WFPR, do not ensure protection waters of western states, and though this involving riparian reserves, key of the riparian components, because the

VerDate 29-OCT-99 16:50 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\01NOR2.XXX pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58925 minimum buffer widths are likely maintaining the health and diversity of surrounding implementation of the plan insufficient to fully protect riparian ‘‘native char’’ stocks and their habitats and lack of specificity concerning bull ecosystems (USDI et al. 1996a). in the State of Washington (WDFW trout, including funding, possible In January 1997, the Washington State 1995). In 1998, WDFW distributed a benefits to bull trout can not be Department of Natural Resources revised draft of the bull trout and Dolly evaluated. (WDNR) developed a multispecies HCP Varden management plan to us for Section 305(b) of the 1972 Federal under section 10 of the Act, covering all review (WDFW 1998b). Although Clean Water Act requires States to WDNR-owned lands within the range of commendable goals and strategies are identify water bodies biennially that are the northern spotted owl. The WDNR presented in the new draft plan, specific not expected to meet State surface water HCP primarily addresses the guidance on how these goals and quality standards (WDOE 1996). These conservation needs for old-growth strategies would be accomplished is not waters are reported in the section 303(d) forest-dependent species, such as the provided. Our review of the plan list of water quality limited streams. The northern spotted owl and marbled determined that it does not fully address Washington State 303(d) list (WDOE murrelet (Brachyramphus marmoratus all elements necessary to conserve and 1997) reflects the poor condition of marmoratus), while allowing WDNR to restore bull trout populations (Nancy lower stream reaches of some systems meet its trust responsibilities to the Gloman, Service, in litt. 1998). Because containing bull trout and Dolly Varden. State. The HCP also addresses the all elements necessary for conservation At least 30 stream reaches within conservation needs of other terrestrial and restoration of bull trout are not fully habitat occupied by 13 subpopulations and aquatic species on WDNR lands. addressed and there are uncertainties of ‘‘native char’’ are listed on the Approximately 10 percent of the concerning implementation of the plan, Washington State proposed 1998 303(d) Coastal-Puget Sound population the effect of the plan on future bull trout list of water quality impaired streams segment is in State ownership and is conservation in Washington is (WDOE 1997). Eight of these covered by the HCP. The HCP unknown. subpopulations are ‘‘depressed,’’ one is specifically provides Riparian ‘‘strong,’’ and four are ‘‘unknown.’’ Since 1994, WDFW has been Conservation Strategies designed to Waters included on the 303(d) list due developing a Wild Salmonid Policy maintain the integrity and function of to temperature exceedances are found in (WSP) to address management of all freshwater stream habitat necessary for areas where the Chehalis River-Grays native salmonids in the State. In the health and persistence of aquatic Harbor, lower Quinault River, Hoh September 1997, WDFW released the species, especially salmonids. Road River, lower Elwha River, Nisqually maintenance and network planning final EIS for the WSP. The policy River, lower Puyallup, Green River, strategies included in the HCP also play establishes a goal to protect, restore, and Sammamish River-Issaquah Creek, important roles in protecting aquatic enhance the productivity, production, Stillaguamish River, and lower habitats, but are often reliant on the and diversity of wild salmonids and Nooksack River subpopulations occur. Riparian Conservation Strategy stream their ecosystems to sustain ceremonial, We have identified bull trout in two of buffers for complete protection. If fully subsistence, commercial, and these subpopulations (Green River and and properly implemented, the HCP recreational fisheries; non-consumptive lower Puyallup). The State temperature should aid in the restoration and fish benefits; and related cultural and standards are likely inadequate for bull protection of freshwater salmonid ecological values well into the future trout because temperatures in excess of habitat on the Olympic Peninsula and (WDFW 1997b). The WSP, in its current 15° C (59° F) are thought to limit bull the areas on the west slope of the form, may not adequately protect bull trout distribution (Rieman and McIntyre Cascades. There are still ‘‘legacy’’ trout because the primary focus is 1993) and the State temperature threats to bull trout subpopulations on restoring wild salmon and steelhead. standard for the highest class of waters State lands even with the HCP in place. Although other wild salmonids, is 16° C (61° F). For example, the HCP states, ‘‘Adverse including bull trout, are referred to in Subpopulations that occur in waters impacts to salmonid habitat will the document, the proposed policy does on the 303(d) list not meeting instream continue to occur because past forest not address the unique requirements of flow standards include the Dungeness practices have left a legacy of degraded bull trout. As a result, proposed habitat River-Gray Wolf River, South Fork- riparian ecosystems, deforested unstable and water quality standards (current lower North Fork Skokomish River, hillslopes, and a poorly planned and State surface water quality standards), lower Puyallup River, lower Skagit maintained road network’’ (WDNR originally developed with a focus on River, and lower Nooksack River 1997). Areas logged in the past will take salmon, may fall short in protection for ‘‘native char’’ subpopulations. Bull trout decades to fully recover. In addition, bull trout. The final EIS is not are known to occur in four of these ‘‘Some components of the riparian considered a policy document to direct subpopulations (Dungeness River-Gray conservation strategy require on-site WDFW. The EIS describes a set of Wolf River; South Fork-lower North management decisions, and adverse alternatives presented to the Fork Skokomish River; lower Puyallup; impacts to salmonid habitat may occur Washington State Fish and Wildlife and lower Skagit River). Although no inadvertently.’’ For example, timber Commission (Commission). The minimum instream flow requirements harvesting in the riparian buffer must Commission has the final responsibility exist for bull trout, variable stream flows ‘‘maintain or restore salmonid habitat,’’ for taking action on the preferred and low winter flows are thought to but, at present, the amount of timber alternative and recommending policy negatively influence the embryos and harvesting in riparian ecosystems direction. When implemented, the alevins (a young fish which has not yet compatible with high quality salmonid policy would present guidelines for absorbed its yolk sac) of bull trout habitat is unknown (WDNR 1997). actions that WDFW must follow, but (Rieman and McIntyre 1993). In 1992, the WDFW (formerly the would not be binding on other State, The Chehalis River-Grays Harbor and WDW) developed a draft bull trout- Tribal, or private entities. The Sammamish River-Issaquah Creek Dolly Varden management and recovery publication of a WSP will likely occur ‘‘native char’’ subpopulations occur in plan. In 1995, WDFW released a draft in the near future, but the format and waters on the 303(d) list for not meeting EIS for the management plan. The plan exact content of the document is the standards for dissolved oxygen. establishes a goal of restoring and unknown. Given the uncertainties Although no dissolved oxygen

