Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bull Trout, 56212-56311 [05-18880]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 185 (Monday, September 26, 2005)]
[Rules and Regulations]
[Pages 56212-56311]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-18880]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife Plants; Designation of Critical 
Habitat for the Bull Trout; Final Rule

Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ12; 1018-AU31


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the 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), designate 
critical habitat for the Klamath River, Columbia River, Jarbidge River, 
Coastal-Puget Sound, and Saint Mary-Belly River populations of bull 
trout (Salvelinus confluentus) in the coterminous United States 
pursuant to the Endangered Species Act of 1973, as amended (Act). This 
final designation totals approximately 3,828 miles (mi) (6,161 
kilometers (km) of streams, 143,218 acres (ac) (57,958 hectares (ha) of 
lakes in Idaho, Montana, Oregon, and Washington, and 985 mi (1,585 km) 
of shoreline paralleling marine habitat in Washington. We solicited 
data and comments from the public on all aspects of the proposed rules, 
including data on economic and other impacts of the designations.

DATES: This rule becomes effective October 26, 2005.

ADDRESSES: Comments received, as well as supporting documentation used 
in the preparation of this final rule, will be available for public 
inspection, by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Branch of Endangered Species, 911 N.E. 11th 
Avenue, Portland, OR 97232. The final rule, economic analyses, and maps 
are also available via the Internet at https://pacific.fws.gov/
bulltrout/.

FOR FURTHER INFORMATION CONTACT: Branch of Endangered Species (see 
ADDRESSES section), telephone, facsimile 503/231-6237.

SUPPLEMENTARY INFORMATION:

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under ESA section 4(b)(2), there are significant limitations 
on the regulatory effect of designation under ESA section 7(a)(2). In 
brief, (1) designation provides additional protection to habitat only 
where there is a federal nexus; (2) the protection is relevant only 
when, in the absence of designation, destruction or adverse 
modification of the critical habitat would in fact take place (in other 
words, other statutory or regulatory protections, policies, or other 
factors relevant to agency decision-making would not prevent the 
destruction or adverse modification); and (3) designation of critical 
habitat triggers the prohibition of destruction or adverse modification 
of that habitat, but it does not require specific actions to restore or 
improve habitat.
    Currently, only 470 species, or 37 percent of the 1,264 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,264 
listed species through conservation mechanisms such as listing, section 
7 consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, the Section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service. 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs. The consequence of the 
critical habitat litigation activity is that limited listing funds are 
used to defend active lawsuits, to respond to Notices of Intent (NOIs) 
to sue relative to critical habitat, and to comply with the growing 
number of adverse court orders. As a result, listing petition 
responses, the Service's own proposals to list critically imperiled 
species, and final listing determinations on existing proposals are all 
significantly delayed. The accelerated schedules of court-ordered 
designations have left the Service with limited ability to provide for 
public participation or to ensure a defect-free rulemaking process 
before making decisions on listing and critical habitat proposals, due 
to the risks associated with noncompliance with judicially imposed 
deadlines. This in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
and is very expensive, thus diverting resources from conservation 
actions that may provide relatively more benefit to imperiled species. 
The costs resulting from the

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designation include legal costs, the cost of preparation and 
publication of the designation, the analysis of the economic effects 
and the cost of requesting and responding to public comment, and in 
some cases the costs of compliance with the National Environmental 
Policy Act (NEPA). These costs, which are not required for many other 
conservation actions, directly reduce the funds available for direct 
and tangible conservation actions.

Background

    Bull trout (Salvelinus confluentus) are members of the char 
subgroup of the family Salmonidae and are native to waters of western 
North America. Bull trout range throughout the Columbia River and Snake 
River basins, extending east to headwater streams in Montana and Idaho, 
into Canada, and in the Klamath River basin of south-central Oregon. 
The distribution of populations, however, is scattered and patchy 
(Goetz 1989; Rieman and McIntyre 1993; Zeller 1992; Light et al. 1996; 
Quigley and Arbelbide 1997).
    Bull trout exhibit a number of life-history strategies. Stream-
resident bull trout complete their entire life cycle in the tributary 
streams where they spawn and rear. Most bull trout are migratory, 
spawning in tributary streams where juvenile fish usually rear from 1 
to 4 years before migrating to either a larger river (fluvial) or lake 
(adfluvial) where they spend their adult life, returning to the 
tributary stream to spawn (Fraley and Shepard 1989). Resident and 
migratory forms may be found together, and either form can produce 
resident or migratory offspring (Rieman and McIntyre 1993).
    Bull trout, coastal cutthroat trout (Oncorhynchus clarki clarki), 
Pacific salmon (Oncorhynchus spp.), and some other species are commonly 
referred to as ``anadromous'' (fish that can migrate from saltwater to 
freshwater to reproduce). However, bull trout, coastal cutthroat trout, 
and some other species that enter the marine environment are more 
properly termed ``amphidromous.'' Unlike strictly anadromous species, 
such as Pacific salmon, amphidromous species often return seasonally to 
fresh water as subadults, sometimes for several years, before returning 
to spawn (Wilson 1997). The amphidromous life history form of bull 
trout is unique to the Coastal-Puget Sound population. For additional 
information on the biology of this life form, see our June 25, 2004, 
proposed critical habitat designation for the Jarbidge River, Coastal-
Puget sound, and Saint Mary-Belly River populations of bull trout (69 
FR 35767).
    For additional information on population ranges, biology, and 
habitat requirements of the bull trout, please refer to the following 
published rules: Proposed critical habitat designation for the Jarbidge 
River, Coastal-Puget Sound, and Saint Mary-Belly River populations (69 
FR 35767, June 25, 2004; as corrected by 69 FR 43058, July 19, 2004); 
final critical habitat designation (69 FR 59995, October 6, 2004) and 
proposed critical habitat designation (67 FR 71235, November 29, 2002) 
for the Klamath River and Columbia River populations; and listing rules 
for the Klamath River and Columbia River populations (63 FR 31647, June 
10, 1998), Jarbidge River population (64 FR 17110, April 8, 1999), and 
for all populations (64 FR 58909, November 1, 1999).

