[Federal Register: April 8, 1999 (Volume 64, Number 67)]

[Rules and Regulations]               

[Page 17110-17125]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF01


Endangered and Threatened Wildlife and Plants; Determination of 

Threatened Status for the Jarbidge River Population Segment of Bull 


AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 

threatened status for the Jarbidge River distinct population segment of 

bull trout (Salvelinus confluentus) from the Jarbidge River basin in 

northern Nevada and southern Idaho, with a special rule, pursuant to 

the Endangered Species Act of 1973, as amended (Act). The Jarbidge 

River population segment, composed of a single subpopulation with few 

individuals, is threatened by habitat degradation from past and ongoing 


[[Page 17111]]

management activities such as road construction and maintenance, 

mining, and grazing; interactions with non-native fishes; and 

incidental angler harvest. We based this final determination on the 

best available scientific and commercial information including current 

data and new information received during the comment period. This 

action continues protection for this population segment of the bull 

trout which was effective for a 240-day period beginning when we 

emergency listed this population segment on August 11, 1998.

EFFECTIVE DATE: This rule is effective on April 8, 1999.

ADDRESSES: The complete administrative file for this rule is available 

for inspection, by appointment, during normal business hours at the 

U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 

Financial Boulevard, Suite 234, Reno, Nevada 89502-7147.

FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor, 

at the above address (telephone 775/861-6300; facsimile 775/861-6301).



    Bull trout (Salvelinus confluentus), members of the family 

Salmonidae, are char native to the Pacific northwest and western 

Canada. They historically occurred in major river drainages in the 

Pacific northwest from about 41 deg. N to 60 deg. N latitude, from the 

southern limits in the McCloud River in northern California and the 

Jarbidge River in Nevada, north to the headwaters of the Yukon River in 

Northwest Territories, Canada (Cavender 1978; Bond 1992). To the west, 

bull trout range includes Puget Sound, various coastal rivers of 

Washington, British Columbia, Canada, and southeast Alaska (Bond 1992; 

Leary and Allendorf 1997). Bull trout are relatively dispersed 

throughout tributaries of the Columbia River basin, including its 

headwaters in Montana and Canada. Bull trout also occur in the Klamath 

River basin of south-central Oregon. East of the Continental Divide, 

bull trout are found in the headwaters of the Saskatchewan River in 

Alberta and the MacKenzie River system in Alberta and British Columbia 

(Cavender 1978; Brewin and Brewin 1997). Bull trout habitat in the 

Jarbidge River basin is a mosaic of land ownership, including Federal 

lands administered by the U.S. Forest Service (USFS) and U.S. Bureau of 

Land Management (BLM); State lands in Idaho; and private lands.

    Bull trout were first described as Salmo spectabilis by Girard in 

1856 from a specimen collected on the lower Columbia River (Cavender 

1978). Bull trout and Dolly Varden (Salvelinus malma) were previously 

considered a single species (Cavender 1978; Bond 1992); however, they 

were formally recognized as separate species by the American Fisheries 

Society in 1980 (Robins et al. 1980).

    Bull trout exhibit both resident and migratory life history 

strategies through much of the current range (Rieman and McIntyre 

1993). Resident bull trout complete their life cycles in the tributary 

streams in which they spawn and rear. Migratory bull trout spawn in 

tributary streams, and juvenile fish rear from 1 to 4 years before 

migrating to either a lake (adfluvial), river (fluvial), or in certain 

coastal areas, saltwater (anadromous), to mature (Fraley and Shepard 

1989; Goetz 1989). Resident and migratory forms may be found together, 

and bull trout may produce offspring exhibiting either resident or 

migratory behavior (Rieman and McIntyre 1993).

    Compared to other salmonids, bull trout have more specific habitat 

requirements (Rieman and McIntyre 1993) that appear to influence their 

distribution and abundance. These habitat components include water 

temperature, cover, channel form and stability, valley form, stream 

elevation, spawning and rearing substrates, and migratory corridors 

(Oliver 1979; Pratt 1984, 1992; Fraley and Shepard 1989; Goetz 1989; 

Hoelscher and Bjornn 1989; Sedell and Everest 1991; Howell and Buchanan 

1992; Rieman and McIntyre 1993, 1995; Rich 1996; Watson and Hillman 

1997). Watson and Hillman (1997) concluded that watersheds must have 

specific physical characteristics to provide the necessary habitat 

requirements for bull trout spawning and rearing, and that the 

characteristics are not necessarily ubiquitous throughout watersheds in 

which bull trout occur. Because bull trout exhibit a patchy 

distribution, even in undisturbed habitats (Rieman and McIntyre 1993), 

fish would not likely occupy all available habitats simultaneously 

(Rieman et al. 1997).

    Bull trout are typically associated with the colder streams in a 

river system, although individual fish can occur throughout larger 

river systems (Fraley and Shepard 1989; Rieman and McIntyre 1993, 1995; 

Buchanan and Gregory 1997; Rieman et al. 1997). For example, water 

temperature above 15 deg. C (59 deg. F) is believed to negatively 

influence bull trout distribution, which partially explains the 

generally patchy distribution within a watershed (Fraley and Shepard 

1989; Rieman and McIntyre 1995). Spawning areas are often associated 

with cold-water springs, groundwater infiltration, and the coldest 

streams in a given watershed (Pratt 1992; Rieman and McIntyre 1993; 

Rieman et al. 1997).

    All life history stages of bull trout are associated with complex 

forms of cover, including large woody debris, undercut banks, boulders, 

and pools (Oliver 1979; Fraley and Shepard 1989; Goetz 1989; Hoelscher 

and Bjornn 1989; Sedell and Everest 1991; Pratt 1992; Thomas 1992; Rich 

1996; Sexauer and James 1997; Watson and Hillman 1997). Jakober (1995) 

observed bull trout overwintering in deep beaver ponds or pools 

containing large woody debris in the Bitterroot River drainage, 

Montana, and suggested that suitable winter habitat may be more 

restrictive than summer habitat. Maintaining bull trout populations 

requires stream channel and flow stability (Rieman and McIntyre 1993). 

Juvenile and adult bull trout frequently inhabit side channels, stream 

margins, and pools with suitable cover (Sexauer and James 1997). These 

areas are sensitive to activities that directly or indirectly affect 

stream channel stability and alter natural flow patterns. For example, 

altered stream flow in the fall may disrupt bull trout during the 

spawning period and channel instability may decrease survival of eggs 

and young juveniles in the gravel during winter through spring (Fraley 

and Shepard 1989; Pratt 1992; Pratt and Huston 1993).

    Preferred spawning habitat generally consists of low gradient 

streams with loose, clean gravel (Fraley and Shepard 1989) and water 

temperatures of 5 to 9 deg. C (41 to 48 deg. F) in late summer to early 

fall (Goetz 1989). However, biologists collected young-of-the-year bull 

trout in high gradient stream reaches with minimal gravel within the 

Jarbidge River basin, indicating that spawning occurred in these areas 

or further upstream (Gary Johnson, Nevada Division of Wildlife (NDOW), 

pers. comm. 1998a; Terry Crawforth, NDOW, in litt. 1998). Pratt (1992) 

reported that increases in fine sediments reduce egg survival and 


    The size and age of maturity for bull trout is variable depending 

upon life history strategy. Growth of resident fish is generally slower 

than migratory fish; resident fish tend to be smaller at maturity and 

less fecund (Fraley and Shepard 1989; Goetz 1989). Resident adults 

range from 150 to 300 millimeters (mm) (6 to 12 inches (in)) total 

length and migratory adults commonly reach 600 mm (24 in) or more 

(Goetz 1989).

    Bull trout normally reach sexual maturity in 4 to 7 years and live 

as long

[[Page 17112]]

as 12 years. Repeat and alternate year spawning have been reported, 

although repeat spawning frequency and post-spawning mortality are not 

well known (Leathe and Graham 1982; Fraley and Shepard 1989; Pratt 

1992; Rieman and McIntyre 1996). Bull trout typically spawn from August 

to November during periods of decreasing water temperatures. However, 

migratory bull trout may begin spawning migrations as early as April, 

and move upstream as far as 250 kilometers (km) (155 miles (mi)) to 

spawning grounds in some areas of their range (Fraley and Shepard 1989; 

Swanberg 1997). Temperatures during spawning generally range from 4 to 

10 deg. C (39 to 51 deg. F), with redds (spawning beds) often 

constructed in stream reaches fed by springs or near other sources of 

cold groundwater (Goetz 1989; Pratt 1992; Rieman and McIntyre 1996). 

Depending on water temperature, egg incubation is normally 100 to 145 

days (Pratt 1992), and juveniles remain in the substrate after 

hatching. Time from egg deposition to emergence may surpass 200 days. 

Fry normally emerge from early April through May depending upon water 

temperatures and increasing stream flows (Pratt 1992; Ratliff and 

Howell 1992).

    Bull trout are opportunistic feeders, with food habits primarily a 

function of size and life history strategy. Resident and juvenile bull 

trout prey on terrestrial and aquatic insects, macro-zooplankton, 

amphipods, mysids, crayfish, and small fish (Wyman 1975; Rieman and 

Lukens 1979 in Rieman and McIntyre 1993; Boag 1987; Goetz 1989; Donald 

and Alger 1993). Adult migratory bull trout are primarily piscivorous 

(fish eating) and are known to feed on various trout and salmon species 

(Onchorynchus spp.), whitefish (Prosopium spp.), yellow perch (Perca 

flavescens) and sculpin (Cottus spp.) (Fraley and Shepard 1989; Donald 

and Alger 1993).

    In the Jarbidge River basin, bull trout occur with native redband 

trout (Oncorhynchus mykiss), mountain whitefish (Prosopium 

williamsoni), sculpin, bridgelip sucker (Catostomus columbianus), and 

various minnow (Cyprinidae) species. Introductions of non-native 

fishes, including brook trout (Salvelinus fontinalis), and hatchery 

rainbow trout (O. mykiss), have also occurred within the range of bull 

trout in the Jarbidge River basin. These non-native fishes have been 

associated with local bull trout declines and extirpations elsewhere in 

the species' range (Bond 1992; Ziller 1992; Donald and Alger 1993; 

Leary et al. 1993; Montana Bull Trout Scientific Group (MBTSG) 1996a).

    Stocked brook trout failed to establish a self-sustaining 

population in the Jarbidge River system, but an introduced population 

still occurs in Emerald Lake, a high-elevation lake within the Jarbidge 

River watershed (T. Crawforth, in litt. 1998; Rich Haskins, NDOW, pers. 

comm. 1998; G. Johnson, pers. comm. 1998). Brook trout may spill out of 

the lake into the East Fork of the Jarbidge River during peak runoff 

events, although the lack of a defined outlet makes such an event 

appear unlikely (G. Johnson, pers. comm. 1994). NDOW's rainbow trout 

stocking program in the Jarbidge River system has been ongoing since 

the 1970s, and the Idaho Department of Fish and Game (IDFG) stocked 

rainbow trout in the Idaho portion of the East and West Forks of the 

Jarbidge River from 1970 to 1989 (Fred Partridge, IDFG, in litt. 1998).

    Migratory corridors link seasonal habitats for all bull trout life 

history forms. The ability to migrate is important to the persistence 

of local bull trout subpopulations (Rieman and McIntyre 1993; Mike 

Gilpin, University of California, in litt. 1997; Rieman and Clayton 

1997; Rieman et al. 1997). Migrations facilitate gene flow among local 

subpopulations if individuals from different subpopulations interbreed 

when some return to non-natal streams. Migratory fish may also re-

establish extirpated local subpopulations.

