Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States, 63898-64070 [2010-25028]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 200 (Monday, October 18, 2010)]
[Rules and Regulations]
[Pages 63898-64070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25028]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Revised Designation of 
Critical Habitat for Bull Trout in the Coterminous United States; Final 
Rule

Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2009-0085]
[MO 92210-0-0009]
RIN 1018-AW88


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for Bull Trout in the Coterminous 
United States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are revising critical 
habitat for the bull trout (Salvelinus confluentus) under the 
Endangered Species Act of 1973, as amended (Act). We are designating a 
total of 31,750.8 km (19,729.0 mi) of streams (which includes 1,213.2 
km (754.0 mi) of marine shoreline) and are designating a total of 
197,589.2 ha (488,251.7 ac) of reservoirs and lakes. The areas 
designated as critical habitat are located in the States of Washington, 
Oregon, Nevada, Idaho, and Montana.

DATES: This rule becomes effective on November 17, 2010.

ADDRESSES: This final rule and the associated final economic analysis, 
as well as comments and materials received, and supporting 
documentation we used in preparing this final rule, are available on 
the internet https://www.regulations.gov (see Docket No. FWS-R1-ES-2009-
0085; at https://www.fws.gov/pacific/bulltrout/; and by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Boise, ID 83709; 
telephone 208-378-5293; facsimile 208-378-5262.

FOR FURTHER INFORMATION CONTACT: Brian Kelly, State Supervisor, U.S. 
Fish and Wildlife Service, Idaho Fish and Wildlife Office (see 
ADDRESSES). If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of critical habitat for the bull trout 
in this final rule. For more information on bull trout biology and 
habitat, population abundance and trend, distribution, demographic 
features, habitat use and conditions, threats, and conservation 
measures, please refer to the Bull Trout 5-year Review Summary and 
Evaluation, completed April 25, 2008, available at https://ecos.fws.gov/docs/five --year --review/doc1907.pdf. For information on bull trout 
critical habitat, and information on the associated draft economic 
analysis for the proposed rule to designate revised critical habitat, 
refer to the proposed rule to designate critical habitat for the bull 
trout published in the Federal Register on January 14, 2010 (75 FR 
2269).

Description, Distribution, Habitat and Recovery

    Bull trout 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. Bull trout 
historically occurred in the Sacramento River basin, and were more 
widespread in general than they are now. The distribution of 
populations, however, is scattered and patchy (Goetz 1989, p. 4; Ziller 
1992, p. 6; Rieman and McIntyre 1993, p. 3; Light et al. 1996, p. 44; 
Quigley and Arbelbide 1997, p. 1176).
    Bull trout have more specific habitat requirements than most other 
salmonids (Rieman and McIntyre 1993, p. 4). Habitat components that 
particularly influence their distribution and abundance include water 
temperature, cover, channel form and stability, spawning and rearing 
substrate conditions, and migratory corridors (Fraley and Shepard 1989, 
p. 138; Goetz 1989, p. 19; Watson and Hillman 1997, p. 247). Large 
patches of these components are necessary to support robust 
populations. This rule identifies those physical or biological features 
essential to bull trout conservation.
    Bull trout exhibit a variety of migratory and nonmigratory life 
histories. 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, p. 
133). Resident and migratory forms may be found together, and either 
form can produce resident or migratory offspring (Rieman and McIntyre 
1993, p. 2). Historically most bull trout populations may have included 
a migratory component, and any resident-only forms found today may 
often reflect a loss of the migratory component due to impacts such as 
habitat loss or migration barriers (Muhlfeld 2010, pers.comm.).
    Bull trout, coastal cutthroat trout (Oncorhynchus clarkii clarkii), 
Pacific salmon (Oncorhynchus spp.), and other species that migrate from 
saltwater to freshwater to reproduce are commonly referred to as 
anadromous. 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, p. 5; Brenkman and Corbett, 2005, p. 1075). The 
amphidromous life history form of bull trout is unique to the Coastal-
Puget Sound population (64 FR 58921, November 1, 1999). For additional 
information on the biology of this life form, see the 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).
    The decline of bull trout is primarily due to habitat degradation 
and fragmentation, blockage of migratory corridors, poor water quality, 
past fisheries management practices, impoundments, dams, water 
diversions, and the introduction of nonnative species (63 FR 31647, 
June 10, 1998; 64 FR 17112, April 8, 1999). Climate change may 
exacerbate some of these impacts. The bull trout 5-year review (Service 
2008, p. 45) recommended that the recovery units identified in the 2002 
draft recovery plan be updated based on assemblages of bull trout core 
areas (metapopulations, or interacting breeding populations) that 
retain genetic and ecological integrity and are significant to the 
distribution of bull trout throughout the conterminous United States. 
After consulting with biologists from States, Federal agencies, and 
Native American Tribes, and applying the best scientific information 
available, we identified six draft recovery units for bull trout in the 
conterminous United States. Please refer to the ``Critical Habitat'' 
section below for additional information on this topic.

Previous Federal Actions

    On November 29, 2002, we proposed to designate critical habitat for 
the Klamath River and Columbia River bull trout populations (67 FR 
71235). On October 6, 2004, we finalized the critical habitat 
designation for the Klamath

