[Federal Register Volume 64, Number 67 (Thursday, April 8, 1999)]
[Rules and Regulations]
[Pages 17110-17125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8850]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF01
Endangered and Threatened Wildlife and Plants; Determination of
Threatened Status for the Jarbidge River Population Segment of Bull
Trout
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened status for the Jarbidge River distinct population segment of
bull trout (Salvelinus confluentus) from the Jarbidge River basin in
northern Nevada and southern Idaho, with a special rule, pursuant to
the Endangered Species Act of 1973, as amended (Act). The Jarbidge
River population segment, composed of a single subpopulation with few
individuals, is threatened by habitat degradation from past and ongoing
land
[[Page 17111]]
management activities such as road construction and maintenance,
mining, and grazing; interactions with non-native fishes; and
incidental angler harvest. We based this final determination on the
best available scientific and commercial information including current
data and new information received during the comment period. This
action continues protection for this population segment of the bull
trout which was effective for a 240-day period beginning when we
emergency listed this population segment on August 11, 1998.
EFFECTIVE DATE: This rule is effective on April 8, 1999.
ADDRESSES: The complete administrative file for this rule is available
for inspection, by appointment, during normal business hours at the
U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340
Financial Boulevard, Suite 234, Reno, Nevada 89502-7147.
FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor,
at the above address (telephone 775/861-6300; facsimile 775/861-6301).
SUPPLEMENTARY INFORMATION:
Background
Bull trout (Salvelinus confluentus), members of the family
Salmonidae, are char native to the Pacific northwest and western
Canada. They historically occurred in major river drainages in the
Pacific northwest from about 41 deg. N to 60 deg. N latitude, from the
southern limits in the McCloud River in northern California and the
Jarbidge River in Nevada, north to the headwaters of the Yukon River in
Northwest Territories, Canada (Cavender 1978; Bond 1992). To the west,
bull trout range includes Puget Sound, various coastal rivers of
Washington, British Columbia, Canada, and southeast Alaska (Bond 1992;
Leary and Allendorf 1997). Bull trout are relatively dispersed
throughout tributaries of the Columbia River basin, including its
headwaters in Montana and Canada. Bull trout also occur in the Klamath
River basin of south-central Oregon. East of the Continental Divide,
bull trout are found in the headwaters of the Saskatchewan River in
Alberta and the MacKenzie River system in Alberta and British Columbia
(Cavender 1978; Brewin and Brewin 1997). Bull trout habitat in the
Jarbidge River basin is a mosaic of land ownership, including Federal
lands administered by the U.S. Forest Service (USFS) and U.S. Bureau of
Land Management (BLM); State lands in Idaho; and private lands.
Bull trout were first described as Salmo spectabilis by Girard in
1856 from a specimen collected on the lower Columbia River (Cavender
1978). Bull trout and Dolly Varden (Salvelinus malma) were previously
considered a single species (Cavender 1978; Bond 1992); however, they
were formally recognized as separate species by the American Fisheries
Society in 1980 (Robins et al. 1980).
Bull trout exhibit both resident and migratory life history
strategies through much of the current range (Rieman and McIntyre
1993). Resident bull trout complete their life cycles in the tributary
streams in which they spawn and rear. Migratory bull trout spawn in
tributary streams, and juvenile fish rear from 1 to 4 years before
migrating to either a lake (adfluvial), river (fluvial), or in certain
coastal areas, saltwater (anadromous), to mature (Fraley and Shepard
1989; Goetz 1989). Resident and migratory forms may be found together,
and bull trout may produce offspring exhibiting either resident or
migratory behavior (Rieman and McIntyre 1993).
Compared to other salmonids, bull trout have more specific habitat
requirements (Rieman and McIntyre 1993) that appear to influence their
distribution and abundance. These habitat components include water
temperature, cover, channel form and stability, valley form, stream
elevation, spawning and rearing substrates, and migratory corridors
(Oliver 1979; Pratt 1984, 1992; Fraley and Shepard 1989; Goetz 1989;
Hoelscher and Bjornn 1989; Sedell and Everest 1991; Howell and Buchanan
1992; Rieman and McIntyre 1993, 1995; Rich 1996; Watson and Hillman
1997). Watson and Hillman (1997) concluded that watersheds must have
specific physical characteristics to provide the necessary habitat
requirements for bull trout spawning and rearing, and that the
characteristics are not necessarily ubiquitous throughout watersheds in
which bull trout occur. Because bull trout exhibit a patchy
distribution, even in undisturbed habitats (Rieman and McIntyre 1993),
fish would not likely occupy all available habitats simultaneously
(Rieman et al. 1997).
Bull trout are typically associated with the colder streams in a
river system, although individual fish can occur throughout larger
river systems (Fraley and Shepard 1989; Rieman and McIntyre 1993, 1995;
Buchanan and Gregory 1997; Rieman et al. 1997). For example, water
temperature above 15 deg. C (59 deg. F) is believed to negatively
influence bull trout distribution, which partially explains the
generally patchy distribution within a watershed (Fraley and Shepard
1989; Rieman and McIntyre 1995). Spawning areas are often associated
with cold-water springs, groundwater infiltration, and the coldest
streams in a given watershed (Pratt 1992; Rieman and McIntyre 1993;
Rieman et al. 1997).
All life history stages of bull trout are associated with complex
forms of cover, including large woody debris, undercut banks, boulders,
and pools (Oliver 1979; Fraley and Shepard 1989; Goetz 1989; Hoelscher
and Bjornn 1989; Sedell and Everest 1991; Pratt 1992; Thomas 1992; Rich
1996; Sexauer and James 1997; Watson and Hillman 1997). Jakober (1995)
observed bull trout overwintering in deep beaver ponds or pools
containing large woody debris in the Bitterroot River drainage,
Montana, and suggested that suitable winter habitat may be more
restrictive than summer habitat. Maintaining bull trout populations
requires stream channel and flow stability (Rieman and McIntyre 1993).
Juvenile and adult bull trout frequently inhabit side channels, stream
margins, and pools with suitable cover (Sexauer and James 1997). These
areas are sensitive to activities that directly or indirectly affect
stream channel stability and alter natural flow patterns. For example,
altered stream flow in the fall may disrupt bull trout during the
spawning period and channel instability may decrease survival of eggs
and young juveniles in the gravel during winter through spring (Fraley
and Shepard 1989; Pratt 1992; Pratt and Huston 1993).
Preferred spawning habitat generally consists of low gradient
streams with loose, clean gravel (Fraley and Shepard 1989) and water
temperatures of 5 to 9 deg. C (41 to 48 deg. F) in late summer to early
fall (Goetz 1989). However, biologists collected young-of-the-year bull
trout in high gradient stream reaches with minimal gravel within the
Jarbidge River basin, indicating that spawning occurred in these areas
or further upstream (Gary Johnson, Nevada Division of Wildlife (NDOW),
pers. comm. 1998a; Terry Crawforth, NDOW, in litt. 1998). Pratt (1992)
reported that increases in fine sediments reduce egg survival and
emergence.
The size and age of maturity for bull trout is variable depending
upon life history strategy. Growth of resident fish is generally slower
than migratory fish; resident fish tend to be smaller at maturity and
less fecund (Fraley and Shepard 1989; Goetz 1989). Resident adults
range from 150 to 300 millimeters (mm) (6 to 12 inches (in)) total
length and migratory adults commonly reach 600 mm (24 in) or more
(Goetz 1989).
Bull trout normally reach sexual maturity in 4 to 7 years and live
as long
[[Page 17112]]
as 12 years. Repeat and alternate year spawning have been reported,
although repeat spawning frequency and post-spawning mortality are not
well known (Leathe and Graham 1982; Fraley and Shepard 1989; Pratt
1992; Rieman and McIntyre 1996). Bull trout typically spawn from August
to November during periods of decreasing water temperatures. However,
migratory bull trout may begin spawning migrations as early as April,
and move upstream as far as 250 kilometers (km) (155 miles (mi)) to
spawning grounds in some areas of their range (Fraley and Shepard 1989;
Swanberg 1997). Temperatures during spawning generally range from 4 to
10 deg. C (39 to 51 deg. F), with redds (spawning beds) often
constructed in stream reaches fed by springs or near other sources of
cold groundwater (Goetz 1989; Pratt 1992; Rieman and McIntyre 1996).
Depending on water temperature, egg incubation is normally 100 to 145
days (Pratt 1992), and juveniles remain in the substrate after
hatching. Time from egg deposition to emergence may surpass 200 days.
Fry normally emerge from early April through May depending upon water
temperatures and increasing stream flows (Pratt 1992; Ratliff and
Howell 1992).
Bull trout are opportunistic feeders, with food habits primarily a
function of size and life history strategy. Resident and juvenile bull
trout prey on terrestrial and aquatic insects, macro-zooplankton,
amphipods, mysids, crayfish, and small fish (Wyman 1975; Rieman and
Lukens 1979 in Rieman and McIntyre 1993; Boag 1987; Goetz 1989; Donald
and Alger 1993). Adult migratory bull trout are primarily piscivorous
(fish eating) and are known to feed on various trout and salmon species
(Onchorynchus spp.), whitefish (Prosopium spp.), yellow perch (Perca
flavescens) and sculpin (Cottus spp.) (Fraley and Shepard 1989; Donald
and Alger 1993).
In the Jarbidge River basin, bull trout occur with native redband
trout (Oncorhynchus mykiss), mountain whitefish (Prosopium
williamsoni), sculpin, bridgelip sucker (Catostomus columbianus), and
various minnow (Cyprinidae) species. Introductions of non-native
fishes, including brook trout (Salvelinus fontinalis), and hatchery
rainbow trout (O. mykiss), have also occurred within the range of bull
trout in the Jarbidge River basin. These non-native fishes have been
associated with local bull trout declines and extirpations elsewhere in
the species' range (Bond 1992; Ziller 1992; Donald and Alger 1993;
Leary et al. 1993; Montana Bull Trout Scientific Group (MBTSG) 1996a).
Stocked brook trout failed to establish a self-sustaining
population in the Jarbidge River system, but an introduced population
still occurs in Emerald Lake, a high-elevation lake within the Jarbidge
River watershed (T. Crawforth, in litt. 1998; Rich Haskins, NDOW, pers.
comm. 1998; G. Johnson, pers. comm. 1998). Brook trout may spill out of
the lake into the East Fork of the Jarbidge River during peak runoff
events, although the lack of a defined outlet makes such an event
appear unlikely (G. Johnson, pers. comm. 1994). NDOW's rainbow trout
stocking program in the Jarbidge River system has been ongoing since
the 1970s, and the Idaho Department of Fish and Game (IDFG) stocked
rainbow trout in the Idaho portion of the East and West Forks of the
Jarbidge River from 1970 to 1989 (Fred Partridge, IDFG, in litt. 1998).
