[Federal Register Volume 64, Number 210 (Monday, November 1, 1999)]
[Rules and Regulations]
[Pages 58910-58933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28295]



[[Page 58909]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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



Notice of Intent To Prepare a Proposed Special Rule Pursuant to Section 
4(d) of the Endangered Species Act for the Bull Trout; Proposed Rule

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

[[Page 58910]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF01


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine threatened 
status for all populations of bull trout (Salvelinus confluentus) 
within the coterminous United States, with a special rule, pursuant to 
the Endangered Species Act of 1973, as amended (Act). This 
determination is based on our finding that the Coastal-Puget Sound and 
St. Mary-Belly River population segments are threatened, coupled with 
our earlier findings of threatened status for the Klamath River, 
Columbia River, and Jarbidge River population segments. These 
population segments are disjunct and geographically isolated from one 
another with no genetic interchange between them due to natural and 
man-made barriers. These population segments collectively encompass the 
entire range of the species in the coterminous United States. 
Therefore, for the purposes of consultation and recovery, we recognize 
these five distinct population segments as interim recovery units. With 
this final rule, the bull trout will now be listed as threatened 
throughout its entire range in the coterminous United States.
    The Coastal-Puget Sound bull trout population segment encompasses 
all Pacific coast drainages within Washington, including Puget Sound. 
The St. Mary-Belly River bull trout population segment occurs in 
northwest Montana. Bull trout are threatened by the combined effects of 
habitat degradation, fragmentation and alterations associated with 
dewatering, road construction and maintenance, mining, and grazing; the 
blockage of migratory corridors by dams or other diversion structures; 
poor water quality; incidental angler harvest; entrainment (process by 
which aquatic organisms are pulled through a diversion or other device) 
into diversion channels; and introduced non-native species. This final 
determination was based on the best available scientific and commercial 
information including current data and new information received during 
the comment period.

EFFECTIVE DATE: December 1, 1999.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Snake River Basin 
Office, 1387 S. Vinnell Way, Room 368, Boise, Idaho 83709.

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Supervisor, at the 
above address (telephone 208/378-5243; facsimile 208/378-5262) to make 
an appointment to inspect the complete file for this rule or for 
information pertaining to the Columbia River population segment; Gerry 
Jackson, Manager, Western Washington Office (telephone 360/753-9440; 
facsimile 360/753-9008) for information pertaining to the Coastal-Puget 
Sound population segment; Kemper McMaster, Field Supervisor, Montana 
Field Office (telephone 406/449-5225; facsimile 406/449-5339) for 
information pertaining to the St. Mary-Belly River population segment; 
Steven Lewis, Field Supervisor, Klamath Falls Fish and Wildlife Office 
(telephone 541/885-8481; facsimile 541/885-7837) for information 
pertaining to the Klamath River population segment; Robert D. Williams, 
Field Supervisor, Nevada State Office (telephone 775/861-6300; 
facsimile 775/861-6301) for information pertaining to the Jarbidge 
River population segment.

SUPPLEMENTARY INFORMATION:

Background

    Bull trout (Salvelinus confluentus), members of the family 
Salmonidae, are char native to the Pacific northwest and western 
Canada. They historically occurred in major river drainages in the 
Pacific northwest from about 41 deg. N to 60 deg. N latitude, from the 
southern limits in the McCloud River in northern California and the 
Jarbidge River in Nevada, north to the headwaters of the Yukon River in 
Northwest Territories, Canada (Cavender 1978; Bond 1992). To the west, 
bull trout range includes Puget Sound, various coastal rivers of 
Washington, British Columbia, Canada, and southeast Alaska (Bond 1992; 
Leary and Allendorf 1997). Bull trout are relatively dispersed 
throughout tributaries of the Columbia River Basin, including its 
headwaters in Montana and Canada. Bull trout also occur in the Klamath 
River Basin of south-central Oregon. East of the Continental Divide, 
bull trout are found in the headwaters of the Saskatchewan River in 
Alberta and the MacKenzie River system in Alberta and British Columbia 
(Cavender 1978; Brewin and Brewin 1997).
    Bull trout were first described as Salmo spectabilis by Girard in 
1856 from a specimen collected on the lower Columbia River, and 
subsequently described under a number of names such as Salmo 
confluentus and Salvelinus malma (Cavender 1978). Bull trout and Dolly 
Varden (Salvelinus malma) were previously considered a single species 
(Cavender 1978; Bond 1992). Cavender (1978) presented morphometric 
(measurement), meristic (counts), osteological (bone structure), and 
distributional evidence to document specific distinctions between Dolly 
Varden and bull trout. Subsequently, bull trout and Dolly Varden were 
formally recognized as separate species by the American Fisheries 
Society in 1980 (Robins et al. 1980). Although bull trout and Dolly 
Varden co-occur in several northwestern Washington River drainages, 
there is little evidence of introgression and the two species appear to 
be maintaining distinct genomes (Leary and Allendorf 1997).
    Bull trout exhibit both resident and migratory life-history 
strategies through much of the current range (Rieman and McIntyre 
1993). Resident bull trout complete their life cycles in the tributary 
streams in which they spawn and rear. Migratory bull trout spawn in 
tributary streams, and juvenile fish rear from 1 to 4 years before 
migrating to either a lake (adfluvial), river (fluvial), or in certain 
coastal areas, saltwater (anadromous), to mature (Fraley and Shepard 
1989; Goetz 1989). Anadromy is the least studied life-history type in 
bull trout, and some biologists believe the existence of true anadromy 
in bull trout is still uncertain (McPhail and Baxter 1996). However, 
historical accounts, collection records, and recent evidence suggests 
an anadromous life-history form for bull trout (Suckley and Cooper 
1860; Cavender 1978; McPhail and Baxter 1996; Washington Department of 
Fish and Wildlife (WDFW) et al. 1997--formerly the Washington 
Department of Wildlife (WDW)). Resident and migratory forms may be 
found together, and bull trout may produce offspring exhibiting either 
resident or migratory behavior (Rieman and McIntyre 1993).
    Compared to other salmonids, bull trout have more specific habitat 
requirements (Rieman and McIntyre 1993) that appear to influence their 
distribution and abundance. Critical parameters include water 
temperature, cover, channel form and stability, valley form, spawning 
and rearing substrates, and migratory corridors (Oliver 1979; Pratt 
1984, 1992; Fraley and Shepard 1989; Goetz 1989; Hoelscher and Bjornn 
1989; Sedell and Everest 1991; Howell and Buchanan 1992; Rieman and

[[Page 58911]]

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

[[Page 58912]]

1992; Donald and Alger 1993; Leary et al. 1993; Montana Bull Trout 
Scientific Group (MBTSG) 1996a,h). East of the Continental Divide, in 
the St. Mary-Belly River drainage, bull trout co-evolved with lake 
trout and westslope cutthroat trout (Fredenberg 1996). In this portion 
of their range, bull trout and lake trout have apparently partitioned 
habitat with lake trout dominating lentic (i.e., lake) systems, 
relegating bull trout to riverine systems and the fluvial life-history 
form (Donald and Alger 1993).
    Bull trout habitat in the coterminous United States is found in a 
mosaic of land ownership, including Federal, State, Tribal, and private 
lands. For the Coastal-Puget Sound population segment, over half of the 
bull trout habitat occurs on non-Federal lands. For the St. Mary-Belly 
River population segment, about two-thirds of the habitat occurs on 
Federal land (Glacier National Park) and about a third on Tribal lands 
of the Blackfeet Indian Nation.
    Migratory corridors link seasonal habitats for all bull trout life-
history forms. The ability to migrate is important to the persistence 
of local bull trout subpopulations (Rieman and McIntyre 1993; Mike 
Gilpin, University of California, in litt. 1997; Rieman and Clayton 
1997; Rieman et al. 1997). Migrations facilitate gene flow among local 
subpopulations if individuals from different subpopulations interbreed 
when some return to non-natal streams. Migratory fish may also 
reestablish extirpated local subpopulations.
    Metapopulation concepts of conservation biology theory may be 
applicable to the distribution and characteristics of bull trout 
(Rieman and McIntyre 1993; Kanda 1998). A metapopulation is an 
interacting network of local subpopulations with varying frequencies of 
migration and gene flow among them (Meffe and Carroll 1994). 
Metapopulations provide a mechanism for reducing risk because the 
simultaneous loss of all subpopulations is unlikely. Although local 
subpopulations may become extinct, they can be reestablished by 
individuals from other local subpopulations. However, because bull 
trout exhibit strong homing fidelity when spawning and their rate of 
straying appears to be low, natural re-establishment of extinct local 
subpopulations may take a very long time. Habitat alteration, primarily 
through construction of impoundments, dams, and water diversions, has 
fragmented habitats, eliminated migratory corridors, and isolated bull 
trout, often in the headwaters of tributaries (Rieman et al. 1997).

Distinct Population Segments

    Using the best available scientific and commercial information, we 
identified five distinct population segments (DPSs) of bull trout in 
the coterminous United States--(1) Klamath River, (2) Columbia River, 
(3) Coastal-Puget Sound, (4) Jarbidge River, and (5) St. Mary-Belly 
River. The final listing determination for the Klamath River and 
Columbia River bull trout DPSs on June 10, 1998 (63 FR 31647), includes 
a detailed description of the rationale behind the DPS delineation for 
those two population segments. The Jarbidge River DPS final listing 
determination was made on April 8, 1999 (64 FR 17110). However, the DPS 
policy, published on February 7, 1996 (61 FR 4722), is intended for 
cases where only a segment of a species' range needs the protections of 
the Act, rather than the entire range of a species. Although the bull 
trout DPSs are disjunct and geographically isolated from one another 
with no genetic interchange between them due to natural and man-made 
barriers, collectively, they include the entire distribution of the 
bull trout in the coterminous United States. In accordance with the DPS 
policy, our authority to list DPSs is to be exercised sparingly. Thus a 
coterminous listing is appropriate in this case. In recognition of the 
scientific basis for the identification of these bull trout population 
segments as DPSs, and for the purposes of consultation and recovery 
planning, we will continue to refer to these populations as DPSs. These 
DPSs will serve as interim recovery units in the absence of an approved 
recovery plan.

Coastal-Puget Sound Population Segment

    The Coastal-Puget Sound bull trout DPS encompasses all Pacific 
Coast drainages within the coterminous United States north of the 
Columbia River in Washington, including those flowing into Puget Sound. 
This population segment is discrete because it is geographically 
segregated from other subpopulations by the Pacific Ocean and the crest 
of the Cascade Mountain Range. The population segment is significant to 
the species as a whole because it is thought to contain the only 
anadromous forms of bull trout in the coterminous United States, thus, 
occurring in a unique ecological setting. In addition, the loss of this 
population segment would significantly reduce the overall range of the 
taxon.

St. Mary-Belly River Population Segment

    The St. Mary-Belly River DPS is located in northwest Montana east 
of the Continental Divide. Both the St. Mary and Belly rivers are 
tributaries of the Saskatchewan River Basin in Alberta, Canada. The 
population segment is discrete because it is segregated from other bull 
trout by the Continental Divide and is the only bull trout population 
found east of the Continental Divide in the coterminous United States. 
The population segment is significant because its loss would result in 
a significant reduction in the range of the taxon within the 
coterminous United States. Bull trout in this population segment 
migrate across the international border with Canada (Clayton 1998).

