2006 Federal Register, 71 FR 6383; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: February 8, 2006 (Volume 71, Number 26)]
[Rules and Regulations]
[Page 6383-6396]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe06-20]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU47

Endangered and Threatened Wildlife and Plants; Critical Habitat
Designation for the Kootenai River Population of the White Sturgeon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Kootenai River population of the white
sturgeon (Acipenser transmontanus) (Kootenai sturgeon) pursuant to the
Endangered Species Act of 1973, as amended (Act). In total,
approximately, 6.9 river miles (RM) (11.1 river kilometers (RKM)) of
the Kootenai River fall within the boundaries of the critical habitat
designation located in Boundary County, Idaho. This designation is in
addition to the 11.2 miles (18 kilometers) of the Kootenai River
already designated as critical habitat for the Kootenai sturgeon.

DATES: This rule becomes effective March 10, 2006. We will accept
comments from all interested parties until April 10, 2006. A public
hearing will be held on March 16, 2006 (see ADDRESSES section below for
location of hearing).

ADDRESSES: Comments: You may submit comments, identified by RIN 1018-
AU47, by any of the following methods:
(1) Federal Rulemaking Portal: http://www.regulations.gov. Follow

the instructions for submitting comments.
(2) E-mail: FW1SPOK_crithab_stur@R1.fws.gov. Include RIN 1018-
AU47 in the subject line.

[[Page 6384]]

(3) Fax: 509-891-6748.
(4) Mail: Susan Martin, Field Supervisor, U.S. Fish and Wildlife
Service, Upper Columbia Fish and Wildlife Office, 11103 E Montgomery,
Spokane, WA 99206.
(5) Hand Delivery/Courier: You may hand-deliver written documents
to our office, at the above address.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
Hearing: A public hearing will be at the Kootenai River Inn, 7169
Plaza St, Bonners Ferry, Idaho, on March 16, 2006, from 7 p.m. until
8:30 p.m. An informal informational meeting will precede the hearing
from 5 p.m. until 6:30 p.m. Anyone wishing to make oral comments for
the record at the public hearing is encouraged to provide a written
copy of their statement and present it to us at the hearing. In the
event there is a large attendance, the time allotted for oral
statements may be limited. Oral and written statements receive equal
consideration.

FOR FURTHER INFORMATION CONTACT: Susan Martin, Field Supervisor, Upper
Columbia Fish and Wildlife Office at the above address (telephone: 509-
891-6839; facsimile: 509-891-6748).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

To ensure that this action is as accurate and as effective as
possible, we hereby solicit comments or suggestions from the public,
other concerned governmental agencies, the scientific community,
industry, or any other interested party concerning this rule. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of Kootenai
sturgeon habitat; whether areas included in the designation that are
occupied and do not contain the features that are essential to the
conservation of the species; or whether areas included as occupied are
not occupied and why. Specific information is also sought on areas not
occupied at the time of listing which are essential to the conservation
of the species and why those areas should be considered essential to
the conservation of the species;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on the critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the designation and, in particular, any impacts
on small entities;
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(6) Any information on why the canyon reach (see Background section
below) should or should not be designated as critical habitat; and,
(7) In its May 25, 2005 order, discussed below, the court focused
on the effect of substrate on ultimate breeding success, and this
interim rule reflects the court's focus. The best available science,
however, demonstrates that breeding success is dependent on a number of
variables in addition to substrate. As discussed below, water
temperature, depth, and velocity all appear to play a role in
triggering spawning. Thus, a combination of appropriate substrates and
water conditions appear necessary for significant breeding success.
Do all of the areas designated contain all of the PCEs
required for successful breeding and recruitment (i.e., both the
triggering of spawning by the adults and the survival of eggs and
larval sturgeon)?
If so, do any of the habitat features in these areas
require special management?
In particular years, there has been, albeit inadequate,
recruitment. Please provide comment on any perceived or known bases for
that recruitment and how it might inform our designation of this
critical habitat.
What is the geographic origin of those recruited sturgeon?