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River and Columbia River bull trout populations (69 FR 59995). On June 
25, 2004, we proposed to designate critical habitat for the Jarbidge 
River, Coastal-Puget Sound, and Saint Mary-Belly River bull trout 
populations (69 FR 35767). On September 26, 2005, we designated 
critical habitat for the Klamath River, Columbia River, Jarbidge River, 
Coastal-Puget Sound, and Saint Mary-Belly River populations of bull 
trout (70 FR 56212). Please refer to the above-mentioned rules for a 
detailed summary of previous Federal actions completed prior to 
publication of this final rule.
    On January 5, 2006, a complaint was filed in Federal district court 
by the Alliance for the Wild Rockies, Inc., and Friends of the Wild 
Swan, alleging the U.S. Fish and Wildlife Service (Service) failed to 
designate adequate critical habitat, failed to rely on the best 
scientific and commercial data available, failed to consider the 
relevant factors that led to listing, and failed to properly assess the 
economic benefits and costs of critical habitat designation. Other 
allegations included inadequate analysis and unlawful use of exclusions 
under section 4(b)(2) of the Act. On March 23, 2009, the Service 
provided notice to the U.S. District Court for the District of Oregon 
that we would seek remand of the final critical habitat rule for bull 
trout based on the findings of an investigative report by the 
Department of the Interior's Inspector General (USDI 2008, pp. 10-38). 
On July 1, 2009, the Court granted our request for a voluntary remand 
of the 2005 final rule and directed a new proposed rule to be completed 
by December 31, 2009, with a final rule submitted to the Federal 
Register by September 30, 2010 (Alliance for the Wild Rockies v. Allen, 
2009 U.S. Dist. LEXIS 63122 (D. Or., July 1, 2009)). On January 14, 
2010, the Service published a proposed revised bull trout critical 
habitat rule (75 FR 2269). The comment period on the proposed rule was 
open for 60 days, ending March 15, 2010. On March 23, 2010, we reopened 
the comment period on the proposed rule for an additional 14 days, 
ending April 5, 2010 (75 FR 13715).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the bull trout during two comment 
periods. The first comment period, associated with the publication of 
the proposed rule and announcement of availability of draft economic 
analysis (75 FR 2269, January 14, 2010), opened on January 14, 2010, 
and closed on March 15, 2010. We also reopened the comment period for 
an additional 15 days from March 23, 2010, to April 5, 2010 (75 FR 
13715, March 23, 2010), to accommodate a request for a comment period 
extension. We also contacted appropriate Federal, State, tribal, and 
local agencies, scientific organizations, and other interested parties 
and invited them to comment on the proposed rule and the draft economic 
analysis. We held a public hearing in Boise, Idaho, on February 25, 
2010, and held public meetings and open houses in Bend, Chiloquin, and 
LaGrande, Oregon; Post Falls, Idaho; Missoula, Montana; Elko, Nevada; 
and Wenatchee Washington. During the first comment period, we received 
a request for an additional public hearing from the Native Fish 
Society; however, section 4(b)(5)(E) of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.), only requires that one 
public hearing be held on a proposed regulation if any person files a 
request for such a hearing within 45 days after the date of publication 
of a proposed rule. Because of the court-ordered deadline, we were 
unable to hold an additional public hearing; however, we did conduct an 
additional open house and public information meeting in Vancouver, 
Washington, in response to the Native Fish Society's request.
    We received several hundred comment letters and e-mails from 
individuals and organizations, and speaker testimony at the February 
25, 2010, Boise, Idaho, public hearing. We also received comment 
letters from four peer reviewers, eight State agencies, several Native 
American Tribes, and seven Federal agencies, including the U.S. Navy.
    We coordinated the proposed revision of critical habitat with 
federally recognized Tribes on a government-to-government basis 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 the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2). We contacted all Tribes potentially affected by the 
proposed designation and met with a number of these Tribes to discuss 
their ongoing or future management strategies for bull trout.
    All substantive information provided during comment periods has 
either been incorporated directly into this final designation or 
addressed below. Comments we received were grouped into general issues 
specifically relating to the proposed critical habitat designation for 
the bull trout, and are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994, (59 FR 34270), we solicited opinions from four 
knowledgeable individuals with scientific expertise that included 
familiarity with the species, the geographic region in which the 
species occurs, and conservation biology principles. We received 
responses from each of the peer reviewers we contacted. We reviewed all 
comments we received for substantive issues and new information 
regarding bull trout critical habitat. We have addressed peer reviewer 
comments in the following summary and have incorporated them into this 
final rule as appropriate.
    The peer reviewers generally agreed we relied on the best 
scientific information available, accurately described the species and 
its habitat requirements (primary constituent elements (PCEs)), and 
accurately characterized the reasons for the species' decline and the 
threats to its habitat, and the peer reviewers generally concurred with 
our critical habitat selection criteria. Peer reviewer comments 
addressed several topics, including the importance of off-channel 
habitats and information on specific waterbodies, climate change, 
migratory corridors and connectivity, historical and contemporary 
range, disturbance processes, primary constituent elements, and 
threats.

Comments from Peer Reviewers

    (1) Comment: The Service should discuss uncertainty in our 
knowledge of habitat use by bull trout and what habitat features are 
important to bull trout. Peer reviewers expressed concern about how new 
information (e.g., regarding bull trout occupancy, and habitat 
requirements and use) should be integrated into critical habitat 
protections. Because we do not know what type of disturbance will occur 
where, or how long those effects may last, there are uncertainties 
regarding future habitat viability (i.e., what is good habitat today 
might not be suitable in the future, and vice versa).
    Some specific comments include the following. The term ``migratory 
corridors'' implies that fish do not occupy these areas for extended 
periods of time during their life history, but mainstem river habitats 
are critical for rearing and overwintering. Subadults stay for months 
and years in these areas