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.022 pfrm02 PsN: 01NOR2 58926 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations standards exist for bull trout, poor water trout conservation found in the St. Dungeness River-Gray Wolf River, upper quality and highly degraded migratory Mary-Belly River population segment. North Fork Skokomish River, South corridors may hinder or interrupt Fork-lower North Fork Skokomish E. Other Natural or Manmade Factors migration (Spence et al. 1996), leading River, Green River, lower Puyallup Affecting Its Continued Existence to the further fragmentation of habitat (Carbon River), Snohomish River, and isolation of bull trout. Natural and manmade factors Skykomish River, Gorge Reservoir, Surface waters are assigned to one of affecting the continued existence of bull Diablo Reservoir, Ross Reservoir, Lower five classes under the Water Quality trout include: previous introductions of Skagit River, upper Middle Fork Standards for Surface Waters of the non-native species that compete and Nooksack River, and Canyon Creek State of Washington (WAC 173–201A– hybridize with ‘‘native char;’’ (Reed Glesne, North Cascades National 130). These classes are AA subpopulation habitat fragmentation Park, in litt. 1993; Mongillo and Hallock (extraordinary), A (excellent), B (good), and isolation caused by human 1993; John Meyer, Olympic National C (fair) and Lake class. These classes of activities; and the risk of local Park, pers. comm. 1995; Morrill and extirpations due to natural events such criteria are established for the following McHenry 1995; S. Brenkman, pers. as droughts and floods. water quality parameters: temperature, comm. 1997; Brady Green, MBSNF, Introductions of non-native species by pers. comm. 1997). fecal coliform, turbidity, dissolved the Federal government, State fish and oxygen, and toxic deleterious material ‘‘Native char’’ subpopulations that game departments and unauthorized have become geographically isolated concentrations. With the exception of private parties across the range of bull dissolved oxygen, parameters are not to may no longer have access to migratory trout have resulted in declines in corridors. First- and second-order exceed specified maximum levels for abundance, local extirpations, and each class. Maximum water temperature streams in steep headwaters tend to be ° ° hybridization of bull trout (Bond 1992; hydrologically and geomorphically criteria range from 16 C (60.8 F) (Class Howell and Buchanan 1992; Leary et al. AA), 18° C (64.4° F) (Class A), 21° C more unstable than large, low-gradient 1993; Donald and Alger 1993; Pratt and streams. Thus, salmonids are being (69.8° F) (Class B), to 22° C (71.6° F) Huston 1993; MBTSG 1995b,d: 1996g; restricted to habitats where the (Class C). Bull trout streams within the Platts et al.1995; John Palmisano and V. likelihood of extirpation because of Coastal-Puget Sound population Kaczynski, in litt. 1997). Non-native random environmental events is segment have stream segments that fall species may exacerbate stresses on bull greatest’’ (Spence et al. 1996). ‘‘Native in classes AA, A, and B. Given the trout from habitat degradation, char’’ subpopulations that are likely to apparent low temperature requirements fragmentation, isolation, and species be negatively affected by natural events of bull trout (Rieman and McIntyre interactions (Rieman and McIntyre as a result of isolation are Cushman 1993), these temperature standards are 1993). In some lakes and rivers, Reservoir, South Fork-lower North Fork likely inadequate to protect bull trout introduced species including rainbow Skokomish River, Gorge Reservoir, spawning, rearing or migration. trout and kokanee may benefit large Diablo Reservoir, Ross Reservoir, upper Segments of the Quinault, Queets, adult bull trout by providing Middle Fork Nooksack River, upper Elwha, Skokomish, Nisqually, White, supplemental forage (Faler and Bair Quinault River, upper Sol Duc River, Green, and Snohomish rivers do not 1991; Pratt 1992; ODFW, in litt. 1993; upper Dungeness River, and Chester meet existing State standards for their MBTSG 1996a). However, the same Morse Reservoir (Service 1998a). Of respective classes. It is unknown introductions of game fish can these 10 ‘‘native char’’ subpopulations, whether the current standards negatively affect bull trout due to we have examined species composition established for other water quality increased angling and subsequent in seven and bull trout have been parameters (fecal coliform, turbidity, incidental catch, illegal harvest of bull confirmed in five (Cushman Reservoir, dissolved oxygen, toxic deleterious trout, and competition for space (Rode South Fork-lower North Fork material concentrations) within the 1990; Bond 1992; WDW 1992; MBTSG Skokomish River, upper Quinault River, various classes, are adequate to protect 1995d). Chester Morse Reservoir, and upper bull trout. See Factor A for additional Middle Fork Nooksack River), of which discussion of water quality. Coastal-Puget Sound Population Segment three are ‘‘depressed’’ (Service 1998a). St. Mary-Belly River Population Competition and hybridization with St. Mary-Belly Population Segment Segment introduced brook trout threatens the Non-native species are pervasive Two USBR structures likely affect bull persistence of some ‘‘native char’’ throughout the St. Mary and Belly rivers trout by dewatering stream reaches, subpopulations in the Coastal-Puget (Fitch 1994; Fredenberg 1996; Clayton acting as passage barriers or exposing Sound DPS. The State of Washington 1997). Brook, brown, and rainbow trout fish to entrainment (Service 1998b). We has introduced brook trout into several have been widely introduced in the are not aware that the effects of the headwater areas occupied by ‘‘native area. We are not aware of any studies structures were considered in their char;’’ however, the distribution of conducted in the DPS evaluating the construction (1902 and 1921) or brook trout within many of these areas effects of introduced non-native fishes operation. Currently, operators attempt appears to be limited. Brook trout can on bull trout. However, because brook to minimize passage and entrainment affect bull trout even in areas with trout occur in the four bull trout problems by staging the fall dewatering undisturbed habitats (e.g., National subpopulations, competition and of the canal and removing boards in the Parks). Brook trout normally have a hybridization are threats in the St. Mary dam during winter. USBR has not reproductive advantage (earlier and Belly rivers (Service 1998b), evaluated the effectiveness of the maturation) over resident bull trout, especially on resident bull trout (R. operations and has not established which can lead to species replacement Wagner, pers. comm. 1998). formal guidelines to minimize the (Leary et al. 1993; Thomas 1992). At We have carefully assessed the best effects of the structures’ operations on present, the distribution of 14 ‘‘native scientific and commercial information bull trout. The draft Montana Bull Trout char’’ subpopulations partially overlap available regarding the past, present, Restoration Plan (1998) does not address with brook trout in the upper Sol Duc and future threats faced by the Coastal- or incorporate recommendations for bull River, upper Elwha River, lower Puget Sound and St. Mary-Belly River

