[Federal Register Volume 76, Number 196 (Tuesday, October 11, 2011)]
[Proposed Rules]
[Pages 63094-63115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25652]



[[Page 63093]]

Vol. 76

Tuesday,

No. 196

October 11, 2011

Part VI





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; 12-Month Finding for a 
Petition To List the California Golden Trout as Endangered; Proposed 
Rule

  Federal Register / Vol. 76 , No. 196 / Tuesday, October 11, 2011 / 
Proposed Rules  

[[Page 63094]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0089 MO 92210-0-008]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
for a Petition To List the California Golden Trout as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 12-month 
finding on a petition to list the California golden trout (Oncorhynchus 
mykiss aguabonita) as endangered under the Endangered Species Act of 
1973, as amended (Act). After review of all available scientific and 
commercial information, we find that listing the California golden 
trout is not warranted at this time. However, we ask the public to 
submit to us any new information that becomes available concerning the 
threats to the California golden trout or its habitat at any time.

DATES: The finding announced in this document was made on October 11, 
2011.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0089. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Sacramento Field Office, 2800 Cottage Way, 
Sacramento, CA 95825. Please submit any new information, materials, 
comments, or questions concerning this finding to the above address.

FOR FURTHER INFORMATION CONTACT: Karen Leyse, Field Office Listing/
Critical Habitat Coordinator, Sacramento Field Office (see ADDRESSES); 
by telephone at 916-414-6600; or by facsimile at 916-414-6712. If you 
use a telecommunications device for the deaf (TDD), please call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires 
that, for any petition to revise the Federal Lists of Endangered and 
Threatened Wildlife and Plants, to the maximum extent practicable, 
within 90 days after receiving the petition, we make a finding as to 
whether the petition presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. In 
addition, within 12 months of the date of the receipt of the petition, 
we must make a finding on whether the petitioned action is: (a) Not 
warranted, (b) warranted, or (c) warranted but precluded by other 
pending proposals. Section 4(b)(3)(C) of the Act requires that we treat 
a petition for which the requested action is found to be warranted but 
precluded as though resubmitted on the date of such finding, that is, 
requiring a subsequent finding to be made within 12 months. Such 12-
month findings are to be published promptly in the Federal Register. 
This notice constitutes our 12-month finding on the October 23, 2000, 
petition to list the California golden trout as endangered.

Previous Federal Actions

    On October 23, 2000, we received a petition dated October 13, 2000, 
from Trout Unlimited, requesting that the California golden trout be 
listed on an emergency basis as endangered under the Act, and that 
critical habitat be designated. Included in the petition was supporting 
information on the subspecies' taxonomy, distribution, and ecology, as 
well as information regarding factors considered by the petitioners to 
threaten the subspecies. We acknowledged receipt of the petition in a 
letter to Trout Unlimited, dated November 7, 2000. In that letter, we 
also stated that we would be unable to address the petition until 
fiscal year 2002 or later due to court orders and judicially approved 
settlement agreements for listing and critical habitat determinations 
under the Act, which required nearly all of our listing and critical 
habitat funding for fiscal year 2001. The petitioner filed a complaint 
in Federal District Court on November 29, 2001, resulting in a ruling 
on June 21, 2002, ordering us to complete the 90-day finding by 
September 19, 2002. We completed the finding by the requisite date, and 
published it in the Federal Register on September 20, 2002 (67 FR 
59241). In the finding we determined that the petition presented 
substantial scientific or commercial information to indicate that 
listing the California golden trout may be warranted. We also 
determined that an emergency rule to list was not warranted at the time 
of the 90-day finding. We concurrently initiated a status review on 
which to base our eventual 12-month finding regarding whether listing 
of the California golden trout is warranted. On September 22, 2003, 
Trout Unlimited sent a Notice of Intent to sue the Service for 
violating the Act by failing to make a 12-month finding within the 
statutory timeframe. This 12-month finding resolves that issue.

Subspecies Information

Taxonomy and Subspecies Description
    The California golden trout (Oncorhynchus mykiss aguabonita) 
(formerly known as Volcano Creek golden trout) is one of three 
subspecies of rainbow trout (O. mykiss) native to the Kern River basin 
in Tulare and Kern Counties, California (Behnke 1992, p. 191; Behnke 
2002, p. 105; Moyle 2002, p. 283). The two other subspecies native to 
this basin are the Little Kern golden trout (O. mykiss whitei), which 
is found in the Little Kern River and its tributaries, and the Kern 
River rainbow trout (O. mykiss gilberti), which is found in the Kern 
River. All three subspecies most likely originated from successive 
invasions of primitive redband trout (ancestral rainbow trout) of the 
Kern River approximately 10,000 to 20,000 years ago (Behnke 1992, p. 
189; Behnke 2002, p. 107; Moyle 2002, p. 283). These fish gained access 
to the Kern River drainage during glacial cycles and short-term 
interglacial wet cycles that allowed Lake Tulare to overflow and 
connect the Kern River drainage to the San Joaquin River and Pacific 
Ocean (Behnke 2002, p. 109). These primitive forms of rainbow trout 
that became isolated in the Kern River watershed gave rise to the 
California golden trout, Little Kern River golden trout, and the Kern 
River rainbow trout due to local selective factors in their environment 
(Behnke 2002, p. 111; Moyle 2002, p. 283).
    The taxonomy of golden trout in the Kern River basin has been 
revised several times. Originally, four species of trout were 
described: Salmo aguabonita from the South Fork Kern River, S. 
roosevelti from Golden Trout Creek, S. whitei (Little Kern golden 
trout) from the Little Kern River, and S. gairdeneri gilberti (Kern 
River rainbow trout) from the lower Kern River (Moyle 2002, p. 284). 
Trout from the South Fork Kern River and Golden Trout Creek were later 
recognized as color variants of S. aguabonita (Schreck and Behnke 1971, 
p. 994). More recently, rainbow trout were reclassified as Oncorhynchus 
mykiss to reflect their relationship to Pacific salmon, and California 
golden trout in both the South Fork Kern River and Golden Trout Creek 
became recognized as the same subspecies of rainbow trout, Oncorhynchus 
mykiss

[[Page 63095]]

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

[[Page 63096]]

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

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likely predators of the California golden trout occur infrequently in 
high alpine areas where California golden trout are found (Moyle 2002, 
p. 285). One possible indication that California golden trout adapted 
without predators is the trout's active behavior during both day and 
night (Matthews 1996a, pp. 82, 84-85).
    California golden trout home ranges were calculated as the linear 
distance that encompasses 90 percent of trout locations, based on 
movements recorded using radio-telemetry during the months of July and 
September (Matthews 1996a, p. 84; Matthews 1996b, p. 587). California 
golden trout were found to have small home ranges that average 5 m (16 
ft) (Matthews 1996a, p. 84; Matthews 1996b, p. 587). Movements of 26 to 
100 m (86 to 328 ft) were observed, but these constituted less than 1 
percent of all observations (Matthews 1996b, p. 587).

The Conservation Strategy

    Since publication of the 90-day finding in 2002 (67 FR 59241; 
September 20, 2002), the California Department of Fish and Game (CDFG), 
the Forest Service, and the Service (hereafter referred to collectively 
as the Agencies) completed a revised Conservation Assessment and 
Strategy for the California Golden Trout (Conservation Strategy) dated 
September 17, 2004 (CDFG et al. 2004a). The Conservation Strategy 
replaced a previous guidance document known as the Conservation 
Strategy for the Volcano Creek (California) Golden Trout (1999 
Conservation Strategy), which had been in effect since April 22, 1999. 
The Agencies also signed a Memorandum of Agreement (MOA) on September 
17, 2004, to implement the Conservation Strategy (CDFG et al. 2004b); 
both the Conservation Strategy and MOA are currently in effect. The 
purposes of the Conservation Strategy are to:
    (1) Protect and restore California golden trout genetic integrity 
and distribution within its native range;
    (2) Improve riparian and instream habitat for the restoration of 
California golden trout populations; and
    (3) Expand educational efforts regarding California golden trout 
restoration and protection.
    The Agencies' intent has been to encourage ongoing nongovernmental 
stakeholder coordination and consultation throughout the implementation 
phase of the Conservation Strategy. The Conservation Strategy is based 
on adaptive management, with tasks being removed, added, or adjusted 
annually as new information becomes available. The Agencies, through 
the MOA, agreed to formally implement and collaborate on the 
Conservation Strategy and make any necessary adaptive management 
changes as the primary mechanism for the conservation of the California 
golden trout. Implementation of many tasks described in the 
Conservation Strategy began while it was under development, and have 
continued since its finalization. Those tasks and other conservation 
efforts implemented in prior years are summarized below throughout the 
five-factor analysis.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Federal Lists of 
Endangered and Threatened Wildlife and Plants. The Act treats 
subspecies such as the California golden trout as species for these 
purposes (16 U.S.C. 1532(16)). Under section 4(a)(1) of the Act, a 
species may be determined to be endangered or threatened based on any 
of the following five factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the species responds to the factor in a way that causes actual 
impacts to the species. If there is exposure to a factor, but no 
response, or only a positive response, that factor is not a threat. If 
there is exposure and the species responds negatively, the factor may 
be a threat and we then attempt to determine how significant a threat 
it is. If the threat is significant, it may drive or contribute to the 
risk of extinction of the species such that the species warrants 
listing as threatened or endangered as those terms are defined by the 
Act. This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely impacted could suffice. The mere identification of 
factors that could impact a species negatively is not sufficient to 
compel a finding that listing is appropriate; we require evidence that 
these factors are operative threats that act on the species to the 
point that the species meets the definition of threatened or endangered 
under the Act.
    In making this finding, information pertaining to the California 
golden trout in relation to the five factors in section 4(a)(1) of the 
Act is discussed below. In making our 12-month finding on the petition, 
we considered and evaluated the best available scientific and 
commercial information. We reviewed the petition, information available 
in our files, and other available published and unpublished 
information.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Species' Habitat or Range

    The petition and our subsequent investigations have identified 
several habitat-related activities relevant to the conservation status 
of California golden trout, including: Livestock grazing management, 
pack stock use, recreation, artificial fish barriers, and beavers. We 
address each activity below.
Livestock Grazing Management
    The combined effect of current livestock grazing activities in the 
Golden Trout Wilderness and legacy conditions from historically 
excessive grazing use have the potential to impact habitat and the 
range of the California golden trout. The following subsections discuss 
the effects of excessive historical grazing, current grazing management 
practices, and habitat restoration and monitoring efforts within the 
basins in which the native stream habitat of the California golden 
trout occurs.

