Federal Register, Volume 63 Issue 154 (Tuesday, August 11, 1998)

[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42757-42762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21550]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1080-AF01

Endangered and Threatened Wildlife and Plants: Emergency Listing
of the Jarbidge River Population Segment of Bull Trout as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) exercises its
emergency authority to determine the Jarbidge River population segment
of bull trout (Salvelinus confluentus) from the Jarbidge River basin in
southern Idaho and northern Nevada to be endangered pursuant to the
Endangered Species Act of 1973, as amended (Act). The Jarbidge River
population segment, composed of a single subpopulation, is threatened
by habitat degradation from past and ongoing land management activities
such as mining, road construction and maintenance, and grazing.
Recently initiated river channel alteration associated with
unauthorized road construction on the West Fork of the Jarbidge River
is believed to imminently threaten the survival of the Jarbidge River
bull trout population. Because of the need to make the protective
measures afforded by the Act immediately available to the Jarbidge
River population of bull trout and its habitat, the Service finds that
an emergency rule action is justified. This emergency rule provides
Federal protection pursuant to the Act for the Jarbidge River
population of bull trout for a period of 240 days. A proposed rule to
list the Jarbidge River population of bull trout as threatened, which
requested data and comment from the public, was published in the
Federal Register on June 10, 1998. The comment period on the proposed
rule closes on October 8, 1998.

DATES: This emergency rule is effective on August 11, 1998, and expires
on April 8, 1999.

ADDRESSES: The complete 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.

FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor,
Nevada Fish and Wildlife Office (see ADDRESSES section; telephone: 702/
861-6300).

SUPPLEMENTARY INFORMATION:

Background

A complete discussion of this section is contained in the proposed
rule published on June 10, 1998 (63 FR 31693).

Distinct Population Segments

The best available scientific and commercial information supports
designating five distinct population segments (DPSs) of bull trout in
the coterminous United States--(1) Klamath River, (2) Columbia River,
(3) Coastal-Puget Sound, (4) Jarbidge River, and (5) St. Mary-Belly
River. A final listing determination for the Klamath River and Columbia
River DPSs was published in the Federal Register on June 10, 1998 (63
FR 31647), and includes a detailed description of the rationale behind
the DPS delineation. A proposed rule to list the Coastal Puget Sound,
Jarbidge River, and St. Mary-Belly River population segments as
threatened was also published in the Federal Register on June 10, 1998
(63 FR 31693). The approach is consistent with the joint National
Marine Fisheries Service (NMFS) and Service's policy for recognizing
distinct vertebrate population segments under the Act (February 7,
1996; 61 FR 4722). This emergency rule addresses only the Jarbidge
River bull trout DPS.
The Jarbidge River, located 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 segregated from other bull trout in the Snake River basin
by a large gap (greater than 240 kilometers (km) (150 miles (mi)) in
suitable habitat and several impassable dams on the mainstem Snake
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, because 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, the Service
analyzed data on a subpopulation basis within the segment 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.
The Jarbidge River DPS consists of one bull trout subpopulation
occurring primarily in Nevada (Service 1998b). Resident fish inhabit
the headwaters of the East Fork and West Fork of the Jarbidge River and
several tributary streams, and low numbers of migratory (fluvial) fish
are present (Zoellick et al. 1996; L. McLelland, Nevada Division of
Wildlife (NDOW), in litt. 1998; K. Ramsey, Humboldt National Forest
(HNF), in litt. 1997). Bull trout were not observed during surveys in
the Idaho portion of the Jarbidge River basin in 1992 and 1995 (Warren
and Partridge 1993; Allen et al. 1997), however, a single, small bull
trout was captured when traps were operated on the lower East Fork and
West Fork Jarbidge River during August through October 1997 (F.
Partridge, Idaho Department of Fish and

[[Page 42758]]