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to grow to maturity. Bull trout depend critically on large patches of 
suitably cold habitat; cold habitat is necessary, but it also has to be 
very large as well. In addition to connectivity, this is a landscape 
characteristic that defines the species' local occurrence. In areas 
where anadromous fish are extirpated or endangered, bull trout have 
been affected through the loss of abundant prey in the form of parr and 
smolts, and by a severe reduction in marine-derived nutrients that 
adult anadromous fish formerly annually returned to interior basins. 
The PCEs do not address habitat requirements for fry-parr rearing, fry-
parr overwintering, adult staging, and adult overwintering. PCE 6 needs 
to address cobble/boulder substrates with a few fines and abundant 
interstitial spaces as essential for overwintering bull trout juveniles 
and resident bull trout. The actual range of spawning temperature is 
wider and often noted in field observations, but less frequently 
published. Studies found that fish in cold water did not move outside 
of cold water to other spawning areas, but there is probably more 
variation than indicated in the proposed rule (75 FR 2278, January 14, 
2010). The implication is that a wider range of habitats may be 
important for spawning. Finally, it appeared to reviewers that there 
was an arbitrary distinction drawn between foraging, migration, and 
overwintering (FMO) and spawning and rearing habitat. In addition, peer 
reviewers provided additional bull trout life-history information.
    Our Response: The Service agrees there are many uncertainties in 
the identification and protection of essential bull trout habitat. 
Uncertainties include an incomplete understanding of important 
features, uncertainty of future disturbance effects, a lack of data to 
clearly distinguish between spawning and rearing and FMO habitats, and 
a lack of information on how the absence of or a reduction in 
anadromous fish abundance affects bull trout. The PCEs in this final 
rule represent our best current understanding of habitat requirements 
for bull trout. The PCEs were developed by working with a broad array 
of local experts to identify both occupied habitat that contains 
physical or biological features essential to bull trout conservation, 
and unoccupied habitat that is essential to conservation. We 
acknowledge that potential disturbances such as wildfire or invasive 
species introductions are difficult to predict, but may affect bull 
trout habitat. To address this concern, we designated critical habitat 
areas we believe will be sufficient to address variability in the 
habitat function of individual portions of these habitats over time, 
based on the best available scientific information. Should it become 
necessary, we can revise critical habitat to address more complete or 
additional information (if and when such information becomes available) 
relative to bull trout conservation.
    We have revised the PCEs based on the peer review and other 
comments, and believe they address all life-history components and 
habitat needs for bull trout, including the need for large patches of 
suitably cold habitat. Given the wide range of circumstances and 
habitats to which PCEs may apply, they necessarily lack absolute 
specificity and detail. The sections on Primary Constituent Elements, 
Effects of Critical Habitat Designation, and Application of the 
Jeopardy and Adverse Modification Standards, below, provide additional 
context for how the PCEs will be interpreted and implemented.
    We acknowledge an imprecise understanding of the distinction 
between spawning and rearing habitat and FMO habitat on a general and 
site-specific basis. This final rule acknowledges that bull trout 
typically spawn over a narrow time window of a couple weeks during 
periods of decreasing water temperatures, but clarifies that spawning 
ranges from August to November depending on local conditions (Swanberg 
1997, p. 735). When we discuss migratory corridors in this rule, we 
generally refer to FMO habitat, which includes more than just habitat 
for migration at limited times of year. We agree that there is 
considerable uncertainty regarding the role FMO habitat plays in any 
particular area. We anticipate the need to include spatial and temporal 
considerations regarding the role of FMO habitat for particular areas 
during section 7 consultation, and modify those consultations 
accordingly.
    We have a limited understanding of the effects that the loss of 
anadromous fish had on bull trout, although bull trout appear to 
continue to thrive in some areas where anadromous fish have been 
eliminated. However, bull trout populations may have been more robust 
where anadromous fish were historically also present, or present in 
greater numbers. For the purposes of this designation, we believe 
identifying essential habitats regardless of the historic or current 
presence of anadromous fish provides an opportunity to protect those 
essential habitats. We anticipate evaluating more closely the role 
anadromous fish may play in bull trout conservation during recovery 
planning.
    (2) Comment: Climate change should be identified as an existing 
stressor that compounds other stressors, contributing to bull trout 
decline. Due to the complex interaction of climatic responses and the 
high degree of uncertainty associated with climate projections, there 
needs to be some type of criteria (e.g., maximum summer temperatures) 
in deciding to deemphasize some habitats. One peer reviewer commented 
the current analysis of climate impacts does not help in thinking about 
localized climate impacts; it provides a big picture view that is 
probably a lot more apocalyptic than might actually occur (for example, 
air may respond a lot more strongly to climate impacts than water 
temperatures). Maximum air and water temperatures are not always 
correlated, and changes to air temperatures may not reliably indicate 
changes to water temperature. Lower-elevation, warmer, marginal 
habitats should not necessarily be excluded from critical habitat 
because they still may serve as important migratory corridors during 
certain times of the year that could link isolated populations. Not 
including these habitats as critical habitat could result in further 
habitat fragmentation, population isolation, and associated threats 
(e.g., reduced genetic diversity.). The Service should address the 
extent to which such habitats are valued and may be accounted for in 
recovery planning.
    Our Response: We are unable to predict the site-specific effects of 
climate change on bull trout habitat throughout the range of the 
species with certainty, but we did consider climate change as we 
developed the proposed rule (75 FR 2280, January 14, 2010). For areas 
that were marginal in terms of adequately providing PCEs for the bull 
trout, which we believe would be further degraded as a result of 
climate change, we chose not to identify those areas as critical 
habitat. However, this rationale was applied only in a few instances. 
We agree with the peer review comments that these warmer habitats can 
be essential to bull trout conservation because they facilitate 
connectivity among otherwise isolated headwater populations of bull 
trout. In the Klamath Basin, we are designating a larger amount of 
unoccupied habitat of this type specifically for this reason. In most 
cases, these areas can serve as migratory corridors in a few cooler 
months of the year with higher water flows. Also, providing cold-water 
habitat during low-flow summer months may never have been an important 
feature of this kind of habitat for bull trout.
    (3) Comment: While the presence of nonnative invasive species is 
likely