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.024 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58927 population segments of bull trout in subpopulation ‘‘unknown.’’ Migratory information. When a ‘‘not determining this rule. Based on this bull trout are known to occur in three determinable’’ finding is made, we evaluation, we have determined to list subpopulations, but these must, within 2 years of the publication the bull trout as threatened in both subpopulations are isolated by irrigation date of the original proposed rule, population segments as summarized dams and unscreened diversions. We designate critical habitat, unless the below. consider the dams and unscreened designation is found to be not prudent. diversions a major factor affecting bull We reached a ‘‘not determinable’’ Coastal-Puget Sound Population trout in the population segment by critical habitat finding in the proposed Segment inhibiting fish movement and possibly rule, and we specifically requested Bull trout and ‘‘native char’’ in the entrainment into diversion channels comments on this issue. While we Coastal-Puget Sound population and habitat alterations associated with received a number of comments segment have declined in abundance dewatering. There are no formal advocating critical habitat designation, and distribution within many guidelines to minimize the effects of the none of these comments provided individual river basins. Bull trout and operation of the structures on bull trout. information that added to our ability to ‘‘native char’’ currently occur as 34 Bull trout are also threatened by determine critical habitat. Additionally, separate subpopulations, which negative interactions with non-native we did not obtain any new information indicates the level of habitat brook trout that occur with the four regarding specific physical and fragmentation and geographic isolation. subpopulations. biological features essential for bull Seven subpopulations are isolated above trout during the open comment period, Critical Habitat dams or other diversion structures, with including the five public hearings. The at least 17 dams proposed in streams Critical habitat is defined in section 3 biological needs of bull trout is not inhabited by other bull trout or ‘‘native of the Act as—(i) the specific area sufficiently well known to permit char’’ subpopulations. Bull trout and within the geographical area occupied identification of areas as critical habitat. ‘‘native char’’ are threatened by the by a species, at the time it is listed in Insufficient information is available on combined effects of habitat degradation accordance with the Act, on which are the number of individuals or spawning and fragmentation, blockage of found those biological features (I) reaches required to support viable migratory corridors, poor water quality, essential to the conservation of the subpopulations throughout each of the harvest, and introduced non-native species and (II) that may require special distinct population segments. In species. Although several management considerations or addition, we have not identified the subpopulations lie completely or protection and; (ii) specific areas extent of habitat required and all partially within National Parks or outside the geographical area occupied specific management measures needed Wilderness Areas, these subpopulations by a species at the time it is listed, upon for recovery of this fish. This are threatened by the presence of brook a determination that such areas are information is considered essential for trout, or from habitat degradation that is essential for the conservation of the determining critical habitat for these occurring outside of these restricted species. ‘‘Conservation’’ means the use population segments. In addition, land use areas. Based on the best of all methods and procedures needed within the Coastal-Puget Sound bull available information, we have to bring the species to the point at trout are sympatric with Dolly Varden. concluded that at least 10 which listing under the Act is no longer These two species are virtually subpopulations are currently necessary. impossible to visually differentiate and ‘‘depressed,’’ one subpopulation is Section 4(a)(3) of the Act, as genetic and morphological-meristic ‘‘strong,’’ and the status of the amended, and implementing regulations analyses to determine the presence or remaining 23 subpopulations is (50 CFR 424.12) require that, to the absence of bull trout and Dolly Varden ‘‘unknown.’’ Some subpopulations in maximum extent prudent and have only been conducted on 15 of the the north Puget Sound have relatively determinable, the Secretary designate 35 ‘‘native char’’ subpopulations. The greater abundance compared to other critical habitat at the time the species is presence of bull trout in the remaining areas of the Coastal-Puget Sound determined to be endangered or 20 subpopulations in the Coastal-Puget population segment. However, we threatened. Our regulations (50 CFR Sound along with the information noted remain concerned over the reported 424.12(a)) state that critical habitat is above is considered essential for declines in abundance in other north not determinable if information determining critical habitat for these Puget Sound subpopulations, and the sufficient to perform required analysis population segments. Therefore, we find documented threats present in these of impacts of the designation is lacking that designation of critical habitat for subpopulation basins. Available or if the biological needs of the species bull trout in the coterminous United anecdotal information indicates are not sufficiently well known to States is not determinable at this time. additional subpopulations within the permit identification of an area as We will protect bull trout habitat population segment have declined in critical habitat. Section 4(b)(2) of the through the recovery process and abundance. Act requires us to consider economic through section 7 consultations to and other relevant impacts of St. Mary-Belly River Population determine whether Federal actions are designating a particular area as critical likely to jeopardize the continued Segment habitat on the basis of the best scientific existence of the species. The St. Mary-Belly population data available. The Secretary may segment contains the only bull trout exclude any area from critical habitat if Available Conservation Measures found east of the Continental Divide in he determines that the benefits of such Conservation measures provided to the coterminous United States. We exclusion outweigh the conservation species listed as endangered or identified four subpopulations isolated benefits, unless to do so would result in threatened under the Act include primarily by irrigation dams and the extinction of the species. recognition, recovery actions, diversions. Recent surveys indicate that We find that the designation of requirements for Federal protection, and bull trout occur in relatively low critical habitat is not determinable for prohibitions against certain activities. abundance, with three subpopulations bull trout in the coterminous United Recognition through listing encourages ‘‘depressed’’ and the status of one States, based on the best available and results in conservation actions by