Game (IDFG), pers. comm. 1998). A loss of range likely has occurred for
migratory bull trout (fluvial) in the lower Jarbidge and Bruneau rivers
and perhaps downstream to the Snake River (Johnson and Weller 1994;
Zoellick et al. 1996). Low numbers of migratory (fluvial) bull trout
have been documented in the West Fork Jarbidge River from the 1970's
through the mid-1980's (Johnson and Weller 1994).
The distribution of bull trout in Nevada includes at least six
headwater streams above 2,200 meters (m) (7,200 feet (ft)), primarily
in wilderness areas-- East Fork and West Fork Jarbidge River and Slide,
Dave, Pine, and Jack creeks (Johnson and Weller 1994). Zoellick et al.
(1996) compiled data from 1954 through 1993 and estimated bull trout
population size in the middle and upper headwater areas of the West
Fork and East Fork of the Jarbidge River. In each stream, sampled areas
were located at elevations above 1,792 m (5,880 ft), and population
estimates were less than 150 fish/km (240 fish/mi) (Zoellick et al.
1996).
In general, bull trout represent a minor proportion of the fish
fauna downstream of the headwater reaches; native redband trout are the
most abundant salmonid and sculpin the most abundant fish (Johnson and
Weller 1994). Although accounts of bull trout distribution in the
Jarbidge River basin date to the 1930's, historic abundance is not well
documented. In 1934, bull trout were collected in the East Fork
Jarbidge River drainage downstream of the Idaho-Nevada border (Miller
and Morton 1952). In 1985, 292 bull trout ranging from 73 to 266
millimeters (mm) (2.9 to 10.5 inches (in)) in total length, were
estimated to reside in the West Fork Jarbidge River (Johnson and Weller
1994). In 1992, the abundance of bull trout in the East Fork Jarbidge
River was estimated to be 314 fish ranging from 115 to 165 mm (4.5 to
6.5 in) in total length (Johnson and Weller 1994). In 1993, bull trout
numbers in Slide and Dave creeks were estimated at 361 and 251 fish,
respectively (Johnson and Weller 1994). During snorkel surveys
conducted in October 1997, no bull trout were observed in 40 pools of
the West Fork Jarbidge River or in four 30-m (100-ft) transects in Jack
Creek (G. Johnson, NDOW, pers. comm. 1998). Only one bull trout had
been observed at the four transects in 1992 (Johnson, pers. comm.
1998). However, it is premature to consider bull trout extirpated in
Jack Creek (Service 1998b). There is no information on whether bull
trout have been extirpated from other Jarbidge River headwater
tributaries.
It is estimated that between 50 and 125 bull trout spawn throughout
the Jarbidge River basin annually (Johnson, pers. comm. 1998). However,
exact spawning sites and timing are uncertain (Johnson, pers. comm.
1998) and only two redds have been observed in the basin (Ramsey, in
litt. 1997; Ramsey, pers. comm. 1998a). Presumed spawning streams have
been identified by records of one or more small bull trout (about 76 mm
(3 in)).
Population trend information for bull trout in the Jarbidge River
subpopulation is not available, although the current characteristics of
bull trout in the basin (i.e., low numbers and disjunct distribution)
have been described as similar to that observed in the 1950's (Johnson
and Weller 1994). Based on recent surveys, the subpopulation is
considered ``depressed'' (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). Past and
present activities within the basin are likely restricting bull trout
migration in the Jarbidge River, thus reducing opportunities for bull
trout reestablishment in areas where the fish are no longer found
(Service 1998b).

Previous Federal Action

A complete discussion of this section is contained in the proposed
rule published on June 10, 1998 (63 FR 31693).

Summary of Factors Affecting The Species

Procedures found in section 4 of the Act and regulations (50 CFR
part 424) promulgated to implement the Act set forth the procedures for
adding species to the Federal lists. 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:

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 distinct population segments, including
the Jarbidge River population segment, in the coterminous United States
include dams, forest management practices, livestock grazing,
agriculture and agricultural diversions, roads, and mining (Beschta et
al. 1987; Chamberlain et al. 1991; Furniss et al. 1991; Meehan 1991;
Nehlsen et al. 1991; Sedell and Everest 1991; Craig and Wissmar 1993;
Frissell 1993; Henjum et al. 1994; McIntosh et al. 1994; Wissmar et al.
1994; U.S. Department of Agriculture (USDA) and U.S. Department of the
Interior (USDI) 1995, 1996, 1997; Light et al. 1996; MBTSG 1995a-e,
1996a-h).
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. The steep terrain of the Jarbidge River
basin has been a deterrent to grazing (J. Frederick, HNF, in litt.
1998a); and grazing does not occur in approximately 60 percent of the
watershed. Although much of the remaining 40 percent of public and
private lands are grazed, the effects are localized and considered of
relatively minor importance to bull trout habitat in the Jarbidge River
basin. For example, livestock grazing is affecting about 3.2 km (2 mi)
of the East Fork Jarbidge River and portions of Dave Creek and Jack
Creek (Frederick, pers. comm. 1998; Johnson, pers. comm. 1998).
Ongoing threats affecting bull trout habitat have created degraded
conditions in the West Fork Jarbidge River (McNeill et al. 1997;
Frederick, pers. comm. 1998; Ramsey, pers. comm. 1998a). At least 11.2
km (7 mi) of the West Fork Jarbidge River has been affected by over a
century of human activities such as road development and maintenance,
historic mining and mine (adit) drainage, channelization and removal of
large woody debris, residential development, road and campground
development on U.S. Forest Service lands (McNeill et al. 1997). As a
result of these activities, the riparian canopy and much of the upland
forest has been removed, recruitment of large woody debris reduced, and
channel stability has decreased (McNeill et al. 1997; Ramsey, in litt.
1997; Frederick, in litt. 1998a). These activities reduce habitat
complexity and likely elevate water temperatures seasonally. For
example, water temperatures recorded near Bluster Bridge were 15 to
17 deg.C (59 to 63 deg. F) for 24 days in 1997.
Culverts installed at road crossings may act as barriers to bull
trout movement in the Jarbidge River basin. For example, an Elko County
road culvert had prevented upstream movement of bull trout in Jack
Creek, a West Fork Jarbidge River tributary, for approximately 17
years. Private and public funding was used to replace the culvert with
a bridge in the fall of 1997 (Frederick, in litt. 1998b); however, a
rock structure approximately 300 m

[[Page 42759]]

(1,000 ft) upstream the bridge in Jack Creek may still impede bull
trout movement, at least seasonally during low flows.

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

Declines in bull trout have prompted states to institute
restrictive fishing regulations and eliminate the harvest of bull trout
in most waters in Idaho and Nevada. Overutilization by angling was a
concern in the past for the Jarbidge River DPS of bull trout. Although
Idaho prohibited harvest of bull trout beginning in 1995, Nevada, until
recently, allowed harvest of up to 10 trout per day, including bull
trout, in the Jarbidge River basin. An estimated 100 to 400 bull trout
were harvested annually in the Jarbidge River basin (Johnson 1990; P.
Coffin, Service, pers. comm. 1994; Coffin, in litt. 1995). Nevada State
regulations were recently amended to allow only catch-and-release of
bull trout starting March 1, 1998 (G. Weller, NDOW, in litt. 1997;
Johnson, pers. comm. 1998). The Service anticipates that this change in
the regulations will have a positive effect on conservation of bull
trout, however, the effects of the new harvest regulations may require
five years to evaluate (Johnson, pers. comm. 1998).

C. Disease and Predation

Diseases affecting salmonids are present or likely present in the
Jarbidge DPS, but are not thought to be a factor for listing bull
trout. However, interspecific interactions, including predation, likely
negatively affect bull trout where non-native salmonids have been
introduced (J. Palmisano and V. Kaczynski, Northwest Forestry Resources
Council (NFRC), in litt. 1997).