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detrimental to bull trout in most cases, areas with nonnative species 
present should not necessarily be excluded from critical habitat, as 
seems to be suggested under PCE 9. Nonnative species can serve as an 
important forage base where the native fish assemblage has been 
fractured. The Service should address more clearly how nonnative 
species impact our evaluation of whether habitats are essential.
    Our Response: We agree with peer reviewer's comments and have 
revised PCE 9 to reflect the concern. We considered the impact of 
invasive species to evaluate areas that may have been marginal habitat 
to begin with. If these areas were additionally compromised because of 
robust populations of invasive species that would be difficult to 
control, we are not designating the area as critical habitat if bull 
trout populations were not reasonably recoverable and the area was not 
needed for recovery. In some cases bull trout occur in good habitat 
that is primarily impacted by invasive species. If these populations 
are essential to recovery and special management actions can be 
reasonably implemented to control invasive species, we are designating 
the area as critical habitat. More importantly, this PCE is included 
here as one key bull trout habitat protection element. So, for example, 
a Federal action that would introduce an invasive species such as brook 
trout in a watershed with bull trout critical habitat would be 
inconsistent with the recovery needs of the species in that area.
    (4) Comment: The Service should ensure that confining the lateral 
extent of the critical habitat designation in streams to the bankfull 
elevation addresses habitat needs. The Service should also clarify what 
is meant by habitat complexity under PCE 4, and develop appropriate 
metrics that relate to habitat complexity. In some basins, off-channel 
habitats may be critical for providing low-velocity habitats for 
rearing small fish, and the accessibility of these habitats will change 
with flow. Many of the constituent elements identified for bull trout 
depend on watersheds as a whole, and other contributing tributaries, 
not just the reaches that bull trout use. Consequently, it may be 
difficult or impossible to conserve bull trout by limiting habitat 
protection and restoration only to the reaches that they use.
    Peer reviewer comments related to threats included observations 
that roads can increase the likelihood of poaching; herbicides and 
pesticides cause additional agricultural effects; screening of 
diversions may reduce the impacts of irrigation; negative impacts of 
flow modifications associated with hydropower and flood control 
operations, and summer augmentation, may occur in downstream areas; and 
road crossings may create barriers in addition to barriers already in 
place from dams.
    Our Response: Activities above the ordinary high water mark can, 
and often do, impact bull trout critical habitat. Off-channel habitats 
may be seasonally important for bull trout, and upland management 
practices such as road construction, use, and maintenance or timber 
harvest can affect aquatic habitat. Actions that occur upstream in a 
watershed above bull trout occurrence reaches can also adversely affect 
designated habitat if not properly conducted. We will implement this 
rule consistent with our understanding of these effects, and work 
closely and cooperatively with Federal agencies to ensure any such 
actions do not adversely modify designated critical habitat.
    When we discuss bull trout habitat complexity, we refer to a 
diversity of pool, riffle, and run habitats in streams, and gravel, 
cobble, and boulder stream substrates with open interstitial spaces. We 
also refer to stream channels and their associated riparian habitat 
areas that collectively function to provide important features such as 
undercut stream banks, shade, overhanging cover, and large woody debris 
in streams and other waterbodies. Any Federal actions that would 
adversely modify these features would be inconsistent with this rule. 
Examples of these actions could include activities that introduce 
sediment into streams that clog interstitial spaces, discharge dredged 
or fill material into stream pool habitat, degrade stream banks, and 
reduce or remove large woody debris. Because of this habitat complexity 
across the range of the species, we determined and quantified the 
habitat needs of the bull trout and defined the PCEs to include the 
needs of the species across all types of waterbodies within the full 
range of the bull trout. We have presented additional information for 
Federal agencies in the sections on Primary Constituent Elements and 
Section 7 Consultation, below, to help them consider their future 
actions and ongoing actions where they have continuing discretionary 
involvement with regard to conserving the PCEs. With regard to the 
comment that it may be difficult or impossible to conserve bull trout 
by limiting habitat protection and restoration only to the reaches that 
they use, we do not limit the critical habitat designation to occupied 
habitat. We are designating approximately 1,323.7 km (822.5 mi) of 
streams and 6,758.8 ha (16,701.3 ac) of unoccupied habitat to address 
bull trout conservation needs in specific geographic areas.
    (5) Comment: It is unclear where occupied habitats that are not 
proposed for designation are located, or where historical populations 
of bull trout once occurred. It is reasonably arguable that some 
critical habitat is more critical to the conservation needs of the 
species than other critical habitat.
    Our Response: Section 3(5)(A) of the Act defines critical habitat, 
in part, as the specific areas within the geographical 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 
which may require special management considerations or protection. 
Based on this definition, the proposed rule identified a large majority 
of habitat that was known to be occupied by bull trout at the time of 
listing. It is uncertain how much habitat may have been historically 
occupied but is no longer occupied. We used the best scientific 
information available to include occupied habitat with the features 
essential to the conservation of the species, as well as unoccupied 
areas also essential to the conservation of the bull trout. All areas 
designated as critical habitat in this final rule are essential to the 
conservation of the species, based on the best available information.
    (6) Comment: Peer reviewers questioned whether restoration 
activities in areas that are not designated as critical habitat could 
be counted as progress in terms of recovery, and whether all areas 
designated as critical habitat would have to be recovered before 
declaring overall bull trout recovery. One peer reviewer recommended 
that the final rule address how bull trout will be protected in 
reintroduction sites, such as the Clackamas River in Oregon, and how 
these areas may or may not be linked to the persistence of populations.
    Our Response: These comments will be fully considered as we engage 
in the recovery planning process. Please see the Relationship of 
Critical Habitat to Recovery Planning section of this rule for more 
information regarding this effort.
    (7) Comment: One peer reviewer stated that it wasn't clear whether 
areas outside of critical habitat are essential to conservation of bull 
trout, and that if not, biological consultations and

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recovery planning and implementation should incorporate these 
considerations.
    Our Response: This rule designates as critical habitat areas that 
we have determined to meet the definition of critical habitat under 
section 3(5)(A) of the Act, except for those areas we have identified 
and expressly excluded under section 4(b)(2) of the Act. A critical 
habitat designation does not signal that habitat outside the designated 
area is unimportant or may not be required for recovery of the species. 
Areas that support populations, but are outside the critical habitat 
designation, may continue to be subject to conservation actions we 
implement under section 7(a)(1) of the Act, and are subject to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard. Please see the Effects of Critical Habitat Designation 
section in the rule for further information.
    (8) Comment: The Service should explain what has changed from 2005 
to 2010 that enabled a determination that unoccupied habitats were 
essential for the conservation of bull trout in certain areas.
    Our Response: As stated in the proposed rule (75 FR 2273, January 
14, 2010), in the 2005 final rule we did not designate any unoccupied 
critical habitat because the Secretary concluded that it was not 
possible to make a determination that such lands were essential to the 
conservation of the species. In the proposed rule and this rule, we 
were able to identify several habitats not occupied at the time of 
listing that we believe are essential for restoring functioning 
migratory bull trout populations based on currently available 
scientific information. These areas often include lower main stem river 
environments that can provide seasonally important migration habitat 
for bull trout. This type of habitat is essential in areas where bull 
trout habitat and population loss over time necessitates reestablishing 
bull trout in currently unoccupied habitat areas to achieve recovery.
    (9) Comment: More detailed and recent literature should be reviewed 
to support the habitat needs discussion. Updated citations and 
references that list research and other new information obtained since 
the original listing should be incorporated into the critical habitat 
rule.
    Our Response: We agree, and have done so in this final rule.