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.025 pfrm02 PsN: 01NOR2 58928 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations

Federal, State, and private agencies, watershed level. The process uses a Snoqualmie, and Gifford Pinchot groups, and individuals. The Act matrix (Service 1998c) to determine the National Forests. provides for possible land acquisition environmental baseline and the effects The Act and implementing and cooperation with the States and of actions on the environmental baseline regulations found at 50 CFR 17.31 set requires that recovery actions be carried of bull trout. The USFS and BLM forth a series of general prohibitions and out for all listed species. The protection provided a Biological Assessment (BA) exceptions that apply to all threatened required of Federal agencies and the to us on June 15, 1998, which evaluated wildlife. These prohibitions, in part, prohibitions against taking and harm are the effects of implementing the land make it illegal for any person subject to discussed, in part, below. management plans, as amended by the jurisdiction of the United States to Section 7(a) of the Act, as amended, PACFISH and INFISH strategy, in the take (which includes to harass, harm, requires Federal agencies to evaluate Klamath River and Columbia River pursue, hunt, shoot, wound, kill, trap, their actions with respect to any species basins. PACFISH is the Interim or collect; or attempt any of these), that is proposed or listed as endangered Strategies for Managing Anadromous import or export, ship in interstate or threatened and with respect to its commerce in the course of commercial Fish-producing Watersheds in Eastern critical habitat, if any is being activity, or sell or offer for sale in Oregon and Washington, Idaho, and designated. Regulations implementing interstate or foreign commerce any Portions of California, developed by the this interagency cooperation provision listed species. It is also illegal to of the Act are codified at 50 CFR Part USFS and BLM. PACFISH is intended to possess, sell, deliver, carry, transport, or 402. Section 7(a)(2) requires Federal be an ecosystem-based, aquatic habitat ship any such wildlife that has been agencies to ensure that activities they and riparian-area management strategy taken illegally. Certain exceptions apply authorize, fund, or carry out are not for Pacific salmon, steelhead, and sea- to our agents and State conservation likely to jeopardize the continued run cutthroat trout habitat on lands agencies. In this case, a special rule existence of a listed species or to administered by the two agencies that tailored to this particular species takes destroy or adversely modify its critical are outside the area subject to the place of the regulations in 50 CFR habitat. If a Federal action may affect a implementation of the NFP. INFISH is 17.31; the special rule, though, listed species or its critical habitat, the the Inland Native Fish Strategy, which incorporates most requirements of the responsible Federal agency must enter was developed by the USFS to provide general regulations, although with into formal consultation with us. an interim strategy for inland native fish additional exceptions. The Coastal-Puget Sound and St. in eastern Oregon and Washington, We may issue permits under section Mary-Belly River population segments Idaho, western Montana, and portions of 10(a)(1) of the Act to carry out otherwise occur on lands administered by the Nevada. The BA concluded the plans, as prohibited activities involving USFS, NPS, and BLM; various State- amended, would not jeopardize the endangered and threatened wildlife and privately-owned properties in Klamath River and Columbia River under certain circumstances. Washington (Coastal-Puget Sound DPSs of bull trout. In addition, in a June Regulations governing permits are at 50 population segment) and Montana (St. 19, 1998, letter, the land management CFR 17.32 for threatened species. Such Mary-Belly River population segment); agencies provided commitments in permits are available for scientific Blackfeet Tribal lands in Montana, and implementing the PACFISH and INFISH purposes, to enhance the propagation or various Tribal lands in Washington. aquatic conservation strategies to ensure survival of the species, and/or for Federal agency actions that may require the USFS and BLM management plans incidental take in connection with consultation as described in the and associated actions would conserve otherwise lawful activities. Permits are preceding paragraph include COE federally listed bull trout. The also available for zoological exhibition, involvement in projects such as the commitments addressed: restoration and educational purposes, or special construction of roads and bridges, and improvement; standards and guidelines purposes consistent with the purpose of the permitting of wetland filling and of PACFISH and INFISH; key and the Act. For copies of the regulations dredging projects subject to section 404 priority watershed networks; watershed concerning listed plants and animals, of the Clean Water Act; Federal Energy and general inquiries regarding analysis; monitoring; long-term Regulatory Commission licensed prohibitions and permits, contact the conservation and recovery; and section hydropower projects authorized under U.S. Fish and Wildlife Service, 7 consultation at the watershed level. the Federal Power Act; USFS and BLM Ecological Services, Endangered Species timber, recreation, mining, and grazing The BA and additional commitments Permits, 911 N.E. 11th Avenue, management activities; Environmental were part of the materials we evaluated Portland, Oregon, 97232–4181 Protection Agency authorized in developing a biological opinion on (telephone 503/231–2063; facsimile discharges under the National Pollutant the management plans. The non- 503/231–6243). Discharge System of the Clean Water jeopardy biological opinion, issued It is our policy, as published in the Act; and U.S. Housing and Urban August 14, 1998, endorsed Federal Register on July 1, 1994 (59 FR Development projects. implementation of those commitments 34272), to identify to the maximum On January 27, 1998, an interagency in the Klamath River and Columbia extent practicable at the time a species memorandum between the USFS, BLM River basins, in addition to identifying list, listing those activities that would or and us outlined a process for bull trout further actions to help ensure would not constitute a violation of section 7 conference and consultation in conservation of bull trout in those DPSs. section 9 of the Act. The intent of this recognition of the possibility of an The NFP applies to Federal lands in the policy is to increase public awareness of impending listing of bull trout in the Coastal-Puget Sound population the effect of this listing on proposed and Klamath River and Columbia River segment. Although we have not ongoing activities within the species’ basins. The process considers both finalized a programmatic biological range. We believe the following actions programmatic actions (e.g., land opinion, programmatic consultations would not be likely to result in a management plans) and site-specific with three National Forests have been violation of section 9, provided the actions (e.g., timber sales and livestock re-initiated, including conferencing on activities are carried out in accordance grazing allotments) and incorporates bull trout with the USFS regional office with all existing regulations and permit conference and consultation at the for the Olympic, Mount Baker- requirements:

VerDate 29-OCT-99 16:50 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\01NOR2.XXX pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58929

(1) Actions that may affect bull trout must be dewatered prior to screen and grading of unimproved roads, and are authorized, funded or carried bypass installation and prior to fish stormwater and contaminant runoff out by a Federal agency when the action entering the canal or ditch. Installed from roads, failing road culverts, and is conducted in accordance with an screens and bypass structures must meet road culverts that block fish migration incidental take statement issued by us the current NMFS Juvenile Fish Screen or other activities that result in the pursuant to section 7 of the Act; Criteria. Bypass must be accomplished destruction or significant degradation of (2) Possession of bull trout caught through free (volitional) access, with cover, channel stability, substrate legally in accordance with authorized adequate velocities, construction composition, turbidity, temperature, State, NPS, and Tribal fishing materials and stream re-entry conditions and migratory corridors used by the regulations (see ‘‘Special Rule’’ section); that will not result in harm or death to species for foraging, cover, migration, (3) State, local and other activities fish. This does not include the use of and spawning; approved by us under section 4(d), traps or other collection devices at (6) Discharges or dumping of toxic section 6(c)(1), or section 10(a)(1) of the screen installations, placement or chemicals, silt, or other pollutants into Act; operation of the diversion structure, or waters supporting bull trout that result (4) The planting of native vegetation negative effects attributable to depleting in death or injury of the species; and within riparian areas, using hand tools stream flow due to water diversion; (7) Destruction or alteration of or mechanical auger. This does not (9) The general maintenance of riparian or lakeshore habitat and include any site preparation that existing structures (such as homes, adjoining uplands of waters supporting involves the removal of native apartments, commercial buildings) bull trout by timber harvest, grazing, vegetation (such as deciduous trees and which may be located in close mining, hydropower development, road shrubs) or goes beyond that necessary to proximity to a stream corridor, but construction or other developmental plant individual trees, shrubs, etc.; outside of the stream channel. This does activities that result in destruction or (5) The installation of fences to not include potential impacts associated significant degradation of cover, exclude livestock impacts to the with sediment or chemical releases that channel stability, substrate composition, riparian area and stream channel. The may adversely affect bull trout or their temperature, and migratory corridors installation of new off-channel livestock habitat, nor does this include those used by the species for foraging, cover, watering facilities where livestock use activities that may degrade existing migration, and spawning. streams for watering, and the operation riparian areas or alter streambanks (such We will review other activities not and maintenance of existing off-channel as removal of streamside vegetation and identified above on a case-by-case basis livestock watering facilities. These streambank stabilization); and to determine if a violation of section 9 watering facilities must consist of low (10) The lawful use of existing State, of the Act may be likely to result from volume pumping, gravity feed or well county, city, and private roads. This such activity. We do not consider these systems, and in-water intakes must be does not include road maintenance and lists to be exhaustive and provide them screened consistent with National the potential impacts associated with as information to the public. Marine Fisheries Service (NMFS) the road itself that may destroy or alter Direct your questions regarding Juvenile Fish Screen Criteria For Pump bull trout habitat (such as grading of whether specific activities may Intakes. This does not include the unimproved roads, stormwater and constitute a violation of section 9 to the potential impacts associated with the contaminant runoff from roads, failing Supervisor, Western Washington Office, grazing activity itself or negative effects road culverts, and road culverts that 510 Desmond Drive SE, Suite 102, attributable to depleting stream flow block fish migration), unless authorized Lacey, Washington 98503 (telephone due to water withdrawal; by us through section 7 or 10 of the Act. 360/753–9440; facsimile 360/753–9518) (6) The placement of human access The following actions likely would be for the Coastal-Puget Sound population barriers, such as gates, fences, boulders, considered a violation of section 9: segment; the Montana Field Office, 100 logs, vegetative buffers, and signs to (1) Take of bull trout without a permit N. Park, Suite 320 Helena, Montana limit use- and disturbance-associated or other incidental take authorization 59601 (telephone 406/449–5225; impacts. These impacts include timber from us. Take includes harassing, facsimile 406/449–5339) for the St. theft, disturbance to wildlife, poaching, harming, pursuing, hunting, shooting, Mary-Belly River population segment. illegal dumping of waste, erosion of wounding, killing, trapping, capturing, Special Rule soils, and sedimentation of aquatic or collecting, or attempting any of these habitats, particularly in sensitive areas actions, except in accordance with Section 4(d) of the Act provides that such as riparian habitats or geologically applicable State, NPS, and Tribal fish when a species is listed as threatened, unstable zones. This does not include and wildlife conservation laws and we are to issue such regulations as are road maintenance or the potential regulations; necessary and advisable to provide for impacts associated with the road itself; (2) To possess, sell, deliver, carry, the conservation of the species. We have (7) The current operation and transport, or ship illegally taken bull generally done so by adopting maintenance of fish screens on various trout; regulations (50 CFR 17.31) applying water facilities that meet the current (3) Unauthorized interstate and with respect to threatened species the NMFS Juvenile Fish Screen Criteria and foreign commerce (commerce across same prohibitions that under the Act Juvenile Fish Screen Criteria For Pump State and international boundaries) and apply with respect to endangered Intakes. This does not include the use import/export of bull trout (as discussed species. Those prohibitions generally of traps or other collection devices at in the prohibition discussion earlier in make it illegal to import, export, take, screen installations, operation of the this section); possess, ship in interstate commerce, or diversion structure, or negative effects (4) Intentional introduction of non- sell a member of the species. The ‘‘take’’ attributable to depleting stream flow native fish species that compete or that is prohibited includes harassing, due to water diversion; hybridize with, or prey on bull trout; harming, pursuing, hunting, shooting, (8) The installation, operation, and (5) Destruction or alteration of bull wounding, killing, trapping, capturing, maintenance of screens where the trout habitat by dredging, or collecting the wildlife, or attempting existing canal or ditch is located off the channelization, diversion, in-stream to do any of those things. However, we main stream channel. The canal or ditch vehicle operation or rock removal, may also issue a special rule tailored to