Background and Previous Federal Actions

For a description of Federal actions concerning Kootenai sturgeon
that occurred prior to our September 6, 2001, designation of critical
habitat, refer to that rule (66 FR 46548).
On February 21, 2003, the Center for Biological Diversity filed a
complaint against the Corps and the Service (CV 03-29-M-DWM) in Federal
Court in the District of Montana, alleging among other things, that
designated critical habitat for the Kootenai sturgeon failed to include
areas which included rocky substrate and therefore would not allow the
Kootenai sturgeon to recover. Plaintiffs alleged there are more
appropriate cobble spawning areas outside of designated critical
habitat that should have been included, and that it was arbitrary and
capricious for the Service not to include these areas in critical
habitat.
On May 25, 2005, the District Court of Montana ruled in favor of
plaintiffs, and remanded the critical habitat designation to the
Service for reconsideration with a due date of December 1, 2005. The
Service filed a motion to alter or amend the judgment, and the Court
extended the deadline for releasing a new critical habitat designation
to February 1, 2006. In the interim, the Court ruled that the 2001
designation of critical habitat remains in effect. The Kootenai
sturgeon is 1 of 18 land-locked populations of white sturgeon known to
occur in western North America (U.S. Fish and Wildlife Service 1999).
Kootenai sturgeon occur in Idaho, Montana, and British Columbia and are
restricted to approximately 167.7 river miles (RM) (270 river
kilometers (RKM)) of the Kootenai River extending from Kootenai Falls,
Montana (31 RM (50 RKM) below Libby Dam) downstream to the outflow of
Kootenay Lake, British Columbia at Corra Linn Dam. For more information
on the Kootenai sturgeon, refer to the final listing rule published in
the Federal Register on September 6, 1994 (59 FR 45989), the Recovery
Plan for the Kootenai River Population of the White Sturgeon (U.S. Fish
and Wildlife Service 1999), and our final rule designating critical
habitat, published in the Federal Register on September 6, 2001 (66 FR
46548).
The sturgeon has been experiencing declining populations since the
late 1970s when we first began monitoring. The declines are believed to
be due to recruitment failure largely related to lack of appropriate
spawning and rearing habitat. The Service has been consulting with the
U.S. Army Corps of Engineers on the operation of Libby Dam to determine
what measures can be used to prevent jeopardizing the continued
existence of the species. As a result of this consultation, the Corps
has undertaken a number of conservation actions designed to address the
spawning and rearing habitat deficiencies in the river. Those actions
are designed to address both the physical habitat in the river itself
as well as changes to the operation of the dam which could improve
spawning and rearing conditions.
In order to successfully recruit new individuals into the sturgeon
population, the sturgeon must spawn, the eggs must settle in an area
that supports their viability, and the mobile

[[Page 6385]]