Status and Distribution

    To facilitate evaluation of current bull trout distribution and 
abundance for the Coastal-Puget Sound and St. Mary-Belly River 
population segments, we analyzed data on a subpopulation basis within 
each population segment because fragmentation and barriers have 
isolated bull trout. A subpopulation is considered a reproductively 
isolated bull trout group that spawns within a particular area(s) of a 
river system. In areas where two groups of bull trout are separated by 
a barrier (e.g., an impassable dam or waterfall, or reaches of 
unsuitable habitat) that may allow only downstream access (i.e., one-
way passage), both groups were considered subpopulations. In addition, 
subpopulations were considered at risk of extirpation from natural 
events if they were: (1) Unlikely to be reestablished by individuals 
from another subpopulation (i.e., functionally or geographically 
isolated from other subpopulations); (2) limited to a single spawning 
area (i.e., spatially restricted); and (3) characterized by low 
individual or spawner numbers; or (4) consisted primarily of a single 
life-history form. For example, a subpopulation of resident fish 
isolated upstream of an impassable waterfall would be considered at 
risk of extirpation from natural events if it had low numbers of fish 
that spawn in a relatively restricted area. In such cases, a natural 
event such as a fire or flood could eliminate the subpopulation, and, 
subsequently, reestablishment of the subpopulation from fish downstream 
would be prevented by the impassable waterfall. However, a 
subpopulation residing downstream of the waterfall would not be 
considered at risk of extirpation because of potential reestablishment 
by

[[Page 58913]]

fish from upstream. Because resident bull trout may exhibit limited 
downstream movement (Nelson 1996), our estimate of subpopulations at 
risk of natural extirpation may be underestimated. The status of 
subpopulations was based on modified criteria of Rieman et al. (1997), 
including the abundance, trends in abundance, and the presence of life-
history forms of bull trout.
    We considered a bull trout subpopulation ``strong'' if 5,000 
individuals or 500 spawners likely occur in the subpopulation, 
abundance appears stable or increasing, and life-history forms 
historically present were likely to persist. A subpopulation was 
considered ``depressed'' if less than 5,000 individuals or 500 spawners 
likely occur in the subpopulation, abundance appears to be declining, 
or a life-history form historically present has been lost (Rieman et 
al.1997). If there was insufficient abundance, trend, and life-history 
information to classify the status of a subpopulation as either 
``strong'' or ``depressed,'' the status was considered ``unknown.'' It 
should be noted that the assignment of ``unknown'' status implies only 
a deficiency of available data to assign a subpopulation as ``strong'' 
or ``depressed,'' not a lack of information regarding the threats. 
Section 4 of the Act requires us to make a determination solely on the 
best scientific and commercial data available.

Coastal-Puget Sound Population Segment

    The Coastal-Puget Sound bull trout population segment encompasses 
all Pacific coast drainages within Washington, including Puget Sound. 
No bull trout exist in coastal drainages south of the Columbia River. 
Within this area, bull trout often occur with (i.e., are sympatric) 
Dolly Varden. Because the two species are virtually impossible to 
visually differentiate, the WDFW currently manages bull trout and Dolly 
Varden together as ``native char.'' Previously, we delineated a total 
of 35 subpopulations of ``native char'' (bull trout, Dolly Varden, or 
both species) within the Coastal-Puget Sound population segment 
published on June 10, 1998 (63 FR 31693). Upon further review, we 
revised the total number of subpopulations to 34. In order to be fully 
consistent with the defined subpopulation criteria, we concluded that 
the Puyallup River Basin only has two subpopulations as opposed to 
three, which are the upper Puyallup River and the lower Puyallup 
(includes Carbon River and White River).
    Bull trout and Dolly Varden can be differentiated by both genetic 
and morphological-meristic (measurements and counts) analyses, of which 
biologists have conducted one or both analyses on 15 of the 34 
subpopulations. To date, we have documented bull trout in 12 of 15 
subpopulations investigated (five with only bull trout, three with only 
Dolly Varden, and seven with both species), and it is likely that bull 
trout occur in the majority of the remaining 19 subpopulations (Service 
1998a). Although we only documented three of the tested ``native char'' 
subpopulations as containing Dolly Varden at this time, we are not yet 
confident in excluding these subpopulations from the listing. We 
believe it would be premature to conclude that bull trout do not exist 
in these subpopulations given the limited sample sizes used in the 
analyses, the location of the subpopulations, and the evidence that 
bull trout and Dolly Varden can frequently co-exist together. In order 
to identify trends that may be specific to certain geographic areas, 
the 34 ``native char'' subpopulations were grouped into five analysis 
areas--Coastal, Strait of Juan de Fuca, Hood Canal, Puget Sound, and 
Transboundary.

Coastal Analysis Area

    Ten ``native char'' subpopulations occur in five river basins in 
the Coastal analysis area (number of subpopulations)--Chehalis River-
Grays Harbor (1), Coastal Plains-Quinault River (5), Queets River (1), 
Hoh River-Goodman Creek (2), and Quillayute River (1). Recent efforts 
to determine species composition in three subpopulations documented 
bull trout in at least two, the upper Quinault River and Queets River 
(Leary and Allendorf 1997; WDFW 1997a). Biologists identified only 
Dolly Varden in the upper Sol Duc River to date (Cavender 1978, 1984; 
WDFW 1997a).
    Subpopulations of ``native char'' in the southwestern portion of 
the coastal area appear to be in low abundance based on anecdotal 
information (Mongillo 1993). Because this is the southern extent of 
coastal bull trout and Dolly Varden, abundance may be naturally low in 
systems like the Chehalis, Moclips, and Copalis rivers (WDFW 1997a). In 
recent years, there have been even fewer reports of incidental catches 
of ``native char'' in the Chehalis River Basin. In 1997, a single 
juvenile was captured in a downstream migrant trap on the mainstem of 
the Chehalis River (WDFW 1998a). Although little historical and current 
information is known concerning bull trout in these river basins, 
habitat degradation in the past has adversely affected other salmonids 
(Phinney and Bucknell 1975; Hiss and Knudsen 1993; WDFW 1997a). Habitat 
degradation in these basins is assumed to have similarly affected bull 
trout. Although ``native char'' are believed to be relatively more 
abundant in the Quinault River, extensive portions of the Basin have 
been degraded by past forest management (Phinney and Bucknell 1975; 
WDFW 1997a).
    Most ``native char'' subpopulations in the northwestern coastal 
area occur partially within Olympic National Park, which contains 
relatively undisturbed habitats. However, outside Olympic National 
Park, ``native char'' habitat has been severely degraded by past forest 
practices in the Queets River and Hoh River basins (Phinney and 
Bucknell 1975; WDFW 1997a). Non-native brook trout have been stocked in 
many of the high lakes and streams in the Olympic National Park. Brook 
trout are present in the upper Sol Duc subpopulation and threaten this 
subpopulation from competition and hybridization (Service 1998a). Data 
collected while seining for outmigrating salmon smolts on the Queets 
River indicate a decline in ``native char'' catch rate from 3.3 fish/
day in 1977 to 1 fish/day by 1984 (WDFW 1997a). From 1985 to the time 
seining was discontinued in 1991, catch rate remained relatively stable 
at approximately 1.5 fish/day. The WDFW believes that the Hoh River may 
have the largest subpopulation of ``native char'' on the Washington 
coast, although their numbers have greatly declined since 1982 (WDFW in 
litt. 1992; WDFW 1997a). Reasons for the decline are unknown, but 
overfishing is believed to be a contributing factor (WDFW 1997a; WDFW, 
in litt. 1997). Forty-one and 31 adult ``native char'' were observed 
during snorkel surveys of a 17.6-km (11-mi) section of the South Fork 
Hoh River in 1994 and 1995, respectively (WDFW 1997a). We consider the 
Hoh River subpopulation ``depressed.'' The status of the remaining nine 
``native char'' subpopulations in the coastal analysis area is 
``unknown'' because insufficient abundance, trend, and life-history 
information is available (Service 1998a). Although the status of these 
subpopulations is unknown, we believe that anecdotal information, such 
as described for the Chehalis River-Grays Harbor and Queets River 
subpopulations, indicate declines in abundance in other subpopulations 
within the coastal analysis area.

[[Page 58914]]

Strait of Juan de Fuca Analysis Area

    Five ``native char'' subpopulations occur in three river basins in 
the Strait of Juan de Fuca analysis area (number of subpopulations)--
Elwha River (2), Angeles Basin (1), and Dungeness River (2). Recent 
efforts to determine species composition in three subpopulations have 
documented bull trout in at least two, the upper Elwha River and lower 
Dungeness River-Gray Wolf River (Leary and Allendorf 1997; WDFW 1997a). 
Only Dolly Varden have been identified in the upper Dungeness River 
subpopulation to date (WDFW 1997a).
    The two subpopulations in the Dungeness River Basin occur partially 
within Olympic National Park and Buckhorn Wilderness Area, and likely 
benefit from the relatively undisturbed habitats located there. 
However, non-native brook trout occur in some streams in the park. 
Large portions of the Dungeness River Basin lie outside of Olympic 
National Park, and have been severely degraded by past forest and 
agricultural practices (Williams et al. 1975; WDFW 1997a). Within 
Olympic National Park, the lower and upper Elwha River subpopulations 
are isolated by dams. Biologists have observed few ``native char'' in 
the lower Elwha subpopulation in recent years. Since 1983, one or two 
individuals have been seen each year in a chinook salmon rearing 
channel located in the lower Elwha River (WDFW 1997a). A creel census, 
conducted in 1981 and 1982 on the Elwha River reservoirs of the upper 
Elwha River subpopulation, reported that ``native char'' were found in 
low numbers (WDFW 1997a). Although ``native char'' are believed to be 
widespread in some basins within the analysis area, such as the 
Dungeness and Gray Wolf rivers, fish abundance is thought to be 
``greatly reduced in numbers'' (WDW, in litt. 1992; WDFW 1997a). 
Electrofishing surveys conducted in four sections of the upper 
Dungeness River subpopulation during 1996 recorded an overall ``native 
char'' density of 0.78 fish/meter (2.56 fish/foot) for the four 
sections (WDFW 1997a). These preliminary surveys indicate that the 
upper Dungeness River subpopulation may be ``strong.'' We consider the 
lower Elwha River subpopulation ``depressed'' because less than 500 
spawners likely occur in the subpopulation, and the lower Dungeness 
River-Gray Wolf River ``depressed'' because abundance has declined. The 
remaining three ``native char'' subpopulations in the Strait of Juan de 
Fuca coastal analysis area have ``unknown'' status because insufficient 
abundance, trend, and life-history information is available (Service 
1998a).

Hood Canal Analysis Area

    Three ``native char'' subpopulations occur in the Skokomish River 
Basin in the Hood Canal analysis area. Surveys by Brown (1992) and 
Brenkman (1996 in WDFW 1997) documented bull trout in Cushman 
Reservoir, and Leary and Allendorf (1997) and WDFW (1997a) documented 
bull trout in the South Fork-lower North Fork Skokomish River. Due to 
the construction of Cushman Dam on the North Fork Skokomish River, bull 
trout in Cushman Reservoir are isolated and restricted to an adfluvial 
life-history form. Spawner surveys, which began in 1973, indicate a 
decline in adult bull trout through the 1970s, subsequent increases 
from 4 adults in 1985 to 412 adults in 1993, and relatively stable 
numbers of 250 to 300 spawning adults in recent years (WDFW 1997a). The 
increase in adult bull trout from 1985 to 1993 is likely related to 
harvest closure on Cushman Reservoir and upper North Fork Skokomish 
River in 1986 (Brown 1992). Recent surveys indicate low numbers of bull 
trout in tributaries of the South Fork Skokomish River such as Church, 
Pine, Cedar, LeBar, Brown, Rock, Flat, and Vance creeks, as well as in 
the mainstem (Larry Ogg, Olympia National Forest (ONF), in litt. 1997). 
Past forest and agricultural practices and hydropower development have 
severely degraded habitat in the South Fork-lower North Fork Skokomish 
River (Williams et al. 1975; Hood Canal Coordinating Council (HCCC) 
1995; WDFW 1997a). The upper North Fork Skokomish River subpopulation 
occurs within Olympic National Park and habitat is relatively 
undisturbed. We consider the South Fork-lower North Fork Skokomish 
River subpopulation ``depressed,'' because fewer than 500 spawners and 
fewer than 5,000 individuals likely occur in the subpopulation. 
Although the number of spawning adult bull trout appears to have been 
relatively stable in the Cushman Reservoir subpopulation since 1990, 
under our analysis, this population is consider ``depressed'' based on 
the criteria used to determine subpopulation status (i.e., less than 
500 spawning adults). The status of the upper North Fork Skokomish 
subpopulation is considered ``unknown'' because insufficient abundance, 
trend, and life-history information is available (Service 1998a).