Previous Federal Action

    Please refer to the November 29, 2002, proposed critical habitat 
designation for the Klamath River and Columbia River bull trout 
populations (67 FR 71235) for a detailed summary of Federal actions 
completed prior to publication of that proposal related to all bull 
trout populations. Please refer to the October 6, 2004, final critical 
habitat designation for the Klamath River and Columbia River bull trout 
populations (69 FR 59995) for a detailed summary of Federal actions 
completed between the proposed and final rules related to the Columbia 
and Klamath populations. Please refer to the June 25, 2004, proposed 
critical habitat designation for the Jarbidge, Coastal-Puget, and St. 
Mary Belly bull trout populations (69 FR 35767) for a detailed summary 
of previous Federal actions completed prior to publication of that 
proposal related to those bull trout populations.
    On December 14, 2004, Alliance for the Wild Rockies et al. filed a 
complaint challenging the adequacy of the final critical habitat 
designation for the Klamath River and Columbia River bull trout 
populations. Our motion for partial voluntary remand was subsequently 
granted by the court with a final rule due by September 15, 2005. On 
May 25, 2005, we announced the opening of a public comment period on 
the proposed and final designations of critical habitat for the Klamath 
River and Columbia River bull trout populations (70 FR 29998). On June 
6, 2005, we published a notice clarifying the reopening of the comment 
period for the proposed and final designation of critical habitat for 
the Klamath River and Columbia River bull trout populations (70 FR 
32732). The comment period was open until June 24, 2005.
    On May 3, 2005, we published a notice of the availability of the 
draft economic analysis (DEA) and reopening of a 30-day comment period 
until June 2, 2005 (70 FR 22835), for the Jarbidge River, Coastal-Puget 
Sound, and Saint Mary-belly River populations of bull trout. On June 
27, 2005, Judge Jones extended the deadline for designating critical 
habitat for the Puget Sound-Coastal, Jarbidge, and St. Mary-Belly River 
bull trout populations to September 15, 2005. This rule combines all of 
the listed populations of bull trout into one final critical habitat 
designation, and, in doing so, replaces the final critical habitat 
designation for the Klamath River and Columbia River populations of 
bull trout published in the Federal Register on October 6, 2004 (69 FR 
59995).

Summary of Comments and Recommendations

Jarbidge River, Coastal-Puget Sound, and Saint Mary-belly River Bull 
Trout Populations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Jarbidge River, Coastal-Puget 
Sound, and Saint Mary-belly River populations of bull trout in the 
proposed rule published on June 25, 2004 (69 FR 35767). We also 
contacted and invited the appropriate Federal, State, and local 
agencies, scientific organizations, and other interested parties to 
comment on the proposed rule. In addition, we held one public hearing 
on August 10, 2004, in Tumwater, Washington.
    During the comment period that opened on June 25, 2004, and closed 
on August 24, 2004, we received 34 comment letters directly addressing 
the proposed critical habitat designation: 8 from peer reviewers, 5 
from Federal agencies, 3 from State agencies, 2 from County or city 
agencies, 6 from tribes, and 10 from organizations or individuals.
    During the reopened comment period (May 3, 2005 through June 2, 
2005) (70 FR 228350), we received 16 comment letters directly 
addressing the proposed critical habitat designation and DEA, 7 of 
which were from organizations or individuals that submitted comments 
during the first comment period. Of the 16 letters, we received 1 from 
a peer reviewer, 2 from Federal agencies, 3 from State agencies, 3 from 
county or city agencies, 1 from a tribe, and 6 from organizations or 
individuals.

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Klamath River and Columbia River Bull Trout Populations

    Responses to public and peer review comments on proposed critical 
habitat for the Klamath River and Columbia River bull trout populations 
(67 FR 71235, November 29, 2002) and the DEA (69 FR 17634, April 5, 
2004) were published in the final designation of critical habitat (69 
FR 59995, October 6, 2004). The following summary responds only to 
those comments received during the reopened comment period period (May 
3, 2005 through June 2, 2005) on the proposed and final rules for 
critical habitat designation for the Klamath River and Columbia River 
bull trout populations (70 FR 32732).
    During the reopened comment period, we received 33 letters 
addressing the final critical habitat designation and economic analysis 
(EA). Of these letters, we received 7 from Federal agencies, 4 from 
State agencies, 10 from local entities, 1 from a tribe, and 11 from 
organizations or individuals.
    All comments of a similar nature were grouped together for all 
populations of bull trout and are addressed in the following summary. 
Substantive comments have been incorporated into the final rule as 
appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicit opinions from individuals who have expertise 
with the species and the geographic region where the species occurs and 
are familiar with conservation biology principles. The peer review 
process for the Klamath and Columbia River bull trout populations was 
discussed in the October 6, 2004, final critical habitat designation 
for the Klamath River and Columbia River bull trout populations (69 FR 
59995).
    For the proposed critical habitat designation for Jarbidge River, 
Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations, 
we solicited independent expert review from eight individuals and all 
responded. The peer reviewers generally concurred with our methods, but 
also provided additional information, clarifications, and suggestions 
to improve the final critical habitat rule. Key elements of the 
reviewers' critical comments related to the proposal's scope and 
whether existing laws and regulations already protect some areas. 
Comments also addressed the need for greater prioritization of 
conservation issues influencing critical habitat designation, emphasis 
on quality habitat to support the migratory life form of bull trout, 
and an explanation of why some particular habitat, including areas of 
degraded habitat, are important to bull trout conservation. 
Additionally, the reviewers provided many technical comments on the 
appropriateness and bounds of specific geographic areas proposed as 
critical habitat. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments for Jarbidge River, Coastal-Puget Sound, and 
Saint Mary-Belly River Bull Trout Populations