embryos that emerge from the eggs must have appropriate habitat in
which to grow.
The trigger for Kootenai sturgeon spawning appears to be unrelated
to successful incubation and mobile embryo survival. As a result,
Kootenai sturgeon currently spawn in areas unsuitable for incubation
and mobile embryo success. This has resulted in sturgeon spawning in
areas with substrates that are unsuitable for egg and mobile embryo
viability in the 14 years we have been monitoring sturgeon spawning. It
is unclear what precisely is triggering spawning in areas unsuited to
egg and embryo viability. However, to date, data indicate that Kootenai
Sturgeon successful recruitment to the juvenile stage occurs when mean
water column velocity is 3.3 ft/s (1.0 m/s) or greater.
Although rocky substrates do not appear to be essential for
spawning site selection, they appear to be essential to the viability
of eggs and the survival of free embryos. Rocky substrates provide
surfaces for sturgeon eggs to attach. In addition the rocky substrate
provides inter-gravel spaces for free embryo development. In areas with
no such substrate or where sand and gravel occur, eggs have been found
with sand and silt adhering to them and this is believed to prevent
proper incubation and hatching. The linear downstream extent of rocky
substrate from spawning sites is also important because eggs and free
embryos are dispersed downstream by the current. For similar white
sturgeon populations this distance appears to be at least 5 mi (8 km)
of continuous rocky substrate.
For these reasons, we believe that all 3 characteristics, water
depths of at least 5 meters, flows with a minimum mean water column
velocity of at least 3.3 fps, stable, temperatures of roughly 50
degrees F in May through July with no sudden drops in temperature
exceeding 3.6 degrees F, and rocky substrate for at least 5 miles are
necessary for successful spawning that leads to recruitment into the
adult population. Because the behavior of sturgeon results in spawning
in areas that are not able to support egg incubation and embryo
survival all three physical and biological components need to be
present in the same place at the same time for successful spawning and
recruitment.
We agree with the court that rocky substrate is necessary for
successful sturgeon recruitment. Appropriate depths, timing,
temperature and flow velocities are also essential for successful
spawning. Finally, that these physical characteristics occur
simultaneously and in the same location is also essential. The current
plight of the Kootenai sturgeon appears to be caused by current
separation (in time or location) of one or more of these physical
characteristics of successful spawning and recruitment habitat from the
others. A prerequisite for sturgeon conservation may be ending this
separation and conservation actions currently underway for the sturgeon
may be able to remedy this disconnect.
However, the ultimate means for conservation of a species are only
tangentially related to the legal question of what areas qualify as
critical habitat under the statutory definition in ESA Sec. 3(5).
Under that definition, specific areas within the geographical area
occupied by the species at the time of listing are critical habitat if
(1) they contain physical or biological features essential to the
conservation of the species and (2) which may require special
management. The courts in other challenges to critical habitat
designations have been uniform in holding that any occupied area must
contain the essential features--speculation that those features may be
present in the future has been explicitly rejected as a sufficient
basis for designation.
The court has required that we designate this area, however we
believe it may not meet the statutory definition as there may not be
sufficient PCEs to provide for essential life functions, in this case
successful spawning. The information the Service has to date indicates
that not all of the PCEs required for successful spawning may exist in
any of the designated areas at the same time. We have designated
critical habitat as the court directed and we are seeking public
comment as to whether there is other data demonstrating that these
elements actually exist in the designated areas.
We have specifically requested public comment on these difficult
issues. After public comment, we may revise the designation to delete
any areas that we determine, based on the best available science, do
not meet the statutory definition of ``critical habitat.'' Below we
present relevant information regarding the basis of the statements and
findings in this rule.

Geomorphic Reaches

The Kootenai River, from Kootenai Falls to the Canadian border is
comprised of three geomorphic reaches (Snyder and Minshall 1994; Barton
et al. 2004; Berenbrock 2005a): (1) The canyon reach, which extends
from Kootenai Falls at to below the confluence with the Moyie River;
(2) the braided reach, which begins at the end of the canyon reach and
extends downstream to Bonners Ferry. The meander reach, extends from RM
151.8 (RKM 244.5) to the confluence with Kootenay Lake in British
Columbia. The uppermost portion of meander reach, from the lower end of
the braided reach to Shorty's Island, was designated as critical
habitat in 2001 (66 FR 46548).
The canyon reach, beginning at Kootenai Falls, is characterized by
rocky substrates and a relatively high water surface gradient.
Downstream from the canyon reach the valley broadens and the river
forms a low-gradient braided reach as it flows through multiple shallow
channels over gravel and cobbles (Barton et al. 2005). The meander
reach (including the currently designated unit) is characterized by
sandy substrate, a low water-surface gradient and a series of deep
holes. The meander reach includes the 11.2 mi (18 km) of currently
designated critical habitat from RM 152.6 (RKM 246) downstream to RM
141.4 (RKM 228). The uppermost segment of the meander reach is
relatively shallow under the current hydrologic regime. A deep hole
(49.9 feet (ft) (15.2 meters (m))) exists near Ambush Rock at
approximately RM 151.9 (RKM 244.6) (Barton et al. 2005), and this hole
is frequented by sturgeon in spawning condition.