Puget Sound Analysis Area

    Fifteen ``native char'' subpopulations occur in eight river basins 
in the Puget Sound analysis area (number of subpopulations)--Nisqually 
River (1), Puyallup River (2), Green River (1), Lake Washington Basin 
(2), Snohomish River-Skykomish River (1), Stillaguamish River (1), 
Skagit River (4), and Nooksack River (3). Recent surveys of seven 
``native char'' subpopulations have documented bull trout in at least 
six--lower Puyallup (Carbon River), Green River, Chester Morse 
Reservoir, Snohomish River-Skykomish River, lower Skagit River, and 
upper Middle Fork Nooksack River (R2 Resource Consultants, Inc. 1993; 
Samora and Girdner 1993; Kraemer 1994; Michael Barclay, Cascades 
Environmental Services, Inc., pers. comm. 1997; Leary and Allendorf 
1997; Eric Warner, Muckleshoot Indian Tribe, pers. comm. 1997). Leary 
and Allendorf (1997) identified only Dolly Varden in the Canyon Creek 
(tributary to the Nooksack River) subpopulation.
    The current abundance of ``native char'' in southern Puget Sound is 
likely lower than occurred historically and declining (Tom Cropp, WDW, 
in litt. 1993; Fred Goetz, U.S. Army Corps of Engineers (COE), pers. 
comm. 1994a,b). Historical accounts from southern Puget Sound indicate 
that anadromous ``native char'' entered rivers there in ``vast 
numbers'' during the fall and were harvested until Christmas (Suckley 
and Cooper 1860). ``Native char'' are now rarely collected in the 
southern drainages of the area (T. Cropp, in litt. 1993; F. Goetz, 
pers. comm. 1994a,b). There is only one recent record of a ``native 
char'' being collected in the Nisqually River. A juvenile char was 
collected during a stream survey for salmon in the mid-1980s (George 
Walter, Nisqually Indian Tribe, pers. comm. 1997; WDFW 1997a). In the 
Puyallup River (lower Puyallup subpopulation), ``native char'' are 
occasionally caught by steelhead anglers (WDW, in litt. 1992; WDFW 
1997a). In the White River (lower Puyallup subpopulation), counts of 
upstream migrating ``native char'' at the Buckley diversion dam have 
averaged 23 adults since 1987. Although trapping effort has varied 
during the past 11 years, annual counts have generally been poor to 
moderate, ranging from a low of 8 to a high of 46 adult ``native char'' 
(WDFW 1998a). In the Green River, ``native char'' are rarely observed 
(T. Cropp, in litt. 1993; F. Goetz, pers. comm. 1994a,b; E. Warner, 
pers. comm. 1997). Aquatic habitat in the Nisqually, Puyallup, and 
Green rivers has been variously degraded by logging, agriculture, road 
construction, and urban development. In the Chester Morse Reservoir

[[Page 58915]]

subpopulation, biologists observed fewer than 10 redds as recently as 
1995 and 1996; and fry abundance was low in spring 1996 and 1997 
(Dwayne Paige, Seattle Water Department, in litt. 1997). Logging and 
extensive road construction have occurred within the Basin (Foster 
Wheeler Environmental 1995; WDFW 1997a), and likely affected bull trout 
in Chester Morse Reservoir. Only two ``native char'' have been observed 
during the past 10 years in the Issaquah Creek drainage and none have 
been observed in the Sammamish River system, which are occupied by the 
Sammamish River-Issaquah Creek subpopulation. It is questionable 
whether a viable subpopulation remains. Habitat in the Sammamish River 
and Issaquah Creek drainages has been negatively affected by 
urbanization, road building and associated poor water quality (Williams 
et al. 1975; Washington Department of Ecology (WDOE) 1997). We consider 
the Nisqually River, Green River, Chester Morse Reservoir, Sammamish 
River-Issaquah Creek, and lower Puyallup subpopulations ``depressed'' 
based on fewer than 500 spawning adults and a decline in general 
abundance.
    Drainages in the northern Puget Sound area appear to support larger 
subpopulations of ``native char'' than the southern portion (F. Goetz, 
pers. comm. 1994a, b; Steve Fransen, Service, pers. comm. 1997). The 
WDFW conducts redd counts in two index reaches of the northern Puget 
Sound; a reach in the upper South Fork Sauk River that is included in 
the lower Skagit River subpopulation, and a reach in the upper North 
Fork Skykomish River that is included in the Snohomish River-Skykomish 
River subpopulation. These areas are said to have healthy habitats 
supporting stable numbers of ``native char'' (Kraemer 1994). Biologists 
have conducted redd surveys since 1988 in both index reaches. In the 
upper South Fork Sauk River, WDFW (1997a) observed a substantial 
increase in redds in 1991, a year after a minimum 
508-mm (20-in) harvest restriction was implemented; and redd numbers 
have remained relatively stable at or above 34. The State implemented 
harvest restrictions in the Skagit River and its tributaries in 1990. 
``Native char'' in the lower Skagit River subpopulation have access to 
at least 38 documented or suspected spawning tributaries (WDFW et al. 
1997) with the number of adults estimated to be 8,000 to 10,000 fish 
(Curt Kraemer, WDFW, pers. comm. 1998). The number of redds in the 
upper North Fork Skykomish River index reach have averaged 78 redds 
(range 21 to 159) during 1988 through 1996, with 75 or fewer redds 
observed between 1993 and 1996 (WDFW 1997a). A total of 170 redds were 
counted in 1997 (WDFW 1998a). Redd counts in the North Fork Skykomish 
River index reach have been more variable between years than the South 
Fork Sauk River index reach. The upper Skagit River is fragmented into 
three reservoirs from the construction of Gorge, Diablo, and Ross dams 
(WDFW 1997a). The primary spawning area for the Gorge Reservoir 
subpopulation is said to be the lower Steattle Creek and a portion of 
the Skagit River below Diablo Dam (WDFW 1997a). The primary spawning 
areas for the Diablo Reservoir subpopulation is thought be in the 
Thunder Arm area, including Fisher Creek (WDFW 1997a), although WDFW et 
al. (1997) did not locate any ``native char'' adults or juveniles 
upstream of the mouth of Thunder Creek during snorkel and 
electrofishing surveys. Within Ross Reservoir, it is reported that 
spawning occurs in lower reach areas of at least six tributaries, in 
addition to a portion of the upper Skagit River in Canada (WDFW 1997a). 
Biologists have documented ``native char'' spawning in at least seven 
creeks in the Stillaguamish River subpopulation and in five creeks and 
several mainstem areas of the Lower Nooksack River subpopulation. 
Biologists have also observed ``native char'' in at least four creeks 
in the upper Middle Fork Nooksack River subpopulation. Neither adult 
count data nor redd count data is available for these six 
subpopulations (WDFW 1997a). Within the Puget Sound analysis area, we 
consider the lower Skagit River subpopulation ``strong,'' based on a 
large number of spawning adults and high overall abundance. We consider 
five subpopulations within the Puget Sound analysis area ``depressed'' 
and the status of the remaining nine ``native char'' subpopulations in 
the Puget Sound analysis area ``unknown'' because insufficient 
abundance, trend, and life-history information is available (Service 
1998a).

Transboundary Analysis Area

    One ``native char'' subpopulation occurs in the Chilliwack River 
Basin in the Transboundary analysis area. The Chilliwack River is a 
transboundary system flowing into British Columbia, Canada. We have not 
determined the species composition of this subpopulation. In 
Washington, portions of the Chilliwack River are within the North 
Cascades National Park and a tributary, Selesia Creek, are within the 
Mount Baker Wilderness where the habitat is relatively undisturbed 
(WDFW 1997a). Little information is available for ``native char'' in 
the Chilliwack River-Selesia Creek subpopulation (Service 1998a). The 
current status of the ``native char'' subpopulations in the 
Transboundary analysis area is ``unknown'' because insufficient 
abundance, trend, and life-history information is available (Service 
1998a).

St. Mary-Belly River Population Segment

    Much of the historical information regarding bull trout in the St. 
Mary-Belly River DPS is anecdotal and abundance information is limited. 
Bull trout probably entered the system via postglacial dispersal routes 
from the Columbia River through either the Kootenai River or Flathead 
River systems (Fredenberg 1996). The St. Mary River system historically 
contained native bull trout, lake trout, and westslope cutthroat trout. 
Although abundance of these fishes is unknown, the presence of lake 
trout suggests that migratory bull trout were restricted primarily to 
streams and rivers and not common in lakes (Donald and Alger 1993). 
Within the St. Mary River system, historic accounts of bull trout date 
to the 1930s (Fredenberg 1996). In the Belly River, historic 
distribution of bull trout in the Basin is limited but migratory bull 
trout from Canada likely spawned in the North Fork and mainstem Belly 
rivers.
    Both migratory (fluvial) and resident life-history forms are 
present (Fredenberg 1996), although bull trout within the St. Mary-
Belly River DPS are isolated and fragmented by irrigation dams and 
diversions (Fredenberg 1996; Clayton 1998; Robin Wagner, Service, pers. 
comm. 1998). Bull trout that migrate across the international border 
are dependent upon the relatively undisturbed water quality and 
spawning habitat located in the upper St. Mary and Belly rivers and 
their tributaries within the coterminous United States (Fredenberg 
1996).
    Based on natural and artificial barriers to fish passage within the 
St. Mary-Belly River DPS, we identified four bull trout 
subpopulations--(1) Upper St. Mary River (from the U.S. Bureau of 
Reclamation (USBR) diversion structure on lower St. Mary Lake upstream 
to St. Mary Falls, including Swiftcurrent and Boulder creeks below Lake 
Sherburne, and Red Eagle and Divide creeks); (2) Swiftcurrent Creek 
(including tributaries and Lake Sherburne and Cracker Lake); (3) lower 
St. Mary River (St. Mary River downstream of the USBR diversion 
structure including Kennedy, Otatso, and Lee creeks); and (4) Belly 
River (mainstem and North

[[Page 58916]]

Fork Belly River) (Service 1998b). Based on 1997 and 1998 trapping of 
post-spawning adults, fewer than 100 fish existed in the Boulder Creek 
and Kennedy Creek spawning populations (Lynn Kaeding, Service, in litt. 
1998). These two streams include the strongest known spawning runs in 
the upper St. Mary River and lower St. Mary River subpopulations, 
respectively, and evaluation of these streams is continuing. Based on 
studies conducted in 1996 and 1997, the Belly River drainage is thought 
to contain fewer than 100 adult bull trout (Clayton 1998). The status 
of the upper St. Mary River, lower St. Mary River, and North Fork Belly 
River bull trout subpopulations is ``depressed'' because fewer than 500 
spawning adults or 5,000 total bull trout occur in the subpopulations. 
The status of the Swiftcurrent Creek subpopulation is ``unknown'' 
because insufficient abundance, trend, and life-history information is 
available (Service 1998b).
    In summary, we considered the information received during the 
public comment period on the abundance, trends in abundance, and 
distribution of bull trout in the Coastal-Puget Sound and St. Mary-
Belly River population segments. The Coastal-Puget Sound population 
segment includes the only anadromous bull trout found in the 
coterminous United States. The population segment is composed of 34 
``native char'' subpopulations of which bull trout have been documented 
in 12 of 15 subpopulations examined. The remaining 19 subpopulations 
consist of ``native char'' that may include bull trout, Dolly Varden, 
or both species. At this time, the only ``native char'' documented in 
three of the subpopulations is Dolly Varden. Of the 34 subpopulations, 
we believe one is ``strong,'' 10 are ``depressed,'' and insufficient 
abundance, trends in abundance, and life-history information exists to 
assign either category to the remaining 23 subpopulations.
    The St. Mary-Belly River population segment of bull trout is 
composed of four subpopulations and represents the only area of bull 
trout range east of the Continental Divide within the coterminous 
United States. Migratory fish occur in three of the subpopulations and 
the life-history form in the fourth subpopulation is unknown. Bull 
trout subpopulations in the St. Mary River Basin are isolated by 
impassable diversion structures. Three of the four subpopulations are 
``depressed'' due to low abundance of fish, and the status of one 
subpopulation is ``unknown'' because insufficient abundance, trends in 
abundance, and life-history information exists to categorize the 
subpopulations as ``strong'' or ``depressed.''