Historical Effects of Excessive Grazing

    Grazing of livestock in Sierra Nevada meadows and riparian areas 
began in the mid-1700s with the European settlement of California 
(Menke et al. 1996, p. 909). Following the gold rush of the mid-1800s, 
grazing rose to a level that exceeded the carrying capacity of the 
available range and caused significant impacts to the grazed ecosystems 
(Meehan and Platts 1978, p. 275; Menke et al. 1996, p. 909). 
Approximately 95 percent of the California golden trout's native stream 
habitat has been subjected to varying intensities of grazing for more 
than 130 years (CDFG et al. 2004a, p. 31). Livestock grazing within the 
national forests in the southern and high Sierras has continued with 
gradual reductions since the 1920s, except for an increase during World 
War II (Menke et al. 1996, pp. 909-910, 916-919).
    Livestock can contribute to the destabilization of stream banks by

[[Page 63098]]

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

Current Levels of Grazing Use

    Many grazing impacts to the Kern Plateau were originally caused by 
unmanaged grazing practices dating back to the late 1800s, during which 
tens of thousands of cattle were grazed over long periods of time (CDFG 
et al. 2004a, p. 31). Grazing use has been greatly reduced since then 
in order to restore natural habitat conditions (CDFG et al. 2004a, p. 
34). Additionally, during the past decade the Inyo National Forest has 
completely restricted grazing on two of its four grazing allotments. In 
February of 2001, a Decision Notice was signed that implemented a 10-
year period of rest on the Templeton and Whitney grazing allotments to 
facilitate recovery of watershed and channel conditions. The notice 
indicated that grazing on the two allotments would be reconsidered at 
the end of the 10-year period (USFS 2001a, p. 5). The USFS expects to 
reach a decision on this issue in June of 2012 (USFS 2011, p. 10).

[[Page 63099]]

    Within the Sequoia National Forest from 2001 to 2004, two of the 
three available grazing allotments had little or no grazing, while the 
third utilized up to 65 percent of the total livestock permitted (CDFG 
et al. 2004a, p. 19). Grazing use levels in the Sequoia National Forest 
are lower than permitted largely because of remoteness and 
inaccessibility (Anderson 2006), whereas in the Inyo National Forest, a 
1995 amendment (typically referred to as Amendment 6, discussed below) 
to the Forest-wide grazing utilization standards of the Forest's Land 
and Resource Management Plan (LRMP) has apparently resulted in reduced 
cattle use (CDFG et al. 2004a, p. 34).

Current Grazing Management Practices

    In 1995, Amendment 6 to the Inyo National Forest LRMP was developed 
to establish forest-wide grazing utilization standards, which are 
requirements in addition to existing utilization standards contained in 
grazing permits (USFS 1995, pp. 13, 14). The forest-wide standards were 
designed, in part, to improve the existing condition of streams 
supporting California golden trout in grazed watersheds (USFS 1995, pp. 
27, 28). The Amendment allows Forest Service personnel to tailor 
grazing utilization standards to maintain or improve hydrologic and 
meadow conditions. Grazing utilization standards establish an upper 
limit of forage that grazing cattle may consume before being moved to a 
new area (Sims 2011b, p. 1). Inyo National Forest personnel conduct 
annual monitoring of representative meadows to determine whether 
utilization standards have been exceeded. If they do find that 
standards have been exceeded they adjust the standards downwards in 
following years to allow recovery. The utilization standards themselves 
are reassessed every 5 to 10 years to ensure that they avoid habitat 
degradation (including the degradation of stream habitat) (Sims 2011b, 
p. 1).
    The Inyo National Forest LRMP also restricts trampling of 
streambanks to 10 percent of the streambank length along State trout 
waters (which include most of the streams supporting California golden 
trout), and to 20 percent along other waters (USFS 1988a, pp. 78-79). 
As with utilization standards, annual monitoring of representative 
streambanks helps assure these standards are not exceeded, and allows 
grazing prescriptions to be adjusted to promote recovery of the 
streambanks if the standards are exceeded (Sims 2011b, p. 1). 
Additionally, salt provided for cattle must be located at least 0.25 mi 
(0.4 km) away from riparian areas, and additional requirements may 
apply to specific management areas with unique characteristics. For 
example, range management direction for the Golden Trout Management 
Area (19) amends grazing allotment plans to include necessary 
mitigation measures and corrective actions if grazing is significantly 
impacting fish habitat (USFS 1988a, p. 236).
    On the Sequoia National Forest, LRMP grazing standards and 
guidelines applicable to all streams within the habitat of the 
California golden trout were amended in 2004 (subsequent to the October 
13, 2000, petition to list the California golden trout) by the adoption 
of the Sierra Nevada Forest Plan Amendment (SNFPA) (CDFG et al. 2004a, 
p. 23). The new standards and guidelines, established for the 
protection of rare aquatic populations such as the California golden 
trout, require habitat managers to implement the following conservation 
measures:
    (1) Prevent disturbance to meadow-associated streambanks and 
natural lake and pond shorelines caused by resource activities from 
exceeding 20 percent of stream reach or 20 percent of natural lake and 
pond shorelines.
    (2) Limit livestock utilization of grass and grass-like plants to a 
maximum consumption of 30 percent of each plant by volume (or minimum 6 
in (15 cm) stubble height) for meadows in early seral status; limit 
livestock utilization of grass and grass-like plants to a maximum 
consumption of 40 percent of each plant by volume (or minimum of 4 in 
(10 cm) stubble height for meadows in late seral status).
    (3) Determine ecological status on all key areas monitored for 
grazing utilization prior to establishing utilization levels.
    (4) Limit browsing to no more than 20 percent of the annual leader 
growth of mature riparian shrubs and no more than 20 percent of 
individual seedlings (CDFG et al. 2004a, pp. 23, 84, 87).

Habitat Restoration and Monitoring Efforts

    The Inyo National Forest has installed several exclosures in 
riparian areas within the range of the California golden trout to 
protect and restore portions of the South Fork Kern River, Mulkey 
Creek, Ninemile Creek, and Golden Trout Creek from grazing impacts (see 
also Historical Effects of Excessive Grazing section above). Livestock 
exclosures totaling several miles exist on numerous stream reaches in 
all four grazing allotments within Inyo National Forest. Exclosures in 
the Monache and Mulkey allotments, where grazing is currently allowed, 
are currently excluding cattle from areas where they would otherwise be 
grazing. Exclosures in the Whitney and Templeton allotments, which are 
currently being rested from grazing, will only begin to actively 
exclude cattle if and when grazing is resumed on those allotments.
    Research by Knapp and Matthews (1996, pp. 816-817) in Mulkey and 
Ramshaw Meadows showed that areas within exclosures display greater 
canopy shading, stream depth, bankful height, and narrower stream 
width. Studies by Odion et al. (1988, p. 277) in Ramshaw and Templeton 
Meadows indicated that exclosures allowed significantly more pioneer 
species to colonize areas that were bare from disturbance. Photo-points 
recorded between 1989 and 2005 within a number of these exclosures 
indicate recovery in many areas that were once degraded by grazing 
(Sims 2006a). For these reasons, livestock exclosures have contributed 
to restoring habitat, reducing the effects of grazing, and preventing 
future damage to these habitats for the subspecies. Because exclosures 
require maintenance, activities conducted pursuant to annual work plans 
within the Conservation Strategy have included annual maintenance of 
cattle exclosure fencing (McGuire and Sims 2006, p. 17; Sims and 
McGuire 2006, p. 12).
    In addition to monitoring and cattle exclusion efforts, Inyo 
National Forest has completed numerous projects to stabilize soil and 
prevent erosion (USFS 2005 in McGuire and Sims 2006, p. 35). In 
addition to preventing further degradation, such treatments can direct 
stream flows to reestablish stream characteristics beneficial to 
California golden trout, such as overhanging banks and vegetation. 
These restoration and stabilization projects generally involve placing 
materials such as rocks or logs at key points of eroding streams in a 
given area to catch sediments and prevent further erosion. Since 1996, 
such projects have been completed at 19 sites (USFS 2005 in McGuire and 
Sims 2006, pp. 35, 37). Between 1933 and the mid-1980s, approximately 
800 erosion control structures were installed in the Golden Trout 
Wilderness (USFS 1988a, p. 236; CDFG et al. 2004a, p. 34).
    Conservation activities that have been conducted for the benefit of 
the California golden trout are described in the report titled, 
``Watershed Restoration and Monitoring Accomplishments on the Kern 
Plateau'' (Kern Plateau Report) (USFS 2005 in McGuire and Sims 2006, 
pp. 32-42), which summarizes watershed improvement and monitoring 
projects within the grazing allotments on the