Spawning Site Selection

We have no documentation regarding Kootenai sturgeon spawning
locations prior to systematic surveying efforts initiated in 1991.
Since 1991, sturgeon eggs have been recovered in the Kootenai River
from below Shorty's Island (Paramagian et al. 1995) to the canyon reach
at RM 162.6 (RKM 261.6) (Paragamian et al. 2001; Rust and Wakkinen
2004). Despite intensive sampling for the past 14 years, the only
documentation of sturgeon eggs above the transition zone is in 2003
when five sturgeon eggs were found on sampling mats at RM 162.6 (RKM
261.6), during a year when sturgeon were experimentally moved to this
reach to see if they would spawn there (Rust and Wakkinen 2004). These
eggs were collected too early in development to determine if
fertilization had occurred. Successful recruitment to the juvenile
stage is rare within the designated critical habitat. When successful
recruitment occurs, it appears to be correlated with years of high
flows.
The rest of the eggs have also been documented in the lower 5 mi (8
km) of the designated critical habitat. There is evidence from movement
of radio and/or sonic tagged individuals that approximately one-third
of the sturgeon in spawning condition migrate to the

[[Page 6386]]

transition zone, but few have remained to spawn there. Most (the other
two-thirds) of the sturgeon in spawning condition simply remain in the
meander reach.
Research on Kootenai sturgeon suggests that water depth and
velocity are the primary factors influencing spawning location and that
temperature influences spawning timing. Substrate does not appear to be
a factor in current spawning site selection, as the sturgeon readily
spawns over substrates that are not conducive to survival for early
life-stages (i.e., areas without rocky substrate). These factors, and
what we know about them, are discussed in more detail below.

Water Depth

Of 209 radio contacts with tagged Kootenai sturgeon in spawning
condition, 75 percent were within the lower one-third of the water
column, and they tended to be found even closer to the bottom during
the actual spawning period (Paragamian and Duehr 2005). Egg capture
locations between 1991 and 1998 indicate that all but three spawning
events occurred over sand substrate between RM 141.6 (RKM 228) and an
undefined point upstream of RM 149.4 (RKM 240.5), in waters usually
greater than 16.5 ft (5 m) in depth (Paragamian et al. 2001, Barton et
al. 2005).
As the spawning season progresses the sturgeon tend to spawn
further upstream in the meander reach (Paragamian et al. 2001), river
depth also increases there due to cumulative flows and backwater
influence from Kootenay Lake (Hoffman 2005a). McDonald (2005b)
determined that it was not the average velocity, but depth that was
most closely related to spawning location among Kootenai sturgeon.

Water Velocity

Paragamian et al. (2001) observed mean water column velocities
between RM 141.6 and 149.4 (RKM 228 and 240.5) during spawning events
and in 2002, Paragamian et al. (2002) hypothesized that spawning
sturgeon may select sites further upstream with greater water
velocities as depth increases due to the backwater from Kootenai Lake.
Parsley and Beckman (1994) suggested, based on information from four
lower Columbia River sites where white sturgeon successfully reproduce,
that optimal spawning habitat may occur when mean water column velocity
is 3.3 ft/s (1.0 m/s) or greater. Based on these studies it appears
that white sturgeon use velocity as a cue for spawning.
The hydraulic energy and turbulent flow fields often associated
with high water velocity are necessary to maintain exposed rocky
substrate essential for maintaining clean interstitial space within the
substrate (shelter). Under higher water velocities free embryos may
seek shelter by initiating the hiding phase up to two days earlier
(Brannon et al. 1985), and thus avoid being transported by the current
to sites without rocky substrate for shelter. In the absence of
suitable water velocities Kootenai sturgeon remain vulnerable to
predation and survival is predictably low (Parsley and Beckman 1991,
Miller and Beckman 1996).

Water Temperature

The water temperatures during white sturgeon spawning are fairly
narrow and well known. White sturgeon spawning in the Kootenai River
occurs most commonly when water temperatures are around 50 degrees
Fahrenheit ([deg]F) (10.0 degrees Celsius ([deg]C)) (Paragamian and
Wakkinen 2002). Sudden drops of temperatures greater than 3.6 [deg]F
(2.0 [deg]C) negatively affect egg fertilization (Lewandowski 2004).