Previous Federal Action

    On October 30, 1992, we received a petition to list the bull trout 
as an endangered species throughout its range from the following 
conservation organizations in Montana: Alliance for the Wild Rockies, 
Inc., Friends of the Wild Swan, and Swan View Coalition (petitioners). 
The petitioners also requested an emergency listing and concurrent 
critical habitat designation for bull trout populations in select 
aquatic ecosystems where the biological information indicated that the 
species was in imminent danger of extinction. In our 90-day finding, 
published on May 17, 1993 (58 FR 28849), we determined that the 
petitioners had provided substantial information indicating that 
listing of the species may be warranted. We initiated a rangewide 
status review of the species concurrent with publication of the 90-day 
finding.
    In our June 10, 1994, 12-month finding (59 FR 30254), we concluded 
that listing the bull trout throughout its range was not warranted due 
to unavailable or insufficient data regarding threats to, and status 
and population trends of, the species within Canada and Alaska. 
However, we determined that sufficient information on the biological 
vulnerability and threats to the species was available to support a 
warranted 12-month finding to list bull trout within the coterminous 
United States, but this action was precluded due to higher priority 
listings.
    On November 1, 1994, Friends of the Wild Swan, Inc. and Alliance 
for the Wild Rockies, Inc. (plaintiffs) filed suit in the U.S. District 
Court of Oregon (Court) arguing that the warranted but precluded 
finding was arbitrary and capricious. After we recycled the petition 
and issued a new warranted but precluded 12-month finding for the 
coterminous population of bull trout on June 12, 1995 (60 FR 30825), 
the Court issued an order declaring the plaintiffs' challenge to the 
original finding moot. The plaintiffs declined to amend their complaint 
and appealed to the Ninth Circuit Court of Appeals, which found that 
the plaintiffs' challenge fell ``within the exception to the mootness 
doctrine for claims that are capable of repetition yet evading 
review.'' On April 2, 1996, the Circuit Court remanded the case back to 
the District Court. On November 13, 1996, the Court issued an order and 
opinion remanding the original finding to us for further consideration. 
Included in the instructions from the Court were requirements that we 
limit our review to the 1994 administrative record, and incorporate any 
emergency listings or high magnitude threat determinations into current 
listing priorities. We delivered the reconsidered 12-month finding 
based on the 1994 Administrative Record to the Court on March 13, 1997. 
We concluded in the finding that two populations of bull trout 
warranted listing (Klamath River and Columbia River population 
segments).
    On March 24, 1997, the plaintiffs filed a motion for mandatory 
injunction to compel us to issue a proposed rule to list the Klamath 
River and Columbia River bull trout populations within 30 days based 
solely on the 1994 Administrative Record. On April 4, 1997, we 
requested 60 days to prepare and review the proposed rule. In a 
stipulation between us and plaintiffs filed with the Court on April 11, 
1997, we agreed to issue a proposed rule within 60 days to list the 
Klamath River population of bull trout as endangered and the Columbia 
River population of bull trout as threatened based solely on the 1994 
record.
    We proposed the Klamath River population of bull trout as 
endangered and Columbia River population of bull trout as threatened on 
June 13, 1997 (62 FR 32268). The proposal included a 60-day comment 
period and gave notice of five public hearings in Portland, Oregon; 
Spokane, Washington; Missoula, Montana; Klamath Falls, Oregon; and 
Boise, Idaho. The comment period on the proposal, which originally 
closed on August 12, 1997, was extended to October 17, 1997 (62 FR 
42092), to provide the public with more time to compile information and 
submit comments.
    On December 4, 1997, the Court ordered us to reconsider several 
aspects of the 1997 reconsidered finding. On February 2, 1998, the 
Court gave us until June 12, 1998, to respond. The final listing 
determination for the Klamath River and Columbia River population 
segments of bull trout and the concurrent proposed listing rule for the 
Coastal-Puget Sound, St. Mary-Belly River, and Jarbidge River DPSs 
constituted our response.
    We published a final rule listing the Klamath River and Columbia 
River population segments of bull trout as threatened on June 10, 1998 
(63 FR 31647). On the same date, we also published a proposed rule to 
list the Coastal-Puget Sound, Jarbidge River, and St. Mary-Belly River 
population segments of bull trout as threatened (63 FR 31693). On 
August 11, 1998 (63 FR 42757), we issued an emergency rule listing the 
Jarbidge River population

[[Page 58917]]

segment of bull trout as endangered due to river channel alteration 
associated with unauthorized road construction on the West Fork of the 
Jarbidge River, which we found to imminently threaten the survival of 
the distinct population segment. On April 8, 1999 (64 FR 17110), we 
published the final rule to list the Jarbidge River population segment 
as threatened in the Federal Register.

Summary of Comments and Recommendations

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

[[Page 58918]]

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

[[Page 58919]]

they believe the dams were constructed at natural barriers.
    Our Response: In adopting the criteria, we considered a bull trout 
subpopulation ``strong'' if 5,000 individuals or 500 spawners likely 
occur in the subpopulation, abundance appears stable or increasing, and 
life-history forms historically present were likely to persist; and 
``depressed'' if less than 5,000 individuals or 500 spawners likely 
occur in the subpopulation, abundance appears to be declining, or a 
life-history form historically present has been lost (see Rieman et al. 
1997). If there was insufficient abundance, trend, and life-history 
information to classify the status of a subpopulation as either 
``strong'' or ``depressed,'' we considered status as ``unknown.''
    We used these criteria because they represent the best available 
information and were used in evaluating bull trout in the Klamath River 
and Columbia River population segments. We acknowledge the criteria 
were originally developed for application to salmonids in the Columbia 
River Basin, but their underlying premises are based on concepts of 
conservation biology. Whether a subpopulation is ``strong'' or 
``depressed'' relative to its potential may vary among population 
segments. However, we were unable to refine these criteria, either 
higher or lower, based on the available data. Designating a 
subpopulation as ``strong'' or ``depressed'' is only one of several 
factors that we considered in evaluating the overall status of a bull 
trout subpopulation in a given population segment.
    Regarding the use of 6th field watersheds, we acknowledge the 
different spatial scales used in applying criteria developed by Rieman 
et al. (1997) for ICBEMP in our evaluation of bull trout 
subpopulations. Subpopulations identified in the population segments 
for bull trout in the coterminous United States (see June 10, 1998; 63 
FR 31647) ranged in size from a portion of a single watershed unit used 
by ICBEMP to several watersheds. For example, the best available 
information concerning bull trout and ``native char'' in the Coastal-
Puget Sound population segment was based on a spatial scale consisting 
of up to several ICBEMP watershed units. Although the spatial scale of 
most subpopulations identified in the proposed rule occupy multiple 
ICBEMP watershed units, we believe that the criteria offered useful 
information in evaluating the status of bull trout.
    We selected subpopulations as a convenient unit on which to analyze 
bull trout within population segments, and defined subpopulation as ``a 
reproductively isolated group of bull trout that spawns within a 
particular area of a river system.'' We identified subpopulations based 
on documented or likely barriers to fish movement (e.g., impassable 
barriers to movement and unsuitable habitat). To be considered a single 
subpopulation, two-way passage at a barrier is required, otherwise bull 
trout upstream and downstream of a barrier are each considered a 
subpopulation. Because it is likely that fish above a barrier could 
pass downstream and mate with fish downstream, absolute reproductive 
isolation was not required to be considered a subpopulation.
    We viewed metapopulation concepts (see Rieman and McIntyre 1993) as 
useful tools in evaluating bull trout, but, in querying biologists both 
within the Service and elsewhere, we found considerable variability in 
the definition of a metapopulation and the types of data suggestive of 
a metapopulation. Some biologists may consider a subpopulation, as 
defined by us, as a metapopulation if it has multiple spawning areas. 
Likewise, subpopulations without reciprocal interactions (i.e., 
individuals from upstream of a barrier may mingle with individuals 
downstream, but not vice versa) may be considered components of a 
metapopulation consisting of more than one subpopulation. Because 
little genetic and detailed movement information exists throughout bull 
trout range in the population segments addressed in the proposed rule, 
we believe that barriers to movement is an appropriate consideration 
for identifying subpopulations.
    Relative to dams, the WDFW (1998a) believes that bull trout were 
able to commingle on both the Middle Fork Nooksack River and the Skagit 
River prior to construction of the dams. There may have been a natural 
barrier between La Grande and Alder dams on the Nisqually River. 
Because the existence of ``native char'' above Alder Dam is not 
established, we chose not to identify this area as a separate 
subpopulation. Regardless, the DPS discreteness criterion can be 
satisfied by natural or man-made barriers.
    Issue 4: Several respondents believed the Federal listing was not 
necessary due to current and recently improved regulations related to 
forest land management.
    Our Response: We believe that implementation of the Northwest 
Forest Plan (NFP) and Washington Department of Natural Resources (WDNR) 
Habitat Conservation Plan (HCP) should limit further degradation to 
aquatic habitats from future forest management practices for the 
Coastal-Puget Sound population segment. Only about 32 percent of the 
Coastal-Puget Sound population segment is covered by either one of 
these two plans. An additional 15 percent of the population segment 
resides on National Park lands. Bull trout in this population segment 
will continue to be negatively affected by severely degraded habitats 
in many subbasins where ``native char'' occur (e.g., increased stream 
temperatures and sedimentation, altered stream flows, and lack of 
instream cover). These effects are expected to continue because many 
river basins affected by past, poor forest practices that contain 
``native char'' will take decades to fully recover.
    Approximately 45 percent of the Coastal-Puget Sound population 
segment occurs on lands under private ownership. Timber harvest 
activities on lands in forest production are subject to Washington 
State Forest Practice Rules (WFPR). Although State rules and 
regulations governing forested land management activities on private 
lands are improving, we believe they are not adequate to conserve and 
recover bull trout or remedy the effects of past damage to bull trout 
habitats (U.S. Department of Interior (USDI) et al. 1996a). The WFPR 
are currently being renegotiated, and it is anticipated that there will 
be some improvements over past rules. Because the State has not issued 
new rules, we are unable to evaluate their adequacy to conserve and 
recover bull trout on private lands within the Coastal-Puget Sound 
area. If improved sufficiently, these rules could form the basis for a 
delisting, 4(d) rule, or HCP.
    Issue 5: The U.S. Forest Service proposed that we issue a special 
rule pursuant to section 4(d) of the Act that would relax the 
prohibition against incidental take associated with Federal actions 
consistent with the NFP. Another respondent requested that we develop a 
special rule that was sufficiently protective to address any threat to 
bull trout from a specific development project.
    Our Response: Under section 4(d) of the Act, we have the authority 
to issue regulations as deemed necessary and advisable to provide for 
the conservation of a species listed as threatened. We recognize that 
on-going and future land-use activities will occur on non-Federal lands 
and that these activities may result in take of bull trout. Elsewhere 
in today's Federal Register we have published a Notice of Intent to 
prepare another special rule pursuant to section 4(d) of the Act for 
bull trout within the coterminous

[[Page 58920]]