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.028 pfrm02 PsN: 01NOR2 58930 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations a certain threatened species, suspended harvest of bull trout in the the notice for further information and if establishing with respect to it only those Columbia River basin, except in Lake you wish to provide comments to us. particular prohibitions that are Billy Chinook (Oregon) and Swan Lake Similarity of Appearance necessary and advisable for its (Montana). Since the States and many conservation. In that case, the general Tribal governments have demonstrated Section 4(e) of the Act authorizes the prohibitions in 50 CFR 17.31 do not a willingness to adjust their regulations listing of a non-threatened or apply to that species, and the special to reduce fishing pressures where endangered species based on similarity rule contains all the prohibitions and needed, we do not believe it is of appearance to a threatened or exceptions that do apply. Typically, necessary and advisable for the endangered species if—(A) the species such special rules incorporate all the conservation of the species to prohibit so closely resembles in appearance an prohibitions contained in 50 CFR 17.31, take through regulated fishing of endangered or threatened species that with additional exceptions for certain subpopulations of bull trout that are enforcement personnel would have forms of take that we have determined exhibiting stable or increasing numbers substantial difficulty in differentiating are not necessary and advisable to of individuals and where habitat between the listed and unlisted species; prohibit in order to provide for the conditions are not negatively depressing (B) the effect of this substantial conservation of that particular species. local fish stocks. Using discretion when difficulty is an additional threat to an The special rule in this final applying 4(d) exemptions can foster endangered or threatened species; and determination for bull trout will apply incentives for States and Tribes to (C) such treatment will substantially to bull trout wherever found in the expedite conservation efforts by facilitate the enforcement and further coterminous lower 48 States, except in providing rewards for restoring stocks the policy of the Act. the Jarbidge River basin in Nevada and and allowing regulated harvest prior to Within the Coastal-Puget Sound Idaho. The principal effect of the special delisting. For example, Washington has population segment, bull trout occur rule is to allow take in accordance with only two systems in the Coastal-Puget sympatrically within the range of the State, NPS, and Native American Tribal Sound population segment that are open Dolly Varden. These two species so permitted fishing activities. Since we for bull trout fishing. These systems closely resemble one another in external are finalizing the listing of bull trout as have a two fish limit with a minimum appearance that it is virtually a coterminous listing, we are essentially 508 mm (20 in.) size limit to allow impossible for the general public to adding the special rule we had proposed females to spawn at least once. Also, as visually differentiate the two. Currently, for the Coastal-Puget Sound and St. long as these systems are closely WDFW manages bull trout and Dolly Mary-Belly River population segments monitored, we are gaining valuable Varden together as ‘‘native char.’’ to the existing special rule for the information about the life history, Fishing for bull trout and Dolly Varden Klamath and Columbia River population relative abundance, and distribution of is open in four subpopulations within segments published on June 10, 1998 bull trout, which will be important for (63 FR 31647). The resultant special rule the Coastal-Puget Sound population working towards the recovery of the segment, two under WDFW regulations, is effectively identical to the proposed species. We intend to continue to work rule for the Coastal-Puget Sound and St. and two under Native American Tribal with the States and Tribes in assessing regulations. These ‘‘native char’’ Mary-Belly population segments and whether current fishing regulations are does not change the existing special rule fisheries may adversely affect these adequate to protect bull trout, and in subpopulations of bull trout. However, for the Klamath and Columbia River developing management plans and population segments. The special rule under current harvest management, agreements with the objective of for the Jarbidge River population there is no evidence that the specific recovery and eventual delisting of the segment is effectively identical to the harvest for Dolly Varden creates an species. special rule for the other four additional threat to bull trout within population segments except that it is In accordance with the June 1997 this population segment. Therefore, a only valid until April 9, 2001, and thus, Secretarial Order on Federal-Tribal trust similarity of appearance rule is not will remain separate. responsibilities and the Act, we will being issued for Dolly Varden at this We believe that statewide angling work with Tribal governments that time. However, if bull trout and Dolly regulations have become more manage bull trout streams to restore Varden are managed in Washington restrictive in an attempt to protect bull ecosystems and enhance Tribal State as separate species in the future, trout in Washington, Idaho, Oregon, management plans affecting the species. we may consider, at that time, the California, and Montana, and are We believe that the special rule is merits of proposing Dolly Varden under adequate to provide continued consistent with the Secretarial Order the similarity of appearance provisions conservation benefits for bull trout in designed to enhance Native American of the Act. participation under the Act and will the Klamath River, Columbia River, Section 7 Consultation Coastal-Puget Sound and the St. Mary- allow more efficient management of the Belly River population segments. The species on Tribal lands. Although this rule consolidates the State of Washington closed fishing in Elsewhere in today’s Federal Register five bull trout DPSs into one listed 1994 for ‘‘native char’’ in most waters we have published a Notice of Intent taxon, based on conformance with the within the Coastal-Puget Sound which outlines our intent to develop, DPS policy for purposes of consultation population. Legal angler harvest in the through section 4(d) of the Act, another under section 7 of the Act, we intend to St. Mary-Belly River DPS in Montana special rule for bull trout that would retain recognition of each DPS in light occurs only on the Blackfeet Indian provide conservation benefits to the of available scientific information Reservation. Legal harvest of bull trout species, while ensuring the future relating to their uniqueness and in the Klamath River basin was continuation of land management significance. Under this approach, these eliminated in 1992 when the Oregon actions. The special rule would address DPSs will be treated as interim recovery Department of Fish and Wildlife two categories of activities affecting bull units with respect to application of the imposed a fishing closure. State trout: (1) Habitat restoration; and (2) jeopardy standard until an approved management agencies in Idaho, Oregon, regulations that govern land and water recovery plan is developed. Formal Montana, and Washington have management activities. Please refer to establishment of bull trout recovery