Rocky Substrate

Although rocky substrates do not appear to be essential for
spawning site selection, they appear to be essential to the viability
of eggs and the survival of free embryos. Rocky substrates provide
fixed surfaces for demersal (sinking, heavier than water), adhesive
sturgeon eggs (Stockley 1981) to attach and maintain location during
egg incubation, and inter-gravel spaces for the free embryo hiding
phase (Brannon et al. 1985; Parsley et al. 2002; Coutant 2004). The
linear downstream extent of rocky substrate from spawning sites is
important for the species because these rocky substrates provide both
attachment surfaces for eggs and hiding cover for free embryos that are
redistributed, by the current, downstream. For white sturgeon
populations below Bonneville and Ice Harbor Dams on the Columbia River,
where white sturgeon spawn and successfully recruit, this distance
appears to be at least 5 mi (8 km) of continuous rocky substrate. Based
on this, we conclude that rocky substrate distributed continuously
along a sufficient length of the Kootenai River is essential for
successful Kootenai sturgeon recruitment.
The meander reach has a relatively low stream gradient, and
substrates are composed primarily of sand and other fine materials
overlying lacustrine (of, relating to, or formed in a lake) clay
(Barton 2003, unpublished data; Barton et al. 2004). Exposed, naturally
deposited gravel is confined to a few small sites along the banks and
streambed believed to be associated with old tributary outflows
(McDonald 2005), and localized areas where steep river banks have been
artificially armored with cobbles and boulders to control erosion
(Bettin in litt. 2005). Spawning Kootenai sturgeon do not appear to
exhibit consistent spawning site fidelity to these few sites in the
meander reach with rocky substrates (Barton 2004a; Hoffman in litt.
2005b).
A significant reach of river bank armor (cobble) currently exists
along the right bank of the Kootenai River in the vicinity of RM 142.8
(RKM 230) (Bettin in litt. 2005). Spawning has been documented near
this armored river bank and upstream in areas where conditions meet the
sturgeon's spawning requirements of flows, depth, and temperature but
rocky substrates are lacking (Paragamian et al. 2002; Hoffman 2005a).
Our original critical habitat designation in 2001 assumed that a
``buried gravel/cobble geomorphic reach'' existed throughout the river
bed within the meander reach from approximately RM 151.8 (RKM 244.5) at
Bonner's Ferry downstream to the mouth of Deep Creek, a distance of 2.8
mi (4.5 km) (Barton 2004a). However, a more extensive sediment analysis
during the summer of 2004 revealed that gravel/cobble in this area was
relatively scarce with the exception of a 0.25 mi (0.4 km) reach of
buried gravel within the meander reach below the mouth of Myrtle Creek
(Barton 2004a).
Exposed gravel/cobble does exist within the transition zone between
the braided reach and the lower meander reach from approximately RM
151.8 (RKM 244.5) upstream to RM 152.7 (RKM 246). On three occasions
eggs have been collected in this transition zone (Paragamian et al.
2001), meaning that spawning occurred there, or directly upstream and
eggs were redistributed by the current to this area. Due to the
difficulty of tracking individuals during early life stages, it is
unclear if any eggs deposited in the transition zone or upstream have
survived to become juveniles. Other populations of sturgeon that are
known to have successful recruitment (e.g., the outflows at Bonneville
and Ice Harbor Dams on the Columbia River) have at least 5 mi (8 km) of
suitable rocky substrate before transitioning into sandy substrate.
This 0.6 mi (1 km) reach of exposed gravel/cobble, currently designated
as critical habitat in the Kootenai River, is insufficient for
dispersing free embryos and young fish

[[Page 6387]]

in the hiding phase. This critical habitat designation adds 6.9 river
miles (RM) (11.1 river kilometers (RKM)) of the Kootenai River, known
as the braided reach which contains rocky substrate, however, not all
the requirements for successful spawning and/or adequate recruitment
may currently exist in this reach.

U.S. Army Corps of Engineers Conservation Actions

To promote fertilized egg survivorship and successful recruitment,
the Corps has provided various augmentation releases from Libby Dam
since 1991. These releases seem to have provided the habitat features
that supported limited successful spawning and recruitment, especially
in 1991 when the augmentation releases lasted more than 40 days (the
longest augmentation flows of any year) and natural runoff was high.
Based on capturing juveniles in gill nets and aging them by counting
growth patterns in fin-ray sections, 14 sturgeons were recruited in
1991. These 14 sturgeons are out of a total of 26 sturgeons (54
percent) that were recruited between 1991 to 1997 (Beamesderfer 2005).
Thus, the duration and timing of augmentation flows are likely
correlated to increased recruitment success in the Kootenai River. The
mechanism for this relationship is that higher flows provide protection
to sturgeon eggs from predators that can not forage on a sustained
basis in such high velocity waters (Faler et al. 1988; Miller and
Beckman 1996).
The Corps has proposed physical modifications to the meander reach
that are intended to provide suitable hard substrate where sturgeon now
spawn. These sites will continue to be monitored to assess the
effectiveness of these conservation efforts.