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

[[Page 58921]]

other habitat parameters and other management activities.
    Our Response: The definition of critical habitat as stated in 
section 3 of the Act holds that critical habitat may include specific 
areas outside of the geographical area occupied by the species at the 
time it is listed, upon determination that such areas are essential for 
the conservation of the species. At this time, we find that critical 
habitat is not determinable for the Coastal-Puget Sound and St. Mary-
Belly River population segments. We appreciate the comments and believe 
that patterns in fish distribution will likely be useful in determining 
future critical habitat designations. This and other habitat 
considerations will be important issues to be considered during 
development of the recovery plan.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we determine the Coastal-Puget Sound and St. Mary-Belly 
River population segments of bull trout to be threatened species. We 
followed procedures found at section 4(a)(1) of the Act and regulations 
(50 CFR part 424) implementing the listing provisions of the Act. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to the Coastal-Puget Sound and St. Mary-
Belly River population segments of bull trout (Salvelinus confluentus) 
are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Land and water management activities that degrade bull trout 
habitat and continue to threaten all of the bull trout population 
segments in the coterminous United States include dams, forest 
management practices, livestock grazing, agriculture and agricultural 
diversions, roads, and mining (Beschta et al. 1987; Chamberlin et al. 
1991; Furniss et al. 1991; Meehan 1991; Nehlsen et al. 1991; Sedell and 
Everest 1991; Craig and Wissmar 1993; Frissell 1993; Henjum et al. 
1994; McIntosh et al. 1994; Wissmar et al. 1994; USDA and USDI 1995, 
1996, 1997; Light et al. 1996; MBTSG 1995a-e, 1996a-h).
Coastal-Puget Sound Population Segment
    Barriers, timber harvesting, agricultural practices, and urban 
development are thought to be major factors affecting ``native char'' 
in the Coastal-Puget Sound DPS (Service 1998a). Bull trout are often 
migratory (Fraley and Shepard 1989; Pratt 1992; Rieman and McIntyre 
1993; Oregon Department of Fish and Wildlife (ODFW) 1995; McPhail and 
Baxter 1996), and migratory ``native char'' exhibit anadromous, 
adfluvial, and fluvial strategies in the Coastal-Puget Sound DPS. 
Factors affecting ``native char'' may preclude or inhibit migratory 
behavior or contribute to degradation of aquatic habitats used by 
``native char'' (Rieman and McIntyre 1993; Spence et al. 1996; WDFW 
1997a).
    Past forest management activities have contributed to degraded 
watershed conditions, including increased sedimentation of bull trout 
habitat (Salo and Cundy 1987; Meehan 1991; Bisson et al. 1992; USDA et 
al. 1993; Henjum et al. 1994; Spence et al. 1996). Past activities 
continue to negatively affect ``native char'' in the Coastal-Puget 
Sound population segment. Timber harvest and road building in riparian 
areas reduce stream shading and cover, channel stability, large woody 
debris recruitment, and increase sedimentation and peak stream flows 
(Chamberlin et al. 1991). These can alternatively lead to increased 
stream temperatures and bank erosion, and decreased long-term stream 
productivity. Over 35 percent of natural forested areas in Puget Sound 
have been eliminated (WDFW 1997b).
    Strict cold water temperature requirements make bull trout 
particularly vulnerable to activities that warm spawning and rearing 
waters (Goetz 1989; Pratt 1992; Rieman and McIntyre 1993). Increased 
temperature reduces habitat suitability, which can exacerbate 
fragmentation within and between subpopulations (Rieman and McIntyre 
1993). Of the 34 ``native char'' subpopulations in the Coastal-Puget 
Sound population segment, 11 are likely affected by elevated stream 
temperatures resulting from past forest practices (lower Nooksack 
River, Stillaguamish River, Snohomish River-Skykomish River, Green 
River, lower Puyallup, Nisqually River, South Fork-lower North Fork 
Skokomish, River, Goodman Creek, Copalis River, Moclips River, and 
Chehalis River-Grays Harbor) (Phinney and Bucknell 1975; Williams et 
al. 1975; Hiss and Knudsen 1993; WDFW 1997a; WDOE 1997). Bull trout are 
documented in three of these ``native char'' subpopulations (Green 
River, South Fork-lower North Fork Skokomish River, and Snohomish 
River-Skykomish River).
    The effects of road construction and associated maintenance account 
for a majority of sediment loads to streams in forested areas (Shepard 
et al. 1984; Cederholm and Reid 1987; Furniss et al. 1991). 
Sedimentation affects streams by reducing pool depth, altering 
substrate composition, reducing interstitial space, and causing 
braiding of channels (Rieman and McIntyre 1993), which reduce carrying 
capacity. Sedimentation negatively affects bull trout embryo survival 
and juvenile bull trout rearing densities (Shepard et al. 1984; Pratt 
1992). In National Forests in Washington, large deep pools have been 
reduced 58 percent due to sedimentation and loss of pool-forming 
structures such as boulders and large wood (USDA et al. 1993). The 
effects of sedimentation from roads and logging are prevalent in 10 
basins containing ``native char'' subpopulations (Nooksack, Skykomish, 
Stillaguamish, Puyallup, upper Cedar, Skokomish, Dungeness, Hoh, 
Queets, and Coastal Plain-Quinault basins) (HCCC 1995; Olympic National 
Forest 1995a,b; Sandra Noble and Shelley Spalding, Service, in litt. 
1995; WDFW 1997a, WDOE 1997). Bull trout are documented in six of these 
basins (upper Cedar, Skokomish, Dungeness, Queets, Quinault, and 
Skykomish basins). We consider five subpopulations within these basins 
to be ``depressed''. These are the Chester Morse Reservoir, lower 
Puyallup River, South Fork-lower North Fork Skokomish River, lower 
Dungeness-Gray Wolf, and Hoh River subpopulations. The remaining six 
affected subpopulations found in Canyon Creek, upper Middle Fork 
Nooksack River, Snohomish River-Skykomish River, Stillaguamish River, 
Queets River, and lower Quinault River are considered ``unknown.''
    A recent assessment of the interior Columbia Basin ecosystem 
revealed that increasing road densities were associated with declines 
in four non-anadromous salmonid species (bull trout, Yellowstone 
cutthroat trout, westslope cutthroat trout, and redband trout) within 
the Columbia River Basin, likely through a variety of factors 
associated with roads (Quigley and Arbelbide 1997). Bull trout were 
less likely to use highly roaded basins for spawning and rearing, and 
if present, were likely to be at lower population levels (Quigley and 
Arbelbide 1997). Quigley et al. (1996) demonstrated that when average 
road densities were between 0.4 to 1.1 km/km\2\ (0.7 and 1.7 mi/mi\2\) 
on USFS lands, the proportion of subwatersheds supporting ``strong'' 
populations of key salmonids dropped substantially. Higher road 
densities were associated with further declines.

[[Page 58922]]

When USFS lands were compared to lands administered by all other 
entities at a given road density, the proportion of lands supporting 
``strong'' bull trout populations was lower on lands administered by 
other entities. Although this assessment was conducted east of the 
Cascade Mountain Range, some effects from high road densities may be 
more severe in western Washington. Higher precipitation west of the 
Cascade Mountains increases the frequency of surface erosion and mass 
wasting (USDI et al. 1996b). Limited data concerning road densities are 
available for the Coastal-Puget Sound DPS. It is known, however, that 
two bull trout subpopulations (lower Dungeness River-Gray Wolf River 
and Chester Morse Reservoir) occur in basins with road densities 
greater than 1.1 km/km\2\ (1.7 mi/mi\2\), and the effects of 
sedimentation from high road density on aquatic habitat is likely a 
contributing factor to the ``depressed'' status of these two ``native 
char'' subpopulations. Because basins in portions of the Queets River 
drainage contain high road densities, ranging from 1.5 to 3.0 km/km\2\ 
(2.4 to 4.8 mi/mi\2\) (ONF 1995a; Cederholm and Reid 1987), we believe 
that the Queets River ``native char'' subpopulation is affected by high 
road density.
    At least 22 ``native char'' subpopulations within the Coastal-Puget 
Sound DPS are affected by past or present forest management activities. 
Remaining subpopulations not affected by such activities occur 
primarily within National Parks or Wilderness Areas. For example, five 
``native char'' subpopulations lie completely within National Parks and 
Wilderness Areas withdrawn from timber harvest. These include the upper 
Quinault River, upper Sol Duc River, Gorge Reservoir, Diablo Reservoir, 
and Ross Reservoir subpopulations. Although the status of these 
``native char'' subpopulations is considered ``unknown'' at this time, 
all except the upper Quinault River subpopulation are threatened by 
non-native brook trout (see Factor E).
    Agricultural practices and associated activities also affect 
``native char'' and their aquatic habitats. Irrigation withdrawals 
including diversions can dewater spawning and rearing streams, impede 
fish passage and migration, and cause entrainment. Discharging 
pollutants such as nutrients, agricultural chemicals, animal waste and 
sediment into spawning and rearing waters is also detrimental (Spence 
et al. 1996). Agricultural practices regularly include stream 
channelization and diking, large woody debris and riparian vegetation 
removal, and bank armoring (Spence et al. 1996). Improper livestock 
grazing can promote streambank erosion and sedimentation, and limit the 
growth of riparian vegetation important for temperature control, 
streambank stability, fish cover, and detrital input. In addition, 
grazing often results in increased organic nutrient input in streams 
(Platts 1991). Eight ``native char'' subpopulations in the Coastal-
Puget Sound DPS (lower Puyallup, Stillaguamish River, lower Skagit 
River, lower Nooksack River, Green River, South Fork-lower North Fork 
Skokomish River, Dungeness River-Gray Wolf River, and Chehalis River-
Grays Harbor) are subject to the effects of past or ongoing 
agricultural or livestock grazing practices (Williams et al. 1975; Hiss 
and Knudsen 1993; WDF et al. 1993; HCCC 1995; ONF 1995b; WDFW 1997a). 
Species composition has been examined in five of these subpopulations, 
and bull trout are documented in four (Green River, lower Puyallup, 
South Fork-lower North Fork Skokomish River, and Dungeness River-Gray 
Wolf River).
    Dams constructed with poorly designed fish passage or without fish 
passage create barriers to migratory ``native char,'' precluding access 
to suitable spawning, rearing, and migration habitats. Dams disrupt the 
connectivity within and between watersheds essential for maintaining 
aquatic ecosystem function (Naiman et al.1992; Spence et al. 1996) and 
bull trout subpopulation interaction (Rieman and McIntyre 1993). 
Natural recolonization of historically occupied sites can be precluded 
by migration barriers (e.g., McCloud Dam in California (Rode 1990)). 
Within the Coastal-Puget Sound DPS, there are at least 41 existing or 
proposed hydroelectric projects regulated by the Federal Energy 
Regulatory Commission (FERC) within watersheds supporting ``native 
char'' (Gene Stagner, Service, in litt. 1997). Of the 41 existing or 
proposed projects, 17 are currently operating and most are run-of-the-
river small hydroelectric projects. Negotiated instream flows for these 
projects are based primarily on resident cutthroat trout or rainbow 
trout flow requirements, and may not meet seasonal migratory flow 
requirements of bull trout (Tim Bodurtha, Service, in litt. 1995). Fish 
passage has not been addressed for 28 of the existing or proposed 
projects (G. Stagner, in litt. 1997). We are aware of at least seven 
water diversions or other dams currently operating in watersheds with 
``native char,'' and none currently providing for upstream fish 
passage. These diversions and dams are located on the Middle Fork 
Nooksack, Skagit, Green, Puyallup, and Nisqually rivers. These seven 
facilities currently affect the lower Nooksack River, upper Middle Fork 
Nooksack River, lower Skagit River, Gorge Reservoir, Diablo Reservoir, 
Ross Reservoir, lower Puyallup, upper Puyallup River subpopulations. 
Projects in the Green and Nisqually rivers block fish passage in the 
upper stream reaches of these basins, although ``native char'' use of 
the river areas above the facilities remains unconfirmed. Various fish 
surveys conducted in the upper Green River watershed above the 
facility, did not detect ``native char'' (Ed Connor and Phil Hilgert, 
R2 Resource Consultants, Inc., in litt. 1998). Surveys of the upper 
Nisqually River watershed are underway (WDFW 1998a). Dams on the 
Skokomish and Elwha rivers are also barriers to upstream fish migration 
and have fragmented populations of ``native char'' within the Coastal-
Puget Sound DPS. FERC published an Environmental Impact Statement (EIS) 
for three proposed hydroelectric projects on Skagit River tributaries. 
The final EIS recommends two proposed hydroelectric projects on the 
lower Nooksack River, affecting two subpopulations, the lower Skagit 
River and the lower Nooksack River. We consider the status of these 
subpopulations ``strong'' and ``unknown,'' respectively.
    Urbanization has led to decreased habitat complexity (uniform 
stream channels and simple nonfunctional riparian areas), impediments 
and blockages to fish passage, increased surface runoff (more frequent 
and severe flooding), and decreased water quality and quantity (Spence 
et al. 1996). In the Puget Sound area, human population growth is 
predicted to increase by 20 percent between 1987 and 2000, requiring a 
62 percent increase in land area developed (Puget Sound Water Quality 
Authority (PSWQA) 1988 in Spence et al.1996). The effects of 
urbanization, concentrated at the lower most reaches of rivers within 
Puget Sound, primarily affect ``native char'' migratory corridors and 
rearing habitats. Five ``native char'' subpopulations in the Coastal-
Puget Sound DPS (lower Dungeness River-Gray Wolf River, lower Puyallup 
River, Green River, Sammamish River-Issaquah Creek, and Stillaguamish 
River) are negatively affected by urbanization (Williams et al. 1975; 
WDFW 1997a).
    Mining can degrade aquatic systems by generating sediment and heavy 
metals pollution, altering water pH levels, and changing stream 
channels