    Metapopulation concepts of conservation biology theory may be 

applicable to the distribution and characteristics of bull trout 

(Rieman and McIntyre 1993). A metapopulation is an interacting network 

of local subpopulations with varying frequencies of migration and gene 

flow among them (Meffe and Carroll 1994). Metapopulations provide a 

mechanism for reducing risk because the simultaneous loss of all 

subpopulations is unlikely. Although local subpopulations may become 

extinct, they can be reestablished by individuals from other local 

subpopulations. However, because bull trout exhibit strong homing 

fidelity when spawning and their rate of straying appears to be low, 

natural reestablishment of extinct local subpopulations may take a very 

long time. Habitat alteration, primarily through construction of 

impoundments, dams, and water diversions, has fragmented habitats, 

eliminated migratory corridors, and isolated bull trout, often in the 

headwaters of tributaries (Rieman et al. 1997).

Distinct Population Segments

    The best available scientific and commercial information identifies 

five distinct population segments (DPSs) of bull trout in the United 

States--(1) Klamath River, (2) Columbia River, (3) Coastal-Puget Sound, 

(4) Jarbidge River, and (5) St. Mary-Belly River. The final listing 

determination for the Klamath River and Columbia River bull trout DPSs 

on June 10, 1998 (63 FR 31647), includes a detailed description of the 

rationale behind the DPS delineation. The approach is consistent with 

the joint National Marine Fisheries Service and Fish and Wildlife 

Service policy for recognizing distinct vertebrate population segments 

under the Act, published on February 7, 1996 (61 FR 4722). This final 

rule addresses only the Jarbidge River DPS. The Coastal-Puget Sound and 

St. Mary-Belly River bull trout DPSs will be the subject of a final 

rule expected to be published in June 1999.

    Three elements are considered in the decision on whether a 

population segment could be treated as threatened or endangered under 

the Act--discreteness, significance, and conservation status in 

relation to the standards for listing. Discreteness refers to the 

isolation of a population from other members of the species and is 

based on two criteria--(1) marked separation from other populations of 

the same taxon resulting from physical, physiological, ecological, or 

behavioral factors, including genetic discontinuity; and (2) 

populations delimited by international boundaries. Significance is 

determined either by the importance or contribution, or both, of a 

discrete population to the species throughout its range. Four criteria 

were used to determine significance--(1) persistence of the discrete 

population segment in an ecological setting unusual or unique for the 

taxon; (2) evidence that loss of the discrete population segment would 

result in a significant gap in the range of the taxon; (3) evidence 

that the discrete population segment represents the only surviving 

natural occurrence of the taxon that may be more abundant elsewhere as 

an introduced population outside its historic range; and (4) evidence 

that the discrete population segment differs markedly from other 

populations of the taxon in its genetic characteristics. If a 

population segment is discrete and significant, its evaluation for 

endangered or threatened status is based on the Act's standards.

    The Jarbidge River in southwest Idaho and northern Nevada is a 

tributary in the Snake River basin and contains the southernmost 

habitat occupied by bull trout. This population segment is discrete 

because it is geographically segregated from other bull trout in the 

Snake River basin by more than 240 km (150 mi) of unsuitable habitat 


[[Page 17113]]

several impassable dams on the mainstem Snake River and the lower 

Bruneau River. The occurrence of a species at the extremities of its 

range is not necessarily sufficient evidence of significance to the 

species as a whole. However, since the Jarbidge River possesses bull 

trout habitat that is disjunct from other patches of suitable habitat, 

the population segment is considered significant because it occupies a 

unique or unusual ecological setting, and its loss would result in a 

substantial modification of the species' range.

Status and Distribution

    To facilitate evaluation of current bull trout distribution and 

abundance for the Jarbidge River population segment, we analyzed data 

on a subpopulation basis because fragmentation and barriers have 

isolated bull trout. A subpopulation is considered a reproductively 

isolated bull trout group that spawns within a particular area(s) of a 

river system. In areas where two groups of bull trout are separated by 

a barrier (e.g., an impassable dam or waterfall, or reaches of 

unsuitable habitat) that may allow only downstream access (i.e., one-

way passage), both groups would be considered subpopulations. In 

addition, subpopulations were considered at risk of extirpation from 

natural events if they were--

    (1) Unlikely to be reestablished by individuals from another 

subpopulation (i.e., functionally or geographically isolated from other 


    (2) Limited to a single spawning area (i.e., spatially restricted); 


    (3) Characterized by low individual or spawner numbers; or

    (4) Consisted primarily of a single life history form.

For example, a subpopulation of resident fish isolated upstream of an 

impassable waterfall would be considered at risk of extirpation from 

natural events if it had low numbers of fish that spawn in a relatively 

restricted area. In such cases, a natural event such as a fire or flood 

could eliminate the subpopulation, and subsequently, the impassable 

waterfall would prevent reestablishment of the subpopulation by 

downstream fish. However, a subpopulation residing downstream of the 

waterfall would not be considered at risk of extirpation because of 

potential reestablishment by fish from upstream. Because resident bull 

trout may exhibit limited downstream movement (Nelson 1996), our 

estimate of subpopulations at risk of extirpation by natural events may 

be underestimated. We based the status of subpopulations on modified 

criteria of Rieman et al. (1997), including the abundance, trends in 

abundance, and the presence of life history forms of bull trout.

    We considered a bull trout subpopulation ``strong'' if 5,000 

individuals or 500 spawners likely occur in the subpopulation, 

abundance appears stable or increasing, and life history forms 

historically present were likely to persist. A subpopulation was 

considered ``depressed'' if less than 5,000 individuals or 500 spawners 

likely occur in the subpopulation, abundance appears to be declining, 

or a life history form historically present has been lost (Rieman et 

al. 1997). If there was insufficient abundance, trend, and life history 

information to classify the status of a subpopulation as either 

``strong'' or ``depressed,'' the status was considered ``unknown.'' It 

should be noted that the assignment of ``unknown'' status implies only 

a deficiency of available data to assign a subpopulation as ``strong'' 

or ``depressed,'' not a lack of information regarding the threats. 

Section 4 of the Act requires us to make a determination solely on the 

best scientific and commercial data available.

    The Jarbidge River DPS is currently believed to contain a single 

subpopulation in the East Fork, West Fork, and mainstem Jarbidge River 

in Idaho and Nevada, and headwater tributaries in Nevada (Service 

1998), however, further definitive genetic analysis of population 

structure is needed. This population segment is isolated from other 

bull trout by a large expanse of unsuitable habitat. Although accounts 

of bull trout in the Jarbidge River basin date to the 1930s, both 

sampling and actual collections of bull trout were infrequent (Miller 

and Morton 1952; Johnson 1990; Johnson and Weller 1994). Therefore, 

historical distribution and abundance data are limited.

    The current distribution of bull trout in the Jarbidge River basin 

primarily includes headwater streams above 2,200 meters (m) (7,200 feet 

(ft)) elevation within the Jarbidge Wilderness Area--the East Fork and 

West Fork Jarbidge River and Slide, Dave, Pine, Sawmill, Fall, and 

Cougar Creeks (Johnson and Weller 1994; G. Johnson, pers. comm. 1998a). 

There is no definitive information on whether bull trout have been 

extirpated from Jarbidge River headwater tributaries. However, recent 

surveys indicate that bull trout have likely been extirpated from one 

historical tributary, Jack Creek (G. Johnson, pers. comm. 1998a; T. 

Crawforth, in litt. 1998).

    In 1934, bull trout were first collected in Dave Creek (East Fork 

Jarbidge River drainage) downstream of the Idaho-Nevada border (Miller 

and Morton 1952). They were later documented in the East Fork of the 

Jarbidge River in 1951 and the West Fork in 1954 (T. Crawforth, in 

litt. 1998). Zoellick et al. (1996) compiled survey data from 1954 

through 1993 and estimated bull trout population size in the middle and 

upper headwater areas of the West and East Forks of the Jarbidge River 

at less than 150 fish/km (240 fish/mi). Low numbers of migratory 

(fluvial) bull trout were documented in the West Fork of the Jarbidge 

River from the 1970s through the mid-1980s (Johnson and Weller 1994). 

In 1985, 292 resident-size bull trout were estimated to reside in the 

West Fork (Johnson and Weller 1994). In 1993, the abundance of 

resident-size bull trout in the East Fork was estimated at 314 fish 

(Johnson and Weller 1994). During snorkel surveys conducted in October 

1997, no bull trout were observed in 40 pools of the West Fork of the 

Jarbidge River. Biologists did not observe bull trout during surveys in 

the Idaho portion of the Jarbidge River basin in 1992 or 1995 (Warren 

and Partridge 1993; Allen et al. 1996). However, traps operated on the 

lower East and West Forks, during August through October 1997, captured 

a single small bull trout in Idaho on the West Fork. (Zoellick et al. 

1996; T. Crawforth, in litt. 1998). The Salvelinus confluentus 

Curiosity Society (SCCS), a group of individuals interested in bull 

trout conservation, surveyed bull trout in the Jarbidge River in August 

1998. During this 1-day survey, a total of approximately 40 stations 

were sampled throughout the West Fork of the Jarbidge River, Jack 

Creek, Pine Creek and tributaries, Dave Creek, Fall Creek and 

tributaries, Slide Creek and tributaries, and Sawmill Creek. A total of 

66 adult and juvenile bull trout were reported as either collected or 

observed (Selena Werdon, Service, pers. comm. 1998). No bull trout were 

found in one historically occupied stream, Jack Creek, despite the 

removal of a fish barrier in 1997.

    NDOW provided population estimates, based on extrapolations of SCCS 

data and NDOW surveys, which totaled about 1,800 fish in the West and 

East Forks of the Jarbidge River, and seven other creeks and 

tributaries (G. Johnson, pers. comm. 1998a). However, the value of this 

data is in question (see our response to ``Issue 2''). Also, it is 

estimated that between 50 and 125 bull trout spawn throughout the 

Jarbidge River basin annually (G. Johnson, pers. comm. 1998b). Exact 

spawning sites and timing are uncertain (G. Johnson, pers. comm. 

1998a). A total of three potential

[[Page 17114]]

resident bull trout redds were observed in the upper West Fork in 1995 

and 1997 surveys (Ramsey 1997).

    Adequate population trend information for bull trout in the 

Jarbidge River subpopulation is not available, although the current 

characteristics of bull trout in the basin include low numbers and 

disjunct distribution. These characteristics have been described as 

similar to that observed in the 1950s (Johnson and Weller 1994). Based 

on recent surveys, the bull trout population in the Jarbidge River 

basin is considered ``depressed'' in all of the occupied range. 

Migratory fish (fluvial) may be present in low abundance, but resident 

fish are the predominant life history form. Past and present activities 

within the Jarbidge River basin have likely restricted bull trout 

migration, thus reducing opportunities for bull trout reestablishment 

in areas where the fish are no longer found (Service 1998).