Migratory corridors link seasonal habitats for all bull trout life
history forms. The ability to migrate is important to the persistence
of local bull trout subpopulations (Rieman and McIntyre 1993; Mike
Gilpin, University of California, in litt. 1997; Rieman and Clayton
1997; Rieman et al. 1997). Migrations facilitate gene flow among local
subpopulations if individuals from different subpopulations interbreed
when some return to non-natal streams. Migratory fish may also re-
establish extirpated local subpopulations.
Metapopulation concepts of conservation biology theory may be
applicable to the distribution and characteristics of bull trout
(Rieman and McIntyre 1993). A metapopulation is an interacting network
of local subpopulations with varying frequencies of migration and gene
flow among them (Meffe and Carroll 1994). Metapopulations provide a
mechanism for reducing risk because the simultaneous loss of all
subpopulations is unlikely. Although local subpopulations may become
extinct, they can be reestablished by individuals from other local
subpopulations. However, because bull trout exhibit strong homing
fidelity when spawning and their rate of straying appears to be low,
natural reestablishment of extinct local subpopulations may take a very
long time. Habitat alteration, primarily through construction of
impoundments, dams, and water diversions, has fragmented habitats,
eliminated migratory corridors, and isolated bull trout, often in the
headwaters of tributaries (Rieman et al. 1997).
Distinct Population Segments
The best available scientific and commercial information identifies
five distinct population segments (DPSs) of bull trout in the United
States--(1) Klamath River, (2) Columbia River, (3) Coastal-Puget Sound,
(4) Jarbidge River, and (5) St. Mary-Belly River. The final listing
determination for the Klamath River and Columbia River bull trout DPSs
on June 10, 1998 (63 FR 31647), includes a detailed description of the
rationale behind the DPS delineation. The approach is consistent with
the joint National Marine Fisheries Service and Fish and Wildlife
Service policy for recognizing distinct vertebrate population segments
under the Act, published on February 7, 1996 (61 FR 4722). This final
rule addresses only the Jarbidge River DPS. The Coastal-Puget Sound and
St. Mary-Belly River bull trout DPSs will be the subject of a final
rule expected to be published in June 1999.
Three elements are considered in the decision on whether a
population segment could be treated as threatened or endangered under
the Act--discreteness, significance, and conservation status in
relation to the standards for listing. Discreteness refers to the
isolation of a population from other members of the species and is
based on two criteria--(1) marked separation from other populations of
the same taxon resulting from physical, physiological, ecological, or
behavioral factors, including genetic discontinuity; and (2)
populations delimited by international boundaries. Significance is
determined either by the importance or contribution, or both, of a
discrete population to the species throughout its range. Four criteria
were used to determine significance--(1) persistence of the discrete
population segment in an ecological setting unusual or unique for the
taxon; (2) evidence that loss of the discrete population segment would
result in a significant gap in the range of the taxon; (3) evidence
that the discrete population segment represents the only surviving
natural occurrence of the taxon that may be more abundant elsewhere as
an introduced population outside its historic range; and (4) evidence
that the discrete population segment differs markedly from other
populations of the taxon in its genetic characteristics. If a
population segment is discrete and significant, its evaluation for
endangered or threatened status is based on the Act's standards.
The Jarbidge River in southwest Idaho and northern Nevada is a
tributary in the Snake River basin and contains the southernmost
habitat occupied by bull trout. This population segment is discrete
because it is geographically segregated from other bull trout in the
Snake River basin by more than 240 km (150 mi) of unsuitable habitat
and
[[Page 17113]]
several impassable dams on the mainstem Snake River and the lower
Bruneau River. The occurrence of a species at the extremities of its
range is not necessarily sufficient evidence of significance to the
species as a whole. However, since the Jarbidge River possesses bull
trout habitat that is disjunct from other patches of suitable habitat,
the population segment is considered significant because it occupies a
unique or unusual ecological setting, and its loss would result in a
substantial modification of the species' range.
Status and Distribution
To facilitate evaluation of current bull trout distribution and
abundance for the Jarbidge River population segment, we analyzed data
on a subpopulation basis because fragmentation and barriers have
isolated bull trout. A subpopulation is considered a reproductively
isolated bull trout group that spawns within a particular area(s) of a
river system. In areas where two groups of bull trout are separated by
a barrier (e.g., an impassable dam or waterfall, or reaches of
unsuitable habitat) that may allow only downstream access (i.e., one-
way passage), both groups would be considered subpopulations. In
addition, subpopulations were considered at risk of extirpation from
natural events if they were--
(1) Unlikely to be reestablished by individuals from another
subpopulation (i.e., functionally or geographically isolated from other
subpopulations);
(2) Limited to a single spawning area (i.e., spatially restricted);
and
(3) Characterized by low individual or spawner numbers; or
(4) Consisted primarily of a single life history form.
For example, a subpopulation of resident fish isolated upstream of an
impassable waterfall would be considered at risk of extirpation from
natural events if it had low numbers of fish that spawn in a relatively
restricted area. In such cases, a natural event such as a fire or flood
could eliminate the subpopulation, and subsequently, the impassable
waterfall would prevent reestablishment of the subpopulation by
downstream fish. However, a subpopulation residing downstream of the
waterfall would not be considered at risk of extirpation because of
potential reestablishment by fish from upstream. Because resident bull
trout may exhibit limited downstream movement (Nelson 1996), our
estimate of subpopulations at risk of extirpation by natural events may
be underestimated. We based the status of subpopulations on modified
criteria of Rieman et al. (1997), including the abundance, trends in
abundance, and the presence of life history forms of bull trout.
We considered a bull trout subpopulation ``strong'' if 5,000
individuals or 500 spawners likely occur in the subpopulation,
abundance appears stable or increasing, and life history forms
historically present were likely to persist. A subpopulation was
considered ``depressed'' if less than 5,000 individuals or 500 spawners
likely occur in the subpopulation, abundance appears to be declining,
or a life history form historically present has been lost (Rieman et
al. 1997). If there was insufficient abundance, trend, and life history
information to classify the status of a subpopulation as either
``strong'' or ``depressed,'' the status was considered ``unknown.'' It
should be noted that the assignment of ``unknown'' status implies only
a deficiency of available data to assign a subpopulation as ``strong''
or ``depressed,'' not a lack of information regarding the threats.
Section 4 of the Act requires us to make a determination solely on the
best scientific and commercial data available.
The Jarbidge River DPS is currently believed to contain a single
subpopulation in the East Fork, West Fork, and mainstem Jarbidge River
in Idaho and Nevada, and headwater tributaries in Nevada (Service
1998), however, further definitive genetic analysis of population
structure is needed. This population segment is isolated from other
bull trout by a large expanse of unsuitable habitat. Although accounts
of bull trout in the Jarbidge River basin date to the 1930s, both
sampling and actual collections of bull trout were infrequent (Miller
and Morton 1952; Johnson 1990; Johnson and Weller 1994). Therefore,
historical distribution and abundance data are limited.
The current distribution of bull trout in the Jarbidge River basin
primarily includes headwater streams above 2,200 meters (m) (7,200 feet
(ft)) elevation within the Jarbidge Wilderness Area--the East Fork and
West Fork Jarbidge River and Slide, Dave, Pine, Sawmill, Fall, and
Cougar Creeks (Johnson and Weller 1994; G. Johnson, pers. comm. 1998a).
There is no definitive information on whether bull trout have been
extirpated from Jarbidge River headwater tributaries. However, recent
surveys indicate that bull trout have likely been extirpated from one
historical tributary, Jack Creek (G. Johnson, pers. comm. 1998a; T.
Crawforth, in litt. 1998).
In 1934, bull trout were first collected in Dave Creek (East Fork
Jarbidge River drainage) downstream of the Idaho-Nevada border (Miller
and Morton 1952). They were later documented in the East Fork of the
Jarbidge River in 1951 and the West Fork in 1954 (T. Crawforth, in
litt. 1998). Zoellick et al. (1996) compiled survey data from 1954
through 1993 and estimated bull trout population size in the middle and
upper headwater areas of the West and East Forks of the Jarbidge River
at less than 150 fish/km (240 fish/mi). Low numbers of migratory
(fluvial) bull trout were documented in the West Fork of the Jarbidge
River from the 1970s through the mid-1980s (Johnson and Weller 1994).
In 1985, 292 resident-size bull trout were estimated to reside in the
West Fork (Johnson and Weller 1994). In 1993, the abundance of
resident-size bull trout in the East Fork was estimated at 314 fish
(Johnson and Weller 1994). During snorkel surveys conducted in October
1997, no bull trout were observed in 40 pools of the West Fork of the
Jarbidge River. Biologists did not observe bull trout during surveys in
the Idaho portion of the Jarbidge River basin in 1992 or 1995 (Warren
and Partridge 1993; Allen et al. 1996). However, traps operated on the
lower East and West Forks, during August through October 1997, captured
a single small bull trout in Idaho on the West Fork. (Zoellick et al.
1996; T. Crawforth, in litt. 1998). The Salvelinus confluentus
Curiosity Society (SCCS), a group of individuals interested in bull
trout conservation, surveyed bull trout in the Jarbidge River in August
1998. During this 1-day survey, a total of approximately 40 stations
were sampled throughout the West Fork of the Jarbidge River, Jack
Creek, Pine Creek and tributaries, Dave Creek, Fall Creek and
tributaries, Slide Creek and tributaries, and Sawmill Creek. A total of
66 adult and juvenile bull trout were reported as either collected or
observed (Selena Werdon, Service, pers. comm. 1998). No bull trout were
found in one historically occupied stream, Jack Creek, despite the
removal of a fish barrier in 1997.
NDOW provided population estimates, based on extrapolations of SCCS
data and NDOW surveys, which totaled about 1,800 fish in the West and
East Forks of the Jarbidge River, and seven other creeks and
tributaries (G. Johnson, pers. comm. 1998a). However, the value of this
data is in question (see our response to ``Issue 2''). Also, it is
estimated that between 50 and 125 bull trout spawn throughout the
Jarbidge River basin annually (G. Johnson, pers. comm. 1998b). Exact
spawning sites and timing are uncertain (G. Johnson, pers. comm.