    When similar comments were also received from other reviewers, they 
are addressed in the comments here to avoid redundancy.
    (1) Comment: A peer reviewer requested clarification on the 
difference between critical habitat subunits (CHSUs) and core areas 
described in the bull trout draft recovery plans (draft Recovery Plans) 
(Service 2002, 2004).
    Our Response: In general, critical habitat subunits (CHSUs) 
correspond to core areas identified in the draft Recovery Plans (http:/
/www.fws.gov/pacific/bulltrout/). However, the Olympic Peninsula and 
Puget Sound Critical Habitat Units (Coastal-Puget Sound populations) 
also contain nearshore and freshwater habitats outside of natal river 
basins that are used by bull trout from more than one CHSU or core 
area. These habitats outside of core areas contain all the physical 
elements and features (primary constituent elements) critical to 
overwintering, migration, and subadult and adult foraging needs 
essential for the conservation of amphidromous (referring to the 
migratory behavior of fishes moving from fresh water to the sea and 
vice versa, not for breeding purposes but occurring regularly at some 
stage of the life cycle, such as feeding or overwintering) bull trout, 
which are unique to the Coastal-Puget Sound bull trout population. 
Within the core areas, certain areas identified by the Service as 
containing features essential for the conservation of the species, and 
in need of special management or protection, are designated critical 
habitat. Although core areas contribute to recovery and share primary 
constituent elements (PCEs) with critical habitat, only those portions 
of the core areas that meet the statutory definition of critical 
habitat and provide defined PCEs are considered for designation.
    (2) Comment: Since little of the Belly River is within the United 
States, this core area is not a biologically functioning unit that 
contains necessary features or PCEs.
    Our Response: A short reach of the North Fork Belly River, 
extending across the international border from Canada (downstream) into 
the United States (upstream), is the only known spawning reach for bull 
trout in the entire Belly River system. Thus, this portion of the North 
Fork Belly River in the United States is vital as spawning and rearing 
habitat for this bull trout population. It contains the PCEs necessary 
for the spawning and rearing life stages (i.e., permanently flowing, 
cold, upwelling groundwater with suitable spawning substrate and 
complex rearing habitat). The foraging, migration, and overwintering 
(FMO) habitat for this population is found downstream in Alberta, 
Canada. This downstream habitat includes the PCEs found in a migratory 
corridor, including deep holding pools and a forage base to support 
large adult bull trout. Adult fish from Canada travel into the United 
States portions of the watershed annually to spawn. Because of the 
important spawning areas in the United States, and the presence of 
necessary PCEs, we have determined that this area is essential to this 
important biologically functioning unit and is designated critical 
habitat.
    (3) Comment: Although it may be consistent with section 4(b)(2) of 
the Act to exclude Habitat Conservation Plans (HCPs) and the areas 
covered by the Washington Forest Practice Rules, there are no 
provisions in the rule to include these excluded lands within 
designated critical habitat if land-use practices or ownership changes.
    Our Response: Although the specific provisions vary for each plan, 
HCPs typically include language that addresses change in circumstances 
or ownership. For example the draft Implementing Agreement for the 
Washington Department of Natural Resources, Forest Practices HCP states 
that any changes in the permits must be adopted through the procedures 
specified in the Act, other applicable Federal laws, and applicable 
regulations and if the Service determines that such changes materially 
impair the conservation plan contained in the HCP, they will notify the 
State and, if the matter is not otherwise resolved, may suspend or 
terminate the HCP, permits and the Implementing Agreement. If land 
ownership changes and a new landowner does not agree to the terms and 
conditions of the original permit, the original permittee must work 
with the Services to determine whether, and under what circumstances, 
the permit can be terminated. In order to terminate a permit, the 
Services must determine if the minimization and mitigation

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measures that were conducted up to that point were commensurate with 
the amount of incidental take that occurred during the term of the 
permit. The Services will always require implementation of any 
outstanding minimization and mitigation measures before a permit is 
terminated.
    (4) Comment: Freshwater foraging, migratory, and overwintering 
habitats outside core areas are not clearly essential to bull trout nor 
well documented. Therefore, these areas should not be included in the 
critical habitat designation.
    Our Response: Some habitats outside of core areas contain all the 
physical elements to meet critical overwintering, migration, and 
subadult and adult foraging needs that are essential for the 
conservation of amphidromous bull trout. Recent tagging studies on the 
Olympic Peninsula and in Puget Sound have tracked the complex 
migrations of amphidromous bull trout from their core areas to marine 
and freshwater foraging, migratory, and overwintering habitats outside 
of their natal core areas (Brenkman and Corbett 2003, 2005; Goetz et 
al. 2004). Amphidromous bull trout have shown site fidelity to, and 
extensive use of, freshwater and marine habitat areas, demonstrating 
these are necessary in completing their life history and therefore, are 
included as critical habitat.
    (5) Comment: Reviewers acknowledged the exclusions the Service had 
proposed for HCPs and the Washington Forest Practice Rules and 
recommended considering other types of management plans and actions for 
possible exclusions. They indicated that designation of critical 
habitat would be a duplication of effort since Federal actions, such as 
allotment management plans, already undergo formal consultation. One 
reviewer wanted to know why waterbodies within some Federal lands, such 
as wilderness, parks, and forests, were not excluded. Another reviewer 
asked why multi-species conservation plans under development by local 
watershed organizations in Washington were not excluded. Several 
reviewers suggested lands covered by Washington State's watershed 
planning process (subbasin plans), and lands in Olympic and North 
Cascades National Parks are currently not in need of special 
management.
    Our Response: We believe some existing management plans are 
appropriate for exclusion because the benefits of exclusion outweigh 
the benefits of inclusion (see section ``Section 3(5)(A) and Exclusions 
Under Section 4(b)(2)''). Landownership is not a factor in determining 
which areas contain PCEs and meet the definition of critical habitat. 
Some waterbodies on Federal lands meet the definition of critical 
habitat. While we have done so in the past, in this rulemaking we did 
not consider any pending HCPs for exclusion, primarily because none of 
the pending HCPs were at a point we could do so without prejudging the 
outcome of the ongoing HCP process and because we expect further 
changes to the developing HCPs.
    (6) Comment: One reviewer suggested that Corps of Engineers 401 and 
404 permits should be excluded from critical habitat.
    Our Response: Corps of Engineers 401 and 404 or other instream 
permits are issued to ensure that applicants avoid and minimize impacts 
to streams. Any mitigation that may be required by a permit is to avoid 
or minimize degradation and to mitigate for unavoidable impacts.
    (7) Comment: Are small stream habitats in the Saint Mary-Belly 
River headwaters in the critical habitat designation contributing to 
rearing and foraging of bull trout and are they adequately considered?
    Our Response: Because of the steep topography, flashy stream flow 
and very active erosion and depositional processes of the Saint Mary-
Belly River headwaters, very few smaller tributary streams support 
adequate year-round stream flow to allow bull trout passage; in 
addition, many have natural barriers. Most of those tributary streams 
have been surveyed, and all those known to support bull trout were 
considered and included in the final critical habitat designation.
    (8) Comment: It would help to understand what the threats to bull 
trout are and how threats relate to critical habitat designation.
    Our Response: For details of the threats that were the basis for 
the bull trout listing, refer to the final listing rules for the 
Klamath River and Columbia River population (63 FR 31647), Jarbidge 
River population (64 FR 17110), and Coastal-Puget Sound and Saint Mary-
Belly River populations (64 FR 58910). Critical habitat identifies 
those areas that contain the physical and biological features (PCEs) 
that are essential to the conservation of the species, and those areas 
that may require special management considerations or protections.