    In 1998, the SCCS collected fin clips for genetic analysis from 

bull trout within the Jarbidge River basin. Although sample sizes from 

each stream varied and were typically small (less than 30 individuals), 

preliminary genetic analysis of these tissue samples using DNA 

microsatellites indicated that fish in the East and West Forks were 

highly differentiated, and that tributaries to the East Fork also 

showed differentiation (Jason Dunham, University of Nevada-Reno, in 

litt. 1998; Bruce Rieman, USFS, in litt. 1998; Paul Spruell, University 

of Montana, in litt. 1998). These preliminary data indicate the 

potential presence of multiple, tributary resident bull trout 

subpopulations, with limited gene flow among them, within the Jarbidge 

River basin (T. Crawforth, in litt. 1998; J. Dunham, in litt. 1998; B. 

Rieman, in litt. 1998).

    In summary, we considered new, though limited, information 

submitted on the abundance, trends in abundance, and distribution of 

bull trout in the Jarbidge River population segment. Resident fish 

inhabit the East Fork and West Fork of the Jarbidge River and tributary 

streams, and extremely low numbers of migratory (fluvial) fish may 

still be present in the watershed (Zoellick et al. 1996; K. Ramsey, 

USFS, in litt. 1997; L. McLelland, NDOW, in litt. 1998; Crawforth, in 

litt. 1998). If the Jarbidge River DPS is extirpated, individuals from 

other areas are unlikely to reestablish this DPS due to the presence of 

dams downstream on the Snake and Bruneau Rivers and the 240 km (150 mi) 

of unsuitable, degraded habitat within these migratory corridors. Past 

and present activities within the Jarbidge River basin have likely 

restricted bull trout migration, thus reducing opportunities for bull 

trout reestablishment in areas where the fish are no longer found 

(Service 1998). There is no definitive information on whether bull 

trout have been extirpated from Jarbidge River headwater tributaries. 

However, recent surveys indicate that bull trout have likely been 

extirpated from one historical tributary, Jack Creek.

Previous Federal Action

    On October 30, 1992, we received a petition to list the bull trout 

as an endangered species throughout its range from the following 

conservation organizations in Montana: Alliance for the Wild Rockies, 

Inc., Friends of the Wild Swan, and Swan View Coalition (petitioners). 

The petitioners also requested an emergency listing and concurrent 

critical habitat designation for bull trout populations in select 

aquatic ecosystems where the biological information indicated that the 

species was in imminent risk of extinction. A 90-day finding, published 

on May 17, 1993 (58 FR 28849), determined that the petitioners had 

provided substantial information indicating that listing of the species 

may be warranted. We initiated a rangewide status review of the species 

concurrent with publication of the 90-day finding.

    On June 6, 1994, we concluded in our original 12-month finding that 

listing of bull trout throughout its range was not warranted due to 

unavailable or insufficient data regarding threats to, and status and 

population trends of, the species within Canada and Alaska. However, we 

determined that sufficient information on the biological vulnerability 

and threats to the species was available to support a warranted finding 

to list bull trout within the coterminous United States but this action 

was precluded due to higher priority listings.

    On November 1, 1994, Friends of the Wild Swan, Inc. and Alliance 

for the Wild Rockies, Inc. (plaintiffs) filed suit in the U.S. District 

Court of Oregon (District Court) arguing that the warranted but 

precluded finding was arbitrary and capricious. After we ``recycled'' 

the petition and issued another 12-month finding for the coterminous 

population of bull trout on June 12, 1995 (60 FR 30825), the District 

Court issued an order declaring the plaintiffs' challenge to the 

original finding moot. The plaintiffs declined to amend their complaint 

and appealed to the Ninth Circuit Court of Appeals (Circuit Court), 

which found that the plaintiffs' challenge fell ``within the exception 

to the mootness doctrine for claims that are capable of repetition yet 

evading review.'' On April 2, 1996, the Circuit Court remanded the case 

back to the District Court. On November 13, 1996, the District Court 

issued an order and opinion remanding the original finding to us for 

further consideration. Included in the instructions from the District 

Court were requirements that we limit our review to the 1994 

administrative record, and incorporate any emergency listings or high 

magnitude threat determinations into current listing priorities. The 

reconsidered 12-month finding based on the 1994 Administrative Record 

was delivered to the District Court on March 13, 1997.

    On March 24, 1997, the plaintiffs filed a motion for mandatory 

injunction to compel us to issue a proposed rule to list the Klamath 

River and Columbia River bull trout populations within 30 days based 

solely on the 1994 Administrative Record. On April 4, 1997, we 

requested 60 days to prepare and review the proposed rule. In a 

stipulation between the plaintiffs and us filed with the District Court 

on April 11, 1997, we agreed to issue a proposed rule in 60 days to 

list the Klamath River population of bull trout as endangered and the 

Columbia River population of bull trout as threatened based solely on 

the 1994 record.

    We proposed the Klamath River population of bull trout as 

endangered and Columbia River population of bull trout as threatened on 

June 13, 1997 (62 FR 32268). The proposal included a 60-day comment 

period and gave notice of five public hearings in Portland, Oregon; 

Spokane, Washington; Missoula, Montana; Klamath Falls, Oregon; and 

Boise, Idaho. The comment period on the proposal, which originally 

closed on August 12, 1997, was extended to October 17, 1997 (62 FR 

42092), to provide the public with more time to compile information and 

submit comments.

    On December 4, 1997, the District Court ordered us to reconsider 

several aspects of the 1997 reconsidered finding. On February 2, 1998, 

the District Court gave us until June 12, 1998, to respond. The final 

listing determination for the Klamath River and Columbia River 

population segments of bull trout and the concurrent proposed listing 

rule for the Coastal-Puget Sound, St. Mary-Belly River, and Jarbidge 

River DPSs constituted our response.

    We published a final rule listing the Klamath River and Columbia 

River population segments of bull trout as threatened on June 10, 1998 

(63 FR 31647). On the same date, we also published a proposed rule to 

list the

[[Page 17115]]

Coastal-Puget Sound, Jarbidge River, and St. Mary-Belly River 

population segments of bull trout as threatened (63 FR 31693). On 

August 11, 1998, we issued an emergency rule listing the Jarbidge River 

population segment of bull trout as endangered due to river channel 

alteration associated with unauthorized road construction on the West 

Fork of the Jarbidge River, which we found to imminently threaten the 

survival of the distinct population segment (63 FR 42757).

Summary of Comments and Recommendations

    In the June 10, 1998, proposed rule (63 FR 31693), we requested 

interested parties to submit comments or information that might 

contribute to the final listing determination for bull trout. We sent 

announcements of the proposed rule and notice of public hearings to at 

least 800 individuals, including Federal, State, county and city 

elected officials, State and Federal agencies, interested private 

citizens and local area newspapers and radio stations. We also 

published announcements of the proposed rule in 10 newspapers, the 

Idaho Statesman, Boise, Idaho; the Times-News, Twin Falls, Idaho; the 

Glacier Reporter, Browning, Montana; the Daily Inter Lake; Kalispell, 

Montana; the Great Falls Tribune, Great Falls, Montana; the Elko Daily 

Free Press, Elko, Nevada; the Bellingham Herald, Bellingham, 

Washington; the Olympian, Olympia, Washington; the Spokesman-Review, 

Spokane, Washington, and the Seattle Post-Intelligencer, Seattle, 

Washington. We held public hearings on July 7, 1998, in Lacey, 

Washington; July 9, 1998, in Mount Vernon, Washington; July 14, 1998, 

in East Glacier, Montana; and July 21, 1998, in Jackpot, Nevada. We 

accepted comments on the emergency rule for the Jarbidge River DPS 

until the comment period on the proposed rule ended on October 8, 1998.

    We received 9 oral and 14 written comments (including electronic 

mail) on the proposed rule which pertained to the Jarbidge River DPS; 

other comments were generic to all three DPSs. Of those specific to the 

Jarbidge River DPS, four written comments also addressed the emergency 

rule. We also received comments on the Jarbidge River DPS from two 

Federal agencies, two State agencies, one county in Nevada, four 

environmental organizations, and nine individuals. We received comments 

from a member of the Nevada Congressional delegation. In addition, we 

solicited formal scientific peer review of the proposal in accordance 

with our July 1, 1994, Interagency Cooperative Policy (59 FR 34270). We 

requested six individuals, who possess expertise in bull trout biology 

and salmonid ecology, and whose affiliations include academia and 

Federal, State, and provincial agencies, to review the proposed rule by 

the close of the comment period. One individual responded to our 

request and their comments are also addressed in this section of the 


    We considered all comments, including oral testimony presented at 

the public hearings, and also the comments from the only peer reviewer 

who responded to our request to review the proposed rule. A majority of 

comments supported the listing proposal for the Jarbidge River DPS, 

while seven comments were in opposition. Opposition was based on 

several concerns, including possible negative economic effects from 

listing bull trout; potential restrictions on activities; lack of 

solutions to the bull trout decline that would result from listing; and 

interpretation of data concerning the status of bull trout and their 

threats in the three population segments. The USFS (Ben Siminoe, USFS, 

in litt. 1998; Dave Aicher, USFS, pers. comm. 1998), BLM (Jim Klott, 

BLM, pers. comm. 1998), NDOW (G. Johnson, NDOW, pers. comm. 1998a; R. 

Haskins, NDOW, in litt. 1998), and IDFG (F. Partridge, IDFG, in litt. 

1998) provided us with information on respective agency efforts to 

assess, evaluate, monitor, and conserve bull trout in habitats affected 

by each agency's management. Because multiple respondents offered 

similar comments, we grouped comments of a similar nature or point. 

These comments and our responses are presented below.

    Issue 1: One respondent questioned our subpopulation definition and 

asked whether absolute reproductive isolation was required or only some 

level of population structuring that means reduced gene flow and some 

local adaptation. Several respondents questioned our single 

subpopulation designation for the Jarbidge River DPS given preliminary 

new genetic information which indicates the potential presence of 

multiple local tributary subpopulations, with limited gene flow. Some 

respondents also suggested that the bull trout in the Jarbidge River 

may better fit the definition of a metapopulation, as described in the 

proposed rule (63 FR 31693). Respondents pointed out that genetic 

information and changes in DPS population structuring have implications 

for risk assessment, as well as management and recovery strategies.

    Our Response: We selected subpopulations as a convenient unit to 

analyze bull trout within population segments, and defined a 

subpopulation as ``a reproductively isolated group of bull trout that 

spawns within a particular area of a river system.'' We identified 

subpopulations based on documented or likely barriers to fish movement 

(e.g., impassable barriers to movement and unsuitable habitat). To be 

considered a single subpopulation, two-way passage at a barrier is 

required, otherwise bull trout upstream and downstream of a barrier are 

each considered a subpopulation. Because it is likely that fish above a 

barrier could pass downstream and mate with fish downstream, absolute 

reproductive isolation was not required to be considered a 


    We viewed metapopulation concepts (see Rieman and McIntyre 1993) as 

useful tools in evaluating bull trout, but, in querying biologists both 

within the Service and elsewhere, we found considerable variability in 

the definition of a metapopulation and the types of data suggestive of 

a metapopulation. Some biologists may consider a subpopulation, as 

defined by us, as a metapopulation if it has multiple spawning areas. 

Likewise, subpopulations without reciprocal interactions (i.e., 

individuals from upstream of a barrier may mingle with individuals 

downstream, but not vice versa) may be considered components of a 

metapopulation consisting of more than one subpopulation. Because 

little genetic and detailed movement information exists throughout bull 

trout range in the population segments addressed in the proposed rule, 

we believe that barriers to movement was an appropriate consideration 

for identifying subpopulations.