1998a). A total of three potential
[[Page 17114]]
resident bull trout redds were observed in the upper West Fork in 1995
and 1997 surveys (Ramsey 1997).
Adequate population trend information for bull trout in the
Jarbidge River subpopulation is not available, although the current
characteristics of bull trout in the basin include low numbers and
disjunct distribution. These characteristics have been described as
similar to that observed in the 1950s (Johnson and Weller 1994). Based
on recent surveys, the bull trout population in the Jarbidge River
basin is considered ``depressed'' in all of the occupied range.
Migratory fish (fluvial) may be present in low abundance, but resident
fish are the predominant life history form. Past and present activities
within the Jarbidge River basin have likely restricted bull trout
migration, thus reducing opportunities for bull trout reestablishment
in areas where the fish are no longer found (Service 1998).
In 1998, the SCCS collected fin clips for genetic analysis from
bull trout within the Jarbidge River basin. Although sample sizes from
each stream varied and were typically small (less than 30 individuals),
preliminary genetic analysis of these tissue samples using DNA
microsatellites indicated that fish in the East and West Forks were
highly differentiated, and that tributaries to the East Fork also
showed differentiation (Jason Dunham, University of Nevada-Reno, in
litt. 1998; Bruce Rieman, USFS, in litt. 1998; Paul Spruell, University
of Montana, in litt. 1998). These preliminary data indicate the
potential presence of multiple, tributary resident bull trout
subpopulations, with limited gene flow among them, within the Jarbidge
River basin (T. Crawforth, in litt. 1998; J. Dunham, in litt. 1998; B.
Rieman, in litt. 1998).
In summary, we considered new, though limited, information
submitted on the abundance, trends in abundance, and distribution of
bull trout in the Jarbidge River population segment. Resident fish
inhabit the East Fork and West Fork of the Jarbidge River and tributary
streams, and extremely low numbers of migratory (fluvial) fish may
still be present in the watershed (Zoellick et al. 1996; K. Ramsey,
USFS, in litt. 1997; L. McLelland, NDOW, in litt. 1998; Crawforth, in
litt. 1998). If the Jarbidge River DPS is extirpated, individuals from
other areas are unlikely to reestablish this DPS due to the presence of
dams downstream on the Snake and Bruneau Rivers and the 240 km (150 mi)
of unsuitable, degraded habitat within these migratory corridors. Past
and present activities within the Jarbidge River basin have likely
restricted bull trout migration, thus reducing opportunities for bull
trout reestablishment in areas where the fish are no longer found
(Service 1998). There is no definitive information on whether bull
trout have been extirpated from Jarbidge River headwater tributaries.
However, recent surveys indicate that bull trout have likely been
extirpated from one historical tributary, Jack Creek.
Previous Federal Action
On October 30, 1992, we received a petition to list the bull trout
as an endangered species throughout its range from the following
conservation organizations in Montana: Alliance for the Wild Rockies,
Inc., Friends of the Wild Swan, and Swan View Coalition (petitioners).
The petitioners also requested an emergency listing and concurrent
critical habitat designation for bull trout populations in select
aquatic ecosystems where the biological information indicated that the
species was in imminent risk of extinction. A 90-day finding, published
on May 17, 1993 (58 FR 28849), determined that the petitioners had
provided substantial information indicating that listing of the species
may be warranted. We initiated a rangewide status review of the species
concurrent with publication of the 90-day finding.
On June 6, 1994, we concluded in our original 12-month finding that
listing of bull trout throughout its range was not warranted due to
unavailable or insufficient data regarding threats to, and status and
population trends of, the species within Canada and Alaska. However, we
determined that sufficient information on the biological vulnerability
and threats to the species was available to support a warranted finding
to list bull trout within the coterminous United States but this action
was precluded due to higher priority listings.
On November 1, 1994, Friends of the Wild Swan, Inc. and Alliance
for the Wild Rockies, Inc. (plaintiffs) filed suit in the U.S. District
Court of Oregon (District Court) arguing that the warranted but
precluded finding was arbitrary and capricious. After we ``recycled''
the petition and issued another 12-month finding for the coterminous
population of bull trout on June 12, 1995 (60 FR 30825), the District
Court issued an order declaring the plaintiffs' challenge to the
original finding moot. The plaintiffs declined to amend their complaint
and appealed to the Ninth Circuit Court of Appeals (Circuit Court),
which found that the plaintiffs' challenge fell ``within the exception
to the mootness doctrine for claims that are capable of repetition yet
evading review.'' On April 2, 1996, the Circuit Court remanded the case
back to the District Court. On November 13, 1996, the District Court
issued an order and opinion remanding the original finding to us for
further consideration. Included in the instructions from the District
Court were requirements that we limit our review to the 1994
administrative record, and incorporate any emergency listings or high
magnitude threat determinations into current listing priorities. The
reconsidered 12-month finding based on the 1994 Administrative Record
was delivered to the District Court on March 13, 1997.
On March 24, 1997, the plaintiffs filed a motion for mandatory
injunction to compel us to issue a proposed rule to list the Klamath
River and Columbia River bull trout populations within 30 days based
solely on the 1994 Administrative Record. On April 4, 1997, we
requested 60 days to prepare and review the proposed rule. In a
stipulation between the plaintiffs and us filed with the District Court
on April 11, 1997, we agreed to issue a proposed rule in 60 days to
list the Klamath River population of bull trout as endangered and the
Columbia River population of bull trout as threatened based solely on
the 1994 record.
We proposed the Klamath River population of bull trout as
endangered and Columbia River population of bull trout as threatened on
June 13, 1997 (62 FR 32268). The proposal included a 60-day comment
period and gave notice of five public hearings in Portland, Oregon;
Spokane, Washington; Missoula, Montana; Klamath Falls, Oregon; and
Boise, Idaho. The comment period on the proposal, which originally
closed on August 12, 1997, was extended to October 17, 1997 (62 FR
42092), to provide the public with more time to compile information and
submit comments.
On December 4, 1997, the District Court ordered us to reconsider
several aspects of the 1997 reconsidered finding. On February 2, 1998,
the District Court gave us until June 12, 1998, to respond. The final
listing determination for the Klamath River and Columbia River
population segments of bull trout and the concurrent proposed listing
rule for the Coastal-Puget Sound, St. Mary-Belly River, and Jarbidge
River DPSs constituted our response.
We published a final rule listing the Klamath River and Columbia
River population segments of bull trout as threatened on June 10, 1998
(63 FR 31647). On the same date, we also published a proposed rule to
list the
[[Page 17115]]
Coastal-Puget Sound, Jarbidge River, and St. Mary-Belly River
population segments of bull trout as threatened (63 FR 31693). On
August 11, 1998, we issued an emergency rule listing the Jarbidge River
population segment of bull trout as endangered due to river channel
alteration associated with unauthorized road construction on the West
Fork of the Jarbidge River, which we found to imminently threaten the
survival of the distinct population segment (63 FR 42757).
Summary of Comments and Recommendations
In the June 10, 1998, proposed rule (63 FR 31693), we requested
interested parties to submit comments or information that might
contribute to the final listing determination for bull trout. We sent
announcements of the proposed rule and notice of public hearings to at
least 800 individuals, including Federal, State, county and city
elected officials, State and Federal agencies, interested private
citizens and local area newspapers and radio stations. We also
published announcements of the proposed rule in 10 newspapers, the
Idaho Statesman, Boise, Idaho; the Times-News, Twin Falls, Idaho; the
Glacier Reporter, Browning, Montana; the Daily Inter Lake; Kalispell,
Montana; the Great Falls Tribune, Great Falls, Montana; the Elko Daily
Free Press, Elko, Nevada; the Bellingham Herald, Bellingham,
Washington; the Olympian, Olympia, Washington; the Spokesman-Review,
Spokane, Washington, and the Seattle Post-Intelligencer, Seattle,
Washington. We held public hearings on July 7, 1998, in Lacey,
Washington; July 9, 1998, in Mount Vernon, Washington; July 14, 1998,
in East Glacier, Montana; and July 21, 1998, in Jackpot, Nevada. We
accepted comments on the emergency rule for the Jarbidge River DPS
until the comment period on the proposed rule ended on October 8, 1998.
We received 9 oral and 14 written comments (including electronic
mail) on the proposed rule which pertained to the Jarbidge River DPS;
other comments were generic to all three DPSs. Of those specific to the
Jarbidge River DPS, four written comments also addressed the emergency
rule. We also received comments on the Jarbidge River DPS from two
Federal agencies, two State agencies, one county in Nevada, four
environmental organizations, and nine individuals. We received comments
from a member of the Nevada Congressional delegation. In addition, we
solicited formal scientific peer review of the proposal in accordance
with our July 1, 1994, Interagency Cooperative Policy (59 FR 34270). We
requested six individuals, who possess expertise in bull trout biology
and salmonid ecology, and whose affiliations include academia and
Federal, State, and provincial agencies, to review the proposed rule by
the close of the comment period. One individual responded to our
request and their comments are also addressed in this section of the
rule.
We considered all comments, including oral testimony presented at
the public hearings, and also the comments from the only peer reviewer
who responded to our request to review the proposed rule. A majority of
comments supported the listing proposal for the Jarbidge River DPS,
while seven comments were in opposition. Opposition was based on
several concerns, including possible negative economic effects from
listing bull trout; potential restrictions on activities; lack of
solutions to the bull trout decline that would result from listing; and
interpretation of data concerning the status of bull trout and their
threats in the three population segments. The USFS (Ben Siminoe, USFS,
in litt. 1998; Dave Aicher, USFS, pers. comm. 1998), BLM (Jim Klott,
BLM, pers. comm. 1998), NDOW (G. Johnson, NDOW, pers. comm. 1998a; R.
Haskins, NDOW, in litt. 1998), and IDFG (F. Partridge, IDFG, in litt.
1998) provided us with information on respective agency efforts to
assess, evaluate, monitor, and conserve bull trout in habitats affected
by each agency's management. Because multiple respondents offered
similar comments, we grouped comments of a similar nature or point.
These comments and our responses are presented below.
Issue 1: One respondent questioned our subpopulation definition and
asked whether absolute reproductive isolation was required or only some
level of population structuring that means reduced gene flow and some
local adaptation. Several respondents questioned our single
subpopulation designation for the Jarbidge River DPS given preliminary
new genetic information which indicates the potential presence of
multiple local tributary subpopulations, with limited gene flow. Some
respondents also suggested that the bull trout in the Jarbidge River
may better fit the definition of a metapopulation, as described in the
proposed rule (63 FR 31693). Respondents pointed out that genetic
information and changes in DPS population structuring have implications
for risk assessment, as well as management and recovery strategies.