Public Comments Related to Bull Trout Biology and Habitat; Process of 
Designating Critical Habitat for the Bull Trout

    (9) Comment: The proposed critical habitat for the bull trout fails 
to account for the importance of habitat connectivity.
    Our Response: The draft Recovery Plans, critical habitat proposal, 
and the listing rules for bull trout, citing relevant scientific 
literature, describe the species' conservation needs. In fact, 
migratory corridors with minimal physical, biological, or water quality 
impediments are identified as a PCE in the critical habitat rule. Our 
proposed designation connected essential occupied waterbodies having 
PCEs to one another to maintain connectivity within and among habitat 
types (spawning and rearing, freshwater and marine foraging, migratory, 
and overwintering habitats). In the final designation, we exclude some 
critical habitat segments based on a careful balancing of the benefits 
of inclusion versus the benefits of exclusion. Exclusion of waterbodies 
from designated critical habitat does not negate or diminish their 
importance for bull trout conservation, and in most cases does not 
affect the protections available to that habitat through the Act.
    (10) Comment: The status of bull trout strongly indicates that 
critical habitat designation is warranted for all waterbodies occupied 
by bull trout.
    Our Response: Although all occupied habitats are important to the 
species, not all meet the definition of critical habitat. Examples of 
exclusions include reaches where bull trout are sometimes entrained and 
lost to the population or highly fragmented habitats within core areas. 
We believe that we have identified habitat that contains features 
essential to the bull trout's conservation. In the final designation, 
we exclude some critical habitat segments based on a careful balancing 
of the benefits of inclusion versus the benefits of exclusion. 
Exclusion of waterbodies from designated critical habitat does not 
negate or diminish their importance for bull trout conservation.
    (11) Comment: The Service should describe the relationship between 
the reduced distribution of salmon and steelhead (Oncorhynchus sp.) and 
the reduced distribution and abundance of bull trout.
    Our Response: Our recovery plan and administrative record for 
critical habitat designation, including public comment and peer review, 
includes information about the relationship between bull trout and 
their prey species, such as salmon and steelhead. Such information was 
employed to support the biological basis of the proposal, but practical 
considerations limited the amount of such information that could be 
presented in the proposed critical habitat rule. Refer to the 
previously

[[Page 56216]]