    We reviewed preliminary new genetic and other biological data 

developed since the June 10, 1998 (63 FR 31693), proposed rule and 

determined that there is insufficient information available to further 

divide the Jarbidge River DPS into more than one subpopulation at this 

time. We believe that barriers to movement (including unsuitable 

habitat) were an appropriate consideration for identifying 

subpopulations. However, we believe that additional samples of genetic 

data for several tributaries are needed to accurately define bull trout 

population structure within the Jarbidge River basin. We still consider 

this DPS to contain one subpopulation based on the following: (1) 

conclusive genetic data are not available due to limited sample sizes 

from many of the tributaries; (2) bull trout in these tributaries are 


[[Page 17116]]

physically reproductively isolated; and (3) barriers to movement exist.

    We did consider this new genetic information and potential 

metapopulation structure in assessing the overall level of threat to 

this DPS. Although the existence of a potential metapopulation may 

reduce the risk of extinction for this DPS as a whole, the potential 

presence of unique genetic material in each tributary further elevates 

their individual relative importance within the DPS. The genetic 

diversity of all bull trout within the basin will be fully considered 

in future management and recovery planning in the Jarbidge River basin. 

As more complete genetic data become available, management and recovery 

actions may change accordingly.

    Issue 2: Numerous respondents provided conflicting comments on the 

status and trend of bull trout in the Jarbidge River DPS. Respondents 

variously claimed that population status is either stable, increasing, 

or uncertain. Some respondents questioned the amount and reliability of 

survey data and sampling methodologies. One respondent noted that we 

did not evaluate the listing criteria with objective and quantitative 

methods, making it difficult to interpret new information in a 

consistent manner. The reviewer also noted that, although quantitative 

data are lacking for many local populations of bull trout, sufficient 

information exists to design an inventory program to describe their 

current distribution, relative abundance, and population structure.

    Our Response: A species may be determined to be an endangered or 

threatened species due to the five factors listed in section 4(a)(1) of 

the Act (see the ``Summary of Factors Affecting the Species'' section). 

The Act requires us to base listing determinations on the best 

available commercial and scientific information.

    The listing process includes an opportunity for the public to 

comment and provide new information for us to evaluate and consider 

before making a final decision. Aside from previously cited studies and 

reports in the proposed and emergency rules, we reviewed and considered 

new information regarding bull trout distribution and abundance for the 

Jarbidge River basin from NDOW (G. Johnson, pers. comm. 1998a; T. 

Crawforth, in litt. 1998) and the SCCS (S. Werdon, pers. comm. 1998). 

Data are often not available to make statistically rigorous inferences 

about a species' status (e.g., abundance, trends in abundance, and 

distribution). Historical and recent collections have consisted of a 

few, sporadic presence and absence-type surveys occurring years or 

decades apart, each reflecting a single point-in-time. No regular, 

standardized, quantitative surveys designed to detect population trends 

of bull trout over a period of time, with statistical testing to 

qualify data accuracy, have been done.

    NDOW provided us with population estimates for streams in the 

Jarbidge River basin which they derived by extrapolating the number of 

bull trout collected or observed (via single-pass electrofishing or 

snorkeling) within 30-m (100-ft) stations to kilometers (miles) of 

stream habitat. For example, one bull trout per station equaled an 

average population density of 85 bull trout/km (52.8 bull trout/mi) in 

a particular stream reach. We believe these extrapolations are 

inaccurate since past surveys confirm that bull trout exhibit patchy 

distributions, and comparisons of such population estimates among years 

does not provide an accurate analysis of population trends. We 

specifically requested additional information from NDOW during the 

comment period, however, they did not provide information on the actual 

number of bull trout collected or observed, the sizes or life-stages of 

the fish, or the specific locations where fish were collected during 

1998 surveys. This information would be useful for comparison with 

prior distribution and abundance data. Nevertheless, we believe overall 

numbers in the subpopulation are low, and that concentrations of fish 

are found in only a few headwater streams where suitable habitat 

remains. Overall, we found sufficient evidence exists that demonstrates 

the Jarbidge River population segment is threatened by a variety of 

past and on-going threats and is likely to become endangered in the 

foreseeable future.

    Issue 3: Numerous respondents provided conflicting comments on the 

validity and level of impact from threats identified in the proposed 

and emergency rules. Some respondents also suggested additional threats 

to this population.

    Our Response: Threats identified in the proposed rule for the 

Jarbidge River DPS include habitat degradation from past and ongoing 

land management activities such as road construction and maintenance, 

mining, and livestock grazing. Additional threats we evaluated included 

non-native rainbow trout stocking, angling for other fish species, 

migration barriers, and future natural events. We emergency listed the 

population due to habitat destruction on the West Fork of the Jarbidge 

River associated with unauthorized road construction, and the 

substantial risk of continued loss of bull trout habitat through 

additional unauthorized road construction. We believe the threats 

identified in the proposed and emergency rules threaten the continued 

existence of bull trout in the Jarbidge River system. However, 

respondents may have misconstrued our perceived level of threat 

associated with certain activities, livestock grazing in particular. We 

recognize that existing levels of livestock grazing provide relatively 

minor impacts to bull trout habitat throughout the Jarbidge River 

basin; however, all potential threats must be considered during the 

listing process.

    Many of the threats addressed in the proposed rule were associated 

with residual effects from historical activities within the basin 

(e.g., mining) and some respondents felt they were no longer valid 

threats. We recognize that overall watershed conditions have improved 

from early this century, but impacts to bull trout habitat from such 

historical activities still exist (e.g., elevated water temperatures 

from mine adit discharges). Road construction and associated 

maintenance activities, especially those occurring within riparian 

areas or adjacent to occupied bull trout streams, have documented 

impacts on bull trout habitat conditions and thereby threaten bull 


    Issue 4: Many respondents provided comments regarding prior and 

ongoing beneficial management and/or habitat rehabilitation measures 

for bull trout throughout the Jarbidge River watershed. Some 

respondents also stated that overall watershed conditions in the 

Jarbidge River basin are improving.

    Our Response: Section 4(b)(1)(A) of the Act, requires us to make 

listing decisions solely on the best scientific and commercial data 

available after conducting a review of the status of the species. The 

Act also instructs us to consider existing regulatory mechanisms, 

including efforts by State, local and other entities to protect a 

species, including conservation plans or practices.

    We recognize that numerous individual conservation actions and 

restoration projects have been undertaken by the USFS, BLM, States, 

conservation groups, and other entities for bull trout in the Jarbidge 

River basin. For example, the Jarbidge Bull Trout Task Force, 

established in 1994, completed a project to restore access for bull 

trout to Jack Creek in 1997. However, no bull trout were found in Jack 

Creek in 1998. The USFS has fenced some springs to protect riparian

[[Page 17117]]

areas and improve water quality, and implemented reclamation of old 

mine sites. Idaho and Nevada State angler harvest regulations for bull 

trout have also become more restrictive.

    We are required to evaluate the current status and existing threats 

to bull trout in the Jarbidge River DPS in making this final listing 

determination. Altogether, watershed habitat recovery and actions taken 

to date are encouraging for initiating long-term bull trout 

conservation. However, we have found no documentation of changes in 

abundance and distribution of bull trout as a result of such actions. 

For example, surveys conducted by biologists did not find bull trout in 

Jack Creek during 1997 or 1998 after the removal of a culvert barrier. 

Although impacts to bull trout from historical and on-going activities 

still exist, we recognize that overall watershed conditions in the 

Jarbidge River basin have improved, and we are now finalizing our 

listing of bull trout as threatened, rather than as endangered (see 

``Issue 6'' for further discussion).

    Issue 5: Several respondents opposed the Federal listing entirely, 

while others supported listing the population as threatened or 

endangered. One respondent commented that we proposed this listing as a 

result of a lawsuit, rather than sound scientific evidence, as required 

by the Act.

    Our Response: Although the timing of recent listing actions were 

prompted by petitions and legal action, we previously had substantial 

information on biological vulnerability and threats on file to support 

preparation of a bull trout listing proposal, and the decision to list 

was based solely on scientific data and threats identified during the 

status review process.

    Issue 6: One respondent stated that the August 11, 1998, emergency 

listing was ``inappropriate based on the level of threat'' posed by 

unauthorized road reconstruction activities to reopen 2.4 km (1.5 mi) 

of road.

    Our Response: Road construction and maintenance activities, 

especially those occurring within riparian areas or adjacent to 

streams, have substantial documented adverse impacts on bull trout 

habitats. The threats to bull trout from the unauthorized road 

construction activities on the West Fork of the Jarbidge River include 

both direct and indirect impacts. These activities occurred on a 

migratory corridor during the period when bull trout migrate and spawn. 

Migratory or resident bull trout may have been stranded and killed when 

the entire river was diverted and the existing wetted channel was 

filled. Elko County did not use Best Management Practices (BMPs) to 

protect instream aquatic habitat during construction, and large 

quantities of sediment from the disturbed area settled out in the river 

immediately downstream, filling in pools and interstitial spaces. The 

sediment plume traveled at least 5.6 km (3.5 mi) downstream (B. 

Siminoe, pers. comm. 1998), within known bull trout habitats. The newly 

created channel provided minimal instream or overhead cover, with few 

resting areas for migratory or resident fish, and at low flow, would 

impede bull trout migrations. We also anticipated long-term residual 

impacts such as sedimentation from the new roadbed, floodplain 

vegetation destruction, slope cuts, and channel instability. Elko 

County expressed their intentions to continue road reconstruction 

despite being informed of various regulatory prohibitions. The threat 

of continued unauthorized road reconstruction without the use of BMPs 

was considered in the emergency listing.

    Issue 7: Several respondents opposed the proposed listing of the 

Jarbidge River population segment and expressed concerns because of 

possible restrictions on local activities such as road construction, 

livestock grazing, and mining, which might impact local residents. One 

respondent stated that human use and bull trout conservation were 

``mutually compatible goals.'' Another respondent stated that future 

actions needed for bull trout will be the same whether it is listed or 

remains a ``sensitive species.''

    Our Response: Section 7(a)(2) of the Act, as amended, requires 

Federal agencies to insure that activities that they authorize, fund, 

or carry out are not likely to jeopardize the continued existence of a 

listed species or to destroy or adversely modify its critical habitat. 

This could include Federal activities such as road construction, 

livestock grazing management, and mining permit issuance. If a Federal 

action may affect a listed species or its critical habitat, the 

responsible Federal agency must enter into formal consultation with us. 

Portions of the Jarbidge River population segment occur on lands 

administered by the USFS and BLM. We have already consulted with these 

Federal agencies for several such projects in the Jarbidge River basin 

during the emergency listing period. Federal and private actions that 

we authorize through section 7 consultation or through section 10 of 

the Act (Habitat Conservation Plans) will not result in significant 

impacts to bull trout. Future impacts to local residents from this 

final listing determination are expected to be minimal when compared 

with the requirements of existing laws, regulations, and procedures. 

See ``Available Conservation Measures'' section for a list of actions 

that would not result in a take of this species.

    Issue 8: A respondent noted that we are probably correct in stating 

that critical habitat is presently not determinable. They noted that 

consistent patterns in juvenile fish distribution, primarily with 

respect to stream elevation and water temperature, are useful in 

predicting patches of spawning and rearing habitats, which are probably 

sensitive to land use and important for the overall productivity of 

local populations. Several respondents encouraged us to consider 

several issues such as designating all historic and existing bull trout 

habitat as critical, protecting roadless and riparian areas, providing 

suitable water temperatures, limiting sediment delivery, and other 

habitat management activities.