[[Page 63100]]

Kern Plateau since the 1930s. For example, from 2002 to 2003, the 
Forest Service implemented intensive monitoring and data collection 
over a wide area of the South Fork Kern River and Golden Trout Creek 
watersheds to assist in determining watershed condition trends (USFS 
2005 in McGuire and Sims 2006, p. 32). A wide-scale headcut monitoring 
effort was initiated in 2003 at various parts of the Kern Plateau on 
both active and rested grazing allotments. Photo-points have been 
established at various locations on the Kern Plateau to monitor trends 
in stream bank stability, headcut migration, and vegetation patterns, 
with data collected indicating recovery in many areas that were 
affected by grazing (Sims 2006a, p. 1). The Kern Plateau Report also 
identifies opportunities for monitoring and evaluating the 
effectiveness of management practices. Recent results from these 
monitoring efforts showed significant improvement in meadow condition 
and streambank stability for the two allotments rested from grazing 
(Templeton and Whitney), and a positive trend in meadow and streambank 
conditions for the Mulkey allotment (Weixelman 2011, p. 12). No sites 
were shown to decline in condition (Ettema and Sims 2010, p. 63). 
Overall, 64 percent of sites in grazed allotments and 74 percent in 
ungrazed allotments are now meeting desired conditions (good to 
excellent) (Weixelman 2011, pp. 3, 12).
    The Conservation Strategy also includes monitoring of the 
effectiveness of best management practices (BMPs) to determine their 
effectiveness in protecting California golden trout habitat, with an 
annual report completed for inclusion in the annual accomplishment 
reports (CDFG et al. 2004a, p. 54). BMPs are a practice or combination 
of practices that are the most effective and practical means of 
preventing or reducing water pollution from non-point sources. We also 
note that the MOA commits the signatories of the Conservation Strategy 
to meet annually to evaluate the effectiveness of the strategy, 
determine whether the goals and objectives are being adequately 
achieved, and discuss whether the strategy requires any adaptive 
changes to better conserve the California golden trout (CDFG et al. 
2004b, p. 3). This means that changes in management can occur if 
conditions or results of monitoring indicate there is a negative change 
to the California golden trout's habitat or range. The MOA also 
contains a provision that if any element of the Conservation Strategy 
is determined infeasible, or if any new threat is identified, then the 
Agencies will be notified within 30 days and a meeting will be held to 
determine the course of action (CDFG et al. 2004b, p. 4). Thus, in the 
event of a change in future conditions that result in an unacceptable 
level of impacts due to excessive grazing, appropriate changes in 
management can occur.

Summary of Livestock Grazing Management

    In summary, historical excessive grazing practices have affected 
the stream habitat in nearly the entire native range of the California 
golden trout. Habitat degradation has been addressed in recent decades 
with numerous conservation efforts, such as reducing the season of use 
and number of cattle allowed to graze on an allotment, implementing 
grazing standards and guidelines in the LRMPs, resting of grazing 
allotments, implementing watershed monitoring, and completing 
restoration projects. Monitoring of Golden Trout Creek and upper South 
Fork Kern watersheds has found that implementing these conservation 
efforts has improved meadow and streambank conditions for three of four 
grazing allotments, and has stabilized conditions in the fourth grazing 
allotment (Ettema and Sims 2010, p. 63; Weixelman 2011, p. 12). Based 
on our evaluation of current practices and of recent and ongoing 
restoration activities, we do not consider livestock grazing to present 
a significant threat to the California golden trout now or into the 
future.
Pack Stock Use
    Similar to cattle, horses and mules may significantly overgraze, 
trample, or pollute streamside habitat if too many are concentrated in 
riparian areas too often or for too long. Commercial pack stock trips 
are permitted in national forests within the Sierra Nevada, providing 
transport services into wilderness areas with the use of horses or 
mules. Use of pack stock in the Sierra Nevada increased after World War 
II as road access, leisure time, and disposable income increased (Menke 
et al. 1996, p. 919). The Inyo National Forest has permitted commercial 
pack operators since the 1920s (USFS 2006a, p. 1). Current commercial 
pack stock use is approximately 27 percent of the level of use in the 
1980s reflecting a decline in the public's need and demand for pack 
stock trips. From 2001 to 2005, commercial pack stock outfitters within 
the Golden Trout and South Sierra Wilderness Areas averaged 28 percent 
of their current authorized use (USFS 2006b, p. 3-18).
    Currently, pack stock use within Golden Trout and South Sierra 
Wilderness Areas overlaps with historical and current livestock grazing 
locations, thus making it difficult to identify impacts to vegetation 
that are due specifically to pack stock use (USFS 2006b, p. 3-13). 
Monitoring of pack stock grazing impacts on meadows within the 
California golden trout's range shows a general trend of decreasing 
impacts to stream bank stability. This trend is believed to be due to 
restoration efforts and the cancellation of cattle grazing permits 
(USFS 2006b, p. 3-12).
    Allowable pack stock uses are limited in the Inyo National Forest 
by the same restrictions discussed above for cattle, such as the 
Amendment 6 forest-wide grazing utilization standards and the 10 
percent limit to bank trampling along State trout waters (USFS 200b, p. 
3-353). Pack stock grazing is also prohibited in specific meadows, 
including Volcano Meadow, South Fork Meadow (at the headwaters of the 
South Fork of the Kern River), and parts of Ramshaw Meadow. As 
discussed above, these restrictions have resulted in improved 
conditions for the majority of monitored habitat for which we have 
monitoring results, and stabilized conditions for the remainder of that 
habitat (Ettema and Sims 2010, p. 63; Weixelman 2011, p. 12). 
Accordingly, we consider current habitat management practices 
sufficient to prevent pack stock use from posing a significant threat 
to the California golden trout.
Recreation
    Recreational activities that include hiking, camping, and off-road 
vehicle (ORV) use take place throughout the Sierra Nevada and can have 
impacts on fish and wildlife and their habitats (impacts from fishing 
are discussed below under Factor B--Overutilization for Commercial, 
Recreational, Scientific, or Educational Purposes section). Impacts to 
wilderness areas can vary in their extent, longevity, and intensity 
(Cole and Landres 1996, pp. 169-170). In easily accessible areas, heavy 
foot traffic in riparian areas can trample vegetation, compact soils, 
and physically damage stream banks (Kondolf et al. 1996, pp. 1014, 
1019). Human foot, horse, bicycle, or ORV trails can replace riparian 
habitat with compacted soil (Kondolph et al. 1996, pp. 1014, 1017, 
1019), lower the water table, and cause increased erosion.
    Recreation is the fastest growing use of national forests (USFS 
2001b, p. 453). Because of an increasing demand for wilderness 
recreational experiences,

[[Page 63101]]

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

[[Page 63102]]

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

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

    There is no commercial fishing for California golden trout; 
however, recreational fishing is permitted by CDFG. In the Golden Trout 
Wilderness, the fishing season begins on the last Saturday in April and 
ends November 15. CDFG regulations allow anglers to possess five 
California golden trout, which is a bag limit guided by State policy to 
maintain wild trout stocks (CDFG 1979, p. 1). Regulations allow anglers 
to use only artificial lures with barbless hooks. Angler harvest is 
light in most areas within the native range of California golden trout 
except at Monache Meadows, Kennedy Meadows, and a few other easily 
accessible areas (Stephens 2001a, p. 64). Angler harvest does appear to 
have depressed the population numbers at these heavily used locations 
(Stephens 2001a, pp. 64, 65); however, impacts appear to be localized, 
well-regulated, and small enough to allow sustainable

[[Page 63103]]

populations. Angling regulations are posted in fishing areas and 
enforced (McGuire et al. 2009, p. 15). Knapp and Matthews (1996, p. 
805) reported that California golden trout densities were generally 
among the highest ever recorded for a stream-dwelling trout in the 
western United States. Surveys conducted at Templeton Meadow on the 
South Fork Kern River indicate that California golden trout population 
numbers increased from 2,000 trout per mile in 1985 to about 7,000 
trout per mile in 1999 (Stephens 2001b, p. 2). This indicates that 
California golden trout population numbers were at a high density in 
1999 and not at risk from overutilization from recreational fishing. We 
are currently unaware of any information that demonstrates a decrease 
in fish densities or impacts from overutilization from recreational 
fishing as compared to 1999. Accordingly, the relatively limited 
harvest of California golden trout does not appear to pose a 
significant threat to the survival of the subspecies now or in the 
future.
    California golden trout are utilized in a nonlethal way for 
scientific purposes. Specifically, CDFG, together with conservation 
partners and volunteers, has been collecting trout fin tissue samples 
since 2003 to conduct genetic evaluations necessary to restore native 
golden trout populations. The genetic studies require a small clipping 
from a fin, and this process rarely results in the death of an 
individual fish. Because scientific collection is being conducted for 
the betterment of the subspecies and because it rarely results in death 
of fish, we conclude that overutilization for scientific purposes is 
not a threat to California golden trout across its range, nor do we 
anticipate overutilization for commercial, recreational, scientific or 
education purposes posing a threat in the future.