D. The Inadequacy of Existing Regulatory Mechanisms

Although efforts are underway to assist in conserving bull trout
throughout the coterminous U.S. (e.g., Batt 1996; R. Joslin, USFS, in
litt. 1997; A. Thomas, BLM, in litt. 1997), the implementation and
enforcement of existing Federal and State laws designed to conserve
fishery resources, maintain water quality, and protect aquatic habitat
have not been sufficient to prevent past and ongoing habitat
degradation leading to bull trout declines and isolation. Regulatory
mechanisms, including the National Forest Management Act, the Federal
Land Policy and Management Act, the Public Rangelands Improvement Act,
the Clean Water Act, the National Environmental Policy Act, Federal
Power Act, State Endangered Species Acts and numerous State laws and
regulations oversee an array of land and water management activities
that affect bull trout and their habitat.
Regulatory mechanisms addressing alterations to stream channels,
riparian areas, and floodplains from road construction and maintenance,
and the effects associated with roads and past mining on water quality,
have been inadequate to protect bull trout habitat in the Jarbidge
River basin. For example, the Jarbidge Canyon Road parallels the West
Fork 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 require 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; Frederick, pers. comm. 1998; Frederick,
in litt. 1998a). In 1995, debris torrents washed out a portion of the
upper Jarbidge Canyon Road above Pine Creek. The Service has
recommended that this road segment be closed to vehicular traffic and
that a trail be maintained to reduce the effects of the road and its
maintenance on the river (R. Williams, Service, in litt. 1998).
Periodic channelization in the Jarbidge River by unknown parties has
occurred without the oversight provided by the Corps of Engineers Clean
Water Act section 404 regulatory program (M. Elpers, Service, pers.
comm. 1998), and the HNF has been unable to control trespass
(unauthorized road openings) on Federal lands. Several old mines
(adits) are releasing small quantities of warm water and other
contaminants into the West Fork Jarbidge River.
The Nevada water temperature standards throughout the Jarbidge
River 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 (Nevada Department of Environmental
Protection (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).
In 1994, a local Bull Trout Task Force was formed to gather and
share information on bull trout in the Jarbidge River. The task force
is open to any representative from Elko and Owyhee counties, the towns
of Jarbidge (Nevada) and Murphy Hot Springs (Idaho), road districts,
private landowners, NDOW, IDFG, the Boise District of Bureau of Land
Management, HNF, 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 all threats to bull trout in the Jarbidge
River basin.
In 1995, the Humboldt National Forest plan was amended to include
the Inland Native Fish Strategy. This fish and wildlife habitat policy
sets a no net loss objective and is currently guiding Forest Service
planning of possible reconstruction of a portion of the Jarbidge Canyon
Road (Ramsey 1997). In June 1998, HNF issued the Jarbidge River
Environmental Assessment for Access and Restoration between Pine Creek
Campground and the Jarbidge Wilderness (HNF 1998).

E. Other Natural or Manmade Factors Affecting its Continued Existence

Natural and manmade factors affecting the continued existence of
bull trout include--previous introductions of non-native species that
compete, hybridize, and prey on bull trout; fragmentation and isolation
of bull trout subpopulations from habitat changes caused by human
activities; and subpopulation extirpations due to naturally occurring
events such as droughts, floods and other environmental events.
Previous 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,d, 1996g; Platts et al. 1995;
Palmisano and 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, such as rainbow
trout or kokanee, may benefit large adult bull trout by providing
supplemental forage (Faler and Bair 1991; Pratt 1992; ODFW, in litt.
1993; 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; WDW 1992; MBTSG 1995d).
``The smaller and more isolated parts of the range [such as the
bull trout

[[Page 42760]]