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.030 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58931 units will occur during the recovery River population segments. Although This special rule will not materially planning process. the special rule for the Klamath River affect entitlements, grants, user fees, and Columbia River DPSs was finalized loan programs, or the rights and Paperwork Reduction Act for the on June 10, 1998 (63 FR 31647), and obligations of their recipients. This Listing continues to remain in effect, they are special rule does not affect entitlement This rule does not contain any new included in this ‘‘Required programs. collections of information other than Determinations for the Special Rule’’ This special rule will not raise novel those already approved under the section since the special rule applies to legal or policy issues. There is no Paperwork Reduction Act, 44 U.S.C. all four DPSs (see ‘‘Special Rule’’ indication that allowing for continued 3501 et seq., and assigned Office of section for further discussion of this angling opportunities in accordance Management and Budget clearance issue). with existing State, NPS, and Native number 1018–0094. An agency may not This special rule will allow continued American Tribal regulations would raise conduct or sponsor, and a person is not angling opportunities in Washington, legal, policy, or any other issues. required to respond to a collection of Idaho, Oregon, California, and Montana The Department of the Interior information, unless it displays a under existing State, NPS, and Native certifies that the final rule will not have currently valid control number. For American Tribal regulations. Data on a significant economic effect on a additional information concerning the number of days of trout fishing substantial number of small entities as permit and associated requirements for under new State regulations are defined under the Regulatory Flexibility threatened species, see 50 CFR 17.32. available by State from the 1996 Act (5 U.S.C. 601 et seq.). A Regulatory National Survey of Fishing, Hunting, Flexibility Analysis is not required. Required Determinations for the and Wildlife Associated Recreation. Accordingly, a Small Entity Compliance Special Rule These data pertain to total trout fishing Guide is not required. We recognize that Regulatory Planning and Review, in each State. In order to develop an some affected entities are considered Regulatory Flexibility Act, and Small estimate of angling days preserved by ‘‘small’’ in accordance with the Business Regulatory Enforcement this rule, we used the proportion of the Regulatory Flexibility Act, however, no Fairness Act river miles in this rule to total river individual small industry within the miles of coldwater running rivers and United States will be significantly The special rule was not subject to streams in each State to estimate the affected by allowing for continued Office of Management and Budget portion of total trout angling days angling opportunities in accordance (OMB) review under Executive Order affected by this rule. Because of the lack with existing State, NPS, and Tribal 12866. of definitive data, we decided to do a regulations. This special rule will not have an worst case analysis. We analyzed the The special rule is not a major rule annual economic effect of $100 million economic loss in angling satisfaction, under 5 U.S.C. 801 et seq., the Small or adversely affect an economic sector, measured as consumer surplus, if all Business Regulatory Enforcement productivity, jobs, the environment, or trout fishing were prohibited in the Fairness Act. other units of the government. Klamath, Columbia, St. Mary-Belly This special rule does not have an Therefore, a cost-benefit and full rivers and the Coastal-Puget Sound. annual effect on the economy of $100 economic analysis is not required. Since there are substitute sites in each million or more. Trout fishing in the Section 4(d) of the Act provides State where fishing is available, this Klamath River, Columbia River, the authority for us to issue regulations measure of consumer surplus is a Coastal-Puget Sound, and the St. Mary- necessary to provide for the conservative estimate and would be a Belly River generates expenditures by conservation of species listed as maximum estimate. The total estimated local anglers of an estimated $8.7 threatened. We find that State, NPS, and angling days affected is 266,490 million per year. Consequently, the Native American Tribal angling annually. We used a consumer surplus maximum benefit of this rule for local regulations have become more of $19.35 (1999$) per day for trout sales of equipment and supplies is no restrictive in an attempt to protect bull fishing to get an estimated benefit of more than $8.7 million per year and trout in the coterminous United States. slightly over $5 million annually. If the most likely smaller because all fishing We believe that existing angling assumption that the affected rivers would not cease in the area even if the regulations developed independently by receive an average amount of angling Klamath River, Columbia River, the the States, National Park Service, and pressure does not hold true, and the Coastal-Puget Sound, and the St. Mary- Native American Tribes are adequate to angling pressure is twice the average for Belly River were closed to trout fishing. provide continued conservation benefits the affected rivers, then the annual The availability of numerous substitute for the bull trout in the coterminous consumer surplus will be in the range sites would keep anglers spending at a United States. As a result, the special of $10 million annually. Consequently, level probably close to past levels. rule will allow angling to take place in this rule will have a small measurable This special rule will not cause a the river systems within the Klamath economic benefit on the United States major increase in costs or prices for River, Columbia River, Coastal-Puget economy, and even in the event that consumers, individual industries, Sound, and St. Mary-Belly River DPSs fishing pressure is twice the State Federal, State, or local government under existing State regulations. The average in the affected rivers, this rule agencies, or geographic regions. This Jarbidge River DPS has a separate will not have an annual effect of $100 special rule allows the continuation of special rule that was made final on million or more for a significant rule- fishing in the Klamath River, Columbia April 8, 1999 (64 FR 17110), and making action. River, Coastal-Puget Sound and St. continues to remain in effect for that This special rule will not create Mary-Belly River population segments DPS. The economic effects discussion inconsistencies with other agencies’ and, therefore, allows for the usual sale addresses only the economic benefits actions. of equipment and supplies by local that will accrue to the anglers who can The special rule allows for continued businesses. This special rule will not continue to fish in river systems within angling opportunities in accordance affect the supply or demand for angling the Klamath River, Columbia River, with existing State, NPS, and Native opportunities in Washington, Idaho, Coastal-Puget Sound and St. Mary-Belly American Tribal regulations. Oregon, California, and Montana, and