Our Response: We selected subpopulations as a convenient unit to
analyze bull trout within population segments, and defined a
subpopulation as ``a reproductively isolated group of bull trout that
spawns within a particular area of a river system.'' We identified
subpopulations based on documented or likely barriers to fish movement
(e.g., impassable barriers to movement and unsuitable habitat). To be
considered a single subpopulation, two-way passage at a barrier is
required, otherwise bull trout upstream and downstream of a barrier are
each considered a subpopulation. Because it is likely that fish above a
barrier could pass downstream and mate with fish downstream, absolute
reproductive isolation was not required to be considered a
subpopulation.
We viewed metapopulation concepts (see Rieman and McIntyre 1993) as
useful tools in evaluating bull trout, but, in querying biologists both
within the Service and elsewhere, we found considerable variability in
the definition of a metapopulation and the types of data suggestive of
a metapopulation. Some biologists may consider a subpopulation, as
defined by us, as a metapopulation if it has multiple spawning areas.
Likewise, subpopulations without reciprocal interactions (i.e.,
individuals from upstream of a barrier may mingle with individuals
downstream, but not vice versa) may be considered components of a
metapopulation consisting of more than one subpopulation. Because
little genetic and detailed movement information exists throughout bull
trout range in the population segments addressed in the proposed rule,
we believe that barriers to movement was an appropriate consideration
for identifying subpopulations.
We reviewed preliminary new genetic and other biological data
developed since the June 10, 1998 (63 FR 31693), proposed rule and
determined that there is insufficient information available to further
divide the Jarbidge River DPS into more than one subpopulation at this
time. We believe that barriers to movement (including unsuitable
habitat) were an appropriate consideration for identifying
subpopulations. However, we believe that additional samples of genetic
data for several tributaries are needed to accurately define bull trout
population structure within the Jarbidge River basin. We still consider
this DPS to contain one subpopulation based on the following: (1)
conclusive genetic data are not available due to limited sample sizes
from many of the tributaries; (2) bull trout in these tributaries are
not
[[Page 17116]]
physically reproductively isolated; and (3) barriers to movement exist.
We did consider this new genetic information and potential
metapopulation structure in assessing the overall level of threat to
this DPS. Although the existence of a potential metapopulation may
reduce the risk of extinction for this DPS as a whole, the potential
presence of unique genetic material in each tributary further elevates
their individual relative importance within the DPS. The genetic
diversity of all bull trout within the basin will be fully considered
in future management and recovery planning in the Jarbidge River basin.
As more complete genetic data become available, management and recovery
actions may change accordingly.
Issue 2: Numerous respondents provided conflicting comments on the
status and trend of bull trout in the Jarbidge River DPS. Respondents
variously claimed that population status is either stable, increasing,
or uncertain. Some respondents questioned the amount and reliability of
survey data and sampling methodologies. One respondent noted that we
did not evaluate the listing criteria with objective and quantitative
methods, making it difficult to interpret new information in a
consistent manner. The reviewer also noted that, although quantitative
data are lacking for many local populations of bull trout, sufficient
information exists to design an inventory program to describe their
current distribution, relative abundance, and population structure.
Our Response: A species may be determined to be an endangered or
threatened species due to the five factors listed in section 4(a)(1) of
the Act (see the ``Summary of Factors Affecting the Species'' section).
The Act requires us to base listing determinations on the best
available commercial and scientific information.
The listing process includes an opportunity for the public to
comment and provide new information for us to evaluate and consider
before making a final decision. Aside from previously cited studies and
reports in the proposed and emergency rules, we reviewed and considered
new information regarding bull trout distribution and abundance for the
Jarbidge River basin from NDOW (G. Johnson, pers. comm. 1998a; T.
Crawforth, in litt. 1998) and the SCCS (S. Werdon, pers. comm. 1998).
Data are often not available to make statistically rigorous inferences
about a species' status (e.g., abundance, trends in abundance, and
distribution). Historical and recent collections have consisted of a
few, sporadic presence and absence-type surveys occurring years or
decades apart, each reflecting a single point-in-time. No regular,
standardized, quantitative surveys designed to detect population trends
of bull trout over a period of time, with statistical testing to
qualify data accuracy, have been done.
NDOW provided us with population estimates for streams in the
Jarbidge River basin which they derived by extrapolating the number of
bull trout collected or observed (via single-pass electrofishing or
snorkeling) within 30-m (100-ft) stations to kilometers (miles) of
stream habitat. For example, one bull trout per station equaled an
average population density of 85 bull trout/km (52.8 bull trout/mi) in
a particular stream reach. We believe these extrapolations are
inaccurate since past surveys confirm that bull trout exhibit patchy
distributions, and comparisons of such population estimates among years
does not provide an accurate analysis of population trends. We
specifically requested additional information from NDOW during the
comment period, however, they did not provide information on the actual
number of bull trout collected or observed, the sizes or life-stages of
the fish, or the specific locations where fish were collected during
1998 surveys. This information would be useful for comparison with
prior distribution and abundance data. Nevertheless, we believe overall
numbers in the subpopulation are low, and that concentrations of fish
are found in only a few headwater streams where suitable habitat
remains. Overall, we found sufficient evidence exists that demonstrates
the Jarbidge River population segment is threatened by a variety of
past and on-going threats and is likely to become endangered in the
foreseeable future.
Issue 3: Numerous respondents provided conflicting comments on the
validity and level of impact from threats identified in the proposed
and emergency rules. Some respondents also suggested additional threats
to this population.
Our Response: Threats identified in the proposed rule for the
Jarbidge River DPS include habitat degradation from past and ongoing
land management activities such as road construction and maintenance,
mining, and livestock grazing. Additional threats we evaluated included
non-native rainbow trout stocking, angling for other fish species,
migration barriers, and future natural events. We emergency listed the
population due to habitat destruction on the West Fork of the Jarbidge
River associated with unauthorized road construction, and the
substantial risk of continued loss of bull trout habitat through
additional unauthorized road construction. We believe the threats
identified in the proposed and emergency rules threaten the continued
existence of bull trout in the Jarbidge River system. However,
respondents may have misconstrued our perceived level of threat
associated with certain activities, livestock grazing in particular. We
recognize that existing levels of livestock grazing provide relatively
minor impacts to bull trout habitat throughout the Jarbidge River
basin; however, all potential threats must be considered during the
listing process.
Many of the threats addressed in the proposed rule were associated
with residual effects from historical activities within the basin
(e.g., mining) and some respondents felt they were no longer valid
threats. We recognize that overall watershed conditions have improved
from early this century, but impacts to bull trout habitat from such
historical activities still exist (e.g., elevated water temperatures
from mine adit discharges). Road construction and associated
maintenance activities, especially those occurring within riparian
areas or adjacent to occupied bull trout streams, have documented
impacts on bull trout habitat conditions and thereby threaten bull
trout.
Issue 4: Many respondents provided comments regarding prior and
ongoing beneficial management and/or habitat rehabilitation measures
for bull trout throughout the Jarbidge River watershed. Some
respondents also stated that overall watershed conditions in the
Jarbidge River basin are improving.
Our Response: Section 4(b)(1)(A) of the Act, requires us to make
listing decisions solely on the best scientific and commercial data
available after conducting a review of the status of the species. The
Act also instructs us to consider existing regulatory mechanisms,
including efforts by State, local and other entities to protect a
species, including conservation plans or practices.
We recognize that numerous individual conservation actions and
restoration projects have been undertaken by the USFS, BLM, States,
conservation groups, and other entities for bull trout in the Jarbidge
River basin. For example, the Jarbidge Bull Trout Task Force,
established in 1994, completed a project to restore access for bull
trout to Jack Creek in 1997. However, no bull trout were found in Jack
Creek in 1998. The USFS has fenced some springs to protect riparian
[[Page 17117]]
areas and improve water quality, and implemented reclamation of old
mine sites. Idaho and Nevada State angler harvest regulations for bull
trout have also become more restrictive.
We are required to evaluate the current status and existing threats
to bull trout in the Jarbidge River DPS in making this final listing
determination. Altogether, watershed habitat recovery and actions taken
to date are encouraging for initiating long-term bull trout
conservation. However, we have found no documentation of changes in
abundance and distribution of bull trout as a result of such actions.
For example, surveys conducted by biologists did not find bull trout in
Jack Creek during 1997 or 1998 after the removal of a culvert barrier.
Although impacts to bull trout from historical and on-going activities
still exist, we recognize that overall watershed conditions in the
Jarbidge River basin have improved, and we are now finalizing our
listing of bull trout as threatened, rather than as endangered (see
``Issue 6'' for further discussion).
Issue 5: Several respondents opposed the Federal listing entirely,
while others supported listing the population as threatened or
endangered. One respondent commented that we proposed this listing as a
result of a lawsuit, rather than sound scientific evidence, as required
by the Act.
Our Response: Although the timing of recent listing actions were
prompted by petitions and legal action, we previously had substantial
information on biological vulnerability and threats on file to support
preparation of a bull trout listing proposal, and the decision to list
was based solely on scientific data and threats identified during the
status review process.
Issue 6: One respondent stated that the August 11, 1998, emergency
listing was ``inappropriate based on the level of threat'' posed by
unauthorized road reconstruction activities to reopen 2.4 km (1.5 mi)
of road.
Our Response: Road construction and maintenance activities,
especially those occurring within riparian areas or adjacent to
streams, have substantial documented adverse impacts on bull trout
habitats. The threats to bull trout from the unauthorized road
construction activities on the West Fork of the Jarbidge River include
both direct and indirect impacts. These activities occurred on a
migratory corridor during the period when bull trout migrate and spawn.
Migratory or resident bull trout may have been stranded and killed when
the entire river was diverted and the existing wetted channel was
filled. Elko County did not use Best Management Practices (BMPs) to
protect instream aquatic habitat during construction, and large
quantities of sediment from the disturbed area settled out in the river
immediately downstream, filling in pools and interstitial spaces. The
sediment plume traveled at least 5.6 km (3.5 mi) downstream (B.
Siminoe, pers. comm. 1998), within known bull trout habitats. The newly
created channel provided minimal instream or overhead cover, with few
resting areas for migratory or resident fish, and at low flow, would
impede bull trout migrations. We also anticipated long-term residual
impacts such as sedimentation from the new roadbed, floodplain
vegetation destruction, slope cuts, and channel instability. Elko
County expressed their intentions to continue road reconstruction
despite being informed of various regulatory prohibitions. The threat
of continued unauthorized road reconstruction without the use of BMPs
was considered in the emergency listing.