published bull trout critical habitat designations and listings (63 FR 
31647, 64 FR 17109, 64 FR 58910, 68 FR 6863, 69 FR 35767, 69 FR 59995) 
for additional information.
    (12) Comment: The Service's position equating adverse modification 
with jeopardy is not supported by the Act or case law. The Service 
needs to define adverse modification.
    Our Response: In response to recent court decisions, we are no 
longer using the regulatory definition of adverse modification. 
Instead, we are following guidance from the Director, embodied in a 
December 9, 2004 memorandum, which uses the statute as the basis for 
our regulatory standard when conducting section 7 consultations on 
critical habitat. We do note in this rule that due to the method of 
analyzing jeopardy specific to bull trout, that jeopardy and adverse 
modification rarely diverge. However, that circumstance is due to the 
specifics of our bull trout analyses rather than an interpretation of 
regulations or law.
    (13) Comment: The Service proposed to designate streams as critical 
habitat that do not currently support bull trout or have little 
evidence of bull trout use, with no justification for such designation 
as to why these stream reaches are essential to the conservation of the 
species, as required by the Act.
    Our Response: All streams proposed for critical habitat designation 
within the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly 
River bull trout population segments were known to be occupied. We 
considered streams occupied if bull trout were documented there within 
the last 20 years (our 2004 critical habitat designation provides a 
full explanation for the basis of this standard). Areas of unknown 
occupancy and unoccupied habitats were included in the proposed 
designation for the Klamath River and Columbia River populations. 
However, in this final rule no unoccupied habitat is being designated. 
The bull trout critical habitat designation is based on the best 
available scientific information. In addition, the proposed 
designations were peer-reviewed by individuals who have expertise with 
bull trout, the geographic region where bull trout occur, and the 
principles of conservation biology. Justifications for all critical 
habitat units are available for public review (see ADDRESSES section 
above).
    (14) Comment: Critical habitat needs to be designated in unoccupied 
areas because these areas are important for re-introduction of 
extirpated populations or expansion of existing populations and are the 
most important areas in need of protection.
    Our Response: We have limited the critical habitat designation to 
areas of known occupancy that have features essential to the 
conservation of the species because we did not have sufficient data for 
the Secretary to make a determination that specific unoccupied areas 
were essential to the bull trout's conservation. We based this 
designation on the best scientific and commercial information 
available. Many streams not included in this designation can and will 
contribute to bull trout recovery, but do not meet the definition of 
critical habitat.
    (15) Comment: The Service neglected or violated a variety of 
regulatory or other requirements including NEPA, the Data Quality Act, 
Regulatory Flexibility Act, and other laws, regulations, and orders.
    Our Response: We are not required to prepare an environmental 
assessment or an environmental impact statement, as defined under the 
authority of NEPA, in connection with regulations adopted pursuant to 
section 4(a) of the Act, and in States under the jurisdiction of the 
Ninth Circuit Court. A notice outlining our reason for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244). This position has been upheld by the Ninth Circuit Court 
of Appeals in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). 
We have addressed all the relevant required regulatory determinations 
in this rule (see Required Determinations section below). Our Policy on 
Information Standards Under the Endangered Species Act, published in 
the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service, provide criteria, establish 
procedures, and provide guidance to ensure that our decisions are based 
on the best scientific and commercial data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. All information in this critical habitat 
rule is used in accordance with the provisions of Section 515 of the 
Treasury and General Government Appropriations Act for Fiscal Year 2001 
(Pub. L. 106-554; H.R. 5658) and the associated Information Quality 
Guidelines issued by the Service. Both public and peer review of the 
proposed rule further ensures that the final designation will meet this 
standard.
    (16) Comment: Stream temperature is a limiting factor for some 
populations, and bankfull designation may not encompass sufficient 
shading to maintain water temperatures for bull trout.
    Our Response: We agree that temperature can be a limiting factor 
for some populations which is why it is considered a PCE. Riparian 
vegetation influences instream habitat conditions by providing shade, 
organic matter, root strength, bank stability, and large woody debris 
inputs to streams. Stream width and depth ratios also influence stream 
temperatures. Even though riparian vegetation may not be within a 
stream's bankfull width, and therefore not included in the critical 
habitat designation, effects to these areas are likely to be evaluated 
during the consultation process due to the indirect effect riparian and 
upland actions may have on water temperatures, which is one of the 
identified PCEs for bull trout critical habitat.
    (17) Comment: The Service failed to consult with Native American 
tribes in developing the proposed rule and economic analysis.
    Our Response: We have been, and will continue, to consult with 
those tribes affected by the critical habitat designation. We contacted 
Native American tribes where proposed bull trout critical habitat 
occurred on, or adjacent to, tribal lands. We discussed the critical 
habitat proposal with representatives of the tribes that responded. We 
will continue to work with the tribes on a government-to-government 
basis for the conservation of bull trout.
    (18) Comment: A single sighting of a native char (bull trout) in a 
water body is not sufficient reason to designate the water as critical 
habitat.
    Our Response: We have not designated any unoccupied areas as 
critical habitat. However, we included any area with documented 
occupancy (even a single sighting) within the last 20 years, if the 
area has PCEs essential to the species' conservation and will support 
the essential life history needs of bull trout. The published survey 
protocol for juvenile and resident bull trout was not developed until 
2002, and no similar survey protocol for adult migratory bull trout has 
been developed. Many bull trout sightings are the incidental result of 
surveys for other species (salmon). In addition, bull trout are 
difficult to find, are migratory, and often exhibit a patchy 
distribution. Therefore, an incidental sighting of one

[[Page 56217]]