    Our Response: Section 3 of the Act defines critical habitat to 

include the specific areas within the geographic area occupied by the 

species at the time it is listed, on which are found those physical or 

biological features essential to the conservation of the species and 

which may require special management considerations or protection. 

Critical habitat may also include specific areas outside of the 

geographic area occupied by the species at the time it is listed, upon 

determination that such areas are essential for the conservation of the 

species. At this time, we find that critical habitat is not 

determinable for the Jarbidge River population segment. We appreciate 

the comments and believe that information on patterns in fish 

distribution will likely be useful in future critical habitat 

designations. This and other habitat considerations will also be 

important during development of the recovery plan.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 

available, we determine that the Jarbidge River population segment of 

bull trout should be classified as a threatened species. We followed 

procedures found at section 4(a)(1) of the Act and regulations (50 CFR 

part 424) implementing the listing provisions of the Act. A species may 

be determined to be an endangered or threatened species due to one or 

more of the five factors described in section 4(a)(1). These factors 

and their application to the Jarbidge River population segment of bull 

trout (Salvelinus confluentus) are as follows:

[[Page 17118]]

A. The Present or Threatened Destruction, Modification, or Curtailment 

of Its Habitat or Range

    Land and water management activities that degrade and continue to 

threaten all of the bull trout population segments in the coterminous 

United States include dams, forest management practices, livestock 

grazing, agriculture and agricultural diversions, roads, and mining 

(Furniss et al. 1991; Meehan 1991; Nehlsen et al. 1991; Sedell and 

Everest 1991; Frissell 1993; McIntosh et al. 1994; MBTSG 1995a,b; 


    Ongoing threats affecting bull trout habitat have maintained 

degraded conditions in the West Fork of the Jarbidge River (McNeill et 

al. 1997; J. Frederick, pers. comm. 1998a; Kathy Ramsey, USFS, pers. 

comm. 1998a). McNeill et al. (1997) indicates that at least 11.2 km (7 

mi) of the West Fork of the Jarbidge River is affected by over a 

century of human activities such as road development and maintenance, 

mining, stream channelization and removal of large woody debris, 

residential development, and road and campground development on USFS 

lands. These activities removed the riparian canopy and much of the 

upland forest, reduced recruitment of large woody debris, and decreased 

channel stability (McNeill et al. 1997; K. Ramsey, in litt. 1997; J. 

Frederick, in litt. 1998a), which can lead to increased stream 

temperatures and bank erosion, and decreased long-term stream 

productivity. However, there is little documentation of increased 

stream temperatures and bank erosion and decreased stream productivity 

in the Jarbidge River system, but there is documentation of these kinds 

of degradation in other systems within the range of the bull trout.

    Strict, cold water temperature requirements make bull trout 

particularly vulnerable to activities that warm spawning and rearing 

waters (Goetz 1989; Pratt 1992; Rieman and McIntyre 1993). Bull trout 

distribution in the Jarbidge River population segment is likely 

affected by elevated stream temperatures as a result of past forest 

practices. Although timber was historically removed from the Jarbidge 

River basin, forest management is not thought to be a major factor 

currently affecting bull trout habitat. However, existing habitat 

conditions still reflect the impacts of past harvesting practices.

    Road construction and maintenance account for a majority of human-

induced sediment loads to streams in forested areas (Shepard et al. 

1984; Cederholm and Reid 1987; Furniss et al. 1991). Sedimentation 

affects streams by reducing pool depth, altering substrate composition, 

reducing interstitial space, and causing braiding of channels (Rieman 

and McIntyre 1993), which reduce carrying capacity. Sedimentation and 

the loss of pool-forming structures such as boulders and large wood 

reduces quantities of large, deep pools (USDA et al. 1993). Increasing 

stream basin road densities and associated effects have been shown to 

cause declines in bull trout (Quigley and Arbelbide 1997). Fewer bull 

trout are present within highly roaded basins, and bull trout are less 

likely to use highly roaded basins for spawning and rearing (Quigley 

and Arbelbide 1997).

    Road densities within the Jarbidge Canyon are currently 

characterized as moderate (Ramsey 1998). Bull trout habitats in 

portions of the Jarbidge River basin are negatively affected by the 

presence and maintenance of roads, especially those immediately 

adjacent to or crossing occupied streams. The unauthorized road 

construction and associated alterations to the West Fork of the 

Jarbidge River within the Humboldt-Toiyabe National Forest by the Elko 

County (Nevada) Road Department prompted our emergency listing of the 

Jarbidge River DPS on August 11, 1998 (63 FR 42757). On July 22, 1998, 

a USFS employee observed a 5.6-km (3.5-mi) plume of sediment in the 

West Fork, which extended downstream from a site where Elko County was 

using heavy equipment to reconstruct part of a USFS road that washed 

out during a flood in 1995 (B. Siminoe, pers. comm. 1998). By the 

following day, Elko County road crews reconstructed approximately 275 m 

(300 yards (yds)) of road. To create the road, sections of river were 

loosely filled with material from adjacent hillsides and floodplain 

debris. The entire river flow was diverted into a straight channel 

created with a bulldozer and/or front-end loader. This channel lacked 

pools and had minimal cover, as mature trees adjacent to the new 

channel and other riparian vegetation were removed during channel 

construction. Sedimentation in the river downstream of the construction 

area was substantial. Federal agencies have implemented channel and 

floodplain habitat restoration and stabilization practices, but impacts 

from the road reconstruction to bull trout habitat will likely remain 

for years. Impacts from County road maintenance practices within the 

Jarbidge Canyon and elsewhere, such as surface grading and dumping fill 

directly into the river to stabilize the road also continue to 

negatively impact bull trout habitat.

    Improper livestock grazing can promote streambank erosion and 

sedimentation, and limit the growth of riparian vegetation important 

for temperature control, streambank stability, fish cover, and detrital 

input. The steep terrain of the Jarbidge River basin is a deterrent to 

livestock grazing (J. Frederick, in litt. 1998a). Approximately 40 

percent of public and private lands within the watershed are grazed, 

and ongoing livestock grazing is affecting about 3.2 km (2 mi) of the 

East Fork of the Jarbidge River and portions of Dave Creek and Jack 

Creek by increasing sediment input, removing riparian vegetation, and 

trampling banks (J. Frederick, pers. comm. 1998; G. Johnson, pers. 

comm. 1998b). However, the effects are localized, and livestock grazing 

is considered only a minor localized threat to bull trout habitat in 

the Jarbidge River basin.

    Mining can degrade aquatic systems by generating sediment and heavy 

metals pollution, altering water pH levels, and changing stream 

channels and flow. Although not currently active, the effects of past 

mining in the Jarbidge River basin continue to adversely affect 

streams. Cyanide and/or mercury amalgamation mills were operated 

directly on the river, and spoil piles are still located adjacent to 

the river. These piles may be sources of sediment, acidity, and heavy 

metals. In addition, some old mine adits continue to discharge 

thermally-elevated groundwater. Water quality and temperatures 

associated with historical mining are still of concern.

    Migration barriers have precluded natural recolonization by bull 

trout in the Jarbidge River basin into historically occupied sites. For 

example, an Elko County road culvert had prevented upstream movement of 

bull trout in Jack Creek, a tributary to the West Fork of the Jarbidge 

River, for approximately 17 years. Private and public funding was used 

to replace the culvert with a bridge in the fall of 1997 (J. Frederick, 

in litt. 1998b), but bull trout have yet to return to this stream. In 

addition to structural barriers, stream habitat conditions (e.g., water 

temperature) are likely barriers to bull trout movement within the 

Jarbidge River basin.

B. Overutilization for Commercial, Recreational, Scientific, or 

Educational Purposes

    Declines in bull trout abundance have prompted States to institute 

restrictive fishing regulations and eliminate the harvest of bull trout 

in all waters in Idaho and Nevada. Similar restrictive regulations 

resulted in an increase in recent observations of adult bull trout in 

other areas of their range. However,

[[Page 17119]]

illegal harvest and incidental harvest still threaten bull trout.

    Overutilization by angling is a concern for the Jarbidge River DPS 

of bull trout. Idaho prohibited harvest of bull trout in the Jarbidge 

River basin as of 1995 and has shortened fishing seasons and 

implemented a two trout limit. Until recently, Nevada allowed harvest 

of up to 10 trout per day, including bull trout. Anglers harvested an 

estimated 100 to 400 bull trout annually in the Jarbidge River basin 

(Johnson 1990; Pat Coffin, Service, pers. comm. 1994; P. Coffin, in 

litt. 1995). On the West Fork of the Jarbidge River in Nevada, fishing 

pressure is between 1,500 to 3,500 angler days per year; the East Fork 

annually receives 500 to 1,500 angler days (P. Coffin, pers. comm. 

1996). Nevada State fishing regulations were recently amended to 

prohibit harvest of bull trout effective March 1, 1998 (Gene Weller, 

NDOW, in litt. 1997; G. Johnson, pers. comm. 1998b). In addition, 

Nevada reduced the daily and possession limits for other trout species 

in the Jarbidge River basin from 10 to 5 trout. We anticipate that 

these regulation changes will have a long-term positive effect on the 

conservation of bull trout. Inaccurate identification of bull trout by 

anglers could result in unauthorized harvest, further impacting already 

low population levels in this DPS. Even though State regulations now 

require all bull trout incidentally captured to be released 

immediately, some residual injuries or mortality are likely associated 

with capture and handling.

    Overutilization for scientific purposes can be a concern for the 

Jarbidge River DPS of bull trout in the long-term. State regulations 

require a scientific collection permit to collect bull trout for 

educational and scientific purposes, but permit application and 

reporting requirements are minimal. Although many bull trout collected 

for scientific purposes may be documented as released alive (e.g., 

after taking fin clips for genetic analysis), collection techniques 

such as electrofishing, have documented short- and long-term harmful 

effects on salmonids, including mortality, physical damage, behavioral 

changes, and physiological disturbances. Other types of permitted 

scientific research (e.g., implantation of radio tags) may also result 

in the loss of individual bull trout.

C. Disease or Predation

    Diseases affecting salmonids are likely to be present in the 

Jarbidge River population segment, but are not thought to be a factor 

threatening bull trout. Instead, interspecific interactions, including 

predation, likely negatively affect bull trout where non-native 

salmonids are introduced (Bond 1992; Donald and Alger 1993; Leary et 

al. 1993; MBTSG 1996a; J. Palmisano and V. Kaczynski, Northwest 

Forestry Resources Council, in litt. 1997).

    The NDOW and IDFG have introduced non-native salmonids, including 

brook trout and hatchery rainbow trout within the range of bull trout 

in the Jarbidge River basin. However, brook trout stocked in Nevada 

failed to establish a self-sustaining population in the Jarbidge River 

system and the NDOW has not stocked brook trout since 1960 (Johnson and 

Weller 1994; G. Johnson, pers. comm. 1998b; T. Crawforth, in litt. 