Issue 7: Several respondents opposed the proposed listing of the
Jarbidge River population segment and expressed concerns because of
possible restrictions on local activities such as road construction,
livestock grazing, and mining, which might impact local residents. One
respondent stated that human use and bull trout conservation were
``mutually compatible goals.'' Another respondent stated that future
actions needed for bull trout will be the same whether it is listed or
remains a ``sensitive species.''
Our Response: Section 7(a)(2) of the Act, as amended, requires
Federal agencies to insure that activities that they authorize, fund,
or carry out are not likely to jeopardize the continued existence of a
listed species or to destroy or adversely modify its critical habitat.
This could include Federal activities such as road construction,
livestock grazing management, and mining permit issuance. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with us.
Portions of the Jarbidge River population segment occur on lands
administered by the USFS and BLM. We have already consulted with these
Federal agencies for several such projects in the Jarbidge River basin
during the emergency listing period. Federal and private actions that
we authorize through section 7 consultation or through section 10 of
the Act (Habitat Conservation Plans) will not result in significant
impacts to bull trout. Future impacts to local residents from this
final listing determination are expected to be minimal when compared
with the requirements of existing laws, regulations, and procedures.
See ``Available Conservation Measures'' section for a list of actions
that would not result in a take of this species.
Issue 8: A respondent noted that we are probably correct in stating
that critical habitat is presently not determinable. They noted that
consistent patterns in juvenile fish distribution, primarily with
respect to stream elevation and water temperature, are useful in
predicting patches of spawning and rearing habitats, which are probably
sensitive to land use and important for the overall productivity of
local populations. Several respondents encouraged us to consider
several issues such as designating all historic and existing bull trout
habitat as critical, protecting roadless and riparian areas, providing
suitable water temperatures, limiting sediment delivery, and other
habitat management activities.
Our Response: Section 3 of the Act defines critical habitat to
include the specific areas within the geographic area occupied by the
species at the time it is listed, on which are found those physical or
biological features essential to the conservation of the species and
which may require special management considerations or protection.
Critical habitat may also include specific areas outside of the
geographic area occupied by the species at the time it is listed, upon
determination that such areas are essential for the conservation of the
species. At this time, we find that critical habitat is not
determinable for the Jarbidge River population segment. We appreciate
the comments and believe that information on patterns in fish
distribution will likely be useful in future critical habitat
designations. This and other habitat considerations will also be
important during development of the recovery plan.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, we determine that the Jarbidge River population segment of
bull trout should be classified as a threatened species. We followed
procedures found at section 4(a)(1) of the Act and regulations (50 CFR
part 424) implementing the listing provisions of the Act. A species may
be determined to be an endangered or threatened species due to one or
more of the five factors described in section 4(a)(1). These factors
and their application to the Jarbidge River population segment of bull
trout (Salvelinus confluentus) are as follows:
[[Page 17118]]
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Land and water management activities that degrade and continue to
threaten all of the bull trout population segments in the coterminous
United States include dams, forest management practices, livestock
grazing, agriculture and agricultural diversions, roads, and mining
(Furniss et al. 1991; Meehan 1991; Nehlsen et al. 1991; Sedell and
Everest 1991; Frissell 1993; McIntosh et al. 1994; MBTSG 1995a,b;
1996a,b).
Ongoing threats affecting bull trout habitat have maintained
degraded conditions in the West Fork of the Jarbidge River (McNeill et
al. 1997; J. Frederick, pers. comm. 1998a; Kathy Ramsey, USFS, pers.
comm. 1998a). McNeill et al. (1997) indicates that at least 11.2 km (7
mi) of the West Fork of the Jarbidge River is affected by over a
century of human activities such as road development and maintenance,
mining, stream channelization and removal of large woody debris,
residential development, and road and campground development on USFS
lands. These activities removed the riparian canopy and much of the
upland forest, reduced recruitment of large woody debris, and decreased
channel stability (McNeill et al. 1997; K. Ramsey, in litt. 1997; J.
Frederick, in litt. 1998a), which can lead to increased stream
temperatures and bank erosion, and decreased long-term stream
productivity. However, there is little documentation of increased
stream temperatures and bank erosion and decreased stream productivity
in the Jarbidge River system, but there is documentation of these kinds
of degradation in other systems within the range of the bull trout.
Strict, cold water temperature requirements make bull trout
particularly vulnerable to activities that warm spawning and rearing
waters (Goetz 1989; Pratt 1992; Rieman and McIntyre 1993). Bull trout
distribution in the Jarbidge River population segment is likely
affected by elevated stream temperatures as a result of past forest
practices. Although timber was historically removed from the Jarbidge
River basin, forest management is not thought to be a major factor
currently affecting bull trout habitat. However, existing habitat
conditions still reflect the impacts of past harvesting practices.
Road construction and maintenance account for a majority of human-
induced sediment loads to streams in forested areas (Shepard et al.
1984; Cederholm and Reid 1987; Furniss et al. 1991). Sedimentation
affects streams by reducing pool depth, altering substrate composition,
reducing interstitial space, and causing braiding of channels (Rieman
and McIntyre 1993), which reduce carrying capacity. Sedimentation and
the loss of pool-forming structures such as boulders and large wood
reduces quantities of large, deep pools (USDA et al. 1993). Increasing
stream basin road densities and associated effects have been shown to
cause declines in bull trout (Quigley and Arbelbide 1997). Fewer bull
trout are present within highly roaded basins, and bull trout are less
likely to use highly roaded basins for spawning and rearing (Quigley
and Arbelbide 1997).
Road densities within the Jarbidge Canyon are currently
characterized as moderate (Ramsey 1998). Bull trout habitats in
portions of the Jarbidge River basin are negatively affected by the
presence and maintenance of roads, especially those immediately
adjacent to or crossing occupied streams. The unauthorized road
construction and associated alterations to the West Fork of the
Jarbidge River within the Humboldt-Toiyabe National Forest by the Elko
County (Nevada) Road Department prompted our emergency listing of the
Jarbidge River DPS on August 11, 1998 (63 FR 42757). On July 22, 1998,
a USFS employee observed a 5.6-km (3.5-mi) plume of sediment in the
West Fork, which extended downstream from a site where Elko County was
using heavy equipment to reconstruct part of a USFS road that washed
out during a flood in 1995 (B. Siminoe, pers. comm. 1998). By the
following day, Elko County road crews reconstructed approximately 275 m
(300 yards (yds)) of road. To create the road, sections of river were
loosely filled with material from adjacent hillsides and floodplain
debris. The entire river flow was diverted into a straight channel
created with a bulldozer and/or front-end loader. This channel lacked
pools and had minimal cover, as mature trees adjacent to the new
channel and other riparian vegetation were removed during channel
construction. Sedimentation in the river downstream of the construction
area was substantial. Federal agencies have implemented channel and
floodplain habitat restoration and stabilization practices, but impacts
from the road reconstruction to bull trout habitat will likely remain
for years. Impacts from County road maintenance practices within the
Jarbidge Canyon and elsewhere, such as surface grading and dumping fill
directly into the river to stabilize the road also continue to
negatively impact bull trout habitat.
Improper livestock grazing can promote streambank erosion and
sedimentation, and limit the growth of riparian vegetation important
for temperature control, streambank stability, fish cover, and detrital
input. The steep terrain of the Jarbidge River basin is a deterrent to
livestock grazing (J. Frederick, in litt. 1998a). Approximately 40
percent of public and private lands within the watershed are grazed,
and ongoing livestock grazing is affecting about 3.2 km (2 mi) of the
East Fork of the Jarbidge River and portions of Dave Creek and Jack
Creek by increasing sediment input, removing riparian vegetation, and
trampling banks (J. Frederick, pers. comm. 1998; G. Johnson, pers.
comm. 1998b). However, the effects are localized, and livestock grazing
is considered only a minor localized threat to bull trout habitat in
the Jarbidge River basin.
Mining can degrade aquatic systems by generating sediment and heavy
metals pollution, altering water pH levels, and changing stream
channels and flow. Although not currently active, the effects of past
mining in the Jarbidge River basin continue to adversely affect
streams. Cyanide and/or mercury amalgamation mills were operated
directly on the river, and spoil piles are still located adjacent to
the river. These piles may be sources of sediment, acidity, and heavy
metals. In addition, some old mine adits continue to discharge
thermally-elevated groundwater. Water quality and temperatures
associated with historical mining are still of concern.
Migration barriers have precluded natural recolonization by bull
trout in the Jarbidge River basin into historically occupied sites. For
example, an Elko County road culvert had prevented upstream movement of
bull trout in Jack Creek, a tributary to the West Fork of the Jarbidge
River, for approximately 17 years. Private and public funding was used
to replace the culvert with a bridge in the fall of 1997 (J. Frederick,
in litt. 1998b), but bull trout have yet to return to this stream. In
addition to structural barriers, stream habitat conditions (e.g., water
temperature) are likely barriers to bull trout movement within the
Jarbidge River basin.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Declines in bull trout abundance have prompted States to institute
restrictive fishing regulations and eliminate the harvest of bull trout
in all waters in Idaho and Nevada. Similar restrictive regulations
resulted in an increase in recent observations of adult bull trout in
other areas of their range. However,
[[Page 17119]]
illegal harvest and incidental harvest still threaten bull trout.
Overutilization by angling is a concern for the Jarbidge River DPS
of bull trout. Idaho prohibited harvest of bull trout in the Jarbidge
River basin as of 1995 and has shortened fishing seasons and
implemented a two trout limit. Until recently, Nevada allowed harvest
of up to 10 trout per day, including bull trout. Anglers harvested an
estimated 100 to 400 bull trout annually in the Jarbidge River basin
(Johnson 1990; Pat Coffin, Service, pers. comm. 1994; P. Coffin, in
litt. 1995). On the West Fork of the Jarbidge River in Nevada, fishing
pressure is between 1,500 to 3,500 angler days per year; the East Fork
annually receives 500 to 1,500 angler days (P. Coffin, pers. comm.
1996). Nevada State fishing regulations were recently amended to
prohibit harvest of bull trout effective March 1, 1998 (Gene Weller,
NDOW, in litt. 1997; G. Johnson, pers. comm. 1998b). In addition,
Nevada reduced the daily and possession limits for other trout species
in the Jarbidge River basin from 10 to 5 trout. We anticipate that
these regulation changes will have a long-term positive effect on the
conservation of bull trout. Inaccurate identification of bull trout by
anglers could result in unauthorized harvest, further impacting already
low population levels in this DPS. Even though State regulations now
require all bull trout incidentally captured to be released
immediately, some residual injuries or mortality are likely associated
with capture and handling.