individual or a few bull trout is often the only available information 
until a targeted survey for bull trout is conducted. With the 
increasing availability of radio telemetry data, we are finding that 
the extent or range of bull trout occupied habitat is often greater 
than was previously known based on incidental observations.
    (19) Comment: Specific numerical habitat standards for critical 
habitat must be included along with critical habitat designations.
    Our Response: There is no requirement under the Act that PCEs have 
specific numerical standards, nor would it necessarily promote 
effective conservation to determine numerical standards for all PCEs 
given the various life histories expressed by bull trout throughout 
their range. However, we recognize the value of observable or 
measurable standards. The PCEs include numerical standards when 
appropriate (e.g., to bracket a range of acceptable temperatures) and 
feasible, such as for temperature and substrate embeddedness.
    (20) Comment: The Service should designate critical habitat for a 
number of ``source water'' streams. These are predominantly steep, 
small streams not occupied by bull trout, but are key sources of cold, 
clean water that feed bull trout habitat downstream.
    Our Response: Streams that contribute necessary habitat elements 
such as cold, clean water downstream to designated streams are not 
included in this designation unless bull trout presence has been 
documented. Our determination of bull trout critical habitat is limited 
to areas that bull trout rely on for some portion of their life cycle. 
Although not designated as critical habitat, we recognize that these 
``source waters'' or non-fish-bearing streams influence the character 
of designated stream segments located downstream. Where section 7 
consultation is required, impacts to these ``source water'' streams 
that may affect bull trout critical habitat will be evaluated (see 
Critical Habitat Designation section below).
    (21) Comment: The Service failed to include areas of historical 
bull trout occupancy and the rules do not provide adequate 
justification for their exclusion.
    Our Response: The critical habitat proposals did not reflect all 
habitat areas bull trout are known to occupy or occupied historically, 
in the coterminous United States. Rather, it reflects those areas that 
contain the necessary features that are essential for the conservation 
of the species and are currently occupied by the species. Historical 
records of bull trout distribution may be anecdotal and incomplete 
relative to current bull trout distribution and thus, would not provide 
a sufficient basis for this critical habitat rule. We believe by 
defining as occupied those segments with at least one documented 
sighting in the last 20 years we have used a sufficiently broad measure 
to ensure the most likely occupied areas are included. This standard 
takes into account the fact that bull trout are abnormally difficult to 
find as they are primarily nocturnal feeders.
    In our proposed critical habitat designation for the Jarbidge 
River, Coastal-Puget Sound, and Saint Mary-Belly River population 
segments, we specifically solicited additional information on areas of 
habitat with evidence of occupancy of which we were unaware. These 
waterbodies had been identified by the bull trout recovery teams as key 
recovery habitat in the draft recovery plan, however, at that time they 
had no specific information documenting bull trout occupancy. Since the 
proposal, we have received additional information on bull trout 
occupancy for several tributaries in the Nooksack River (Fossil Creek), 
South Fork Skykomish River (West Fork Foss River), and Ross Lake (North 
Fork Canyon Creek) systems, which have been excluded from the final 
designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).
    (22) Comment: The contribution of tribal lands to bull trout 
habitat conservation is unclear and these lands are not essential to 
bull trout recovery.
    Our Response: The scientific information cited in the draft 
Recovery Plans provided the basis for our evaluation of habitats that 
contain the features essential to bull trout conservation. Many tribal 
lands include portions of mainstem rivers that provide essential 
migratory corridors and overwintering habitat for fluvial and 
amphidromous bull trout. Waterbodies on tribal lands were included in 
the critical habitat designation only if they were found to be 
currently occupied, contain PCEs that are essential for bull trout 
conservation, and were not adequately covered by management plans (see 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
    (23) Comment: The proposed rule fails to mention water rights.
    Our Response: The proposed and final rules do not specifically 
address water rights. However, examples of activities that may 
potentially affect aquatic bull trout critical habitat by altering the 
PCEs, such as changes in water use or water rights were provided in the 
proposed and final rules.
    (24) Comment: The proposal to designate critical habitat in the 
Saint Mary-Belly Rivers focuses on potential impacts of irrigation 
activities instead of potential adverse effects of recreational fishing 
on bull trout.
    Our Response: Under the 4(d) rule that was included in the final 
rule which listed bull trout, take of bull trout in accordance with 
state, National Park Service, and Native American Tribal permitted 
fishing activities is allowed (64 FR 58910). Irrigation activities are 
often linked to Federal agencies, such as Bureau of Reclamation (BOR), 
for the allocation, delivery or storage of the water. Individual 
anglers, however, are only required to avoid take of listed bull trout 
by following fishing regulations.
    (25) Comment: There is no evidence to specifically identify when 
marine or estuarine areas are being used by bull trout.
    Our Response: Recent radio and acoustic telemetry studies in Grays 
Harbor, Puget Sound, and the Snohomish, Dungeness, and Hoh Rivers have 
provided new information on bull trout use of marine and estuarine 
areas and the importance of this habitat for bull trout recovery 
(Brenkman and Corbett 2003, 2005; Jeanes et al. 2003; Goetz et al. 
2004). These studies documented that marine forage fish such as herring 
(Clupea spp.), surf smelt (Hypomesus pretiosus), sand lance (Ammodytes 
hexapterus), and shiner surfperch (Cymatogaster aggregate) are bull 
trout prey. In addition, marine waters provide essential migratory 
corridors for amphidromous bull trout moving from their natal river 
basin to other rivers or streams as they seek suitable foraging or 
overwintering habitat. We now know that large numbers of bull trout 
overwinter in streams that do not contain spawning and rearing habitat 
and are only accessible by migration through marine waters. Therefore, 
we have included these marine nearshore areas that contain features 
essential to bull trout conservation in this final designation.
    (26) Comment: Adequate foraging habitat has not been included in 
the designation.
    Our Response: We believe this designation is based on the best 
scientific and commercial information available. It includes only 
occupied habitat, and contains those features that are essential to the 
conservation of bull trout populations. We recognize that bull trout 
may forage in areas where their presence has not been detected and 
these areas may provide access to

[[Page 56218]]

abundant forage. However, because we were unable to identify all areas 
that are used, we have limited designated critical habitat to areas of 
known occupancy having the necessary PCEs and which were determined to 
be essential for recovery. However, because of the relatively broad 
definition of `occupied' used in this rule, it is likely that forage 
habitat is included as well as breeding habitat and migratory 
corridors.
    (27) Comment: Floodplains are not mentioned in the proposed 
designation. Does this mean they are not included?
    Our Response: We have only included occupied aquatic habitats that 
contain the features essential to the conservation of bull trout within 
the designation. Federal activities occurring in floodplains may affect 
designated critical habitat, and as such would be reviewed in section 7 
consultation.
    (28) Comment: Comments provided in the previous rule for the 
Klamath River and Columbia River populations were not addressed.
    Our Response: All substantive issues raised in comments received 
during public comment period for the proposed rule received a response. 
The response was to either accept or incorporate the issue raised, or 
to provide a narrative response as to why we did not do so.
    (29) Comment: Existing regulatory mechanisms are inadequate and 
continuing threats to bull trout and its habitat from a variety of land 
and water management activities warrant the designation of all habitat 
essential to bull trout survival and recovery.
    Our Response: We believe this designation is based on the best 
scientific and commercial information available, includes only occupied 
habitat, and contains those areas that contain the features essential 
to the conservation of bull trout. Some areas we identified as 
essential to the conservation of bull trout are not designated in the 
final rule. This is due to the areas not meeting the definition of 
critical habitat under section 3(5)(A) or exclusion under 4(b)(2). 
Sections 3(5)(A) (definition of critical habitat) and 4(b)(2) 
(Secretarial weighing of the benefits of inclusion versus the benefits 
of exclusion) of the Act provide for specifc areas to be excluded from 
critical habitat if they are otherwise provided needed protection (see 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) section below).
    (30) Comment: The final rule is inadequate to recover bull trout 
and the status quo is leading to declining populations in spite of 
section 7 consultations, habitat conservation plans, and state 
restoration plans.
    Our Response: Recovery planning for bull trout is complex due, in 
part, to its wide geographic distribution and multifaceted life 
history. Recovery of the species will require a variety of efforts and 
the cooperation of Federal, state, tribal, and other entities. Critical 
habitat by itself will not recover the species, but does provide an 
additional regulatory benefit for bull trout habitat where protection 
and special management are necessary to ensure the habitat contributes 
to the conservation of the species. While any one effort will not 
recover bull trout, we believe that through the cooperative efforts of 
all stakeholders, using a variety of conservation tools, bull trout can 
reach the point of no longer needing the protections of the Act.
    (31) Comment: We believe that the current attempt to solicit more 
information on the critical habitat rule is unlawful.
    Our Response: We disagree and believe that soliciting public 
comment is essential to conserving any species.
    (32) Comment: Why is the entire Columbia River mainstem (especially 
the upper Columbia River) designated as critical habitat, what data 
were used, and why did the Service use the draft recovery plan?
    Our Response: This final rule does not include the entire Columbia 
River mainstem. The bull trout is a wide ranging migratory species and 
follows salmon, whitefish, and other prey species in the Columbia 
River, marine waters and freshwater streams and rivers. Records of bull 
trout distribution indicate their presence from the mouth of the 
Columbia River to its uppermost reaches. Past monitoring efforts for 
salmon rarely recorded bull trout in data collections because bull 
trout were not the targeted species. In the upper Columbia River data 
from multiple telemetry studies show the use by bull trout of the area 
between Priest Rapids pool and the Okanogan River, and back into 
multiple tributaries. Some bull trout that spawn in the upper Columbia 
River basin use the mainstem for six months or more. We have excluded 
some areas of the Columbia mainstem where the benefits of excluding 
these areas outweigh the benefits of including them in the designation 
(see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section 
below). Sub-adults and adults that spawn in alternate years have been 
documented using the Columbia River year-round. In reference to the use 
of the draft recovery plan, the Service acknowledges there are data 
gaps within the plan. The science used in the draft recovery plan was 
the best available data for bull trout at that time and provided the 
basis for proposing and designating critical habitat. In the process of 
developing the proposed and final critical habitat designation, 
additional data have become available, have been used in these rules, 
and are available as part of our administrative record.
    (33) Comment: All waters behind dams (reservoirs and pools) and 
areas covered by habitat conservation plans do not require designation 
due to existing management activities and should be excluded.
    Our Response: We reviewed reservoir operations and habitat 
conservation plans and carefully weighed the benefits of inclusion 
versus the benefits of exclusion. Based on this analysis we are 
excluding all reservoirs and pools that provide flood protection or 
water supply benefit and we are also excluding habitat conservation 
plans that adequately address bull trout conservation (see Section 
3(5)(a) and Exclusions under Section 4(b)(2) section below).
    (34) Comment: The final rule for Klamath River and Columbia River 
populations needs clarification regarding the exclusion of 0.5 mile 
segments on private land. The inclusion of these stream segments 
appears to contradict the statement in the rule that exempts segments 
of less than 0.5 miles on private land.
    Our Response: The intent in the previous rule was to exclude those 
stream segments that were less than 0.5 miles in length and under 
private landownership. The definition was intended to apply only to 
unbroken stream segments shorter than 0.5 miles in length, irrespective 
of underlying landownership patterns. The Service is no longer 
excluding areas of critical habitat on this basis, and all stream 
segments regardless of length remain designated critical habitat.