Comments from States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments we received from States regarding the proposal to designate 
revised critical habitat for the bull trout are addressed below. We 
received comments from the Nevada Division of Wildlife, Montana Fish 
Wildlife and Parks, Oregon Department of Fish and Wildlife, Washington 
Department of Fish and Wildlife, Washington Department of Natural 
Resources (WDNR), Idaho Department of Lands, Idaho Office of Species 
Conservation, and Idaho Department of Fish and Game related to 
biological information for specific waterbodies, critical habitat 
exclusions, and economics. These agencies provided additional 
information and made recommendations for revisions to the final 
critical habitat designation in several specific areas. Two agencies 
expressed specific support for the Service's approach to designating 
critical habitat.
    (1) Comment: We received several comments from State resource 
agencies presenting site-specific biological information on areas that 
should or should not be considered essential habitat, and the 
underlying rationale for those recommendations.
    Our Response: The information received from our State resource 
agency partners was very helpful, and enabled us to refine our 
understanding of habitat essential to the conservation of the species, 
and in the case of occupied habitat, habitat that contains physical or 
biological features that may require special management considerations 
or protections. We based the proposed rule on the best available 
information at that time; we requested technical input from a variety 
of partners, including the States, to help us refine the final critical 
habitat designation. The final rule has been adjusted, accordingly, 
including modifying boundaries of critical habitat units, based on our 
partners' site-specific biological expertise with the species.
    (2) Comment: We received comments from some State agencies 
identifying concerns with the draft economic analysis, which included 
failure to consider costs related to bull trout recovery, failure to 
request economic information from the State prior to publication of the 
proposed rule, and costs to forest land management.
    Our Response: These comments have been addressed below in the 
section of the final rule that responds to all comments we received on 
the draft economic analysis.
    (3) Comment: Some commenters recommended that we exclude lands 
subject to State conservation planning efforts, or that we rely on 
existing habitat protections, such as State forest practice rules, 
rather than designating critical habitat in those areas.
    Our Response: We disagree. It would be inappropriate to rely on 
other protections such as state forest practice rules or similar large-
scale programs that have not been subject to review under the Act as an 
alternative to critical habitat designation, based on the uncertainty 
of protections that would be afforded to the physical or biological 
features essential to bull trout conservation. Uncertainty regarding 
future funding, and revisions and implementation of those plans is also 
a concern. However, some State conservation planning efforts related to 
finalized habitat conservation plans (HCPs) have resulted in our 
exclusion of areas from critical habitat designation under section 
4(b)(2) of the Act. Please see the Exclusions section below for 
additional information.
    (4) Comment: One State agency commented that the Service proposed a 
vast and over-reaching critical habitat designation without first 
acquiring the requisite site-specific information required by the Act. 
The State agency also commented that, without future refinement, the 
designation would lead to unnecessary regulation on otherwise lawful 
activities. The agency also expressed concern that the Service ignored 
information regarding the agency's position when forming the basis for 
the revised critical habitat designation.
    Our Response: As required by section 4(b)(2) of the Act, we used 
the best scientific data available in determining areas that contain 
the features essential to the conservation of bull trout for the 
proposed rule. Data sources included research published in peer-
reviewed journals and previous Service documents, including the final 
listing determination (64 FR 58909, November 1, 1999), the bull trout 
draft recovery plan (Service 2002), and the bull trout 5-year review 
(Service 2008). In the proposed rule, we requested comments or 
information from the public, other concerned government agencies, the 
scientific community, industry, and other interested parties, which 
included a specific request for information regarding areas essential 
to the conservation of the species. Because of the court-ordered 
deadline for delivery of a proposed rule to the Federal Register, our 
strategy was to work closely with our resource management partners 
after publication of the proposed rule, and use their biological 
expertise to help us refine the final critical habitat designation. 
This final

[[Page 63903]]

rule incorporates that information, as appropriate.
    (5) Comment: One State agency commented that the designation of 
critical habitat for bull trout invites the potential for additional 
regulatory burdens to be placed on landowners, persons holding public 
land permits, and industries. The agency also commented that while the 
Service is already consulting on projects with a Federal nexus under 
section 7 of the Act, the bar is now arguably raised as reinitiation of 
consultation will be required to ensure permitted activities do not 
adversely modify critical habitat.
    Our Response: The Service believes any additional regulatory 
burdens resulting from the designation of critical habitat in occupied 
areas will be minimal. The rationale for this determination is that the 
species was listed under the Act because of threats to habitat, and 
section 7 consultations are already required to address any habitat-
related impacts associated with Federal actions. Although it is 
theoretically possible, we have been unable to identify any specific 
type of Federal action that could adversely modify critical habitat in 
occupied areas that would not also result in a jeopardy finding for the 
same action. Accordingly, we do not believe the regulatory bar has been 
raised in occupied areas. Designating critical habitat adds educational 
value in these areas by identifying habitats that should be prioritized 
for recovery actions as opportunities arise. While critical habitat may 
result in additional conservation requirements for Federal actions in 
unoccupied areas, we do not believe this would be a significant impact 
because these areas constitute only 4 percent of the total critical 
habitat area being designated in this final rule. Federal agencies will 
need to consider the adverse modification of critical habitat in future 
section 7 consultations, and may need to reinitiate consultation on 
existing actions where they have continued discretionary involvement or 
control if the activity may affect designated critical habitat. 
However, we anticipate the overall result of reinitiation will be minor 
because of the similarity between measures needed to avoid the 
destruction or adverse modification of critical habitat and measures 
needed to avoid jeopardizing the species. In addition, consultation 
tools such as streamlining and programmatic consultations are commonly 
implemented to minimize the administrative costs associated with 
consultation within the range of bull trout.
    (6) Comment: Concern was expressed that if all unoccupied critical 
habitat had to be recolonized and recovered before bull trout could be 
delisted, the uncertainties and potential costs associated with this 
requirement would be high.
    Our Response: One of the greatest conservation benefits of critical 
habitat is the designation of unoccupied habitat that is essential to 
the conservation of a listed species. For bull trout, unoccupied 
habitat plays an important role in restoring connectivity between 
currently isolated headwater populations via lower mainstem river 
habitats. The Service does not believe all designated unoccupied 
habitat would necessarily need to be recolonized and restored to 
declare recovery, and we would take into consideration the status of 
adjacent populations (e.g., their robustness in relation to threats). 
For example, nearby occupied habitats could currently be in an 
imperiled status, but by restoring bull trout in adjacent unoccupied 
habitat, the overall recovery potential in that area could be improved. 
We anticipate that the bull trout recovery planning process and our 
continued progress towards achieving recovery goals will provide more 
precision with regard to identifying the restoration needs of specific 
habitat areas.
    (7) Comment: Two State agencies expressed support for the Service's 
approach to designating critical habitat, stating that: (1) The 
approach generally provides the breadth of habitat necessary to support 
bull trout in a fully recovered state and includes significant portions 
of aquatic habitat that are currently not occupied or disconnected due 
to anthropogenic (i.e., human-caused) factors; and (2) the approach 
contains those areas essential for the conservation of the bull trout.
    Our Response: We appreciate this support from our partners, and the 
helpful site-specific information they presented in response to the 
request for information in the proposed rule.
    (8) Comment: The Washington Department of Natural Resources 
presented information supportive of excluding lands covered under the 
final State HCP and the final Forest Practices HCPs. The Montana 
Department of Natural Resources presented information supportive of 
excluding streams and rivers intersecting forested Montana State Trust 
lands that would be covered under a draft HCP from the final bull trout 
critical habitat rule.
    Our Response: Please refer to the discussion of the Forest 
Practices HCPs in our responses to Public Comments below and in the 
Application of Section 4(b)(2) of the Act section under Exclusions in 
this final rule. The WDNR State lands HCP is discussed under the 
Application of Section 4(b)(2) of the Act in this rule.
    When considering HCPs, draft land-management plans, and draft 
conservation agreements, the Service can consider the certainty of 
implementation or the lack thereof, especially if there are no 
established procedures to ensure that the final instrument will produce 
the anticipated benefits. The Service believes that, in general, it is 
inappropriate exclude areas that are covered by draft conservation 
programs or plans, because their proposed conservation measures are 
subject to change. Without a high degree of assurance that conservation 
measures will be implemented and effective for a particular species and 
its habitat, we cannot complete a meaningful analysis under section 
4(b)(2) of the Act.