Overutilization for scientific purposes can be a concern for the
Jarbidge River DPS of bull trout in the long-term. State regulations
require a scientific collection permit to collect bull trout for
educational and scientific purposes, but permit application and
reporting requirements are minimal. Although many bull trout collected
for scientific purposes may be documented as released alive (e.g.,
after taking fin clips for genetic analysis), collection techniques
such as electrofishing, have documented short- and long-term harmful
effects on salmonids, including mortality, physical damage, behavioral
changes, and physiological disturbances. Other types of permitted
scientific research (e.g., implantation of radio tags) may also result
in the loss of individual bull trout.
C. Disease or Predation
Diseases affecting salmonids are likely to be present in the
Jarbidge River population segment, but are not thought to be a factor
threatening bull trout. Instead, interspecific interactions, including
predation, likely negatively affect bull trout where non-native
salmonids are introduced (Bond 1992; Donald and Alger 1993; Leary et
al. 1993; MBTSG 1996a; J. Palmisano and V. Kaczynski, Northwest
Forestry Resources Council, in litt. 1997).
The NDOW and IDFG have introduced non-native salmonids, including
brook trout and hatchery rainbow trout within the range of bull trout
in the Jarbidge River basin. However, brook trout stocked in Nevada
failed to establish a self-sustaining population in the Jarbidge River
system and the NDOW has not stocked brook trout since 1960 (Johnson and
Weller 1994; G. Johnson, pers. comm. 1998b; T. Crawforth, in litt.
1998). In the West Fork of the Jarbidge River, only approximately 1
percent of the angler harvest from the 1960s through the 1980s was
brook trout (Johnson 1990). Hatchery-reared rainbow trout have been
stocked annually for decades in both Nevada and Idaho portions of the
basin. IDFG stocked a total of approximately 52,783 hatchery rainbow
trout in the East (75 percent) and West (25 percent) forks of the
Jarbidge River from 1970 through 1989 (F. Partridge, in litt. 1998),
but then discontinued their stocking program. NDOW's average annual
catchable rainbow trout stocking numbers on the West Fork of the
Jarbidge River were 4,242 fish in the1970s; 3,287 fish from 1980 to
1986; and 3,000 fish from 1987 to 1994 (except 1991) (Johnson and
Weller 1994). NDOW's rainbow trout stocking program continued through
1998, however, NDOW will not stock rainbow trout in the Jarbidge River
system in 1999 (Gene Weller, NDOW, pers. comm. 1999).
D. The Inadequacy of Existing Regulatory Mechanisms
The implementation and enforcement of existing Federal and State
laws designed to conserve fishery resources, maintain water quality,
and protect aquatic habitat have not been sufficient to prevent past
and ongoing habitat degradation leading to bull trout declines and
isolation. Regulatory mechanisms, including the National Forest
Management Act, the Federal Land Policy and Management Act, the Public
Rangelands Improvement Act, the Clean Water Act, the National
Environmental Policy Act, Federal Power Act, State Endangered Species
Acts and numerous State laws and regulations oversee an array of land
and water management activities that affect bull trout and their
habitat.
Regulatory mechanisms have been inadequate to protect bull trout
habitat in the Jarbidge River basin. The Jarbidge Canyon Road parallels
the West Fork of the Jarbidge River for much of its length and includes
at least seven undersized bridges for the stream and floodplain.
Maintenance of the road and bridges requires frequent channel and
floodplain modifications that affect bull trout habitat, such as
channelization; removal of riparian trees and beaver dams; and
placement of rock, sediment, and concrete (McNeill et al. 1997; J.
Frederick, pers. comm. 1998a; J. Frederick, in litt. 1998a). Periodic
channelization in the Jarbidge River by unknown parties has occurred
without oversight by the U.S. Army Corps of Engineers (COE) Clean Water
Act section 404 regulatory program (Mary Jo Elpers, Service, pers.
comm. 1998), and the USFS. Illegal road openings, such as the removal
of road barriers and unauthorized grading, have also occurred within
the Humboldt-Toiyabe National Forest.
In 1995, a flood event washed out a 2.4-km (1.5-mi) portion of the
upper Jarbidge Canyon road, which led to the Jarbidge Wilderness Area
boundary. The USFS conducted an environmental analysis on options for
restoring access to the wilderness and initially planned to reconstruct
the road in the floodplain, which would have included channelizing the
river (McNeill et al. 1997). After an appeal, the USFS subsequently
completed additional environmental analyses and issued an environmental
assessment on June 29, 1998, with construction of a hillside trail as
the preferred alternative.
On July 15, 1998, the Elko County Board of Commissioners passed a
resolution directing the Elko County Road Department to reconstruct the
road. On July 22, 1998, the USFS discovered that road construction was
in progress and observed a 5.6-km (3.5-mi) plume of sediment downstream
from the construction site. Prior to the issuance of cease and desist
orders from the COE and Nevada Division of Environmental Protection
(NDEP) on July 23, 1998, the County partially reconstructed
approximately 275 m (300 yds) of road, created a new river channel, and
diverted the flow of the river into the new channel. The County failed
to implement BMPs and damaged or destroyed habitat within the river
channel and floodplain. Elko County continues to publicly assert that
it has jurisdiction over the road, but the Service, USFS, and Elko
County are cooperatively exploring alternatives for public access in
the area that would not adversely impact bull trout habitat.
The Nevada water temperature standards throughout the Jarbidge
River
[[Page 17120]]
are 21 deg. C (67 deg. F) for May through October, and 7 deg. C
(45 deg. F) for November through April, with less than 1 deg. C (2 deg.
F) change for beneficial uses (NDEP, in litt. 1998). Water temperature
standards for May through October exceed temperatures conducive to bull
trout spawning, incubation, and rearing (Rieman and McIntyre 1993;
Buchanan and Gregory 1997). Also, several old mines are releasing small
quantities of warm groundwater and potential contaminants into the West
Fork of the Jarbidge River.
In 1994, a local Bull Trout Task Force was formed to gather and
share information on bull trout in the Jarbidge River basin. The task
force is open to individuals from Elko and Owyhee counties, the towns
of Jarbidge (Nevada) and Murphy Hot Springs (Idaho), road districts,
private landowners, conservation organizations, NDOW, IDFG, BLM, USFS,
and the Service. The task force was successful in 1997 in obtaining
nearly $150,000 for replacing the Jack Creek culvert with a concrete
bridge to facilitate bull trout passage into Jack Creek. However, the
task force has not yet developed a comprehensive conservation plan
addressing threats to bull trout in the Jarbidge River basin.
In 1995, the USFS amended its Forest Plan for the Humbolt National
Forest to include the Inland Native Fish Strategy, which was developed
by the USFS to provide an interim aquatic conservation strategy for
inland native fish in eastern Oregon and Washington, Idaho, western
Montana, and portions of Nevada. This strategy sets a ``no net loss''
objective and is guiding USFS actions within bull trout habitat in the
Jarbidge River basin.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Natural and human factors affecting the continued existence of bull
trout include--previous introductions of non-native species that
compete with bull trout; subpopulation habitat fragmentation and
isolation caused by human activities; and the risk of local
extirpations due to natural events such as droughts and floods.
Introductions of non-native species by the Federal government,
State fish and game departments and unauthorized private parties across
the range of bull trout has resulted in declines in abundance, local
extirpations, and hybridization of bull trout (Bond 1992; Howell and
Buchanan 1992; Leary et al. 1993; Donald and Alger 1993; Pratt and
Huston 1993; MBTSG 1995b; Platts et al. 1995; John Palmisano and V.
Kaczynski, in litt. 1997). Non-native species may exacerbate stresses
on bull trout from habitat degradation, fragmentation, isolation, and
species interactions (Rieman and McIntyre 1993). In some lakes and
rivers, introduced species including rainbow trout and kokanee may
benefit large adult bull trout by providing supplemental forage (Pratt
1992; MBTSG 1996a). However, the same introductions of game fish can
negatively affect bull trout due to increased angling and subsequent
incidental catch, illegal harvest of bull trout, and competition for
space (Rode 1990; Bond 1992).
``The smaller and more isolated parts of the range (such as the
bull trout remaining in the Jarbidge River basin) likely face a higher
risk'' of extirpation by natural events relative to other bull trout
populations (Rieman et al. 1997). One such risk factor is fire. In
1992, a 4,850 hectare (12,000 acre) fire (Coffeepot Fire) occurred at
elevations up to 2,280 m (7,500 ft), in areas adjacent to the Bruneau
River basin and a small portion of the Jarbidge River basin. Although
the Coffeepot Fire did not affect areas currently occupied by bull
trout, similar conditions likely exist in nearby areas where bull trout
occur. Adverse effects of fire on bull trout habitat may include loss
of riparian canopy, increased water temperature and sediment, loss of
pools, mass wasting of soils, altered hydrologic regime and debris
torrents. Fires large enough to eliminate one or two suspected spawning
streams are more likely at higher elevations where bull trout are
usually found in the Jarbidge River basin (J. Frederick, in litt.
1998a; K. Ramsey, pers. comm. 1998b).
Other natural risks have been recently documented. The Jarbidge
River Watershed Analysis indicates that 65 percent of the upper West
Fork of the Jarbidge River basin has a 45 percent or greater slope
(McNeill et al. 1997). Debris from high spring runoff flows in the
various high gradient side drainages such as Snowslide, Gorge, and
Bonanza gulches provide the West Fork of the Jarbidge River with large
volumes of angular rock material. This material has moved down the
gulches at regular intervals, altering the river channel and damaging
the Jarbidge Canyon road, culverts, and bridge crossings. Most of the
river flows are derived from winter snowpack in the high mountain
watershed, with peak flows corresponding with spring snowmelt,
typically in May and June (McNeill et al. 1997). Rain-on-snow events
earlier in the year (January and February) can cause extensive flooding
problems and have the potential for mass-wasting, debris torrents, and
earth slumps, which could threaten the existence of bull trout in the
upper Jarbidge River and tributary streams. In June 1995, a rain-on-
snow event triggered debris torrents from three of the high gradient
tributaries to the Jarbidge River in the upper watershed (McNeill et
al. 1997). The relationship between these catastrophic events and the
history of intensive livestock grazing, burning to promote livestock
forage, timber harvest and recent fire control in the Jarbidge River
basin is unclear. Debris torrents may potentially affect the long-term
viability of the Jarbidge River bull trout subpopulation.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by the Jarbidge River population segment of bull trout in
determining to issue this rule. This population segment is
characterized by low numbers of resident and migratory fish comprising
a single, isolated subpopulation, within marginal habitat conditions
for the species at the southern-most extremity of its range. The
Jarbidge River DPS is vulnerable to extinction due to threats from
activities such as road construction and maintenance, recreational
fishing (intentional and unintentional harvest), rainbow trout
stocking, mining, and grazing. Although some of these activities have
been modified or discontinued in recent years, the lingering effects
from these activities continue to affect water quality, contribute to
channel and bank instability, and inhibit habitat and species recovery.