[[Page 58923]]

and flow (Martin and Platts 1981). Although not currently active, 
mining in the Nooksack River Basin, where ``native char'' occur, has 
adversely affected streams. For example, the Excelsior Mine on the 
upper North Fork Nooksack River was active at the turn of the century 
and mining spoils were placed directly into Wells Creek (Mt. Baker-
Snoqualmie National Forest (MBSNF) 1995), a known spawning stream for 
``native char.'' Spoils in and adjacent to the stream may continue to 
be sources of sediment and heavy metals.
St. Mary-Belly River Population Segment
    Forest management practices, livestock grazing, and mining are not 
thought to be major factors affecting bull trout in the St. Mary-Belly 
River DPS. However, bull trout subpopulations are fragmented and 
isolated by dams and diversions (Fredenberg 1996; Clayton 1998; Mogen 
1998). Specifically, the USBR diversion at the outlet of lower St. Mary 
Lake is an unscreened trans-Basin diversion (i.e., transferring water 
to the Missouri River drainage via the Milk River) that threatens the 
species in the St. Mary River Basin (upper St. Mary River, lower St. 
Mary River, and Swiftcurrent Creek subpopulations). This diversion 
restricts upstream bull trout passage into the upper St. Mary River. 
Consequently, migratory (fluvial) bull trout are prevented from 
reaching suitable spawning habitat in Divide and Red Eagle creeks 
(Fredenberg 1996; R. Wagner, pers. comm. 1998). Similarly, the 
irrigation dam on Swiftcurrent Creek (Lake Sherburne) physically blocks 
bull trout passage into the upper watershed (Fredenberg 1996; R. 
Wagner, pers. comm. 1998), affecting the three St. Mary River 
subpopulations. In the Belly River drainage, two adult bull trout 
implanted with radio transmitters that spawned in the North Fork Belly 
River near the international border in 1997 were subsequently passed 
down the Mountain View Irrigation District Canal and captured (Terry 
Clayton, Alberta Conservation Association (ACA), in litt. 1998).
    In addition to the dams physically isolating subpopulations, the 
associated diversions seasonally dewater the streams, effectively 
decreasing available habitat for migratory and resident bull trout 
(Fredenberg 1996). The diversion at the outlet of lower St. Mary Lake 
may result in a reduction (up to 50 percent) of instream flow of the 
St. Mary River, possibly affecting juvenile and adult bull trout (R. 
Wagner, pers. comm. 1998). The diversion is unscreened and recent 
information suggests downstream loss through entrainment of bull trout 
(R. Wagner, pers. comm. 1998). Similarly, the irrigation dam on 
Swiftcurrent Creek (Lake Sherburne) seasonally dewaters the creek 
downstream, effectively eliminating habitat (Fredenberg 1996; R. 
Wagner, pers. comm. 1998).

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Declines in bull trout abundance have prompted States to institute 
restrictive fishing regulations and eliminate the harvest of bull trout 
in most waters in Idaho, Oregon, Montana, Nevada, and Washington. These 
more restrictive regulations resulted in an increase in recent 
observations of adult bull trout in some areas of their range. However, 
illegal harvest and incidental hook and release of ``native char'' in 
fisheries targeting other species still threaten bull trout in some 
areas.
Coastal-Puget Sound Population Segment
    Fishing for ``native char'' is currently closed in most of the 
waters within the Coastal-Puget Sound population segment. The State of 
Washington implemented most of these closures in 1994. Harvest of 
``native char'' is still allowed in the area of the lower Skagit River 
subpopulation in the mainstem Skagit River and several of its 
tributaries (Cascade, Suiattle, Whitechuck and Sauk rivers) (508 mm (20 
in.) minimum size limit and two fish daily bag limit); the Snohomish 
River-Skykomish River subpopulation in the Snohomish River mainstem and 
the Skykomish River below the forks (508 mm (20 in.) minimum size limit 
and two fish daily bag limit) (WDFW 1997a); and portions of the 
Quinault and Queets rivers that are within the Quinault Indian 
Reservation (QIN) boundary (4 fish daily bag limit with no minimum size 
restriction) (Scott Chitwood, Quinault Indian Nation, pers. comm. 1997; 
WDFW 1997a). Olympic National Park has recently closed fishing for 
``native char'' in all park waters (D. Morris, in litt. 1998). Fishing 
for bull trout in Mount Rainier National Park is prohibited. There is 
likely some mortality from incidental hook and release of ``native 
char'' in fisheries targeting other species, especially in streams 
where restrictive angling regulations (i.e., artificial flies or lures 
with barbless single hook, bait prohibited) are not established.
    The objective of the 508 mm (20 in.) minimum size limit in the 
Skagit River and Snohomish-Skykomish River systems is to allow most 
females to spawn at least once before harvest (WDFW 1997a), and 
evidence suggests that more females are allowed to spawn in these two 
systems where the regulation is in place (WDFW 1998b). However, the 
minimum size limit allows the selective harvest of larger, mature fish 
that are more fecund (Jim Johnston, WDFW, pers. comm. 1995).
    Regulations on the Quinault Indian Reservation in the lower 
Quinault River and Queets River systems offer less bull trout 
conservation opportunity because there is no minimum size limit to 
allow most females to reach maturity before being subject to harvest. 
Consistent with the June 1997 Secretarial Order on Tribal-Federal Trust 
responsibilities and the Act, we will continue to assess the effects of 
these regulations and work with the Tribes to assure that the 
conservation needs of bull trout are met. The State of Washington has 
closed areas of the lower Quinault River and Queets River watersheds 
outside of the Quinault Indian Reservation to harvest of ``native 
char'' (WDFW 1997a).
    In 1993, WDFW increased the catch limit for brook trout in order to 
reduce interactions with bull trout (WDFW 1995). The increased brook 
trout catch has the potential to increase the incidental harvest of 
bull trout due to misidentification by anglers. For example, only 40 
percent of Montana anglers surveyed correctly identified bull trout out 
of six species of salmonids found locally (Mack Long and Sean Whalen, 
Montana Fish Wildlife and Parks, in litt. 1997).
    Poaching is still a factor that threatens ``native char'' in nine 
drainages within the Coastal-Puget Sound population segment. These are 
the South Fork Nooksack River, North Fork Nooksack River (above and 
below the falls), Sauk River and tributaries, North Fork Skykomish 
River, Chester Morse Reservoir, lower Dungeness River-Gray Wolf River, 
Hoh River, Goodman Creek, and Morse Creek (WDW, in litt. 1992; Mongillo 
1993; WDFW 1997a; Service 1998a).
St. Mary-Belly River Population Segment
    Historically, the harvest of bull trout in the St. Mary-Belly River 
DPS was considered ``extensive'' (Fredenberg 1996). Currently, legal 
angler harvest in the St. Mary-Belly River DPS occurs only on the 
Blackfeet Indian Reservation, which has a five fish per day limit with 
only one fish over 508 mm (20 in.) (Fredenberg 1996).
    In 1994, the Blackfeet Tribe reported harvest of at least 19 adult 
and subadult bull trout in gill nets set for a commercial fishery for 
lake whitefish

[[Page 58924]]

(Coregonus clupeaformis) in lower St. Mary Lake (Blackfeet Tribe, in 
litt. 1998). Given the apparent low abundance of adult bull trout in 
the upper St. Mary Lake subpopulation and restricted migration 
opportunities over the USBR diversion on lower St. Mary Lake, any 
harvest of bull trout from this subpopulation represents a threat. 
Record-keeping by the two commercial fishers is a requirement of the 
Blackfeet Tribal Fish and Game Commission, but is not strictly 
enforced. As discussed in Issue 2 in the ``Summary of Comments and 
Recommendations section'', a cooperative agreement exists among us, the 
Blackfeet Tribe, and the Bureau of Reclamation which establishes a 
partnership focused on the conservation and restoration of native 
salmonids and habitat in the St. Mary River drainage. We have recently 
met with the Blackfeet Tribe to address our concerns about bull trout. 
We will continue to assess the effects of their harvest regulations 
and, in accordance with the June 1997 Secretarial Order on Tribal-
Federal Trust responsibilities and the Act, we will continue work with 
the Tribe to assure that the conservation needs of bull trout are met. 
Specifically, the ongoing research carried out under the cooperative 
agreement is evaluating movement patterns, population status, and 
genetic structure of the bull trout in the St. Mary River drainage. We 
will utilize the results as a basis to develop future management 
recommendations.

C. Disease or Predation

    Diseases affecting salmonids are present or likely present in both 
population segments, but are not thought to be a factor threatening 
bull trout. Instead, interspecific interactions, including predation, 
likely negatively affect bull trout where non-native salmonids are 
introduced (Bond 1992; Ziller 1992; Donald and Alger 1993; Leary et al. 
1993; MBTSG 1996a; J. Palmisano and V. Kaczynski, Northwest Forestry 
Resources Council, in litt. 1997).
Coastal-Puget Sound Population Segment
    Disease is not believed to be a factor in the decline of bull trout 
in the Coastal-Puget Sound DPS. Outbreaks of the parasite 
Dermocystidium salmonis in the lower Elwha River may negatively affect 
``native char'' in years of high chinook salmon returns (Kevin Amos, 
WDFW, pers. comm. 1997). The susceptibility of bull trout to the 
parasite is unknown. There is concern about whirling disease (Myxobolus 
cerebralis), which occurs in wild trout waters of western states, and 
though this may be a potential threat to bull trout, we do not have 
specific information on it at this time.
    Predation is not considered a primary factor in the decline of 
Coastal-Puget Sound ``native char.'' The only exception may be 
largemouth bass (Micropterus salmoides) in Cushman Reservoir on the 
Skokomish River that may potentially affect the bull trout 
subpopulation (Sam Brenkman, Oregon State University, pers. comm. 1997; 
WDFW 1997a).
St. Mary-Belly River Population Segment
    Disease and predation are not known to be factors affecting the 
survival of bull trout in the St. Mary-Belly River Basin. Whirling 
disease has been documented in numerous Missouri River watersheds in 
central Montana, though not in the Saskatchewan River drainage where 
the St. Mary-Belly River bull trout subpopulations occur.