Federal Agency Comments

Bureau of Land Management
    (1) Comment: The Service should exclude Bureau of Land Management 
(BLM)-administered lands from critical habitat designation.
    Our Response: The Secretary of the Interior may exclude an area 
from critical habitat designation under section 4(b)(2) of the Act 
after taking into consideration the economic impact, the impact on 
national security, and any other relevant impact if he determines the 
benefits of exclusion outweigh the benefits of specifying such area, 
unless he determines the exclusion would result in the extinction of 
the species concerned. The primary benefit of including an area within 
critical habitat designation is the protection provided by section 
7(a)(2) of the Act that directs Federal agencies to ensure that their 
actions do not result in the destruction or adverse modification of 
critical habitat. The benefit of designating critical habitat is 
limited if the areas under consideration occur on private lands for 
which there may not be a Federal nexus to invoke the protections of 
section 7(a)(2) of the Act. Federal lands by default have a Federal 
nexus, and the intent of section 7 of the Act is to require Federal 
agencies to consult on any action authorized, funded, or carried out by 
such agency to ensure that the action will not jeopardize a listed 
species or destroy or adversely modify its critical habitat. In 
addition, section 7(a)(1) of the Act states, in part, ``Federal 
agencies shall, in consultation with and with the assistance of the 
Secretary, utilize their authorities in furtherance of the purposes of 
this Act

[[Page 63904]]