Factor C. Disease or Predation

Predation and Competition With Brown Trout
    Brown trout are not native to California. They have been introduced 
to the South Fork Kern River and have established populations there, 
but they have not established populations in Golden Trout Creek. Brown 
trout have been noted to thrive in sections of many major west slope 
streams in the Sierra Nevada mountain range, although their 
distribution, even in small streams, is noted to be often quite 
discontinuous, with pools and quieter waters thought to be more to 
their liking (Dill and Cordone 1997, p. 100). Brown trout distribution 
within specific habitat types has not been quantified for the South 
Fork Kern River. The presence of brown trout in the South Fork Kern 
River is likely due to stocking of the species at Kennedy Meadows 
carried out by CDFG in 1940, 1941, and 1996 (McGuire 2011, pp. 2, 3). 
The stocking program predates the construction of the Ramshaw, 
Templeton, and Schaeffer fish barriers by at least 30 years (see Factor 
A--Artificial Fish Barriers section above).
    CDFG and Inyo National Forest have attempted to eradicate brown 
trout from the upper reaches of the California golden trout range a 
number of times by using piscicides (pesticides specific for fish) and 
then restocking the areas with California golden trout. In 1969, brown 
trout were present throughout the drainage and even in the headwaters 
of the South Fork Kern River where brown trout outnumbered golden trout 
by approximately 50 to 1 (CDFG et al. 2004a, pp. 28, 37). Installation 
of the Ramshaw Barrier, in combination with chemical treatments, 
resulted in removal of brown trout from the headwaters. Chemical 
treatments were conducted from the Ramshaw to Templeton barriers in 
1981, and the last treatments from the Templeton to Schaeffer barriers 
in 1987. Subsequent monitoring of the treated reach of South Fork Kern 
River indicated that the treatment was ineffective due to barrier 
deterioration, which is now repaired (CDFG et al. 2004a, p. 38). Movie 
Stringer Creek, a western tributary to the South Fork Kern River 
upstream of Templeton Barrier, was chemically treated in 2000; no other 
chemical treatments have occurred since then.
    The Strawberry Connection was a constructed diversion on Strawberry 
Creek that facilitated a possible hydrologic route for brown trout to 
enter the South Fork Kern River above the Templeton Barrier. This 
diversion was removed in 1999, and efforts have been made to restore 
Strawberry Creek to its historic channel. The Conservation Strategy 
indicates some concern that brown trout may still be able to access 
waters upstream of the Templeton Barrier during high flows (CDFG et al. 
2004a, p. 25); however, no brown trout have been located above the 
barrier to date. Subsequent to completion of the Conservation Strategy, 
the Inyo National Forest conducted an evaluation of the Strawberry 
Connection during runoff events to map hydrologic flow (Sims and 
McGuire 2006, p. 7). The evaluation noted that, due in part to the 
absence of cattle for the previous 5 years, the Strawberry Connection 
may be converting back to its natural state (Sims and McGuire 2006, p. 
7). The area showed less compacted soils and was in the process of 
reverting to a more boggy meadow, with channel flows focusing more 
towards Strawberry Creek rather than towards the ``connection'' area. 
This indicates the likely elimination of a possible passage for brown 
trout around the Templeton Barrier during high water flows (Sims and 
McGuire 2006, p. 7).
    Annual monitoring of the South Fork Kern River indicates that brown 
trout are still not present above the Templeton Barrier (Sims and 
McGuire 2006, p. 6; Lentz 2011, p. 2). Brown trout are currently found 
in the South Fork Kern River below Templeton Barrier, however, which 
includes over 483 km (300 mi) of the stream distance that comprises the 
historical range of the California golden trout (Stephens 2001a, p. 
43). The remaining stream length in the historical range above the 
Templeton Barrier is approximately 161 km (100 mi). The competitive 
success of brown trout, where present, over California golden trout is 
likely due to the fact that brown trout prey on all life stages of 
California golden trout, and are a superior competitor for limited food 
and habitat resources (Stephens 2001a, p. 43). The South Fork Kern 
River below Schaeffer barrier has never been treated to remove brown 
trout. Consequently, brown trout have been present in the lower South 
Fork Kern River more than 70 years. Successful sampling of California 
golden trout populations for genetic status has been conducted along 
the South Fork Kern River (and its tributaries) below Schaeffer 
Barrier, demonstrating that the species remains in sufficient numbers 
to maintain reproducing populations in these lower reaches, despite the 
presence of brown trout.
    There is a potential threat of illegal fish transportation due to 
the ease of vehicular access to Monache Meadows, the recreational 
popularity of this area, and the presence of nonnative salmonids in 
downstream portions of the South Fork Kern River. However, enforcement 
of State fish and game laws are ongoing, and conservation efforts are 
occurring to inform and educate the public about the conservation needs 
of the California golden trout. CDFG wildlife protection personnel and 
National Forest law enforcement personnel continue to inform visitors 
of regulations, including the illegality of possession and 
transportation of live trout within the California golden trout's 
range. CDFG also produced brochures in 2005 and 2006 to inform the 
public about the restoration program. The brochures were distributed to 
Forest Service offices and

[[Page 63104]]

visitor centers, and also to local flyfishing shops, thereby informing 
the public that transplanting fish is illegal and subject to a fine.
Summary of Predation and Competition With Brown Trout
    The risk of predation and interspecific competition from nonnative 
trout have been addressed through establishment and repair of the three 
fish barriers, elimination of CDFG-sanctioned brown trout stocking 
within the native range of the California golden trout, and various 
treatments (described above) to eliminate brown trout above the 
established barriers. The Forest Service and CDFG have been monitoring 
barriers, conducting surveys, and eradicating brown trout. 
Electrofishing surveys above and below Templeton and Schaeffer Barriers 
are being conducted annually to assess the effectiveness of the 
barriers, determine the current status and distribution of brown trout, 
and reduce brown trout numbers at the upstream extent of their 
distribution (Lentz 2011, p. 2). Although the goals of completely 
controlling brown trout in the South Fork Kern River are yet to be 
achieved, we nonetheless consider active programs by the Forest Service 
and CDFG to discourage illegal transport, and to monitor for and remove 
brown trout from California golden trout waters, to be reasonable and 
effective approaches for addressing the threat of brown trout.
    No brown trout have been found above the Templeton Barrier since 
they were eradicated in the early 1980s (McGuire and Sims 2006, p. 10; 
Sims and McGuire 2006, p. 6). Mark-recapture tests of golden trout 
hybrids captured below the Schaeffer Barrier subsequent to its 
improvement in 2003 failed to find any fish that had successfully 
navigated past the barrier, indicating that brown trout are also 
incapable of passing the barrier (Sims and McGuire 2006, p. 6). 
Subsequent elimination of brown trout between the Schaeffer and 
Templeton barriers (a goal of the Conservation Strategy (CDFG et al. 
2004a, p. 28)) is, therefore, possible. Additionally, current 
information available to us does not indicate a population-level effect 
of brown trout predation or competition that would warrant listing. 
Therefore, we conclude that, due to the management efforts being 
implemented, risk of predation and competition from brown trout does 
not pose a significant threat to the California golden trout throughout 
its range, nor do we anticipate predation posing and competition from 
brown trout posing a threat in the future.
Whirling Disease
    Whirling disease is caused by Myxobolus cerebralis, a metazoan 
parasite that penetrates the head and spinal cartilage of fingerling 
trout, where it multiplies very rapidly and puts pressure on the organ 
of equilibrium. This causes the fish to swim erratically (whirl) and 
have difficulty feeding and avoiding predators. In severe infections, 
the disease can cause high rates of mortality in young-of-the-year 
fish. Those that survive until the cartilage hardens to bone can live a 
normal lifespan, but are marred by skeletal deformities. Fish can 
reproduce without passing on the parasite to their offspring. Rearing 
ponds used in many trout hatcheries provide conditions where the second 
host of the parasite (the oligochaete worm Tubifex tubifex) can thrive.
    Myxobolus cerebralis has never been found in any golden trout 
sampled in California streams (Cox 2006, p. 1; Lentz 2011, p. 1). The 
only fish currently stocked within the native range (sterile trout 
stocked in Kennedy Meadows) are raised in a hatchery that is certified 
free of disease (Stephens 2006, p. 1). Because hatchery-raised 
California golden trout are no longer stocked within the native range 
of this subspecies, it is extremely unlikely that whirling disease 
could be spread to wild California golden trout populations. The 
disease has not been found in California golden trout to date, and 
there has been no documented loss or decline in California golden trout 
populations due to the disease. Although it could represent a future 
threat to the California golden trout, at this time the best scientific 
and commercial information does not indicate that it is a threat now 
nor likely to be a threat in the future.
Summary of Factor C
    Although predation by, and competition with, brown trout have posed 
a threat to the California golden trout in the past, continuing 
conservation measures implemented by the State, cooperating agencies, 
and other interested groups have reduced this threat to manageable 
levels. Continued improvements of barriers have eliminated brown trout 
from the upper reaches of the South Fork Kern River where they were 
previously identified as a threat to the California golden trout. In 
the lower reaches of the South Fork Kern River, our best information 
indicates that populations descended from California golden trout have 
not sustained population-level declines due to brown trout. Finally, 
whirling disease has not been found in California golden trout to date. 
Therefore, we conclude that predation (and competition) with brown 
trout and whirling disease do not currently pose a threat to the 
California golden trout throughout its range, nor do we anticipate 
these to become threats in the future, such that listing under the Act 
is warranted.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

Federal Regulations
    Management of habitat for the California golden trout falls under 
the direction of the Sequoia and Inyo National Forests. Existing 
Federal regulatory mechanisms that are relevant to providing protection 
for the California golden trout in the Sierra Nevada include the 
following: National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.), Wilderness Act of 1964 (16 U.S.C. 1131-1136), Wild and Scenic 
Rivers Act (16 U.S.C. 1271-1287), Multiple-Use Sustained-Yield Act of 
1960 (MUSY) (16 U.S.C. 528-531), Federal Land Policy and Management Act 
of 1976 (FLPMA) (43 U.S.C. 1701 et seq.), National Forest Management 
Act of 1976 (NFMA) (16 U.S.C. 1601 et seq.), Land and Resource 
Management Plans for the Inyo and Sequoia National Forests (USFS 1988a; 
CDFG et al. 2004a, pp. 79-82), as amended by the SNFPA, and the Clean 
Water Act (CWA) (33 U.S.C. 1344).