D. The Inadequacy of Existing Regulatory Mechanisms

    Although varying efforts are underway to assist in conserving bull 
trout throughout the coterminous United States (e.g., Batt 1996; Light 
et al. 1996; Robert Joslin, USFS, in litt. 1997; Allan Thomas, BLM, in 
litt. 1997; Montana Bull Trout Restoration Team 1997), the 
implementation and enforcement of existing Federal and State laws 
designed to conserve fishery resources, maintain water quality, and 
protect aquatic habitat have not been sufficient to prevent past and 
ongoing habitat degradation leading to bull trout declines and 
isolation. Statutory mechanisms, including the National Forest 
Management Act, the Federal Land Policy and Management Act, the Public 
Rangelands Improvement Act, the Clean Water Act, the National 
Environmental Policy Act, Federal Power Act, State Endangered Species 
Acts and numerous State laws and regulations oversee an array of land 
and water management activities that affect bull trout and their 
habitat.
Coastal-Puget Sound Population Segment
    In April 1994, the Secretaries of Agriculture and Interior adopted 
the Northwest Forest Plan for management of late-successional forests 
within the range of the northern spotted owl (Strix occidentalis 
caurina) (USDA and USDI 1994a). This plan set forth objectives, 
standards, and guidelines to provide for a functional late-successional 
and old-growth forest ecosystem. Included in the plan is an aquatic 
conservation strategy involving riparian reserves, key watersheds, 
watershed analysis, and habitat restoration. Approximately 35 percent 
of the total acreage within the Coastal-Puget Sound bull trout 
population segment are Federal lands subject to Northwest Forest Plan 
standards and guidelines (U.S. Geological Survey (USGS), in litt. 
1996). In 1994, an assessment panel determined that the proposed 
standards and guidelines in the Northwest Forest Plan would result in 
an 85 percent future likelihood of attaining sufficient aquatic habitat 
to support well-distributed populations of bull trout on Federal lands 
(USDA and USDI 1994b). Prior to 1997, most projects developed under the 
Northwest Forest Plan in this DPS were determined to have ``no impact'' 
on bull trout and its habitat. However, these determinations were made 
prior to the development of specific criteria (Service 1998c) to 
evaluate the effects of Forest Service activities on bull trout and 
their habitat. Because existing aquatic habitat conditions are severely 
degraded in many subbasins, the effects from past land management 
activities can be expected to continue into the foreseeable future in 
the form of increased stream temperatures, altered stream flows, 
sedimentation, and lack of instream cover. These effects are often 
exacerbated by landslides, road failures, and debris torrents. Many of 
these aquatic systems will require decades to fully recover (USDA et 
al. 1993). Until then, future habitat losses can be expected due to 
past activities, potentially resulting in local extirpations, migratory 
barriers, and reduced reproductive success (Spence et al. 1996).
    Washington State Forest Practice Rules (WFPR) apply to all State, 
city, county, and private lands not currently covered under a Habitat 
Conservation Plan (HCP) or other conservation agreement in Washington. 
Approximately 45 percent of the Coastal-Puget Sound population segment 
is held under private ownership and 1.5 percent under city or county 
ownership. Bull trout and their habitats continue to face threats from 
ongoing and future timber harvest activities on many of these lands. 
The WFPR set forth timber harvest regulations for non-Federal and non-
Tribal forested lands in the State of Washington. These rules set 
standards for timber harvest activities in and around riparian areas, 
in an effort to protect aquatic resources. These riparian management 
zone widths, as specified by the WFPR, do not ensure protection of the 
riparian components, because the

[[Page 58925]]

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

[[Page 58926]]

standards exist for bull trout, poor water quality and highly degraded 
migratory corridors may hinder or interrupt migration (Spence et al. 
1996), leading to the further fragmentation of habitat and isolation of 
bull trout.
    Surface waters are assigned to one of five classes under the Water 
Quality Standards for Surface Waters of the State of Washington (WAC 
173-201A-130). These classes are AA (extraordinary), A (excellent), B 
(good), C (fair) and Lake class. These classes of criteria are 
established for the following water quality parameters: temperature, 
fecal coliform, turbidity, dissolved oxygen, and toxic deleterious 
material concentrations. With the exception of dissolved oxygen, 
parameters are not to exceed specified maximum levels for each class. 
Maximum water temperature criteria range from 16 deg. C (60.8 deg. F) 
(Class AA), 18 deg. C (64.4 deg. F) (Class A), 21 deg. C (69.8 deg. F) 
(Class B), to 22 deg. C (71.6 deg. F) (Class C). Bull trout streams 
within the Coastal-Puget Sound population segment have stream segments 
that fall in classes AA, A, and B. Given the apparent low temperature 
requirements of bull trout (Rieman and McIntyre 1993), these 
temperature standards are likely inadequate to protect bull trout 
spawning, rearing or migration. Segments of the Quinault, Queets, 
Elwha, Skokomish, Nisqually, White, Green, and Snohomish rivers do not 
meet existing State standards for their respective classes. It is 
unknown whether the current standards established for other water 
quality parameters (fecal coliform, turbidity, dissolved oxygen, toxic 
deleterious material concentrations) within the various classes, are 
adequate to protect bull trout. See Factor A for additional discussion 
of water quality.
St. Mary-Belly River Population Segment
    Two USBR structures likely affect bull trout by dewatering stream 
reaches, acting as passage barriers or exposing fish to entrainment 
(Service 1998b). We are not aware that the effects of the structures 
were considered in their construction (1902 and 1921) or operation. 
Currently, operators attempt to minimize passage and entrainment 
problems by staging the fall dewatering of the canal and removing 
boards in the dam during winter. USBR has not evaluated the 
effectiveness of the operations and has not established formal 
guidelines to minimize the effects of the structures' operations on 
bull trout. The draft Montana Bull Trout Restoration Plan (1998) does 
not address or incorporate recommendations for bull trout conservation 
found in the St. Mary-Belly River population segment.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Natural and manmade factors affecting the continued existence of 
bull trout include: previous introductions of non-native species that 
compete and hybridize with ``native char;'' subpopulation habitat 
fragmentation and isolation caused by human activities; and the risk of 
local extirpations due to natural events such as droughts and floods.
    Introductions of non-native species by the Federal government, 
State fish and game departments and unauthorized private parties across 
the range of bull trout have resulted in declines in abundance, local 
extirpations, and hybridization of bull trout (Bond 1992; Howell and 
Buchanan 1992; Leary et al. 1993; Donald and Alger 1993; Pratt and 
Huston 1993; MBTSG 1995b,d: 1996g; Platts et al.1995; John Palmisano 
and V. Kaczynski, in litt. 1997). Non-native species may exacerbate 
stresses on bull trout from habitat degradation, fragmentation, 
isolation, and species interactions (Rieman and McIntyre 1993). In some 
lakes and rivers, introduced species including rainbow trout and 
kokanee may benefit large adult bull trout by providing supplemental 
forage (Faler and Bair 1991; Pratt 1992; ODFW, in litt. 1993; MBTSG 
1996a). However, the same introductions of game fish can negatively 
affect bull trout due to increased angling and subsequent incidental 
catch, illegal harvest of bull trout, and competition for space (Rode 
1990; Bond 1992; WDW 1992; MBTSG 1995d).
Coastal-Puget Sound Population Segment
    Competition and hybridization with introduced brook trout threatens 
the persistence of some ``native char'' subpopulations in the Coastal-
Puget Sound DPS. The State of Washington has introduced brook trout 
into several headwater areas occupied by ``native char;'' however, the 
distribution of brook trout within many of these areas appears to be 
limited. Brook trout can affect bull trout even in areas with 
undisturbed habitats (e.g., National Parks). Brook trout normally have 
a reproductive advantage (earlier maturation) over resident bull trout, 
which can lead to species replacement (Leary et al. 1993; Thomas 1992). 
At present, the distribution of 14 ``native char'' subpopulations 
partially overlap with brook trout in the upper Sol Duc River, upper 
Elwha River, lower Dungeness River-Gray Wolf River, upper North Fork 
Skokomish River, South Fork-lower North Fork Skokomish River, Green 
River, lower Puyallup (Carbon River), Snohomish River, Skykomish River, 
Gorge Reservoir, Diablo Reservoir, Ross Reservoir, Lower Skagit River, 
upper Middle Fork Nooksack River, and Canyon Creek (Reed Glesne, North 
Cascades National Park, in litt. 1993; Mongillo and Hallock 1993; John 
Meyer, Olympic National Park, pers. comm. 1995; Morrill and McHenry 
1995; S. Brenkman, pers. comm. 1997; Brady Green, MBSNF, pers. comm. 
1997).
    ``Native char'' subpopulations that have become geographically 
isolated may no longer have access to migratory corridors. First- and 
second-order streams in steep headwaters tend to be hydrologically and 
geomorphically more unstable than large, low-gradient streams. Thus, 
salmonids are being restricted to habitats where the likelihood of 
extirpation because of random environmental events is greatest'' 
(Spence et al. 1996). ``Native char'' subpopulations that are likely to 
be negatively affected by natural events as a result of isolation are 
Cushman Reservoir, South Fork-lower North Fork Skokomish River, Gorge 
Reservoir, Diablo Reservoir, Ross Reservoir, upper Middle Fork Nooksack 
River, upper Quinault River, upper Sol Duc River, upper Dungeness 
River, and Chester Morse Reservoir (Service 1998a). Of these 10 
``native char'' subpopulations, we have examined species composition in 
seven and bull trout have been confirmed in five (Cushman Reservoir, 
South Fork-lower North Fork Skokomish River, upper Quinault River, 
Chester Morse Reservoir, and upper Middle Fork Nooksack River), of 
which three are ``depressed'' (Service 1998a).
St. Mary-Belly Population Segment
    Non-native species are pervasive throughout the St. Mary and Belly 
rivers (Fitch 1994; Fredenberg 1996; Clayton 1997). Brook, brown, and 
rainbow trout have been widely introduced in the area. We are not aware 
of any studies conducted in the DPS evaluating the effects of 
introduced non-native fishes on bull trout. However, because brook 
trout occur in the four bull trout subpopulations, competition and 
hybridization are threats in the St. Mary and Belly rivers (Service 
1998b), especially on resident bull trout (R. Wagner, pers. comm. 
1998).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the Coastal-Puget Sound and St. Mary-Belly River

[[Page 58927]]

population segments of bull trout in determining this rule. Based on 
this evaluation, we have determined to list the bull trout as 
threatened in both population segments as summarized below.

Coastal-Puget Sound Population Segment

    Bull trout and ``native char'' in the Coastal-Puget Sound 
population segment have declined in abundance and distribution within 
many individual river basins. Bull trout and ``native char'' currently 
occur as 34 separate subpopulations, which indicates the level of 
habitat fragmentation and geographic isolation. Seven subpopulations 
are isolated above dams or other diversion structures, with at least 17 
dams proposed in streams inhabited by other bull trout or ``native 
char'' subpopulations. Bull trout and ``native char'' are threatened by 
the combined effects of habitat degradation and fragmentation, blockage 
of migratory corridors, poor water quality, harvest, and introduced 
non-native species. Although several subpopulations lie completely or 
partially within National Parks or Wilderness Areas, these 
subpopulations are threatened by the presence of brook trout, or from 
habitat degradation that is occurring outside of these restricted land 
use areas. Based on the best available information, we have concluded 
that at least 10 subpopulations are currently ``depressed,'' one 
subpopulation is ``strong,'' and the status of the remaining 23 
subpopulations is ``unknown.'' Some subpopulations in the north Puget 
Sound have relatively greater abundance compared to other areas of the 
Coastal-Puget Sound population segment. However, we remain concerned 
over the reported declines in abundance in other north Puget Sound 
subpopulations, and the documented threats present in these 
subpopulation basins. Available anecdotal information indicates 
additional subpopulations within the population segment have declined 
in abundance.