Interim Rule

We are promulgating this interim rule to meet the court-ordered
deadline for issuing a new designation of critical habitat for the
Kootenai sturgeon by February 1, 2006. On June 9, 2005, we filed a
motion to alter or amend the court's May 25, 2005, judgment. In the
declaration, which accompanied our motion, we explained that the
timeline given by the court to issue a new final rule was insufficient
to complete a legally proper and well-justified revision of critical
habitat. In our declaration, we described in detail the 20-month
schedule needed to perform the complex analysis and review involved in
preparing a new proposed revision of critical habitat, preparation and
finalization of a new economic analysis, compliance with the
implementing regulations of the ESA requirement for a 60 day comment
period on the proposed rule, and the additional steps required to
finalize the new revision. In an order issued July 15, 2005, the court
rejected our proposed schedule and ordered us to promulgate and submit
a final critical habitat designation to the Federal Register for
immediate publication by February 1, 2006. The court in its July 15,
2005, order specifically stated it was leaving it to the Service to
determine the most efficient procedure for legal promulgation of a new
critical habitat designation.
Under these circumstances, we have determined under 5 U.S.C.
553(b)(3)(B) that we have good cause to issue this rule without prior
opportunity for public comment because prior notice and public
procedure would be impracticable (which is also a reason listed under
553(b)(3)(B) of the APA). From the time required to research this rule,
we did not have sufficient time to issue a proposed rule, open a
reasonable comment period, and subsequently issue a final rule prior to
the court-imposed deadline. Therefore, without issuance of an interim
rule, we would be in violation of the court order.
Although this interim final rule does constitute a final rule, and
therefore has regulatory effect, it also opens a comment period on the
substance of the rule. Following public comment, we will consider all
comments received and issue a new final rule that will replace this
interim final rule. That new final rule may vary from this interim
final rule, to the extent consistent with APA and ESA, and will address
the comments received. Thus, in effect, this interim final rule will
serve as the proposed rule for the later final rule, and the Service
will treat this interim final rule as the proposed rule for the purpose
of complying with ESA Sec. 4(b)(5).

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or 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 that are necessary to bring an endangered or a threatened
species to the point at which listing under the Act is no longer
necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that may affect critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow government or public access to private
lands.
To be included in a critical habitat designation, the habitat
within the area occupied by the species at the time of listing must
first have features that are essential to the conservation of the
species. Critical habitat designations identify, to the extent known
using the best scientific and commercial data available, habitat areas
that provide essential life cycle needs of the species (i.e., areas on
which are found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features exist and may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but which was not
known to be occupied at the time of listing will likely be essential to
the conservation of the species and, therefore, included in the
critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific and commercial data

[[Page 6388]]

available. They require Service biologists to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of Section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Critical habitat may not include all of the habitat areas that may
eventually be determined to be necessary for the recovery of the
species. For these reasons, critical habitat designations do not signal
that habitat outside the designation is unimportant or may not be
required for recovery. Areas that support populations, but are outside
the critical habitat designation, will continue to be subject to
conservation actions implemented under section 7(a)(1) of the Act and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.

Methods

As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial information available in determining habitats
that contain the features that are essential to the conservation of the
Kootenai sturgeon. We relied upon information in our prior rulemaking,
our recovery plan, and more recent information on the biological needs
of the species summarized in the Background section above. We are
designating critical habitat only in areas presently occupied by the
species at the time of listing.
We have also reviewed available information that pertains to
habitat requirements of this species. The materials included data and
analysis in section 7 consultations and gathered by biologists holding
section 10(a)(1)(A) recovery permits; research published in peer-
reviewed articles and presented in academic theses, and agency reports,
original data sets, and data analyses and accounts of involved
scientists and resource managers.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (primary constituent elements (PCEs))
that are essential to the conservation of the species, and that may
require special management considerations and protection. These
include, but are not limited to: Space for individual and population
growth and for normal behavior; food, water, air, light, minerals, or
other nutritional or physiological requirements; cover or shelter;
sites for breeding, reproduction, and rearing (or development) of
offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.