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    NEPA requires all Federal agencies to formally document, consider, 
and publicly disclose the environmental impacts of major Federal 
actions and management decisions significantly affecting the human 
environment. NEPA documentation is provided in an environmental impact 
statement, an environmental assessment, or a categorical exclusion, and 
may be subject to administrative or judicial appeal. The California 
golden trout has been identified as a sensitive species by the Region 5 
(Pacific Southwest Region) Regional Forester. As part of Forest Service 
policy, an analysis will be conducted to evaluate potential management 
decisions under NEPA, including preparation of a biological evaluation 
to determine the potential effect of potential Forest Service actions 
on this sensitive subspecies. However, the Forest Service is not 
required to select an alternative having the least significant 
environmental impacts and may select an action that will adversely 
affect sensitive species provided that

[[Page 63105]]

these effects were known and identified in a NEPA document. The NEPA 
process in itself is not likely to be considered a regulatory mechanism 
that is certain to provide significant protection for the California 
golden trout.

Wilderness Act of 1964 (16 U.S.C. 1131-1136)

    The Wilderness Act of 1964 established a National Wilderness 
Preservation System made up of Federal lands designated by Congress as 
``wilderness areas'' for the purpose of preserving and protecting 
designated areas in their natural condition, ``where the earth and its 
community of life are untrammeled by man, where man himself is a 
visitor who does not remain.'' The native range of the California 
golden trout within the South Fork Kern River lies within three 
wilderness areas: Golden Trout, South Sierra, and Domeland. The 
Domeland Wilderness was designated in 1964 and is just south of the 
South Sierra Wilderness (the road to Kennedy Meadows separates these 
two wildernesses). The Golden Trout Wilderness was designated in 1978 
specifically to provide protection for California golden trout; Golden 
Trout Creek is wholly within this wilderness area. The South Sierra 
Wilderness was designated in 1984 and is adjacent to and south of the 
Golden Trout Wilderness.
    Grazing of livestock is permitted within wilderness areas if it was 
established prior to the passage of this Act. The Wilderness Act does 
not specifically mention fish stocking, though it does state that the 
Wilderness Act shall not affect the jurisdiction or responsibilities of 
States with wildlife and fish responsibilities in the national forests. 
Fish stocking in wilderness areas is a controversial issue (Bahls 1992, 
pp. 2568-2578, p. 2568; Landres et al. 2001, pp. 287-294); however, 
wilderness designation generally has not limited fish stocking in the 
Sierra Nevada (Knapp 1996, pp. 3-12). The Wilderness Act has direction 
for managing designated wilderness to protect natural ecological 
processes and is a regulatory mechanism that protects California golden 
trout habitat from development or other types of habitat conversions, 
such as commercial enterprise, road construction, use of motorized 
vehicles or other equipment, and structural developments.

Wild and Scenic Rivers Act (16 U.S.C. 1271-1287)

    Congress established the National Wild and Scenic Rivers System in 
1968 to protect certain outstanding rivers from the harmful effects of 
new Federal projects, such as dams, hydroelectric facilities, bank 
armoring, and bridges. Rivers are classified as wild, scenic, or 
recreational, and fishing is permitted in components of the system 
under applicable Federal and State laws. The South Fork Kern River is 
designated as Wild and Scenic throughout 66 river km (41 mi) as the 
river passes through the South Sierra, Golden Trout, and Domeland 
Wildernesses. This regulatory mechanism, along with the Wilderness Act, 
thus protects approximately 10 percent of the California golden trout's 
range from new Federal projects such as those listed above.

Multiple-Use Sustained-Yield Act of 1960 (MUSY) (16 U.S.C. 528-531)

    The Multiple-Use Sustained-Yield Act of 1960 (MUSY) provides 
direction that the national forests be managed using principles of 
multiple-use and that the forests produce a sustained yield of products 
and services. Specifically, MUSY provides policy that the national 
forests are established and shall be administered for outdoor 
recreation, range, timber, watershed, and wildlife and fish purposes. 
MUSY directs resource management not to impair the productivity of the 
land while giving consideration to the relative values of the various 
resources, though not necessarily in terms of the greatest financial 
return or unit output. MUSY provides direction to the Forest Service 
that fish and wildlife is a value that must be managed for, though 
discretion is given to each forest when considering the value of fish 
and wildlife relative to the other uses for which it is managing. 
Because the entire range of the California golden trout falls within 
lands administered by the Forest Service, this regulatory mechanism 
aids in the conservation of the subspecies in that fish are an 
important benefit for which management must occur.

Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701 
et seq.)

    The Federal Land Policy and Management Act was enacted in 1976, and 
as amended by the Public Rangelands Improvement Act of 1978 (43 U.S.C. 
1901-1908), provides the primary legal foundation for how the Forest 
Service manages livestock grazing under its jurisdiction. This Act 
requires that a percentage of all monies received through grazing fees 
collected on Federal lands (including the Forest Service-administered 
lands within the range of the California golden trout) be spent for the 
purpose of on-the-ground range rehabilitation, protection, and 
improvement, including all forms of rangeland betterment, including 
fence construction, water development, and fish and wildlife 
enhancement. Half of the appropriated amount must be spent within the 
national forest where such monies were derived. FLPMA, as amended, is a 
regulatory mechanism that provides for some rangeland improvements 
intended for the long-term betterment of forage conditions and 
resulting benefits to wildlife, watershed protection, and livestock 
production, which if implemented can result in various habitat 
improvements and protections for the California golden trout.

National Forest Management Act of 1976 (NFMA) (16 U.S.C. 1601 et seq.)

    National Forest Management Act of 1976 (NFMA) provides the primary 
legal foundation for Forest Service management of the public lands 
under its jurisdiction. NFMA includes a provision that planning 
regulations will include guidelines for land management plans that 
provide for diversity of plant and animal communities based on the 
suitability and capability of the specific land area in order to meet 
overall multiple-use objectives. Current planning regulations direct 
that forests manage fish and wildlife habitat to maintain viable 
populations of existing native and nonnative vertebrate species. Within 
each planning area, the provided habitat must support at least a 
minimum number of reproductive individuals (36 CFR 219.20). The Forest 
Service published new proposed planning regulations on February 14, 
2011, which are intended ``to guide the collaborative and science-based 
development, amendment, and revision of land management plans that 
promote healthy, resilient, diverse, and productive national forests 
and grasslands'' (76 FR 8480, pp. 8480, 8481). The proposed regulations 
specify that plans must maintain viable populations of species of 
conservation concern within the plan area to the extent that it is 
within the authority of the Forest Service or the inherent capability 
of the plan area to do so (76 FR 8480, p. 8518). Revisions to the Inyo 
and Sequoia National Forest LRMPs would follow the regulations 
established by this proposed rule, if made final.

Land and Resource Management Plans (LRMPs) for the Inyo and Sequoia 
National Forests

    The 1988 Inyo National Forest LRMP, as amended (USFS 1995), and the 
1988 Sequoia National Forest LRMP, were

[[Page 63106]]

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

Clean Water Act (CWA) (33 U.S.C. 1344)

    The Clean Water Act (CWA) is the primary mechanism in the United 
States for surface water quality protection. It establishes the basic 
structure for regulating discharges of pollutants into waters of the 
United States. It employs a variety of regulatory and nonregulatory 
tools to reduce direct water quality impacts, finance water treatment 
facilities, and manage polluted run-off. The Forest Service is the 
designated water quality management agency under the CWA Section 208 
Management Agency Agreement. Under this Agreement, the Forest Service 
is required to implement State-approved BMPs and other measures to 
achieve full compliance with all applicable State water quality 
standards. Project-level analysis conducted under NEPA is required to 
demonstrate compliance with CWA and State water quality standards (USFS 
2004). Waterbodies that do not meet water quality standards with 
implementation of existing management measures are listed as impaired 
under section 303(d) of the CWA. Waters within California golden trout 
habitat are not listed as impaired by the State (Strand 2006), 
indicating that, in implementing this regulatory

[[Page 63107]]

mechanism, the Forest Service designs land management activities so 
that existing levels of water quality and beneficial uses are 
maintained and protected.
State Regulations
    State regulatory mechanisms that could provide some protection for 
the California golden trout and its habitat include the California 
Endangered Species Act (CESA), California Environmental Quality Act 
(CEQA) (Pub. Resources Code Sec.  21000 et seq.), and the California 
Fish and Game Code (14 C.C.R. Sec.  1 et seq.). Applicable sections are 
discussed below. In addition, the California Fish and Game Commission 
(Commission) has regulatory powers to decide policy such as season, bag 
limits, and methods of take for sport fish.