remaining in the Owyhee Uplands ecological reporting units or Jarbidge
River basin] likely face a higher risk'' of naturally occurring
extirpation relative to other bull trout populations (Rieman et al.
1997). One such risk is fire. In 1992, a 4,900 hectare (ha) (12,000
acre (ac)) fire (Coffeepot Fire) occurred at lower elevations, up to
2,286 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 (Frederick, in litt. 1998a; Ramsey, pers.
comm. 1998b).
Hybridization with introduced brook trout is also a potential
threat. In the West Fork Jarbidge River, approximately one percent of
the harvest from the 1960's through the 1980's was brook trout (Johnson
1990). Some brook trout may spill out of Emerald Lake into the East
Fork Jarbidge River during peak runoff events, but the lake lacks a
defined outlet so that the event appears unlikely (Johnson, pers. comm.
1994). Although low numbers of brook trout persist in the Jarbidge
River basin, conditions are apparently not conducive to the expansion
of a brook trout population.
Other naturally occurring risks have been recently documented. The
Jarbidge River Watershed Analysis (McNeill et al. 1997) indicates that
65 percent of the upper West Fork Jarbidge River basin has a 45 percent
or greater slope. Debris from high spring runoff flows in the various
high gradient side drainages such as Snowslide, Gorge, and Bonanza
gulches provide the West Fork 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
River 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 has
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. However, debris torrents may potentially affect the long-term
viability of the Jarbidge River bull trout subpopulation.
The Jarbidge River population segment is composed of a single
subpopulation, characterized by low numbers of resident fish.
Activities such as road construction and maintenance, mining and
grazing threaten bull trout in the Jarbidge River basin. Although some
of these activities have been modified or discontinued in recent years,
the lingering effects continue to alter water quality, contribute to
channel and bank instability, and inhibit habitat recovery. Ongoing
threats include channel and bank alterations associated with road
construction and maintenance, a proposed stream rechannelization
project, recreational fishing (intentional and unintentional harvest),
and competition with brook trout.
Based on the above factors, the Service determined that it was
appropriate to propose listing the Jarbidge River population of bull
trout as threatened, and did so on June 10, 1998. Developments
subsequent to publication of that proposed rule have led the Service to
conclude that it is appropriate to use the Act's emergency provision to
list the Jarbidge River bull trout population as endangered. This
population is endangered by habitat destruction and degradation
resulting from channel alteration associated with recently-initiated,
unauthorized road construction along the West Fork Jarbidge River, and
a substantial risk that this construction will continue. After
carefully assessing the best scientific and commercial information
available regarding the past, present, and future threats faced by the
Jarbidge River population segment of bull trout, and based on the
reasoning discussed below, the Service has concluded that this
population is in imminent danger of extinction throughout all or a
significant portion of its range within the distinct population
segment. The Jarbidge River population segment is, therefore,
endangered as defined in the Act.

Reasons for Emergency Determination

Under section 4(b)(7) of the Act and 50 CFR 424.20, the Secretary
may determine a species to be endangered or threatened by emergency
rule that shall cease 240 days following publication in the Federal
Register. The reasons for this rule are discussed below. If at any time
after this rule has been published, the Secretary determines that
substantial evidence does not exist to warrant such a rule, it shall be
withdrawn.
An emergency posing a significant risk to the well-being and
continued survival of the Jarbidge River bull trout population exists
as a result of channel alteration associated with unauthorized road
construction, and the substantial risk that such construction will
continue. On July 22, 1998, the Elko County Road Department was
actively working in and along the Jarbidge River to repair the Jarbidge
Canyon Road (also referred to as South Canyon Road and Forest
Development Road #064), as directed in a resolution passed by the Elko
County Board of Commissioners on July 15, 1998. On July 22, 1998, a
Forest Service employee reported a 5.6 km (3.5 mi) plume of sediment
downstream from the construction site. Fish and Wildlife Service and
Forest Service staff visited the area on July 23, 1998. They observed
approximately 275 m (300 yards (yd)) of new road where the river had
previously flowed. To create the road, sections of river were roughly
filled with material from adjacent hillsides and debris left by the
1995 flood. The construction activity had completely destroyed all
aquatic habitat in this area. The entire river flow was diverted into a
newly created straight channel lacking pools and cover. All riparian
vegetation, including mature trees, adjacent to the new channel had
been removed. Impacts of resultant sedimentation in areas of the river
downstream are being evaluated. The NDOW and HNF are currently
evaluating the total extent of impacts from the construction. Water
temperatures recorded on July 22, 1998, suggest that this portion of
the river would have supported bull trout prior to the construction
activity.
Elko County stopped the road work at all locations on July 24,
1998, after receiving cease and desist orders from the State of Nevada
and the Corps of Engineers. At present, the Service is concerned that
Elko County will resume the unauthorized road work. Continued
unauthorized reconstruction of the 2.4 km (1.5 mi) of the Jarbidge
Canyon Road damaged by the 1995 flood would result in the direct loss
of 27 percent of the