We emergency listed the Jarbidge River population segment of bull
trout as endangered on August 11, 1998 (63 FR 42757), due to channel
alteration associated with unauthorized road construction to repair the
Jarbidge Canyon Road, damaged by a 1995 flood, on the West Fork of the
Jarbidge River, and the substantial risk that such construction would
continue. The construction activity had completely destroyed all
aquatic habitat in this area, and introduced a significant amount of
sediment into the river. Continued unauthorized reconstruction of the
2.4 km (1.5 mi) of the Jarbidge Canyon Road would have impacted 27
percent of the known occupied bull trout habitat in the West Fork
Jarbidge River, which has among the highest reported densities of bull
trout within the Jarbidge River DPS (Johnson and Weller 1994). The road
construction would have also indirectly impacted an additional 21 km
(13 mi) of bull trout habitat downstream of the construction site in
the West Fork Jarbidge River, and potentially 45 km (28 mi) in the
mainstem Jarbidge River.
[[Page 17121]]
Since the emergency listing of the Jarbidge River population
segment, the USFS has restored some of the habitat. We have consulted
with Federal agencies for several projects in the Jarbidge River basin
such as old mining site reclamations, the creation of off-stream
livestock watering sites, and fencing streams from livestock, that have
helped reduce sedimentation into the Jarbidge River system. Following
the issuance of a cease and desist order by the State of Nevada and COE
to Elko County, the USFS hired stream restoration specialists to
restore the damaged portion of the West Fork Jarbidge River. The
specialists designed a plan to stabilize and enhance the river channel
in its new location. Work crews removed the fine sediment in the river
created by the road construction and placed large material such as
woody debris, large rocks and boulders back into the river for bull
trout habitat. The fine sediment removed from the river was used to
repair floodplain damage upslope, and the streambanks were partially
revegetated. The USFS will implement additional revegetation and
erosion control measures in 1999. These restoration actions have helped
to ameliorate some of the effects of the road construction on bull
trout habitat. A residual, inaccessible road still exists, but the
Service, USFS, and Elko County are cooperatively looking at
alternatives for public access in the area that would not adversely
impact bull trout habitat.
We have carefully assessed the best scientific and commercial
information available regarding past, present, and future threats faced
by this species in determining to make this rule final. Based on this
evaluation, we have determined that the Jarbidge River population
segment of bull trout should be listed as threatened. We emergency
listed this species as endangered due to the threats posed by road
construction in the West Fork of the Jarbidge River. Because of the
restoration activity that has occurred in the West Fork of the Jarbidge
River to repair the road construction damage, we believe this distinct
population segment fits the definition of threatened as defined by the
Act. Therefore, the action is to list the bull trout as threatened in
the Jarbidge River population segment.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific area within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those biological features (I) essential to the conservation of the
species and (II) that may require special management considerations or
protection; and (ii) specific areas outside the geographical area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures needed to
bring the species to the point at which listing under the Act is no
longer necessary.
Section 4(a)(3) of the Act, and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
the Secretary designate critical habitat at the time the species is
determined to be endangered or threatened. Our regulations (50 CFR
424.12(a)) state that critical habitat is not determinable if
information sufficient to perform required analysis of impacts of the
designation is lacking or if the biological needs of the species are
not sufficiently well known to permit identification of an area as
critical habitat. Section 4(b)(2) of the Act requires us to consider
economic and other relevant impacts of designating a particular area as
critical habitat on the basis of the best scientific data available.
The Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweigh the
conservation benefits, unless to do such would result in the extinction
of the species.
We find that the designation of critical habitat is not
determinable for this distinct population segment based on the best
available information. When a ``not determinable'' finding is made, we
must, within 2 years of the publication date of the original proposed
rule, designate critical habitat, unless the designation is found to be
not prudent. We reached a ``not determinable'' critical habitat finding
in the proposed rule and we specifically requested comments on this
issue. While we received a number of comments advocating critical
habitat designation, none of these comments provided information that
added to our ability to determine critical habitat. Additionally, we
did not obtain any new information regarding specific physical and
biological features essential for bull trout in the Jarbidge River bull
trout population segment during the open comment period including the
five public hearings. The biological needs of bull trout in this
population segment are not sufficiently well known to permit
identification of areas as critical habitat. Insufficient information
is available on the number of individuals or spawning reaches required
to support viable subpopulations throughout the distinct population
segment. In addition, we have not identified the extent of habitat
required and specific management measures needed for recovery of this
fish. This information is considered essential for determining critical
habitat for this population segment. Therefore, we find that
designation of critical habitat for the Jarbidge River population
segment is not determinable at this time. We will protect bull trout
habitat through enforcement of take prohibitions under section 9 of the
Act, through the recovery process, through section 7 consultations to
determine whether Federal actions are likely to jeopardize the
continued existence of the species, and through the section 10 process
for activities on non-Federal lands with no Federal nexus.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
Part 402. Section 7(a)(2) requires Federal agencies to insure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of a listed species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with us.
The Jarbidge River bull trout population segment occurs on lands
administered by the USFS and the BLM, and on various State-owned
properties in Idaho, and on private lands. Federal agency actions that
may require consultation as described in the preceding paragraph
include COE involvement in projects such as the construction of roads
and bridges, and the permitting of wetland filling and
[[Page 17122]]
dredging projects subject to section 404 of the Clean Water Act (33
U.S.C. 1344); USFS and BLM timber, recreation, mining, and grazing
management activities; Environmental Protection Agency authorized
discharges under the National Pollutant Discharge System of the Clean
Water Act; and U.S. Housing and Urban Development projects.
The Act and its implementing regulations found at 50 CFR 17.31 set
forth a series of general trade prohibitions and exceptions that apply
to all threatened wildlife. These prohibitions, in part, make it
illegal for any person subject to the jurisdiction of the United States
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
or collect; or attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
is also illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to our agents and State conservation agencies.
We may issue permits under section 10(a)(1) of the Act, to carry
out otherwise prohibited activities involving threatened wildlife under
certain circumstances. Regulations governing permits are at 50 CFR
17.32. Such permits are available for scientific purposes, to enhance
the propagation or survival of the species, and/or for incidental take
in connection with otherwise lawful activities. Permits are also
available for zoological exhibition, educational purposes, or special
purposes consistent with the purpose of the Act. You may address your
requests for copies of the regulations concerning listed plants and
animals, and general inquiries regarding prohibitions and permits, to
the U.S. Fish and Wildlife Service, Ecological Services, Endangered
Species Permits, 911 N.E. 11th Avenue, Portland, Oregon, 97232-4181
(telephone 503/231-2063; facsimile 503/231-6243).
It is our policy, published in the Federal Register on July 1, 1994
(59 FR 34272), to identify to the maximum extent practicable at the
time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of this listing on
proposed and ongoing activities within the species' range. We believe
the following actions would not be likely to result in a violation of
section 9, provided the activities are carried out in accordance with
any existing regulations and permit requirements:
(1) Actions that may affect bull trout in the Jarbidge River
population segment and are authorized, funded or carried out by a
Federal agency when the action is conducted in accordance with an
incidental take statement issued by us pursuant to section 7 of the
Act;
(2) Incidental catch and immediate release of Jarbidge River
population segment bull trout in accordance with applicable State fish
and wildlife conservation laws and regulations in effect on April 8,
1999 (see Special Rule section);
(3) State, local and other activities approved by us under section
4(d) and section 10(a)(1) of the Act.
With respect to the Jarbidge River bull trout population segment,
the following actions likely would be considered a violation of section
9:
(1) Take of bull trout without a permit, which includes harassing,
harming, pursuing, hunting, shooting, wounding, killing, trapping,
capturing, or collecting, or attempting any of these actions, except in
accordance with applicable State fish and wildlife conservation laws
and regulations within the Jarbidge River bull trout population
segment;
(2) To possess, sell, deliver, carry, transport, or ship illegally
taken bull trout;
(3) Unauthorized interstate and foreign commerce (commerce across
State or international boundaries) and import/export of bull trout (as
discussed earlier in this section);
(4) Introduction of non-native fish species that compete or
hybridize with, or prey on bull trout;
(5) Destruction or alteration of bull trout habitat by dredging,
channelization, diversion, in-stream vehicle operation or rock removal,
or other activities that result in the destruction or degradation of
cover, channel stability, substrate composition, temperature, and
migratory corridors used by the species for foraging, cover, migration,
and spawning;
(6) Discharges or dumping of toxic chemicals, silt, or other
pollutants into waters supporting bull trout that result in death or
injury of the species; and
(7) Destruction or alteration of riparian habitat and adjoining
uplands of waters supporting bull trout by recreational activities,
timber harvest, grazing, mining, hydropower development, or other
developmental activities that result in destruction or degradation of
cover, channel stability, substrate composition, temperature, and
migratory corridors used by the species for foraging, cover, migration,
and spawning.
We will review other activities not identified above on a case-by-
case basis to determine if a violation of section 9 of the Act may be
likely to result from such activity. We do not consider these lists to
be exhaustive and provide them as information to the public.
Questions regarding whether specific activities may constitute a
violation of section 9 should be directed to the Field Supervisor of
our Nevada Fish and Wildlife Office (see ADDRESSES section) for the
Jarbidge River population segment.
Special Rule
Section 4(d) of the Act provides authority for us to promulgate
special rules for threatened species that would relax specific
prohibitions against taking. The final special rule included with this
final listing allows for take of bull trout within the Jarbidge River
DPS associated with certain activities for a period of 24 months. The
special rule allows take for educational purposes, scientific purposes,
the enhancement of propagation or survival of the species, zoological
exhibition, and other conservation purposes consistent with the Act.
The special rule also allows take that is incidental to recreational
fishing activities, when conducted in accordance with State
regulations, and provided that any bull trout caught are immediately
returned to the stream. This special rule shall be in effect until
April 9, 2001. At that time, all take prohibitions of the Act will be
reinstated for the Jarbidge River population segment of the bull trout.