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.032 pfrm02 PsN: 01NOR2 58932 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations therefore, should not affect prices for would not restrict, limit, or affect the Snake River Basin Office (see fishing equipment and supplies, or the property rights protected by the ADDRESSES section). retailers that sell equipment. Trout Constitution. Author(s) fishing in the affected rivers accounts Federalism for less than 2 percent of the available The primary authors of this final rule trout fishing in the States. This special rule will not have are Jeffrey Chan, Western Washington This special rule does not have substantial direct effects on the States, Fishery Resource Office, Olympia, significant adverse effects on in their relationship between the Washington; Wade Fredenberg, Creston competition, employment, investment Federal Government and the States, or Fish and Wildlife Center, Kalispell, productivity, innovation, or the ability on the distribution of power and Montana; Samuel Lohr, Snake River of United States based enterprises to responsibilities among various levels of Basin Office, Boise, Idaho; and Shelley compete with foreign-based enterprises. government. Therefore, in accordance Spalding, Western Washington State Because this rule allows for the with Executive Order 12612, we have Office, Olympia, Washington. continuation of spending of a small determined that this special rule does number of affected anglers, not have sufficient federalism List of Subjects in 50 CFR Part 17 approximately $8.6 million for trout implications to warrant a Federalism Endangered and threatened species, fishing, there will be no measurable Assessment. Exports, Imports, Reporting and economic effect on the freshwater Civil Justice Reform recordkeeping requirements, sportfish industry which has annual Transportation. sales of equipment and travel The Department of the Interior has expenditures of $24.5 billion determined that this special rule meets Regulation Promulgation nationwide. the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Accordingly, we amend part 17, Unfunded Mandates Reform Act Order 12988. subchapter B of chapter I, title 50 of the In accordance with the Unfunded Code of Federal Regulations, as follows: National Environmental Policy Act Mandates Reform Act (2 U.S.C. 1501, et PART 17Ð[AMENDED] seq.): We have determined that an This special rule will not Environmental Assessment and 1. The authority citation for part 17 ‘‘significantly or uniquely’’ affect small Environmental Impact Statement, as continues to read as follows: governments. A Small Government defined under the authority of the Agency Plan is not required; and National Environmental Policy Act of Authority: 16 U.S.C. 1361–1407; 16 U.S.C. This special rule will not produce a 1969, need not be prepared in 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500, unless otherwise noted. Federal mandate of $100 million or connection with regulations adopted greater in any year; that is, it is not a pursuant to section 4(a) of the Act. We 2. Amend § 17.11(h) by revising the ‘‘significant regulatory action’’ under published a notice outlining our reasons entries for ‘‘trout, bull’’ under FISHES, the Unfunded Mandates Reform Act. for this determination in the Federal in the List of Endangered and Register on October 25, 1983 (48 FR Threatened Wildlife to read as follows: Takings Implication 49244). We have determined that this special § 17.11 Endangered and threatened rule has no potential takings of private References Cited wildlife. property implications as defined by A complete list of all references cited * * * * * Executive Order 12630. The special rule herein is available upon request from (h) * * *

SPECIES Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules

******* FISHES

******* Trout, bull ...... Salvelinus confluentus .. U.S.A. (AK, Pacific NW U.S.A, coterminous T 637, 659, NA 17.44(w) into CA, ID, NV, MT), (lower 48 states). 670 17.44(x) Canada (NW Terri- tories).

*******

3. Amend § 17.44 by revising the Jarbidge River Basin in Nevada and (i) No person may possess, sell, paragraph (w) to read as follows: Idaho (see 50 CFR 17.44(x)). deliver, carry, transport, ship, import, or export, by any means whatsoever, any § 17.44 Special rulesÐfishes. (1) What activities do we prohibit? Except as noted in paragraph (w)(2) of such species taken in violation of this * * * * * this section, all prohibitions of 50 CFR section or in violation of applicable (w) What species are covered by this 17.31 and exemptions of 50 CFR 17.32 State, National Park Service, and Native special rule? Bull trout (Salvelinus shall apply to the bull trout in the American Tribal fish and conservation confluentus), wherever found in the coterminous United States as defined in laws and regulations. coterminous lower 48 States, except in paragraph (w) of this section. (ii) It is unlawful for any person to attempt to commit, solicit another to

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.034 pfrm02 PsN: 01NOR2 Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / Rules and Regulations 58933 commit, or cause to be committed, any propagation or survival of the species, regulations with respect to the taking of offense listed in this special rule. zoological exhibition, and other this species is also a violation of the (2) What activities do we allow? In the conservation purposes consistent with Endangered Species Act. following instances you may take this the Act; or * * * * * species in accordance with applicable (ii) Fishing activities authorized Dated: October 14, 1999. State, National Park Service, and Native under State, National Park Service, or American Tribal fish and wildlife Native American Tribal laws and Donald Barry, conservation laws and regulations, as regulations; Assistant Secretary for Fish and Wildlife and constituted in all respects relevant to (3) How does this rule relate to State Parks. protection of bull trout in effect on protective regulations? Any violation of [FR Doc. 99–28295 Filed 10–29–99; 8:45 am] November 1, 1999: applicable State, National Park Service, BILLING CODE 4310±55±P (i) Educational purposes, scientific or Native American Tribal fish and purposes, the enhancement of wildlife conservation laws or

VerDate 29-OCT-99 14:52 Oct 29, 1999 Jkt 190000 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\A01NO0.037 pfrm02 PsN: 01NOR2