1998). In the West Fork of the Jarbidge River, only approximately 1 

percent of the angler harvest from the 1960s through the 1980s was 

brook trout (Johnson 1990). Hatchery-reared rainbow trout have been 

stocked annually for decades in both Nevada and Idaho portions of the 

basin. IDFG stocked a total of approximately 52,783 hatchery rainbow 

trout in the East (75 percent) and West (25 percent) forks of the 

Jarbidge River from 1970 through 1989 (F. Partridge, in litt. 1998), 

but then discontinued their stocking program. NDOW's average annual 

catchable rainbow trout stocking numbers on the West Fork of the 

Jarbidge River were 4,242 fish in the1970s; 3,287 fish from 1980 to 

1986; and 3,000 fish from 1987 to 1994 (except 1991) (Johnson and 

Weller 1994). NDOW's rainbow trout stocking program continued through 

1998, however, NDOW will not stock rainbow trout in the Jarbidge River 

system in 1999 (Gene Weller, NDOW, pers. comm. 1999).

D. The Inadequacy of Existing Regulatory Mechanisms

    The implementation and enforcement of existing Federal and State 

laws designed to conserve fishery resources, maintain water quality, 

and protect aquatic habitat have not been sufficient to prevent past 

and ongoing habitat degradation leading to bull trout declines and 

isolation. Regulatory mechanisms, including the National Forest 

Management Act, the Federal Land Policy and Management Act, the Public 

Rangelands Improvement Act, the Clean Water Act, the National 

Environmental Policy Act, Federal Power Act, State Endangered Species 

Acts and numerous State laws and regulations oversee an array of land 

and water management activities that affect bull trout and their 


    Regulatory mechanisms have been inadequate to protect bull trout 

habitat in the Jarbidge River basin. The Jarbidge Canyon Road parallels 

the West Fork of the Jarbidge River for much of its length and includes 

at least seven undersized bridges for the stream and floodplain. 

Maintenance of the road and bridges requires frequent channel and 

floodplain modifications that affect bull trout habitat, such as 

channelization; removal of riparian trees and beaver dams; and 

placement of rock, sediment, and concrete (McNeill et al. 1997; J. 

Frederick, pers. comm. 1998a; J. Frederick, in litt. 1998a). Periodic 

channelization in the Jarbidge River by unknown parties has occurred 

without oversight by the U.S. Army Corps of Engineers (COE) Clean Water 

Act section 404 regulatory program (Mary Jo Elpers, Service, pers. 

comm. 1998), and the USFS. Illegal road openings, such as the removal 

of road barriers and unauthorized grading, have also occurred within 

the Humboldt-Toiyabe National Forest.

    In 1995, a flood event washed out a 2.4-km (1.5-mi) portion of the 

upper Jarbidge Canyon road, which led to the Jarbidge Wilderness Area 

boundary. The USFS conducted an environmental analysis on options for 

restoring access to the wilderness and initially planned to reconstruct 

the road in the floodplain, which would have included channelizing the 

river (McNeill et al. 1997). After an appeal, the USFS subsequently 

completed additional environmental analyses and issued an environmental 

assessment on June 29, 1998, with construction of a hillside trail as 

the preferred alternative.

    On July 15, 1998, the Elko County Board of Commissioners passed a 

resolution directing the Elko County Road Department to reconstruct the 

road. On July 22, 1998, the USFS discovered that road construction was 

in progress and observed a 5.6-km (3.5-mi) plume of sediment downstream 

from the construction site. Prior to the issuance of cease and desist 

orders from the COE and Nevada Division of Environmental Protection 

(NDEP) on July 23, 1998, the County partially reconstructed 

approximately 275 m (300 yds) of road, created a new river channel, and 

diverted the flow of the river into the new channel. The County failed 

to implement BMPs and damaged or destroyed habitat within the river 

channel and floodplain. Elko County continues to publicly assert that 

it has jurisdiction over the road, but the Service, USFS, and Elko 

County are cooperatively exploring alternatives for public access in 

the area that would not adversely impact bull trout habitat.

    The Nevada water temperature standards throughout the Jarbidge 


[[Page 17120]]

are 21 deg. C (67 deg. F) for May through October, and 7 deg. C 

(45 deg. F) for November through April, with less than 1 deg. C (2 deg. 

F) change for beneficial uses (NDEP, in litt. 1998). Water temperature 

standards for May through October exceed temperatures conducive to bull 

trout spawning, incubation, and rearing (Rieman and McIntyre 1993; 

Buchanan and Gregory 1997). Also, several old mines are releasing small 

quantities of warm groundwater and potential contaminants into the West 

Fork of the Jarbidge River.

    In 1994, a local Bull Trout Task Force was formed to gather and 

share information on bull trout in the Jarbidge River basin. The task 

force is open to individuals from Elko and Owyhee counties, the towns 

of Jarbidge (Nevada) and Murphy Hot Springs (Idaho), road districts, 

private landowners, conservation organizations, NDOW, IDFG, BLM, USFS, 

and the Service. The task force was successful in 1997 in obtaining 

nearly $150,000 for replacing the Jack Creek culvert with a concrete 

bridge to facilitate bull trout passage into Jack Creek. However, the 

task force has not yet developed a comprehensive conservation plan 

addressing threats to bull trout in the Jarbidge River basin.

    In 1995, the USFS amended its Forest Plan for the Humbolt National 

Forest to include the Inland Native Fish Strategy, which was developed 

by the USFS to provide an interim aquatic conservation strategy for 

inland native fish in eastern Oregon and Washington, Idaho, western 

Montana, and portions of Nevada. This strategy sets a ``no net loss'' 

objective and is guiding USFS actions within bull trout habitat in the 

Jarbidge River basin.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Natural and human factors affecting the continued existence of bull 

trout include--previous introductions of non-native species that 

compete with bull trout; subpopulation habitat fragmentation and 

isolation caused by human activities; and the risk of local 

extirpations due to natural events such as droughts and floods.

    Introductions of non-native species by the Federal government, 

State fish and game departments and unauthorized private parties across 

the range of bull trout has resulted in declines in abundance, local 

extirpations, and hybridization of bull trout (Bond 1992; Howell and 

Buchanan 1992; Leary et al. 1993; Donald and Alger 1993; Pratt and 

Huston 1993; MBTSG 1995b; Platts et al. 1995; John Palmisano and V. 

Kaczynski, in litt. 1997). Non-native species may exacerbate stresses 

on bull trout from habitat degradation, fragmentation, isolation, and 

species interactions (Rieman and McIntyre 1993). In some lakes and 

rivers, introduced species including rainbow trout and kokanee may 

benefit large adult bull trout by providing supplemental forage (Pratt 

1992; MBTSG 1996a). However, the same introductions of game fish can 

negatively affect bull trout due to increased angling and subsequent 

incidental catch, illegal harvest of bull trout, and competition for 

space (Rode 1990; Bond 1992).

    ``The smaller and more isolated parts of the range (such as the 

bull trout remaining in the Jarbidge River basin) likely face a higher 

risk'' of extirpation by natural events relative to other bull trout 

populations (Rieman et al. 1997). One such risk factor is fire. In 

1992, a 4,850 hectare (12,000 acre) fire (Coffeepot Fire) occurred at 

elevations up to 2,280 m (7,500 ft), in areas adjacent to the Bruneau 

River basin and a small portion of the Jarbidge River basin. Although 

the Coffeepot Fire did not affect areas currently occupied by bull 

trout, similar conditions likely exist in nearby areas where bull trout 

occur. Adverse effects of fire on bull trout habitat may include loss 

of riparian canopy, increased water temperature and sediment, loss of 

pools, mass wasting of soils, altered hydrologic regime and debris 

torrents. Fires large enough to eliminate one or two suspected spawning 

streams are more likely at higher elevations where bull trout are 

usually found in the Jarbidge River basin (J. Frederick, in litt. 

1998a; K. Ramsey, pers. comm. 1998b).

    Other natural risks have been recently documented. The Jarbidge 

River Watershed Analysis indicates that 65 percent of the upper West 

Fork of the Jarbidge River basin has a 45 percent or greater slope 

(McNeill et al. 1997). Debris from high spring runoff flows in the 

various high gradient side drainages such as Snowslide, Gorge, and 

Bonanza gulches provide the West Fork of the Jarbidge River with large 

volumes of angular rock material. This material has moved down the 

gulches at regular intervals, altering the river channel and damaging 

the Jarbidge Canyon road, culverts, and bridge crossings. Most of the 

river flows are derived from winter snowpack in the high mountain 

watershed, with peak flows corresponding with spring snowmelt, 

typically in May and June (McNeill et al. 1997). Rain-on-snow events 

earlier in the year (January and February) can cause extensive flooding 

problems and have the potential for mass-wasting, debris torrents, and 

earth slumps, which could threaten the existence of bull trout in the 

upper Jarbidge River and tributary streams. In June 1995, a rain-on-

snow event triggered debris torrents from three of the high gradient 

tributaries to the Jarbidge River in the upper watershed (McNeill et 

al. 1997). The relationship between these catastrophic events and the 

history of intensive livestock grazing, burning to promote livestock 

forage, timber harvest and recent fire control in the Jarbidge River 

basin is unclear. Debris torrents may potentially affect the long-term 

viability of the Jarbidge River bull trout subpopulation.

    We have carefully assessed the best scientific and commercial 

information available regarding the past, present, and future threats 

faced by the Jarbidge River population segment of bull trout in 

determining to issue this rule. This population segment is 

characterized by low numbers of resident and migratory fish comprising 

a single, isolated subpopulation, within marginal habitat conditions 

for the species at the southern-most extremity of its range. The 

Jarbidge River DPS is vulnerable to extinction due to threats from 

activities such as road construction and maintenance, recreational 

fishing (intentional and unintentional harvest), rainbow trout 

stocking, mining, and grazing. Although some of these activities have 

been modified or discontinued in recent years, the lingering effects 

from these activities continue to affect water quality, contribute to 

channel and bank instability, and inhibit habitat and species recovery.

    We emergency listed the Jarbidge River population segment of bull 

trout as endangered on August 11, 1998 (63 FR 42757), due to channel 

alteration associated with unauthorized road construction to repair the 

Jarbidge Canyon Road, damaged by a 1995 flood, on the West Fork of the 

Jarbidge River, and the substantial risk that such construction would 

continue. The construction activity had completely destroyed all 

aquatic habitat in this area, and introduced a significant amount of 

sediment into the river. Continued unauthorized reconstruction of the 

2.4 km (1.5 mi) of the Jarbidge Canyon Road would have impacted 27 

percent of the known occupied bull trout habitat in the West Fork 

Jarbidge River, which has among the highest reported densities of bull 

trout within the Jarbidge River DPS (Johnson and Weller 1994). The road 

construction would have also indirectly impacted an additional 21 km 

(13 mi) of bull trout habitat downstream of the construction site in 

the West Fork Jarbidge River, and potentially 45 km (28 mi) in the 

mainstem Jarbidge River.

[[Page 17121]]

    Since the emergency listing of the Jarbidge River population 

segment, the USFS has restored some of the habitat. We have consulted 

with Federal agencies for several projects in the Jarbidge River basin 

such as old mining site reclamations, the creation of off-stream 

livestock watering sites, and fencing streams from livestock, that have 

helped reduce sedimentation into the Jarbidge River system. Following 

the issuance of a cease and desist order by the State of Nevada and COE 

to Elko County, the USFS hired stream restoration specialists to 

restore the damaged portion of the West Fork Jarbidge River. The 

specialists designed a plan to stabilize and enhance the river channel 

in its new location. Work crews removed the fine sediment in the river 

created by the road construction and placed large material such as 

woody debris, large rocks and boulders back into the river for bull 

trout habitat. The fine sediment removed from the river was used to 

repair floodplain damage upslope, and the streambanks were partially 

revegetated. The USFS will implement additional revegetation and 

erosion control measures in 1999. These restoration actions have helped 

to ameliorate some of the effects of the road construction on bull 

trout habitat. A residual, inaccessible road still exists, but the 

Service, USFS, and Elko County are cooperatively looking at 

alternatives for public access in the area that would not adversely 

impact bull trout habitat.