by carrying out programs for the conservation of endangered and 
threatened species.'' Therefore, the benefits of inclusion of these 
areas are greater because they are Federal lands.
    We requested specific information from the BLM describing: 
(1)Activities being conducted and planned that conserve bull trout or 
the physical or biological features identified in the proposed critical 
habitat rule; (2) the status of management plans, including the 
geographic area covered, date finalized, date implementation was 
initiated, timeline for future revisions, and the amount of critical 
habitat affected by the plan; (3) specific management measures that 
conserve the physical or biological features in the plan area; (4) 
conservation benefits associated with the plan; (5) information on plan 
implementation, including the level of certainty and uncertainty that 
exists with regard to conservation commitments and funding assurances 
continuing into the future; and (6) the plan's effectiveness related to 
biological goals and objectives, implementation progress, monitoring, 
adaptive management provisions, and schedule. We also requested 
specific examples of completed projects that have improved the status 
of bull trout within a particular plan area.
    Although specific information was not presented, we did receive 
some information from the BLM on Areas of Critical Environment Concern 
(ACEC) Plans, the Wild and Scenic River Management (WSR) Plans for the 
Deschutes and Lower Crooked Rivers in Oregon, and the Willamette Basin 
Water Quality Restoration Plan (WBWQ) to support their request for the 
exclusion of BLM-administered lands from critical habitat designation. 
The BLM also resubmitted comments that were prepared for the Service's 
consideration for the 2005 bull trout final critical habitat rule; 
those comments summarize several management plans and guidance 
documents, such as agency memorandums, BLM Manual chapters, Land Health 
Standards, Pacific Anadromous Fish Strategy (PACFISH), Inland Fish 
Strategy (INFISH), National Fire Plan, Healthy Forests Restoration Act 
of 2003 (16 U.S.C. 6501 et seq.), Wilderness Study Areas, Interior 
Columbia River Basin Ecosystem Management Project, Road Density and 
Land Management recommendations, and Regional Executive/Line Manager 
Oversight/Communication roles. We have reviewed the information that 
was submitted in light of the October 3, 2008, Memorandum Opinion from 
the Department of the Interior's Office of the Solicitor ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under section 4(b)(2) of the Endangered Species Act'' (DOI 
2008), and the best available information. We were unable to confirm 
that the BLM's management plans and guidance documents provide a 
conservation benefit for bull trout comparable to critical habitat 
designation, or that designation of critical habitat on BLM lands would 
present a disproportionate economic or other relevant impact. The 
Secretary has elected not to exercise his discretion under section 
4(b)(2) of the Act to exclude BLM-administered lands from this revised 
critical habitat designation. However, we are committed to working 
efficiently and proactively with the BLM to address their program 
administration needs, in light of the conservation needs of bull trout.
    (2) Comment: The BLM commented, ``The BLM does not agree and the 
guidance issued in the October 3, 2008, Solicitors Opinion does not 
support the conclusion that if something meets the Federal agency 
obligation under section 7(a)(1) it should automatically be precluded 
from exclusions under section 4(b)(2).''
    Our Response: The proposed rule does not state that actions taken 
to comply with section 7(a)(1) of the Act preclude consideration of 
those actions for purposes of section 4(b)(2) of the Act; however, it 
does state that Federal land management plans, in and of themselves, 
are generally not an appropriate basis for excluding essential habitat. 
Federal agencies have an independent responsibility under section 
7(a)(1) of the Act to use their programs in furtherance of the Act and 
to utilize their authorities to carry out programs for the conservation 
of endangered and threatened species. In areas where Federal land 
management agencies actively manage for bull trout and its habitat, 
conduct specific conservation actions for the species at a level 
comparable to critical habitat designation, provide assurances that a 
plan will remain in effect for a relevant period of time, and show that 
a disproportionate impact would result from the designation, exclusion 
under section 4(b)(2) of the Act may be appropriately considered by the 
Secretary.
    (3) Comment: Conservation measures within the Northwest Forest Plan 
(NWFP), Aquatic Conservation Strategy (ACS), and PACFISH/INFISH are 
currently still in place and continue to be adequate to provide for the 
conservation of bull trout.
    Our Response: We recognize the extensive planning and development 
that has been invested in these efforts, and commend the BLM's efforts 
to conserve federally listed species on their lands. However, as stated 
in the proposed rule (75 FR 2273), large-scale Federal land management 
plans such as the NWFP and its aquatic component (the ACS), and other 
plans such as PACFISH/INFISH, are in and of themselves generally not an 
appropriate basis for excluding essential habitat. These plans 
typically guide agency activities, and provide some level of 
conservation benefit in occupied bull trout habitat areas, but are 
fluid documents that may or may not be revised, based on resource 
availability, management emphasis, and changes in management direction 
to respond to changing agency priorities.
    (4) Comment: The designation of critical habitat would not offer 
any additional protections to bull trout beyond those currently 
provided.
    Our Response: We acknowledge in the proposed rule that since the 
primary threat to bull trout is habitat loss or degradation, the 
jeopardy analysis under section 7 of the Act for a project with a 
Federal nexus will most likely evaluate the effects of the action on 
the conservation or functionality of the habitat for bull trout. We 
also stated that, in many cases, the analysis of a project to address 
designated critical habitat would be comparable to the jeopardy 
analysis, and for many circumstances the outcome of the consultation to 
address critical habitat would not result in any significant additional 
project modifications or conservation measures (75 FR 2291, January 14, 
2010). A possibility exists that a section 7(a)(2) consultation on a 
future BLM project would result in a determination that an action would 
result in the destruction or adverse modification of bull trout 
critical habitat. In accordance with our current policy, in cases where 
the Secretary determines the benefits of inclusion (designation) are 
equal to or outweigh the benefits of exclusion, he may not make an 
exclusion (USDOI 2008, p. 24).
    (5) Comment: The designation of critical habitat would impose 
additional regulatory burdens that would increase the process and 
administrative costs, and this money would be more appropriately 
directed at implementing protection measures on the ground.
    Our Response: The analyses that result from the consultation 
provisions under section 7(a)(2) of the Act constitute a regulatory 
benefit of critical habitat, and Federal agencies must consult with the 
Service on discretionary actions that may affect listed species. 
Federal agencies must

[[Page 63905]]