California Endangered Species Act (CESA)

    The California golden trout was designated as the State freshwater 
fish of California in 1947 and was listed as a fish species of special 
concern by CDFG in 1995. The status of ``species of special concern'' 
applies to animals that are not listed under the Act or the California 
Endangered Species Act (CESA) but meet the following criteria: 
Populations are low, scattered, or highly localized and require active 
management to prevent them from becoming threatened or endangered 
species (Moyle et al. 1995, p. 3).

California Environmental Quality Act (CEQA) (Pub. Resources Code Sec.  
21000 et seq.)

    CEQA is the principal statute mandating environmental assessment of 
projects in California. The purpose of CEQA is to evaluate whether a 
proposed project may have an adverse effect on the environment 
(including native fish and wildlife species), to disclose that 
information to the public, and to determine whether significant adverse 
effects can be reduced or eliminated by pursuing an alternative course 
of action or through mitigation. CEQA applies to projects proposed to 
be undertaken or requiring approval by State and local public agencies. 
CEQA requires full disclosure of the potential environmental impacts of 
public or private projects carried out by or authorized by non-Federal 
agencies within the State of California. As such, CEQA provides some 
protection for the California golden trout, should projects that would 
be subject to CEQA be proposed within the native range of the species. 
Fish stocking is not subject to full disclosure of its potential 
environmental impacts, as it is exempt from CEQA under Article 19 
section 15301(j). However, as discussed elsewhere stocking of nonnative 
trout has been discontinued within the species' range.

California Fish and Game Code (14 C.C.R. Sec.  1 et seq.)

    The California Fish and Game Commission, a separate entity from 
CDFG, is a five-member group appointed by the Governor and confirmed by 
the Senate. The Commission has set up several policies regarding the 
California golden trout. Pursuant to section 703 of the Fish and Game 
Code, the Commission has designated certain State waters to be managed 
exclusively for wild trout. Those waters include the entire Golden 
Trout Creek watershed and the majority of the South Fork Kern watershed 
from the headwaters to the southern end of the South Sierra Wilderness.
    In 1952, the Commission developed the Golden Trout Policy that 
covers the three subspecies of golden trout in the Sierra Nevada. In 
summary, the policy states the following:
    (1) Certain waters within the high mountainous areas of Madera, 
Fresno, Inyo, Mono, and Tulare Counties may be designated by CDFG as 
``Golden Trout Waters of California'' and shall be maintained in as 
genetically pure state as possible, and rainbow trout and other species 
of trout shall not be planted in these designated golden trout waters.
    (2) A brood stock shall be maintained in lakes set aside for the 
sole purpose of egg production to provide fingerlings for planting 
waters.
    (3) Hatchery-reared or wild fingerlings may be used for initial 
stocking in streams and lakes designated by CDFG, and whenever 
practicable, the range of golden trout will be extended through wild 
fish or fingerling plantings in native waters, or in other waters 
possessing adequate spawning grounds.
    (4) The Golden Trout Policy prevails over the general Trout Policy 
if the two are in conflict.
    Contrary to the Golden Trout Policy that ``rainbow trout and other 
species of trout shall not be planted in designated golden trout 
waters,'' rainbow trout have been stocked in the South Fork Kern River 
at Kennedy Meadows since about 1947. To prevent additional 
hybridization, CDFG began planting triploid rainbow trout in 2004, of 
which 99 to 100 percent are sterile (CDFG et al. 2004a, p. 52; McGuire 
2011, p. 3). Although the trout planting has been popular with some 
members of the angling public, CDFG discontinued the stocking program 
entirely in 2009 (McGuire 2009, p. 9; McGuire 2011, p. 3).
    Section 200 of the Fish and Game Code delegates to the Commission 
the power to regulate the taking or possession of fish. California 
Sport Fishing Regulations include the California golden trout and 
require a sport fishing license and the use of barbless hooks to take a 
maximum of five California golden trout in the Golden Trout Wilderness 
(CDFG 2011a, p. 13). Outside the Golden Trout Wilderness, a fisherman 
may possess up to 10 California golden trout, but may only take 5 per 
day (CDFG 2011b, p. 2). These limits, coupled with the remote 
backcountry condition of much of the subspecies' range, appear 
sufficient to prevent angling pressure from posing a threat (see Factor 
B--Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes section above).
    Section 1603(a) of the California Fish and Game Code necessitates a 
permit from CDFG for any activity that may alter the bed, channel, or 
bank of any river, stream, or lake. The permit may incorporate measures 
to minimize adverse impacts to fish and wildlife; therefore, this 
regulation may offer protection to California golden trout habitat. The 
extent to which this regulation has provided the California golden 
trout with protection is unknown, as much of the range of this 
subspecies is protected under management of federally protected areas 
where few habitat modifications subject to this permit have been 
proposed. Section 6400 of the California Fish and Game Code declares it 
unlawful to place, plant, or cause to be placed or planted in any 
waters of California any live fish without permission from CDFG. 
Violation could result in a fine of up to $50,000 and 1 year 
imprisonment, with revocation of fishing privileges. In addition, 
violators would be held liable for damages. Rewards of up to $50,000 
may be offered for information leading to the conviction of persons 
violating Section 6400, pursuant to Section 2586.
    Thus, State regulations provide protections primarily through State 
Fish and Game Codes, and enforcement of these regulations by both CDFG 
wildlife protection personnel and by Forest Service law enforcement 
personnel (CDFG et al. 2004a, pp. 57-58; McGuire and Sims 2006, p. 18; 
Sims and McGuire 2006b, p. 13).
Summary of Factor D
    Some Federal and State regulations afford protections for the 
California golden trout and their habitat. Implementation of LRMPs, as 
amended

[[Page 63108]]

by the SNFPA, provides protections through management direction for the 
subspecies and the aquatic, riparian, and meadow ecosystems that it 
relies on. State regulations provide some protections through the 
Golden Trout Policy and the Fish and Game Code. Therefore, based on the 
best scientific and commercial information available, we find that the 
California golden trout is not currently threatened by the inadequate 
regulatory mechanisms throughout its range, nor do we anticipate 
inadequate regulatory mechanisms posing a threat in the future.

Factor E. Other Natural or Manmade Factors Affecting the Continued 
Existence of the Species

    Potential Factor E threats include hybridization, fire suppression 
activities, invasion of California golden trout waters by the New 
Zealand mudsnail (Potamopyrgus antipodarum), and climate change. With 
regard to hybridization, this potential threat involves introduced 
nonnative rainbow trout breeding with the California golden trout. For 
purposes of this review, ``hybridization'' refers to the creation of 
hybrid individuals due to matings between California golden trout and 
nonnative rainbow trout (in this case introduced hatchery trout, 
Oncorhynchus mykiss spp.) or due to matings between California golden 
trout and hybrid trout. Genetic introgression refers to the movement of 
genes originally indicative of nonnative trout into the gene pool of 
California golden trout populations. Because native California golden 
trout, introduced rainbow trout, and hybrid offspring interbreed, 
hybridization leads to genetic introgression, and the threats 
(discussed below) of both hybridization and introgression are treated 
the same.
Hybridization
    The petition states that hybridization, due to the substantial 
stocking of rainbow trout and hybridized golden trout during the past 
100 years, is the most immediate and destructive threat that California 
golden trout faces (Trout Unlimited 2000, pp. 17-18). Hybridization and 
consequent introgression is thought to dilute the fundamental genetic 
characteristics of California golden trout populations (CDFG et al. 
2004a, p. 24). If the hybridization and introgression continue at large 
enough rates, those fundamental genetic characteristics could be lost 
entirely, leading to ``genetic extinction'' (Rhymer and Simberloff 
1996, p. 100). In the Golden Trout Creek watershed, Trout Unlimited 
(2000, pp. 20-24) cites the past stocking of hybridized California 
golden trout in the fishless headwater lakes, Johnson Lake, Rocky Basin 
Lakes 1, 2, 3, and 4, and Chicken Spring Lake, as potential sources of 
hybridization. In the South Fork Kern River watershed, the petition 
(Trout Unlimited 2000, p. 18) states that hybridization has resulted 
from the extensive official and unofficial stocking of rainbow trout 
that has occurred at various places throughout the watershed.