We believe that existing angling regulations and other bull trout
conservation measures developed independently by the States (see
following paragraphs) are adequate to provide continued short-term
conservation of bull trout in the Jarbidge River DPS. However, we
believe that the development by the States of Idaho and Nevada of a
management and conservation plan covering the entire range of bull
trout in the Jarbidge River DPS with the objective of recovery and
eventual delisting of this DPS would most effectively protect bull
trout from excessive taking, and thereby ensure the future continuation
of State sport fisheries programs in the Jarbidge River system.
Therefore, it is our intent to propose, in the near future, another
special rule that would provide the States of Idaho and Nevada the
opportunity to develop a management and conservation plan for the
Jarbidge River population segment of the bull trout that, if approved,
could extend the exceptions to the take prohibitions provided by the
special rule included in
[[Page 17123]]
this final listing. Such a plan would be developed with public input
(e.g., Jarbidge Bull Trout Task Force), peer-reviewed by the scientific
community, and presented to the appropriate State Fish and Game/
Wildlife Commissions. We would provide public notice in the Federal
Register upon our approval of the plan.
We find that State angling regulations have become more restrictive
in an attempt to protect bull trout in the Jarbidge River DPS in Idaho
and Nevada. Bull trout harvest prohibitions and reduced daily/
possession limits on other trout within the basin are currently in
place throughout the Jarbidge River system, and the fishing season has
been shortened in Idaho. The States, to varying extent, have also
initiated public/angler awareness and education efforts relative to
bull trout status, biology, and identification. IDFG has not stocked
rainbow trout in the Jarbidge River system since 1989. NDOW will not
stock rainbow trout in the Jarbidge River system in 1999 (Gene Weller,
NDOW, pers. comm. 1999).
IDFG has prepared a State-wide Bull Trout Conservation Program Plan
(Hutchinson et al. 1998). In the plan, IDFG commits to 1) ensuring that
management, research, hatchery, and scientific permitting programs are
consistent with the Endangered Species Act, and 2) implementing bull
trout recovery actions in Idaho.
NDOW has a Bull Trout Species Management Plan that recommends
management alternatives to ensure that human activities will not
jeopardize the future of bull trout in Nevada (Johnson 1990). The
recommended program identifies actions including bull trout population
and habitat inventories, life history research, and potential
population reestablishment; State involvement in watershed land use
planning; angler harvest impact assessment; official State sensitive
species designation for regulatory protection; and non-native fish
stocking evaluation/prohibition and potential non-native fish
eradications. NDOW scheduled these activities for implementation from
1991 to 2000, but many have yet to be initiated or fully implemented.
In the special rule for fishes we are making a minor editorial
correction in the paragraph designations.
Paperwork Reduction Act for the Listing
This listing rule does not contain any new collections of
information other than those already approved under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of
Management and Budget clearance number 1018-0094. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information, unless it displays a currently valid control
number. For additional information concerning permit and associated
requirements for threatened species, see 50 CFR 17.32.
Required Determinations for the Special Rule
Regulatory Planning and Review, Regulatory Flexibility Act, and Small
Business Regulatory Enforcement Fairness Act
The special rule was not subject to Office of Management and Budget
(OMB) review under Executive Order 12866.
a. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of the government. Therefore, a cost-
benefit and full economic analysis is not required. Section 4(d) of the
Act provides authority for us to promulgate special rules for
threatened species that would relax the prohibition against taking. We
find that State angling regulations have become more restrictive in an
attempt to protect bull trout in the Jarbidge River in Idaho and
Nevada. Bull trout harvest prohibitions and reduced daily/possession
limits on other trout within the basin are currently in place
throughout the Jarbidge River system, and the fishing season has been
shortened in Idaho. The States, to varying extent, have also initiated
public/angler awareness and education efforts relative to bull trout
status, biology, and identification. We believe that existing angling
regulations and other bull trout conservation measures developed
independently by the States are adequate to provide continued short-
term conservation of bull trout in the Jarbidge River. As a result,
this special rule will allow recreational angling to take place in the
Jarbidge River during the next 24 months under existing State
regulations. The economic effects discussion addresses only the
economic benefits that will accrue to the anglers who can continue to
fish in the Jarbidge River.
This special rule will remove the threat of a take prohibition
under section 9 of the Act and allow continued angling opportunities in
Idaho and Nevada under existing State regulations. Data on the number
of days of fishing under new State regulations are available for the
East and West forks of the Jarbidge River in Nevada. We used these data
to calculate angling days per river mile which was applied to the river
segment in Idaho. Because of the lack of definitive data, we decided to
do a worst case analysis. We analyzed the economic loss in angling
satisfaction, measured as consumer surplus, if all fishing were
prohibited in the Jarbidge River. Since there are substitute sites
nearby where fishing is available, this measure of consumer surplus is
a conservative estimate and would be a maximum estimate. The range of
angling days in Nevada is from 2,000 to 5,000 (figures combine angler
days in the East and West Fork of the Jarbidge River) annually. We
estimate for Idaho a range of 3,600 to 9,000 angling days per year. A
consumer surplus of $19.35 (1999 $) per day for trout fishing in Idaho
and Nevada results in a range of benefits of $109,000 to $271,000 per
year. The consumer surplus is a measurement of the satisfaction that an
angler gets from pursuing the sport of fishing. Since this special rule
will only be in place for 24 months, there is little need for
discounting. Consequently, this special rule will have a small economic
benefit on the United States economy, and even in the worst case, will
not have an annual effect of $100 million or more for a significant
rule making action.
b. This special rule will not create inconsistencies with other
agencies' actions. The special rule allows for continued angling
opportunities in accordance with existing State regulations.
c. This special rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. This special rule does not affect entitlement
programs.
d. This special rule will not raise novel legal or policy issues.
There is no indication that allowing for continued angling
opportunities in accordance with existing State regulations would raise
legal, policy, or any other issues.
The Department of the Interior certifies that the final rule will
not have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). A Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required. No
individual small industry within the United States will be
significantly affected by allowing for continued angling opportunities
in accordance with existing State regulations in the Jarbidge River for
24 months.
The special rule is not a major rule under 5 U.S.C. 801 et seq.,
the Small
[[Page 17124]]
Business Regulatory Enforcement Fairness Act. This special rule:
a. Does not have an annual effect on the economy of $100 million or
more. Trout fishing in the Jarbidge River basin generates, on average,
expenditures by local anglers ranging from $168 thousand to $519
thousand per year. Consequently, the maximum benefit of this rule for
local sales of equipment and supplies is no more than $519 thousand per
year and most likely smaller because all fishing would not cease in the
area even if the Jarbidge River were closed to fishing. The
availability of numerous substitute sites would keep anglers spending
at a level probably close to past levels.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. This special rule allows the
continuation of fishing in the Jarbidge River and, therefore, allows
for the usual sale of equipment and supplies by local businesses. This
special rule will not affect the supply or demand for angling
opportunities in southern Idaho or northern Nevada and therefore should
not affect prices for fishing equipment and supplies, or the retailers
that sell equipment.
c. Does not have significant adverse effects on competition,
employment, investment productivity, innovation, or the ability of
United States based enterprises to compete with foreign-based
enterprises. The recreational spending of a small number of affected
anglers, ranging from just over 600 to slightly over 1,500 anglers,
will have only a small beneficial economic effect on the sportfish
industry.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.):
a. This special rule will not ``significantly or uniquely'' affect
small governments. A Small Government Agency Plan is not required.
b. This special rule will not produce a Federal mandate of $100
million or greater in any year; that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings Implication
We have determined that this special rule has no potential takings
of private property implications as defined by Executive Order 12630.
The special rule would not restrict, limit, or affect property rights
protected by the Constitution.
Federalism
This special rule will not have substantial direct effects on the
States, in their relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among
various levels of government. Therefore, in accordance with Executive
Order 12612, we have determined that this special rule does not have
sufficient federalism implications to warrant a Federalism Assessment.
Civil Justice Reform
The Department of the Interior has determined that this special
rule meets the applicable standards provided in sections 3(a) and
3(b)(2) of Executive Order 12988.
National Environmental Policy Act
We have determined that an Environmental Assessment and
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited herein is available upon
request from the Nevada Fish and Wildlife Office (see ADDRESSES
section).
Author. The primary author of this proposed rule is Selena Werdon,
Nevada Fish and Wildlife Office, Reno, Nevada.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.11(h) by adding the following, in alphabetical
order under FISHES, to the List of Endangered and Threatened Wildlife:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Trout, bull.................. Salvelinus U.S.A. (Pacific Jarbidge R. Basin T 659 NA 17.44(x)
confluentus. NW), Canada (NW (U.S.A.--ID, NV).
Territories).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.44 by redesignating paragraph (v) bull trout as
paragraph (w).
4. Amend Sec. 17.44 by adding paragraph (x) to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(x) Bull trout (Salvelinus confluentus), Jarbidge River population
segment.
(1) Prohibitions. Except as noted in paragraph (x)(2) of this
section, all prohibitions of 50 CFR 17.31 and exemptions of 50 CFR
17.32 apply to the bull trout in the Jarbidge River
[[Page 17125]]
population segment within the United States.
(2) Exceptions. No person may take this species, except in the
following instances in accordance with applicable State fish and
wildlife conservation laws and regulations relevant to protection of
bull trout in effect on April 8, 1999.
(i) For educational purposes, scientific purposes, the enhancement
of propagation or survival of the species, zoological exhibition, and
other conservation purposes consistent with the Act;
(ii) Incidental to State-permitted recreational fishing activities,
provided that any bull trout caught are immediately returned to the
stream.
(iii) The exceptions in paragraphs (x)(2) (i) and (ii) of this
section will be in effect until April 9, 2001. At that time, all take
prohibitions of the Act will be reinstated for the Jarbidge River
population segment unless exceptions to take prohibitions are otherwise
provided through a subsequent special rule.
(3) Any violation of applicable State fish and wildlife
conservation laws or regulations with respect to the taking of this
species is also a violation of the Endangered Species Act.
(4) No person may possess, sell, deliver, carry, transport, ship,
import, or export, any means whatsoever, any such species taken in
violation of this section or in violation of applicable State fish and
conservation laws and regulations.
(5) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed, any offense defined in
paragraphs (x)(2) through (4) of this section.
Dated: April 5, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-8850 Filed 4-7-99; 8:45 am]
BILLING CODE 4310-55-P