    We have carefully assessed the best scientific and commercial 

information available regarding past, present, and future threats faced 

by this species in determining to make this rule final. Based on this 

evaluation, we have determined that the Jarbidge River population 

segment of bull trout should be listed as threatened. We emergency 

listed this species as endangered due to the threats posed by road 

construction in the West Fork of the Jarbidge River. Because of the 

restoration activity that has occurred in the West Fork of the Jarbidge 

River to repair the road construction damage, we believe this distinct 

population segment fits the definition of threatened as defined by the 

Act. Therefore, the action is to list the bull trout as threatened in 

the Jarbidge River population segment.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 

specific area within the geographical area occupied by a species, at 

the time it is listed in accordance with the Act, on which are found 

those biological features (I) essential to the conservation of the 

species and (II) that may require special management considerations or 

protection; and (ii) specific areas outside the geographical area 

occupied by a species at the time it is listed, upon a determination 

that such areas are essential for the conservation of the species. 

``Conservation'' means the use of all methods and procedures needed to 

bring the species to the point at which listing under the Act is no 

longer necessary.

    Section 4(a)(3) of the Act, and implementing regulations (50 CFR 

424.12) require that, to the maximum extent prudent and determinable, 

the Secretary designate critical habitat at the time the species is 

determined to be endangered or threatened. Our regulations (50 CFR 

424.12(a)) state that critical habitat is not determinable if 

information sufficient to perform required analysis of impacts of the 

designation is lacking or if the biological needs of the species are 

not sufficiently well known to permit identification of an area as 

critical habitat. Section 4(b)(2) of the Act requires us to consider 

economic and other relevant impacts of designating a particular area as 

critical habitat on the basis of the best scientific data available. 

The Secretary may exclude any area from critical habitat if he 

determines that the benefits of such exclusion outweigh the 

conservation benefits, unless to do such would result in the extinction 

of the species.

    We find that the designation of critical habitat is not 

determinable for this distinct population segment based on the best 

available information. When a ``not determinable'' finding is made, we 

must, within 2 years of the publication date of the original proposed 

rule, designate critical habitat, unless the designation is found to be 

not prudent. We reached a ``not determinable'' critical habitat finding 

in the proposed rule and we specifically requested comments on this 

issue. While we received a number of comments advocating critical 

habitat designation, none of these comments provided information that 

added to our ability to determine critical habitat. Additionally, we 

did not obtain any new information regarding specific physical and 

biological features essential for bull trout in the Jarbidge River bull 

trout population segment during the open comment period including the 

five public hearings. The biological needs of bull trout in this 

population segment are not sufficiently well known to permit 

identification of areas as critical habitat. Insufficient information 

is available on the number of individuals or spawning reaches required 

to support viable subpopulations throughout the distinct population 

segment. In addition, we have not identified the extent of habitat 

required and specific management measures needed for recovery of this 

fish. This information is considered essential for determining critical 

habitat for this population segment. Therefore, we find that 

designation of critical habitat for the Jarbidge River population 

segment is not determinable at this time. We will protect bull trout 

habitat through enforcement of take prohibitions under section 9 of the 

Act, through the recovery process, through section 7 consultations to 

determine whether Federal actions are likely to jeopardize the 

continued existence of the species, and through the section 10 process 

for activities on non-Federal lands with no Federal nexus.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 

threatened under the Act include recognition, recovery actions, 

requirements for Federal protection, and prohibitions against certain 

activities. Recognition through listing encourages and results in 

conservation actions by Federal, State, and private agencies, groups, 

and individuals. The Act provides for possible land acquisition and 

cooperation with the States and requires that recovery actions be 

carried out for all listed species. The protection required of Federal 

agencies and the prohibitions against taking and harm are discussed, in 

part, below.

    Section 7(a) of the Act, as amended, requires Federal agencies to 

evaluate their actions with respect to any species that is proposed or 

listed as endangered or threatened and with respect to its critical 

habitat, if any is being designated. Regulations implementing this 

interagency cooperation provision of the Act are codified at 50 CFR 

Part 402. Section 7(a)(2) requires Federal agencies to insure that 

activities they authorize, fund, or carry out are not likely to 

jeopardize the continued existence of a listed species or to destroy or 

adversely modify its critical habitat. If a Federal action may affect a 

listed species or its critical habitat, the responsible Federal agency 

must enter into formal consultation with us.

    The Jarbidge River bull trout population segment occurs on lands 

administered by the USFS and the BLM, and on various State-owned 

properties in Idaho, and on private lands. Federal agency actions that 

may require consultation as described in the preceding paragraph 

include COE involvement in projects such as the construction of roads 

and bridges, and the permitting of wetland filling and

[[Page 17122]]

dredging projects subject to section 404 of the Clean Water Act (33 

U.S.C. 1344); USFS and BLM timber, recreation, mining, and grazing 

management activities; Environmental Protection Agency authorized 

discharges under the National Pollutant Discharge System of the Clean 

Water Act; and U.S. Housing and Urban Development projects.

    The Act and its implementing regulations found at 50 CFR 17.31 set 

forth a series of general trade prohibitions and exceptions that apply 

to all threatened wildlife. These prohibitions, in part, make it 

illegal for any person subject to the jurisdiction of the United States 

to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 

or collect; or attempt any of these), import or export, ship in 

interstate commerce in the course of commercial activity, or sell or 

offer for sale in interstate or foreign commerce any listed species. It 

is also illegal to possess, sell, deliver, carry, transport, or ship 

any such wildlife that has been taken illegally. Certain exceptions 

apply to our agents and State conservation agencies.

    We may issue permits under section 10(a)(1) of the Act, to carry 

out otherwise prohibited activities involving threatened wildlife under 

certain circumstances. Regulations governing permits are at 50 CFR 

17.32. Such permits are available for scientific purposes, to enhance 

the propagation or survival of the species, and/or for incidental take 

in connection with otherwise lawful activities. Permits are also 

available for zoological exhibition, educational purposes, or special 

purposes consistent with the purpose of the Act. You may address your 

requests for copies of the regulations concerning listed plants and 

animals, and general inquiries regarding prohibitions and permits, to 

the U.S. Fish and Wildlife Service, Ecological Services, Endangered 

Species Permits, 911 N.E. 11th Avenue, Portland, Oregon, 97232-4181 

(telephone 503/231-2063; facsimile 503/231-6243).

    It is our policy, published in the Federal Register on July 1, 1994 

(59 FR 34272), to identify to the maximum extent practicable at the 

time a species is listed those activities that would or would not 

constitute a violation of section 9 of the Act. The intent of this 

policy is to increase public awareness of the effect of this listing on 

proposed and ongoing activities within the species' range. We believe 

the following actions would not be likely to result in a violation of 

section 9, provided the activities are carried out in accordance with 

any existing regulations and permit requirements:

    (1) Actions that may affect bull trout in the Jarbidge River 

population segment and are authorized, funded or carried out by a 

Federal agency when the action is conducted in accordance with an 

incidental take statement issued by us pursuant to section 7 of the 


    (2) Incidental catch and immediate release of Jarbidge River 

population segment bull trout in accordance with applicable State fish 

and wildlife conservation laws and regulations in effect on April 8, 

1999 (see Special Rule section);

    (3) State, local and other activities approved by us under section 

4(d) and section 10(a)(1) of the Act.

    With respect to the Jarbidge River bull trout population segment, 

the following actions likely would be considered a violation of section 


    (1) Take of bull trout without a permit, which includes harassing, 

harming, pursuing, hunting, shooting, wounding, killing, trapping, 

capturing, or collecting, or attempting any of these actions, except in 

accordance with applicable State fish and wildlife conservation laws 

and regulations within the Jarbidge River bull trout population 


    (2) To possess, sell, deliver, carry, transport, or ship illegally 

taken bull trout;

    (3) Unauthorized interstate and foreign commerce (commerce across 

State or international boundaries) and import/export of bull trout (as 

discussed earlier in this section);

    (4) Introduction of non-native fish species that compete or 

hybridize with, or prey on bull trout;

    (5) Destruction or alteration of bull trout habitat by dredging, 

channelization, diversion, in-stream vehicle operation or rock removal, 

or other activities that result in the destruction or degradation of 

cover, channel stability, substrate composition, temperature, and 

migratory corridors used by the species for foraging, cover, migration, 

and spawning;

    (6) Discharges or dumping of toxic chemicals, silt, or other 

pollutants into waters supporting bull trout that result in death or 

injury of the species; and

    (7) Destruction or alteration of riparian habitat and adjoining 

uplands of waters supporting bull trout by recreational activities, 

timber harvest, grazing, mining, hydropower development, or other 

developmental activities that result in destruction or degradation of 

cover, channel stability, substrate composition, temperature, and 

migratory corridors used by the species for foraging, cover, migration, 

and spawning.

    We will review other activities not identified above on a case-by-

case basis to determine if a violation of section 9 of the Act may be 

likely to result from such activity. We do not consider these lists to 

be exhaustive and provide them as information to the public.

    Questions regarding whether specific activities may constitute a 

violation of section 9 should be directed to the Field Supervisor of 

our Nevada Fish and Wildlife Office (see ADDRESSES section) for the 

Jarbidge River population segment.

Special Rule

    Section 4(d) of the Act provides authority for us to promulgate 

special rules for threatened species that would relax specific 

prohibitions against taking. The final special rule included with this 

final listing allows for take of bull trout within the Jarbidge River 

DPS associated with certain activities for a period of 24 months. The 

special rule allows take for educational purposes, scientific purposes, 

the enhancement of propagation or survival of the species, zoological 

exhibition, and other conservation purposes consistent with the Act. 

The special rule also allows take that is incidental to recreational 

fishing activities, when conducted in accordance with State 

regulations, and provided that any bull trout caught are immediately 

returned to the stream. This special rule shall be in effect until 

April 9, 2001. At that time, all take prohibitions of the Act will be 

reinstated for the Jarbidge River population segment of the bull trout.

    We believe that existing angling regulations and other bull trout 

conservation measures developed independently by the States (see 

following paragraphs) are adequate to provide continued short-term 

conservation of bull trout in the Jarbidge River DPS. However, we 

believe that the development by the States of Idaho and Nevada of a 

management and conservation plan covering the entire range of bull 

trout in the Jarbidge River DPS with the objective of recovery and 

eventual delisting of this DPS would most effectively protect bull 

trout from excessive taking, and thereby ensure the future continuation 

of State sport fisheries programs in the Jarbidge River system. 

Therefore, it is our intent to propose, in the near future, another 

special rule that would provide the States of Idaho and Nevada the 

opportunity to develop a management and conservation plan for the 

Jarbidge River population segment of the bull trout that, if approved, 

could extend the exceptions to the take prohibitions provided by the 

special rule included in

[[Page 17123]]

this final listing. Such a plan would be developed with public input 

(e.g., Jarbidge Bull Trout Task Force), peer-reviewed by the scientific 

community, and presented to the appropriate State Fish and Game/

Wildlife Commissions. We would provide public notice in the Federal 

Register upon our approval of the plan.