also analyze the effects of an action on critical habitat, which is a 
separate and different analysis from that of the effects to the 
species. We anticipate that, in some cases, this consultation would 
translate to the implementation of on-the-ground bull trout 
conservation measures. Avoiding the costs associated with the 
designation of critical habitat would be the principal benefit of 
excluding an area under section 4(b)(2) of the Act. We appreciate the 
BLM's concern that the designation of critical habitat may impose 
additional regulatory burdens and increase administrative costs; 
however, the BLM did not present any information characterizing the 
magnitude of that impact. In order to make a section 4(b)(2) exclusion 
or critical habitat designation determination, the Secretary must 
gather the available information about the economic and other relevant 
impacts that would result from his decision (DOI 2008, p. 15). We have 
no information available that would indicate that the regulatory and 
administrative burden that may result from the designation of critical 
habitat on BLM lands presents a disproportionate impact to the agency 
that outweighs the regulatory benefit of designating critical habitat 
on those lands.
    (6) Comment: The conservation benefit of designating critical 
habitat would only be realized when the Service determines the action 
would destroy or adversely modify critical habitat and reasonable and 
prudent alternatives are issued, which is rare.
    Our Response: We agree that adverse modification determinations are 
rare, because in the majority of section 7 consultations the Service is 
able to work in partnership with Federal agencies to identify ways to 
accomplish agency management objectives, comply with the Act, and 
conserve species and their habitats on managed lands. However, in some 
cases, we may determine a proposed Federal action would alter the 
physical or biological features of critical habitat to an extent that 
appreciably reduces its conservation function for bull trout. Under 
these circumstances, an adverse modification finding for the proposed 
action would be warranted. There may be additional conservation 
benefits to consultation on adverse effects that is not limited to 
adverse modification situations, because an agency may modify an action 
in advance to avoid any effects to critical habitat and avoid the need 
for consultation.
    (7) Comment: Because any conservation benefits realized through the 
section 7(a)(2) process would already be occurring in areas occupied by 
bull trout, additional conservation benefit would only occur in areas 
designated as critical habitat where the species is not present.
    Our Response: As stated in the proposed rule, when consulting under 
section 7(a)(2) of the Act, independent analyses are conducted for 
jeopardy to the species and adverse modification of critical habitat 
(75 FR 2291, January 14, 2010). In occupied bull trout habitat, any 
adverse modification determination would likely also result in a 
jeopardy determination for the same action. As such, project 
modifications that may be needed to minimize impacts to the species 
would coincidentally minimize impacts to critical habitat. Accordingly, 
in occupied critical habitat, it is unlikely, although possible, that 
an analysis would identify a difference between measures needed to 
avoid the destruction or adverse modification of critical habitat from 
measures needed to avoid jeopardizing the species. Alternatively, in 
unoccupied critical habitat, we would not conduct a jeopardy analysis. 
However, measures to avoid the destruction or adverse modification of 
critical habitat may be necessary to ensure that the affected critical 
habitat area can continue to serve its intended conservation role for 
the species, or retain the physical or biological features related to 
the ability of the area to periodically support the species (75 FR 
2291, January 14, 2010).
U.S. Forest Service
    (1) Comment: The U.S. Forest Service (USFS) believes excluding 
Federal lands continues to be a valid procedure. They recommended that 
we exclude from critical habitat designation all occupied bull trout 
habitat on all USFS-managed lands, as well as unoccupied habitat in the 
Northwest Forest Plan area, but the USFS acknowledged other factors are 
used by the Service to decide which lands and waters meet the criteria 
for critical habitat designation or exclusion.
    Our Response: We have reviewed USFS request in light of the October 
3, 2008, Memorandum Opinion from the Department of the Interior's 
Office of the Solicitor ``The Secretary's Authority to Exclude Areas 
from a Critical Habitat Designation under section 4(b)(2) of the 
Endangered Species Act'' (DOI 2008), and the best available 
information. We are unable to confirm that the USFS' management 
activities under the NWFP or other management plans provide a 
conservation benefit for bull trout comparable to critical habitat 
designation, or that designation of critical habitat on USFS lands 
would present a disproportionate economic or other relevant impact. In 
light of the foregoing, the Secretary has elected not to exercise his 
discretion under section 4(b)(2) of the Act to exclude USFS-managed 
lands from this revised critical habitat designation. However, we are 
committed to working efficiently and proactively with the USFS to 
address their program administration needs, in light of the 
conservation needs of bull trout.
    (2) Comment: The guidance issued in the 2008 Solicitor M-Opinion 
does not support a conclusion that if something meets the Federal 
agency obligation under section 7(a)(1), it should automatically be 
precluded from exclusions under sections 4(b)(2) of the Act.
    Our Response: See response to BLM comment (2) above.
    (3) Comment: Conservation measures within the Northwest Forest 
Plan, Aquatic Conservation Strategy, and PACFISH/INFISH are currently 
still in place and continue to be adequate to provide for the 
conservation of bull trout.
    Our Response: See response to BLM comment (3) above.
    (4) Comment: Because any conservation benefits realized through 
actions that used the section 7(a)(2) process would already be 
occurring in areas occupied by bull trout, The USFS believes the 
additional conservation benefits of designation would occur only in 
areas designated as critical habitat that are not actually occupied by 
bull trout.
    Our Response: See response to BLM comment (4) above.
    (5) Comment: After the final rule, the USFS will need time to 
reinitiate and conclude interagency cooperation on many ongoing Federal 
actions involving critical habitat, and to initiate and conclude new 
consultations for actions in the process of being developed in occupied 
and unoccupied critical habitat areas. To facilitate this consultation 
workload, the USFS requested that the effective date of the final rule 
be delayed for 120 days (similar to the National Marine Fisheries 
Service's (NMFS) final rule designating critical habitat for listed 
anadromous fish populations).
    Our Response: Although we appreciate the concern, we have no 
authorization under the court's remand order to delay the effective 
date of the rule. However, the Service is committed to working closely 
and efficiently with our Federal agency partners to meet both their 
management needs and the conservation needs of bull trout in designated 
critical habitat areas affected by their actions.

[[Page 63906]]

    (6) Comment: Because critical habitat, by definition, includes 
those habitats essential to the conservation, and ultimately 
restoration, of the species, the USFS believes streams on Federal lands 
that meet critical habitat criteria should be explicitly designated by 
rule, rather than relying on other planning processes to ``de-facto'' 
cover these essential conditions. This helps clarify priority areas, 
internally and with partners, for habitat conservation and improvement-
related efforts that will support recovery planning and implementation. 
The USFS expressed support for designation of critical habitat on 
National Forest System lands where bull trout can logically be expected 
to recover. The agency also supported the designation of critical 
habitat for all areas that are known to have existing populations of 
bull trout and the designation of tributaries that drain into known 
spawning habitats.
    Our Response: We appreciate the comment, and are designating 
critical habitat on certain National Forest System lands.
    (7) Comment: The six new recovery units seem too large to measure 
recovery should it take place, or be a reachable goal. The old set of 
27 smaller recovery units made sense because they were at a scale that 
is realistic to manage and evaluate the effects of recovery actions.
    Our Response: This comment is beyond the scope of the final rule. 
However, there may be a need to revise the existing draft recovery plan 
or consider alternative recovery unit boundaries to effectively manage 
and evaluate the effects of recovery actions in each critical habitat 
unit. We are conducting preliminary work to develop a revised draft 
recovery plan, with the goal of developing a final bull trout recovery 
plan in the future.
Bureau of Reclamation
    (1) Comment: For existing dams, it is unclear how the current 
condition of the habitat with the dam in place can threaten the 
physical or biological features of the specific areas being designated 
as those areas, if occupied, can only be designated if the physical or 
biological features essential to the conservation of the species are 
found under the existing conditions (i.e., with the dams in place). The 
Bureau of Reclamation (BOR) recommended the following language for 
inclusion in the final rule: ``While critical habitat is designated in 
streams and reservoirs where flows and volumes fluctuate due to water 
management activities, these are existing conditions that were found at 
the time of listing. The lateral extent described for those streams and 
reservoirs influenced by water management activities is considered the 
upper limit of the critical habitat designation and changes in flows 
and volumes are acceptable.''
    Our Response: To qualify as critical habitat, an occupied area need 
not contain all PCEs; one is sufficient. We acknowledge that the 
adverse modification standard would not require an action agency to 
create PCEs in occupied areas where such PCEs were wholly absent at the 
time the areas were designated as critical habitat. Moreover, not all 
adverse effects on PCEs that are present would rise to the level of 
adverse modification. We must be cautious, however, not to imply that 
fluctuating conditions would never constitute an adverse modification 
of designated habitat for the reason that ``these are existing 
conditions that were found at the time of listing.'' This would be a 
flawed approach, for two reasons:
    (1) The fact that an existing Federal project is not presently 
adversely modifying critical habitat does not mean that t