St. Mary-Belly River Population Segment

    The St. Mary-Belly population segment contains the only bull trout 
found east of the Continental Divide in the coterminous United States. 
We identified four subpopulations isolated primarily by irrigation dams 
and diversions. Recent surveys indicate that bull trout occur in 
relatively low abundance, with three subpopulations ``depressed'' and 
the status of one subpopulation ``unknown.'' Migratory bull trout are 
known to occur in three subpopulations, but these subpopulations are 
isolated by irrigation dams and unscreened diversions. We consider the 
dams and unscreened diversions a major factor affecting bull trout in 
the population segment by inhibiting fish movement and possibly 
entrainment into diversion channels and habitat alterations associated 
with dewatering. There are no formal guidelines to minimize the effects 
of the operation of the structures on bull trout. Bull trout are also 
threatened by negative interactions with non-native brook trout that 
occur with the four subpopulations.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific area within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those biological features (I) essential to the conservation of the 
species and (II) that may require special management considerations or 
protection and; (ii) specific areas outside the geographical area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)) state that critical habitat is not 
determinable if information sufficient to perform required analysis of 
impacts of the designation is lacking or if the biological needs of the 
species are not sufficiently well known to permit identification of an 
area as critical habitat. Section 4(b)(2) of the Act requires us to 
consider economic and other relevant impacts of designating a 
particular area as critical habitat on the basis of the best scientific 
data available. The Secretary may exclude any area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the conservation benefits, unless to do so would result in the 
extinction of the species.
    We find that the designation of critical habitat is not 
determinable for bull trout in the coterminous United States, based on 
the best available information. When a ``not determinable'' finding is 
made, we must, within 2 years of the publication date of the original 
proposed rule, designate critical habitat, unless the designation is 
found to be not prudent. We reached a ``not determinable'' critical 
habitat finding in the proposed rule, and we specifically requested 
comments on this issue. While we received a number of comments 
advocating critical habitat designation, none of these comments 
provided information that added to our ability to determine critical 
habitat. Additionally, we did not obtain any new information regarding 
specific physical and biological features essential for bull trout 
during the open comment period, including the five public hearings. The 
biological needs of bull trout is not sufficiently well known to permit 
identification of areas as critical habitat. Insufficient information 
is available on the number of individuals or spawning reaches required 
to support viable subpopulations throughout each of the distinct 
population segments. In addition, we have not identified the extent of 
habitat required and all specific management measures needed for 
recovery of this fish. This information is considered essential for 
determining critical habitat for these population segments. In 
addition, within the Coastal-Puget Sound bull trout are sympatric with 
Dolly Varden. These two species are virtually impossible to visually 
differentiate and genetic and morphological-meristic analyses to 
determine the presence or absence of bull trout and Dolly Varden have 
only been conducted on 15 of the 35 ``native char'' subpopulations. The 
presence of bull trout in the remaining 20 subpopulations in the 
Coastal-Puget Sound along with the information noted above is 
considered essential for determining critical habitat for these 
population segments. Therefore, we find that designation of critical 
habitat for bull trout in the coterminous United States is not 
determinable at this time. We will protect bull trout habitat through 
the recovery process and through section 7 consultations to determine 
whether Federal actions are likely to jeopardize the continued 
existence of the species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by

[[Page 58928]]

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

[[Page 58929]]

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

Special Rule

    Section 4(d) of the Act provides that when a species is listed as 
threatened, we are to issue such regulations as are necessary and 
advisable to provide for the conservation of the species. We have 
generally done so by adopting regulations (50 CFR 17.31) applying with 
respect to threatened species the same prohibitions that under the Act 
apply with respect to endangered species. Those prohibitions generally 
make it illegal to import, export, take, possess, ship in interstate 
commerce, or sell a member of the species. The ``take'' that is 
prohibited includes harassing, harming, pursuing, hunting, shooting, 
wounding, killing, trapping, capturing, or collecting the wildlife, or 
attempting to do any of those things. However, we may also issue a 
special rule tailored to

[[Page 58930]]

a certain threatened species, establishing with respect to it only 
those particular prohibitions that are necessary and advisable for its 
conservation. In that case, the general prohibitions in 50 CFR 17.31 do 
not apply to that species, and the special rule contains all the 
prohibitions and exceptions that do apply. Typically, such special 
rules incorporate all the prohibitions contained in 50 CFR 17.31, with 
additional exceptions for certain forms of take that we have determined 
are not necessary and advisable to prohibit in order to provide for the 
conservation of that particular species.
    The special rule in this final determination for bull trout will 
apply to bull trout wherever found in the coterminous lower 48 States, 
except in the Jarbidge River basin in Nevada and Idaho. The principal 
effect of the special rule is to allow take in accordance with State, 
NPS, and Native American Tribal permitted fishing activities. Since we 
are finalizing the listing of bull trout as a coterminous listing, we 
are essentially adding the special rule we had proposed for the 
Coastal-Puget Sound and St. Mary-Belly River population segments to the 
existing special rule for the Klamath and Columbia River population 
segments published on June 10, 1998 (63 FR 31647). The resultant 
special rule is effectively identical to the proposed rule for the 
Coastal-Puget Sound and St. Mary-Belly population segments and does not 
change the existing special rule for the Klamath and Columbia River 
population segments. The special rule for the Jarbidge River population 
segment is effectively identical to the special rule for the other four 
population segments except that it is only valid until April 9, 2001, 
and thus, will remain separate.
    We believe that statewide angling regulations have become more 
restrictive in an attempt to protect bull trout in Washington, Idaho, 
Oregon, California, and Montana, and are adequate to provide continued 
conservation benefits for bull trout in the Klamath River, Columbia 
River, Coastal-Puget Sound and the St. Mary-Belly River population 
segments. The State of Washington closed fishing in 1994 for ``native 
char'' in most waters within the Coastal-Puget Sound population. Legal 
angler harvest in the St. Mary-Belly River DPS in Montana occurs only 
on the Blackfeet Indian Reservation. Legal harvest of bull trout in the 
Klamath River basin was eliminated in 1992 when the Oregon Department 
of Fish and Wildlife imposed a fishing closure. State management 
agencies in Idaho, Oregon, Montana, and Washington have suspended 
harvest of bull trout in the Columbia River basin, except in Lake Billy 
Chinook (Oregon) and Swan Lake (Montana). Since the States and many 
Tribal governments have demonstrated a willingness to adjust their 
regulations to reduce fishing pressures where needed, we do not believe 
it is necessary and advisable for the conservation of the species to 
prohibit take through regulated fishing of subpopulations of bull trout 
that are exhibiting stable or increasing numbers of individuals and 
where habitat conditions are not negatively depressing local fish 
stocks. Using discretion when applying 4(d) exemptions can foster 
incentives for States and Tribes to expedite conservation efforts by 
providing rewards for restoring stocks and allowing regulated harvest 
prior to delisting. For example, Washington has only two systems in the 
Coastal-Puget Sound population segment that are open for bull trout 
fishing. These systems have a two fish limit with a minimum 508 mm (20 
in.) size limit to allow females to spawn at least once. Also, as long 
as these systems are closely monitored, we are gaining valuable 
information about the life history, relative abundance, and 
distribution of bull trout, which will be important for working towards 
the recovery of the species. We intend to continue to work with the 
States and Tribes in assessing whether current fishing regulations are 
adequate to protect bull trout, and in developing management plans and 
agreements with the objective of recovery and eventual delisting of the 
species.
    In accordance with the June 1997 Secretarial Order on Federal-
Tribal trust responsibilities and the Act, we will work with Tribal 
governments that manage bull trout streams to restore ecosystems and 
enhance Tribal management plans affecting the species. We believe that 
the special rule is consistent with the Secretarial Order designed to 
enhance Native American participation under the Act and will allow more 
efficient management of the species on Tribal lands.
    Elsewhere in today's Federal Register we have published a Notice of 
Intent which outlines our intent to develop, through section 4(d) of 
the Act, another special rule for bull trout that would provide 
conservation benefits to the species, while ensuring the future 
continuation of land management actions. The special rule would address 
two categories of activities affecting bull trout: (1) Habitat 
restoration; and (2) regulations that govern land and water management 
activities. Please refer to the notice for further information and if 
you wish to provide comments to us.

Similarity of Appearance

    Section 4(e) of the Act authorizes the listing of a non-threatened 
or endangered species based on similarity of appearance to a threatened 
or endangered species if--(A) the species so closely resembles in 
appearance an endangered or threatened species that enforcement 
personnel would have substantial difficulty in differentiating between 
the listed and unlisted species; (B) the effect of this substantial 
difficulty is an additional threat to an endangered or threatened 
species; and (C) such treatment will substantially facilitate the 
enforcement and further the policy of the Act.
    Within the Coastal-Puget Sound population segment, bull trout occur 
sympatrically within the range of the Dolly Varden. These two species 
so closely resemble one another in external appearance that it is 
virtually impossible for the general public to visually differentiate 
the two. Currently, WDFW manages bull trout and Dolly Varden together 
as ``native char.'' Fishing for bull trout and Dolly Varden is open in 
four subpopulations within the Coastal-Puget Sound population segment, 
two under WDFW regulations, and two under Native American Tribal 
regulations. These ``native char'' fisheries may adversely affect these 
subpopulations of bull trout. However, under current harvest 
management, there is no evidence that the specific harvest for Dolly 
Varden creates an additional threat to bull trout within this 
population segment. Therefore, a similarity of appearance rule is not 
being issued for Dolly Varden at this time. However, if bull trout and 
Dolly Varden are managed in Washington State as separate species in the 
future, we may consider, at that time, the merits of proposing Dolly 
Varden under the similarity of appearance provisions of the Act.

Section 7 Consultation

    Although this rule consolidates the five bull trout DPSs into one 
listed taxon, based on conformance with the DPS policy for purposes of 
consultation under section 7 of the Act, we intend to retain 
recognition of each DPS in light of available scientific information 
relating to their uniqueness and significance. Under this approach, 
these DPSs will be treated as interim recovery units with respect to 
application of the jeopardy standard until an approved recovery plan is 
developed. Formal establishment of bull trout recovery

[[Page 58931]]

units will occur during the recovery planning process.

Paperwork Reduction Act for the Listing

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information, 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
threatened species, see 50 CFR 17.32.

Required Determinations for the Special Rule

Regulatory Planning and Review, Regulatory Flexibility Act, and Small 
Business Regulatory Enforcement Fairness Act

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

[[Page 58932]]

therefore, should not affect prices for fishing equipment and supplies, 
or the retailers that sell equipment. Trout fishing in the affected 
rivers accounts for less than 2 percent of the available trout fishing 
in the States.
    This special rule does not have significant adverse effects on 
competition, employment, investment productivity, innovation, or the 
ability of United States based enterprises to compete with foreign-
based enterprises. Because this rule allows for the continuation of 
spending of a small number of affected anglers, approximately $8.6 
million for trout fishing, there will be no measurable economic effect 
on the freshwater sportfish industry which has annual sales of 
equipment and travel expenditures of $24.5 billion nationwide.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.):
    This special rule will not ``significantly or uniquely'' affect 
small governments. A Small Government Agency Plan is not required; and
    This special rule will not produce a Federal mandate of $100 
million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings Implication

    We have determined that this special rule has no potential takings 
of private property implications as defined by Executive Order 12630. 
The special rule would not restrict, limit, or affect property rights 
protected by the Constitution.

Federalism

    This special rule will not have substantial direct effects on the 
States, in their relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among 
various levels of government. Therefore, in accordance with Executive 
Order 12612, we have determined that this special rule does not have 
sufficient federalism implications to warrant a Federalism Assessment.

Civil Justice Reform

    The Department of the Interior has determined that this special 
rule meets the applicable standards provided in sections 3(a) and 
3(b)(2) of Executive Order 12988.

National Environmental Policy Act

    We have determined that an Environmental Assessment and 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein is available upon 
request from the Snake River Basin Office (see ADDRESSES section).

Author(s)

    The primary authors of this final rule are Jeffrey Chan, Western 
Washington Fishery Resource Office, Olympia, Washington; Wade 
Fredenberg, Creston Fish and Wildlife Center, Kalispell, Montana; 
Samuel Lohr, Snake River Basin Office, Boise, Idaho; and Shelley 
Spalding, Western Washington State Office, Olympia, Washington.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec. 17.11(h) by revising the entries for ``trout, bull'' 
under FISHES, in the List of Endangered and Threatened Wildlife to read 
as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        SPECIES                                                      Vertebrate
--------------------------------------------------------                          population where                     When     Critical
                                                             Historic range         endangered or        Status       listed    habitat    Special rules
           Common name                Scientific name                                threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Trout, bull......................  Salvelinus            U.S.A. (AK, Pacific    U.S.A, coterminous    T             637, 659,         NA  17.44(w)
                                    confluentus.          NW into CA, ID, NV,    (lower 48 states).                       670             17.44(x)
                                                          MT), Canada (NW
                                                          Territories).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.44 by revising paragraph (w) to read as follows:


Sec. 17.44  Special rules--fishes.

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

[[Page 58933]]

commit, or cause to be committed, any offense listed in this special 
rule.
    (2) What activities do we allow? In the following instances you may 
take this species in accordance with applicable State, National Park 
Service, and Native American Tribal fish and wildlife conservation laws 
and regulations, as constituted in all respects relevant to protection 
of bull trout in effect on November 1, 1999:
    (i) Educational purposes, scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other conservation purposes consistent with the Act; or
    (ii) Fishing activities authorized under State, National Park 
Service, or Native American Tribal laws and regulations;
    (3) How does this rule relate to State protective regulations? Any 
violation of applicable State, National Park Service, or Native 
American Tribal fish and wildlife conservation laws or regulations with 
respect to the taking of this species is also a violation of the 
Endangered Species Act.
* * * * *
    Dated: October 14, 1999.
Donald Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-28295 Filed 10-29-99; 8:45 am]
BILLING CODE 4310-55-P