[[Page 42761]]

known occupied bull trout habitat in the West Fork Jarbidge River (8.8
km (5.5 mi); Johnson and Weller 1994), which has among the highest
reported densities of bull trout within the Jarbidge River DPS (85
fish/km; 53 fish/mi; Johnson and Weller 1994). The road construction
would also indirectly impact 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.
This construction activity has deposited additional sediment into the
West Fork Jarbidge River; this sediment has been carried downstream
causing further damage to bull trout habitat. Indirect impacts include
alteration of stream flow and water temperature, increased sediment
transport, decreased invertebrate production, disruption of migration
and spawning during August through September caused by stream turbidity
and sedimentation, and decreased survival of eggs and juveniles from
deposition of fine sediment. The combination of direct and indirect
impacts resulting from the unauthorized road construction, and the
substantial risk that the construction will continue, constitutes an
emergency posing a significant risk to the well-being and continued
survival of the already depressed Jarbidge River bull trout population.

Critical Habitat

A complete discussion of this section is contained in the proposed
rule published on June 10, 1998 (63 FR 31693).

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Endangered Species 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 State 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)(4) requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) 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. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
The Jarbidge bull trout population segment occurs on lands
administered by the USFS, various State-owned properties, and private
lands. Federal agency actions that may require conference or
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 dredging projects subject to
section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.); USFS
timber, recreational, 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 17.21 and
17.31, set forth a series of general trade prohibitions and exceptions
that apply to all threatened and endangered 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 agents of the Service and
State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered and threatened wildlife under certain
circumstances. Regulations governing permits are at 50 CFR 17.22,
17.23, and 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.
It is the policy of the Service, as 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. The Service believes the following would not be likely to result
in a violation of section 9:
(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 the Service pursuant to section 7
of the Act.
The following actions likely would be considered a violation of
section 9:
(1) Take of bull trout without a permit, which includes harassing,
harming, pursuing, hunting, shooting, wounding, killing, trapping,
capturing, or collecting, or attempting any of these actions;
(2) Possession, sale, delivery, carriage, transportation, or
shipment of illegally taken bull trout;
(3) Interstate and foreign commerce (commerce across state and
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 significant
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 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 significant
degradation of cover, channel stability, substrate composition,
temperature, and migratory corridors

[[Page 42762]]

used by the species for foraging, cover, migration, and spawning.
Questions regarding whether specific activities may constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Nevada Fish and Wildlife Office (see ADDRESSES section).
Requests for copies of the regulations concerning listed animals and
inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Endangered Species Permits, 911 NE.
11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-6241;
facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, 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. A notice outlining the Service's reasons for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244).

Required Determinations

This 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. For additional information concerning
permit and associated requirements for endangered species, see 50 CFR
17.32.

References Cited

A complete list of all references cited herein is available upon
request from the U.S. Fish and Wildlife Service, Nevada Fish and
Wildlife Office (see ADDRESSES section).
Author: The primary authors of this emergency rule include --
Jeffery Chan, Western Washington Fishery Resource Office, Olympia, WA;
Timothy Cummings, Columbia River Fisheries Program Office, Vancouver,
WA; Stephen Duke, Snake River Basin Office, Boise, ID; Robert Hallock,
Upper Columbia River Basin Office, Spokane, WA; Samuel Lohr, Snake
River Basin Office, Boise, ID; Leslie Propp, Western Washington State
Office, Olympia, WA; Selena Werdon, Nevada Fish and Wildlife Office .

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service amends part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical
order under Fishes, to the List of Endangered and Threatened Wildlife
to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific Name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Trout, bull...................... Salvelinus U.S.A. (Pacific NW) Jarbidge R. Basin E 639E NA NA
confluentus. Canada (NW (U.S.A.--ID, NV).
Territories).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: August 6, 1998.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 98-21550 Filed 8-7-98; 10:09 am]
BILLING CODE 4310-55-P