Exclusion Comments

    (35) Comment:Exclusions are arbitrary and benefit special interest 
groups.
    Our Response: All areas excluded are covered by management plans 
that specifically address bull trout PCEs, or are being excluded based 
on policy considerations. Exclusions were carefully reviewed and the 
Secretary has made the determination that the benefits of excluding 
these habitats outweighs the benefits of including them in the 
designation (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).
    (36) Comment: Comments were received to either exclude or to 
include areas covered by HCPs.

[[Page 56219]]

    Our Response: We determined that waterbodies within lands covered 
under an existing or pending HCP should be excluded from the 
designation of critical habitat where the benefits of excluding these 
habitats covered by these management plans outweighs the benefits of 
including them in the designation (see Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) section below).
    (37) Comment: Comments were received to either exclude or to 
include areas covered by the Washington Forest Practice Rules. Reasons 
cited for including areas covered by the Washington Forest Practice 
Rules were that the rules are not complete, the rules do not include 
adequate standards, it has not been fully implemented, and the adaptive 
management process is incomplete. A primary reason expressed for 
excluding those lands was that this law protects aquatic habitat on 
State and private land.
    Our Response: Washington State law H.B. 2091, which codified the 
Washington Forest Practice Rules, is a science-based plan that protects 
water quality and fish habitat on over 8 million acres (3.2 million ha) 
of non-Federal forestland throughout Washington State. Implementing 
these regulations is expected to maintain the thermal regimes of 
streams within the range of normal variation, contribute to the 
maintenance of complex stream channels, maintain appropriate 
substrates, natural hydrograph, ground-water sources and subsurface 
connectivity, migratory corridors, and provide abundant food sources 
for bull trout. Because the benefits of excluding the streams covered 
by the Washington Forest Practice Rules outweigh the benefits of 
including them, we have excluded stream segments protected by these 
regulations. See Washington State Forest Practices Rules and 
Regulations, as amended by the Forest and Fish Law (FFR) under the 
Lands to be Excluded from Critical Habitat under section 4(b)(2) of 
this final rule for further discussion on FFR.
    (38) Comment: We believe the current Forest Service Land and 
Resource Management Plans (LRMP) as amended by the Northwest Forest 
Plan, PACFISH, and/or INFISH aquatic conservation strategies provide 
the necessary protection and special management that would eliminate 
the need to designate these areas as critical habitat. In addition, the 
designation would provide little additional benefit as described under 
Section 4(b)(2) of the Act.
    Our Response: We agree. These areas have been excluded from the 
final critical habitat designation (see Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) section below).
    (39) Comment: Areas covered by the Oregon Forest Practices Act 
(OFPA) and the Oregon Plan for Salmon and Watersheds (OR Plan) should 
be excluded.
    Our Response: The OFPA includes provisions that generally limit 
clear cut size, require retention of green trees within harvest units 
for stream shading and downed wood for recruitment into riparian areas, 
and require replanting after harvest. However, the OFPA has no 
provisions that specifically address any of the PCEs for bull trout or 
for ensuring their conservation or protection. The OR Plan serves as a 
general salmon conservation planning guide and encourages close 
coordination among the agencies responsible for salmon conservation. 
Both the OFPA and OR Plan are well intentioned and provide 
encouragements and some benefits to aquatic habitats in areas where 
they apply. However, we were unable to determine that the OFPA or the 
OR Plan provide adequate conservation or protection of bull trout or 
their PCEs. Therefore, the areas covered by the OFPA or OR Plan do not 
warrant exclusion based on special protections or management.
    (40) Comment: The Montana Bull Trout Plan should not be used as the 
basis for excluding lands from critical habitat. It is a voluntary plan 
without tracking, reporting, or funding certainty, and it provides no 
protections against detrimental groundwater or surface water 
extraction. Implementation has been slow or nonexistent, the list of 
recommended immediate conservation actions were not acted upon or 
incorporated into the Plan.
    Our Response: We have reviewed the plan and determined it does not 
provide special management protections to the same extent a critical 
habitat designation would. Therefore, we are not using the Montana Bull 
Trout Plan as a basis for excluding lands from critical habitat.
    (41) Comment: No critical habitat should be designated on military 
lands for national security concerns or those that have Integrated 
Natural Resource Plans.
    Our Response: Pursuant to section 4(a)(3)(B)(i) of the Act, the 
Service has not included critical habitat on military installations 
that have an Integrated Natural Resource Plan (INRMP) that provide 
benefits to the bull trout. Pursuant to section 4(b)(2) of the Act, we 
have excluded other military lands based on national security concerns 
(see Section 3(5)(A) and Exclusions Under Section 4(b)(2) section 
below).
    (42) Comment: Reservoirs should be included as critical habitat.
    Our Response: In many places reservoirs provide important foraging 
and overwintering habitat for bull trout and contain the features 
essential to the conservation of the bull trout. However, under 4(b)(2) 
of the Act, the Secretary has discretion to exclude any area from 
critical habitat if she determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless she determines, based on the best scientific and 
commercial data available, that the failure to designate such area as 
critical habitat will result in the extinction of the species. The 
Secretary carefully weighed the benefits of inclusion versus the 
benefits of exclusion regarding reservoirs (see Section 3(5)(A) and 
Exclusions under Section 4(b)(2) section below) and found that, for 
those reservoirs that provide a flood control or water for human 
consumption function, the benefits of exclusion outweighed the benefits 
of inclusion.
    (43) Comment: All tribal reservation lands should be excluded from 
critical habitat designation.
    Our Response: In accordance with the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951), Executive Order 13175, and 
512 DM 2, we coordinate with federally-recognized tribes on a 
government-to-government basis. Further, Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (1997) provides that critical habitat 
should not be designated in an area that may impact tribal trust 
resources unless it is determined to be essential to the conservation 
of a listed species and that Tribes be given deference when evaluating 
conservation management planning.
    Accordingly, we are obligated to consult with tribes based on their 
unique relationship with the Federal government, and to evaluate the 
appropriateness of designating tribal lands within the framework of the 
above mentioned directives. In addition, we evaluate tribes' past and 
ongoing efforts for species conservation and the benefits of including 
or excluding tribal lands in the designation under section 4(b)(2). We 
contacted all tribes potentially affected by the proposed designations 
and met with a number of these tribes to discuss their ongoing or 
future management strategies for bull trout. Several tribes 
subsequently submitted letters requesting exclusions from the 
designation based on their ongoing