    We find that State angling regulations have become more restrictive 

in an attempt to protect bull trout in the Jarbidge River DPS in Idaho 

and Nevada. Bull trout harvest prohibitions and reduced daily/

possession limits on other trout within the basin are currently in 

place throughout the Jarbidge River system, and the fishing season has 

been shortened in Idaho. The States, to varying extent, have also 

initiated public/angler awareness and education efforts relative to 

bull trout status, biology, and identification. IDFG has not stocked 

rainbow trout in the Jarbidge River system since 1989. NDOW will not 

stock rainbow trout in the Jarbidge River system in 1999 (Gene Weller, 

NDOW, pers. comm. 1999).

    IDFG has prepared a State-wide Bull Trout Conservation Program Plan 

(Hutchinson et al. 1998). In the plan, IDFG commits to 1) ensuring that 

management, research, hatchery, and scientific permitting programs are 

consistent with the Endangered Species Act, and 2) implementing bull 

trout recovery actions in Idaho.

    NDOW has a Bull Trout Species Management Plan that recommends 

management alternatives to ensure that human activities will not 

jeopardize the future of bull trout in Nevada (Johnson 1990). The 

recommended program identifies actions including bull trout population 

and habitat inventories, life history research, and potential 

population reestablishment; State involvement in watershed land use 

planning; angler harvest impact assessment; official State sensitive 

species designation for regulatory protection; and non-native fish 

stocking evaluation/prohibition and potential non-native fish 

eradications. NDOW scheduled these activities for implementation from 

1991 to 2000, but many have yet to be initiated or fully implemented.

    In the special rule for fishes we are making a minor editorial 

correction in the paragraph designations.

Paperwork Reduction Act for the Listing

    This listing rule does not contain any new collections of 

information other than those already approved under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 

Management and Budget clearance number 1018-0094. An agency may not 

conduct or sponsor, and a person is not required to respond to a 

collection of information, unless it displays a currently valid control 

number. For additional information concerning permit and associated 

requirements for threatened species, see 50 CFR 17.32.

Required Determinations for the Special Rule

Regulatory Planning and Review, Regulatory Flexibility Act, and Small 

Business Regulatory Enforcement Fairness Act

    The special rule was not subject to Office of Management and Budget 

(OMB) review under Executive Order 12866.

    a. This rule will not have an annual economic effect of $100 

million or adversely affect an economic sector, productivity, jobs, the 

environment, or other units of the government. Therefore, a cost-

benefit and full economic analysis is not required. Section 4(d) of the 

Act provides authority for us to promulgate special rules for 

threatened species that would relax the prohibition against taking. We 

find that State angling regulations have become more restrictive in an 

attempt to protect bull trout in the Jarbidge River in Idaho and 

Nevada. Bull trout harvest prohibitions and reduced daily/possession 

limits on other trout within the basin are currently in place 

throughout the Jarbidge River system, and the fishing season has been 

shortened in Idaho. The States, to varying extent, have also initiated 

public/angler awareness and education efforts relative to bull trout 

status, biology, and identification. We believe that existing angling 

regulations and other bull trout conservation measures developed 

independently by the States are adequate to provide continued short-

term conservation of bull trout in the Jarbidge River. As a result, 

this special rule will allow recreational angling to take place in the 

Jarbidge River during the next 24 months under existing State 

regulations. The economic effects discussion addresses only the 

economic benefits that will accrue to the anglers who can continue to 

fish in the Jarbidge River.

    This special rule will remove the threat of a take prohibition 

under section 9 of the Act and allow continued angling opportunities in 

Idaho and Nevada under existing State regulations. Data on the number 

of days of fishing under new State regulations are available for the 

East and West forks of the Jarbidge River in Nevada. We used these data 

to calculate angling days per river mile which was applied to the river 

segment in Idaho. Because of the lack of definitive data, we decided to 

do a worst case analysis. We analyzed the economic loss in angling 

satisfaction, measured as consumer surplus, if all fishing were 

prohibited in the Jarbidge River. Since there are substitute sites 

nearby where fishing is available, this measure of consumer surplus is 

a conservative estimate and would be a maximum estimate. The range of 

angling days in Nevada is from 2,000 to 5,000 (figures combine angler 

days in the East and West Fork of the Jarbidge River) annually. We 

estimate for Idaho a range of 3,600 to 9,000 angling days per year. A 

consumer surplus of $19.35 (1999 $) per day for trout fishing in Idaho 

and Nevada results in a range of benefits of $109,000 to $271,000 per 

year. The consumer surplus is a measurement of the satisfaction that an 

angler gets from pursuing the sport of fishing. Since this special rule 

will only be in place for 24 months, there is little need for 

discounting. Consequently, this special rule will have a small economic 

benefit on the United States economy, and even in the worst case, will 

not have an annual effect of $100 million or more for a significant 

rule making action.

    b. This special rule will not create inconsistencies with other 

agencies' actions. The special rule allows for continued angling 

opportunities in accordance with existing State regulations.

    c. This special rule will not materially affect entitlements, 

grants, user fees, loan programs, or the rights and obligations of 

their recipients. This special rule does not affect entitlement 


    d. This special rule will not raise novel legal or policy issues. 

There is no indication that allowing for continued angling 

opportunities in accordance with existing State regulations would raise 

legal, policy, or any other issues.

    The Department of the Interior certifies that the final rule will 

not have a significant economic effect on a substantial number of small 

entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). A Regulatory Flexibility Analysis is not required. 

Accordingly, a Small Entity Compliance Guide is not required. No 

individual small industry within the United States will be 

significantly affected by allowing for continued angling opportunities 

in accordance with existing State regulations in the Jarbidge River for 

24 months.

    The special rule is not a major rule under 5 U.S.C. 801 et seq., 

the Small

[[Page 17124]]

Business Regulatory Enforcement Fairness Act. This special rule:

    a. Does not have an annual effect on the economy of $100 million or 

more. Trout fishing in the Jarbidge River basin generates, on average, 

expenditures by local anglers ranging from $168 thousand to $519 

thousand per year. Consequently, the maximum benefit of this rule for 

local sales of equipment and supplies is no more than $519 thousand per 

year and most likely smaller because all fishing would not cease in the 

area even if the Jarbidge River were closed to fishing. The 

availability of numerous substitute sites would keep anglers spending 

at a level probably close to past levels.

    b. Will not cause a major increase in costs or prices for 

consumers, individual industries, Federal, State, or local government 

agencies, or geographic regions. This special rule allows the 

continuation of fishing in the Jarbidge River and, therefore, allows 

for the usual sale of equipment and supplies by local businesses. This 

special rule will not affect the supply or demand for angling 

opportunities in southern Idaho or northern Nevada and therefore should 

not affect prices for fishing equipment and supplies, or the retailers 

that sell equipment.

    c. Does not have significant adverse effects on competition, 

employment, investment productivity, innovation, or the ability of 

United States based enterprises to compete with foreign-based 

enterprises. The recreational spending of a small number of affected 

anglers, ranging from just over 600 to slightly over 1,500 anglers, 

will have only a small beneficial economic effect on the sportfish 


Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 

et seq.):

    a. This special rule will not ``significantly or uniquely'' affect 

small governments. A Small Government Agency Plan is not required.

    b. This special rule will not produce a Federal mandate of $100 

million or greater in any year; that is, it is not a ``significant 

regulatory action'' under the Unfunded Mandates Reform Act.

Takings Implication

    We have determined that this special rule has no potential takings 

of private property implications as defined by Executive Order 12630. 

The special rule would not restrict, limit, or affect property rights 

protected by the Constitution.


    This special rule will not have substantial direct effects on the 

States, in their relationship between the Federal Government and the 

States, or on the distribution of power and responsibilities among 

various levels of government. Therefore, in accordance with Executive 

Order 12612, we have determined that this special rule does not have 

sufficient federalism implications to warrant a Federalism Assessment.

Civil Justice Reform

    The Department of the Interior has determined that this special 

rule meets the applicable standards provided in sections 3(a) and 

3(b)(2) of Executive Order 12988.

National Environmental Policy Act

    We have determined that an Environmental Assessment and 

Environmental Impact Statement, as defined under the authority of the 

National Environmental Policy Act of 1969, need not be prepared in 

connection with regulations adopted pursuant to section 4(a) of the 

Act. We published a notice outlining our reasons for this determination 

in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein is available upon 

request from the Nevada Fish and Wildlife Office (see ADDRESSES 


    Author. The primary author of this proposed rule is Selena Werdon, 

Nevada Fish and Wildlife Office, Reno, Nevada.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 

of the Code of Federal Regulations, as follows:


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 

order under FISHES, to the List of Endangered and Threatened Wildlife:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *

    (h) * * *


                        Species                                                    Vertebrate

--------------------------------------------------------                        population where                                  Critical     Special

                                                            Historic range       endangered or         Status      When listed    habitat       rules

           Common name                Scientific name                              threatened


                   *                  *                  *                  *                  *                  *                  *


                   *                  *                  *                  *                  *                  *                  *

    Trout, bull..................  Salvelinus            U.S.A. (Pacific      Jarbidge R. Basin    T                       659           NA     17.44(x)

                                    confluentus.          NW), Canada (NW      (U.S.A.--ID, NV).


                   *                  *                  *                  *                  *                  *                  *


    3. Amend Sec. 17.44 by redesignating paragraph (v) bull trout as 

paragraph (w).

    4. Amend Sec. 17.44 by adding paragraph (x) to read as follows:

Sec. 17.44  Special rules--fishes.

* * * * *

    (x) Bull trout (Salvelinus confluentus), Jarbidge River population 


    (1) Prohibitions. Except as noted in paragraph (x)(2) of this 

section, all prohibitions of 50 CFR 17.31 and exemptions of 50 CFR 

17.32 apply to the bull trout in the Jarbidge River

[[Page 17125]]

population segment within the United States.

    (2) Exceptions. No person may take this species, except in the 

following instances in accordance with applicable State fish and 

wildlife conservation laws and regulations relevant to protection of 

bull trout in effect on April 8, 1999.

    (i) For educational purposes, scientific purposes, the enhancement 

of propagation or survival of the species, zoological exhibition, and 

other conservation purposes consistent with the Act;

    (ii) Incidental to State-permitted recreational fishing activities, 

provided that any bull trout caught are immediately returned to the 


    (iii) The exceptions in paragraphs (x)(2) (i) and (ii) of this 

section will be in effect until April 9, 2001. At that time, all take 

prohibitions of the Act will be reinstated for the Jarbidge River 

population segment unless exceptions to take prohibitions are otherwise 

provided through a subsequent special rule.

    (3) Any violation of applicable State fish and wildlife 

conservation laws or regulations with respect to the taking of this 

species is also a violation of the Endangered Species Act.

    (4) No person may possess, sell, deliver, carry, transport, ship, 

import, or export, any means whatsoever, any such species taken in 

violation of this section or in violation of applicable State fish and 

conservation laws and regulations.

    (5) It is unlawful for any person to attempt to commit, solicit 

another to commit, or cause to be committed, any offense defined in 

paragraphs (x)(2) through (4) of this section.

    Dated: April 5, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-8850 Filed 4-7-99; 8:45 am]