Hybridization in Relation to Implementing the Endangered Species Act

    The Act does not directly address questions related to species that 
have some degree of hybridization. The purpose of the Act is to 
conserve threatened and endangered species and the ecosystems on which 
those species depend. The definition of species under the Act includes 
any taxonomic species or subspecies, and distinct population segments 
of vertebrate species. Key issues for this status review are the 
scientific criteria used by professional zoologists and field 
biologists to taxonomically classify individuals, and populations of 
interbreeding individuals, as members of the California golden trout 
subspecies (Oncorhynchus mykiss aguabonita).
    Previous Service positions regarding hybridization, based upon 
interpretations in a series of opinions by the U.S. Department of the 
Interior, Office of the Solicitor, generally precluded conservation 
efforts under the authorities of the Act for progeny, or their 
descendants, produced by matings between taxonomic species or 
subspecies (O'Brien and Mayr 1991, pp. 1-3). However, advances in 
biological understanding of natural hybridization (such as Arnold 1997, 
pp. 182-183) prompted withdrawal of those opinions. The reasons for 
that action were summarized in two sentences in the withdrawal 
memorandum (Memorandum from Assistant Solicitor for Fish and Wildlife, 
U.S. Department of the Interior, to Director, U.S. Fish and Wildlife 
Service, dated December 14, 1990): ``New scientific information 
concerning genetic introgression has convinced us that the rigid 
standards set out in those previous opinions should be revisited. In 
our view, the issue of ``hybrids'' is more properly a biological issue 
than a legal one.''
    Our increasing understanding of the wide range of possible outcomes 
resulting from exchanges of genetic material between taxonomically 
distinct species and between entities within taxonomic species that 
also can be listed under the Act (i.e., subspecies, DPSs) requires the 
Service to address these situations on a case-by-case basis. In some 
cases, introgressive hybridization (infiltration of genes from one 
species into the gene pool of another species through repeated 
backcrossing of a hybrid with one of its parents) may be considered a 
natural evolutionary process reflecting active speciation or simple 
gene exchange between naturally sympatric species (or those species 
that occupy the same or overlapping geographic areas without 
interbreeding). Introgressed populations may contain unique or 
appreciable portions of the genetic resources of an imperiled or listed 
species. For example, populations with genes from another taxon at very 
low frequencies may still express important behavioral, life-history, 
or ecological adaptations of the indigenous population or species 
within a particular geographic area. In other cases, human-caused or 
facilitated hybridization may threaten the existence of a taxon, either 
because native genes are lost due to sheer numbers of introgressing 
genes, or because hybridized individuals have lowered fitness (Rhymer 
and Simberloff 1996, pp. 85-86, 92). Consequently, the Service 
carefully evaluates the long-term conservation implications for each 
taxon separately on a case-by-case basis where introgressive 
hybridization may have occurred. The Service performs these evaluations 
objectively based on the best scientific and commercial information 
available consistent with the intent and purpose of the Act.
    A potential dichotomy thus exists under the Act between: (a) The 
need to protect the genetic resources of a species in which 
introgression has occurred, and (b) the need to minimize or eliminate 
the threat of hybridization posed by another taxon. Implementing 
actions under the Act that distinguish between these two alternatives 
is difficult when imperiled species are involved because a large number 
of populations may have experienced varying amounts of genetic 
introgression from another taxon. With regard to the California golden 
trout, an acceptable level of hybridization has not yet been defined.

Hybridization as a Potential Threat to California Golden Trout

    In Golden Trout Creek, which contains approximately 82 km (51 mi) 
of native range, movement and reproduction of introgressed California 
golden trout from headwater lakes into downstream reaches has resulted 
in introgression at low levels, estimated at 0 to 8 percent on average 
(Cordes et al.

[[Page 63109]]

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

[[Page 63110]]

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

[[Page 63111]]

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

[[Page 63112]]

    Changes in timing of flows may be possible despite predicted trends 
in springtime snowpack. For instance the snowpack may be maintained by 
increased snowfall, despite earlier melting of some portion of that 
snowpack (Stewart et al. 2005, p. 1144). This may advance the timing of 
relatively warm water entering the Golden Trout Creek and South Fork 
Kern watersheds. California golden trout spawn when water temperatures 
consistently exceed 59 [deg]F (15 [deg]C) (Knapp and Vredenburg 1996, 
p. 1). They also tend to spawn more actively during times of day when 
the water is warmest. Earlier meltwater runoff from the snowpack might 
reasonably cause the minimum spawning temperatures to be reached 
earlier in the year. As the Conservation Strategy notes, California 
golden trout tend to grow slowly, in part because of cold water 
temperatures and a short growing season (CDFG 2004a, p. 12). Earlier 
meltwater runoff may, therefore, have a positive effect on California 
golden trout populations.
    In summary, modeled and observed data indicate that the water 
content of snowpacks in the southern Sierras is likely to increase or 
at least remain the same in the future. Streams supporting California 
golden trout are, therefore, likely to remain supplied year round with 
water in the temperature ranges required by the subspecies. We conclude 
that global climate change does not pose a threat to the subspecies, 
either now or in the future.
Summary of Factor E
    Although California golden trout have historically been adversely 
affected by several manmade or human exacerbated factors, those 
potential threats have been well-addressed by conservation efforts. 
Threats of increased hybridization resulting from natural fish movement 
and interbreeding in areas that are currently less-hybridized have been 
ameliorated by conservation efforts that include repair and 
maintainance of the three fish barriers on the South Fork Kern River, 
removal of all fish from the headwater lakes of Golden Trout Creek, and 
various genetic monitoring efforts. While these efforts do not 
eliminate introgression that has already occurred, they prevent areas 
of low introgression, such as the upper reaches of the South Fork Kern 
River, from being further introgressed by hybridized fish coming 
upstream from lower reaches. This stabilization of the threat has 
allowed management efforts, including elimination of introgressed 
populations, to proceed in a well-considered manner.
    Fire suppression planning and guidance documents, including the 
Conservation Strategy (CDFG et al. 2004a, p. 87), Interagency Standards 
for Fire and Fire Aviation Operations (National Interagency Fire Center 
2006, chapter 12, pp. 1-6), and the Wildland Fire Use Implementation 
Procedures Reference Guide (USDA and USDOI 2005, entire) adequately 
address both the direct potential impacts of fire suppression 
activities and the indirect habitat impacts that may result from fuels 
buildup in the lack of fire. The threat that the New Zealand mudsnail 
may be introduced into California golden trout waters is relatively low 
due to distance to source areas, and is addressed by public education 
efforts. Available data also indicate that water temperature and 
availability issues related to climate change will not threaten the 
subspecies. Based on the above, we conclude that the California golden 
trout is not currently threatened by other natural or manmade factors 
affecting its continued existence throughout its range, nor do we 
anticipate other natural or manmade factors posing a threat in the 
future.

Finding

    As required by the Act, we considered the five factors in assessing 
whether the California golden trout is threatened or endangered 
throughout all or a significant portion of its range. We examined the 
best scientific and commercial information available regarding the 
past, present, and future threats faced by the California golden trout. 
We reviewed the petition, information available in our files, other 
available published and unpublished information, and we consulted with 
recognized California golden trout experts and other Federal and State 
agencies.
    The primary potential threats to the subspecies include livestock 
grazing at levels that are environmentally harmful, competition and 
predation from introduced brown trout, and hybridization with nonnative 
trout. These potential threats are all addressed by a Conservation 
Strategy and Memorandum of Agreement that we, the USFS, and CDFG are 
currently implementing (CDFG et al. 2004a, entire; CDFG et al. 2004b, 
entire). Impacts from environmentally detrimental grazing practices 
have been greatly reduced through the resting of grazing allotments and 
establishment of cattle exclosures, by the implementation of standards 
for maintaining desired vegetative and habitat conditions, and by 
significant reductions in the number of cattle using the area.
    Predation and competition with brown trout have been addressed by 
the discontinuation of brown trout stocking, construction and 
improvement of fish barriers, chemical treatments, and annual surveys 
to keep brown trout out of cleared areas. Hybridization concerns have 
been addressed under the Conservation Strategy through the 
discontinuation of fish stocking in the California golden trout's home 
range, the removal of hybridized fish from Golden Trout Creek headwater 
lakes, and the restoration of fish barriers on the South Fork Kern 
River. In the South Fork Kern River, introgression levels appear to be 
generally uniform in stream sections that are separated by barriers, 
indicating that in general, particular populations are insulated from 
increased introgression. In Golden Trout Creek, the source of 
introgression has been removed. California golden trout densities have 
generally been among the highest ever recorded for a stream-dwelling 
trout in the western United States (Knapp and Matthews 1996, p. 805). 
Population surveys conducted at Templeton Meadow on the South Fork Kern 
River have indicated that population numbers increased between 1985 and 
1999 (Stephens 2001b, p. 2), indicating that in general golden trout 
population numbers are at a high density and do not appear to be at 
risk.
    Based on our review of the best available scientific and commercial 
information pertaining to the five factors, we find that the threats 
are not of sufficient imminence, intensity, or magnitude to indicate 
that the California golden trout is in danger of extinction 
(endangered), or likely to become endangered within the foreseeable 
future (threatened), throughout its range at this time.

Distinct Vertebrate Population Segment

    Under the Service's Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments Under the Endangered Species Act (61 FR 
4722; February 7, 1996), three elements are considered in the decision 
concerning the establishment and classification of a possible DPS. 
These are applied similarly for additions to or removal from the 
Federal List of Endangered and Threatened Wildlife. These elements 
include:
    (1) The discreteness of a population in relation to the remainder 
of the species to which it belongs;
    (2) The significance of the population segment to the species to 
which it belongs; and
    (3) The population segment's conservation status in relation to the 
Act's standards for listing, delisting, or reclassification (i.e., is 
the population segment endangered or threatened).