[[Page 56220]]

management and conservation efforts, or their commitment to develop an 
appropriate management plan, on their lands. We excluded those tribal 
lands where there was a commitment to conserve bull trout habitat and 
where the benefits of exclusion where found to outweigh the benefits of 
inclusion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act section below).
    (44) Comment: The Service ignores court decisions and required 
components of the Act when it states that areas can be excluded based 
on economic impacts, national security, management plans, and the 
preservation of partnerships (see Center for Biological Diversity v. 
Norton (2003)).
    Our Response: Section 4(b)(2) of the Act allows us to consider the 
economic impact, national security impact, and any other relevant 
impact of designating any particular area as critical habitat. An area 
may be excluded from critical habitat if it is determined that the 
benefits of exclusion outweigh the benefits of designating a particular 
area as critical habitat, unless the failure to designate such an area 
as critical habitat will result in the extinction of the species. In 
addition, the congressional record is clear that the consideration and 
weight given to any impact is completely within the Secretary's 
discretion (see Section 3(5)(A) and Exclusions Under Section 4(b)(2) 
section below).
    (45) Comment: Does excluding habitat covered by HCPs also exclude 
covered activities on lands the applicant does not own or manage? For 
example, studies are occurring on lands not owned by the City of 
Seattle but required by the terms of the approved HCP.
    Our Response: Areas excluded due to the existence of an approved 
HCP only include those areas directly covered by the HCP. Areas outside 
the HCP e.g., City of Seattle, remain designated critical habitat 
unless excluded for some other reason.

Comments Related to the Economic Analysis

    (46) Comment: The Service neglected to conduct an economic analysis 
(EA) for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly 
River bull trout populations, contrary to the Act's requirements.
    Our Response: The Service did conduct an economic analysis for the 
Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River bull 
trout populations. We informed the public in the proposed rule that we 
would be conducting an analysis of the economic impacts of designating 
the proposed areas as critical habitat prior to making a final 
determination. We announced the availability of the DEA with a notice 
in the Federal Register (May 3, 2005, 70 FR 22835) that reopened the 
public comment period on the DEA and the proposed rule at that time. 
Reopening the comment period allowed the public to concurrently review 
and comment on both the DEA and the proposed critical habitat 
designation. We subsequently provided this same information when 
replying to electronic mail (e-mail) messages and telephone calls, and 
during the public hearing held in Washington.
    (47) Comment: The costs of critical habitat outweigh the benefits 
of designation and all costs associated with critical habitat should be 
included in the analysis.
    Our Response: This final rule excludes areas where the benefits of 
excluding critical habitat have been determined to exceed the benefit 
of including these areas in the designation under provisions of section 
4(b)(2). The economic analysis (EA) considers the economic efficiency 
effects that may result from the designation, including habitat 
protections that may be coextensive with the listing of the species. It 
also addresses distribution of impacts, including an assessment of the 
potential effects on small entities and the energy industry. The 
analysis focuses on quantifying the direct and indirect costs of the 
rule although economic impacts to land-use activities may exist in the 
absence of designating critical habitat. For example, economic impacts 
may result from local zoning laws, state and natural resource laws, and 
enforceable management plans and best management practices applied by 
other s