[[Page 63113]]

Discreteness

    Under the DPS policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either one of the following 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    If the population meets the first two criteria under the DPS 
policy, we then proceed to the third element in the process, which is 
to evaluate the population segment's conservation status in relation to 
the Act's standards for listing as an endangered or threatened species. 
The DPS evaluation in this finding concerns the California golden trout 
that we were petitioned to list as endangered.
    In the threats assessment performed above, we concluded that in 
relation to the entire range of the California golden trout, none of 
the activities identified as potential threats, either singly or in 
combination, constitute a level of risk serious enough to bring a local 
population to the point where it would be in danger of extinction, 
either now or in the foreseeable future.
    Under the DPS Policy, California golden trout in both Golden Trout 
Creek and the South Fork Kern River each could meet the criterion for 
discreteness as a markedly separate population because while the two 
drainages were connected in the geologic past, they became separated by 
volcanic activity in the region approximately 10,000 years ago (Cordes 
et al. 2003, p. 20). This led to Golden Trout Creek and the South Fork 
Kern River as known today (Evermann 1906, pp. 11-14) in two adjacent 
watersheds draining the Kern Plateau of the southern Sierra Nevada.

Significance

    If a population segment is considered discrete under one or more of 
the conditions described in the Service's DPS policy, its biological 
and ecological significance will be considered in light of 
Congressional guidance that the authority to list DPSs be used 
``sparingly'' while encouraging the conservation of genetic diversity. 
In making this determination, we consider available scientific evidence 
of the discrete population segment's importance to the taxon to which 
it belongs. Since precise circumstances are likely to vary considerably 
from case to case, the DPS policy does not describe all the classes of 
information that might be used in determining the biological and 
ecological importance of a discrete population. However, the DPS policy 
describes four possible classes of information that provide evidence of 
a population segment's biological and ecological importance to the 
taxon to which it belongs. As specified in the DPS policy (61 FR 4722), 
this consideration of the population segment's significance may 
include, but is not limited to, the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    A population segment needs to satisfy only one of these conditions 
to be considered significant. Furthermore, other information may be 
used as appropriate to provide evidence for significance.
    California golden trout in Golden Trout Creek and the South Fork 
Kern River could each be considered to meet the significance criterion 
of the DPS policy because the evidence indicates that the loss of 
either population segment could result in a significant gap in the 
range of the subspecies.
    However, since it is our conclusion that, based on the best 
information available, recent management actions and restoration 
activities have ameliorated the risks presented by these potential 
threats to the extent that they do not present a concentrated level of 
risk to California golden trout anywhere in its range, including in 
Golden Trout Creek and the South Fork Kern watershed, we conclude that 
there is no geographic concentration of threats and thus no need to 
proceed further with an evaluation of potential DPSs within the range 
of the subspecies. Even if populations of California golden trout were 
found to meet the distinctness and significance criteria of the DPS 
Policy, we have already found that the conservation status of these 
entities would not meet the Act's standards for listing as endangered 
or threatened. As a result, no further analysis under the DPS policy is 
necessary.

Significant Portion of the Range and Distinct Vertebrate Population 
Segments

    After assessing whether the California golden trout is threatened 
or endangered throughout its range, we next consider whether either a 
significant portion of the California golden trout's range or a 
distinct population segment (DPS) of the species meets the definition 
of endangered or is likely to become endangered in the foreseeable 
future (threatened).

Significant Portion of the Range

    The Act defines ``endangered species'' as any species which is ``in 
danger of extinction throughout all or a significant portion of its 
range,'' and ``threatened species'' as any species which is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The definition of 
``species'' is also relevant to this discussion. The Act defines the 
term ``species'' as follows: ``The term `species' includes any 
subspecies of fish or wildlife or plants, and any distinct population 
segment [DPS] of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' The phrase ``significant portion of its 
range'' (SPR) is not defined by the statute, and we have never 
addressed in our regulations: (1) The consequences of a determination 
that a species is either endangered or likely to become so throughout a 
significant portion of its range, but not throughout all of its range; 
or (2) what qualifies a portion of a range as ``significant.''
    Two recent district court decisions have addressed whether the SPR 
language allows the Service to list or protect less than all members of 
a defined ``species:'' Defenders of Wildlife v. Salazar, 729 F. Supp. 
2d 1207 (D. Mont. 2010), concerning the Service's delisting of the 
Northern Rocky Mountain gray wolf (74 FR 15123, April 2, 2009); and 
WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. 
Sept. 30, 2010), concerning the Service's 2008 finding on a petition to 
list the Gunnison's prairie dog (73 FR 6660, Feb. 5, 2008). The Service 
had asserted in both of these determinations that it had authority, in 
effect, to protect only some members of a ``species,'' as defined by 
the Act (i.e., species, subspecies, or DPS), under the Act. Both courts 
ruled that the determinations were arbitrary and capricious on the 
grounds that this approach violated the plain and unambiguous language 
of the

[[Page 63114]]

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

[[Page 63115]]

and that we would not need to rely on the SPR language for such a 
listing.) Rather, under this interpretation we ask whether the species 
would be in danger of extinction everywhere without that portion, i.e., 
if that portion were completely extirpated.
    The range of a species can theoretically be divided into portions 
in an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that have no reasonable potential to be 
significant and threatened or endangered. To identify only those 
portions that warrant further consideration, we determine whether there 
is substantial information indicating that: (1) The portions may be 
``significant,'' and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. Depending 
on the biology of the species, its range, and the threats it faces, it 
might be more efficient for us to address the significance question 
first or the status question first. Thus, if we determine that a 
portion of the range is not ``significant,'' we do not need to 
determine whether the species is endangered or threatened there; if we 
determine that the species is not endangered or threatened in a portion 
of its range, we do not need to determine if that portion is 
``significant.'' In practice, a key part of the portion status analysis 
is whether the threats are geographically concentrated in some way. If 
the threats to the species are essentially uniform throughout its 
range, no portion is likely to warrant further consideration. Moreover, 
if any concentration of threats applies only to portions of the 
species' range that clearly would not meet the biologically based 
definition of ``significant'', such portions will not warrant further 
consideration.
    The most serious of the potential threats to California golden 
trout discussed above in the Summary of Information Pertaining to the 
Five Factors section are livestock grazing, predation and competition 
from brown trout, and hybridization issues with rainbow trout. These 
potential threats generally occur across the species range and are not 
concentrated in any areas. Even areas that may currently lack one or 
more of these potential threats remain at some risk from them. The 
level of risk presented by each of these potential threats has, in the 
past, been highest in the South Fork Kern watershed. However, recent 
management actions and restoration activities have ameliorated the 
risks presented by these potential threats to the extent that they do 
not present a concentrated level of risk to California golden trout 
anywhere in its range, including the South Fork Kern watershed. Efforts 
in place to address these potential threats include the development and 
implementation of the Conservation Strategy, with its associated 
management and monitoring requirements (CDFG et al. 2004a, pp. 1-4; 
McGuire et al. 2009, entire; Lentz 2011, pp. 1, 2); the ongoing 
development of a genetics management plan scheduled for completion in 
June 2012 (Lentz 2011, p. 2); the construction and renovation of the 
three fish passage barriers restricting movement of brown trout and 
hybridized fish (Lentz 2011, pp. 1, 2); the eradication of brown trout 
above the Templeton barrier (Lentz 2011, p. 2); the curtailment of 
stocking of brown and rainbow trout (with the exception of sterile 
triploid rainbow trout at Kennedy Meadows) (CDFG et al. 2004a, p. 52; 
Lentz 2011, p.1); and extensive grazing restrictions and effects-
monitoring across the range (USFS 1988a, pp. 78-79, 236; USFS 1995, pp. 
2, 27; Knapp and Mathews 1996, pp. 816, 817; CDFG et al. 2004a, p. 34; 
McGuire and Sims 2006, p. 17; Ettema and Sims 2010, pp. 58-64).
    Of the additional potential threats to California golden trout 
discussed above under the Summary of Information Pertaining to the Five 
Factors section, some are more applicable to the South Fork Kern 
watershed (recreation, fish barriers, beavers, angling, illegal trout 
transplants, fish stocking, and the New Zealand mud snail), while 
others are equally applicable to both watersheds (pack stock use, 
collection of fin tissue samples, whirling disease, fire suppression 
activities, and climate change). However, for the reasons discussed 
above in relation to the entire range of the subspecies, none of these 
activities (either singly or in combination) constitute a level of risk 
serious enough to bring a local population to the point where it would 
be in danger of extinction, either now or in the foreseeable future. 
Accordingly, based on the best available scientific and commercial 
information, we conclude that the California golden trout is not 
threatened or endangered in a significant portion of its range. 
Moreover, the subspecies currently exists throughout its historical 
range (see Distribution section above), so there is no need to address 
the question of whether lost historical range is a significant portion 
of the species' range.

Conclusion of 12-Month Finding

    We do not find the California golden trout (or any DPS) to be in 
danger of extinction now, nor is this species likely to become 
endangered within the foreseeable future throughout all or a 
significant portion of its range. Therefore, listing this species as 
threatened or endangered under the Act is not warranted at this time.
    We request that you submit any new information concerning the 
status of, or threats to, the California golden trout to our Sacramento 
Ecological Services Field Office (see ADDRESSES section) whenever it 
becomes available. New information will help us monitor the California 
golden trout and encourage its conservation. If an emergency situation 
develops for the California golden trout or any other species, we will 
act to provide immediate protection.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Sacramento Fish 
and Wildlife Office (see ADDRESSES section).

Authors

    The primary authors of this notice are the staff members of the 
Sacramento Fish and Wildlife Office.

Authority

    The authority for this section is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 22, 2011.
 Rowan Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-25652 Filed 10-7-11; 8:45 am]
BILLING CODE 4310-55-P