Specific Primary Constituent Elements for the Kootenai Sturgeon

We have identified the primary constituent elements of Kootenai
sturgeon critical habitat based on our knowledge of life history,
biology, and ecology of the Kootenai sturgeon and the habitat
requirements necessary to sustain the essential life history functions
of the species. We are changing the PCEs to better fit with our current
understanding of the features needed to support the sturgeon's life
history functions,
As noted earlier, this designation focuses on spawning and rearing
habitats which are limiting factors to sturgeon conservation. All of
the following primary constituent elements must be present in order for
successful spawning, incubation and survival to occur. These primary
constituent elements are:
(1) During the spawning season of May into July, a flow regime that
periodically (not necessarily annually) produces flood flows capable of
producing intermittent depths of at least 5 meters (Paragamian and
Duehr 2005, Barton et al. 2005), and mean water column velocities of at
least 3.3 ft/s (1.0 m/s) (Anders et al. 2002, Schafter 1997, Berenbrock
2005) throughout, but not uniformly within the braided reach.
(2) Stable, temperatures of roughly 50 degrees F in May into July
with no sudden drops in temperature exceeding 3.6 degrees F at Bonners
Ferry during the spawning season and water temperatures suitable for
natural rates of development of embryos.
(3) Presence of approximately 5 miles of continuous submerged rocky
substrates for normal free embryo redistribution behavior and
downstream movement (Brannon et al. 1985).
(4) A flow regime that limits sediment deposition and maintains
appropriate rocky substrate for sturgeon egg adhesion, incubation,
escape cover, and free embryo development (Stockley 1981, Parsley et
al. 1993, Parsley and Beckman 1994).
The presence of PCE components related to flow, temperature, and
depth is dependent in large part to the amount and timing of
precipitation in any given year. These parameters vary during and
between years and, at times, some or all of the parameters are not
present in the area designated as critical habitat. In addition, in
general, all PCEs are not necessary to provide for all biological
processes. As noted earlier for spawning and rearing habitat, all the
identified PCEs must be present at the same time and in the same place.
However, because even in the critical habitat the specific conditions
in riparian systems are variable due to a number of factors such as
weather, this designation does not require that these parameters must
be available year-round. Rather, the designation means that sufficient
PCE components to support successful spawning must be present and
protected during May into July, the time of the year when the PCE
components are needed to fulfill the requirements to ensure successful
spawning, which are the particular conservation need for which the
reach was designated.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing contain the primary
constituent elements which may require special management
considerations or protections. Threats to the braided reach include
shallow water depths, low water velocities, and sudden changes in water
temperature in ways that that

[[Page 6389]]

adversely affect breeding behavior (see U.S. Fish and Wildlife Service
1994 final listing rule for the sturgeon).
Each of the areas designated contain PCEs that provide for one or
more of the life history functions of the sturgeon. In some cases, the
PCEs may exist as a result of ongoing Federal actions. However, the
Service does not foresee that continued operations of Libby Dam in a
manner consistent with past management would result in destruction or
adverse modification of critical habitat. These conditions are part of
the current baseline conditions.

Critical Habitat Designation

We are revising our 2001 final critical habitat designation by
adding the braided reach to existing Kootenai sturgeon critical
habitat. The braided reach is 6.9 mi (11.1 km) long and is entirely
within Boundary County, Idaho. This designation is in addition to the
11.2 RM (18 RKM) of the meander reach currently designated as critical
habitat. The critical habitat areas described below constitute our best
assessment of additional areas determined to be occupied at the time of
listing, that may contain the primary constituent elements essential to
the conservation of the Kootenai sturgeon, and that may require special
management or protections.

Land Ownership

Upon statehood in 1890, the State of Idaho claimed ownership of the
bed of the Kootenai River and its banks up to ordinary high-water
lines. Based upon early U.S. Forest Service (USFS) maps from 1916, U.S.
Geological Survey maps from 1928, and the confining effects of the
private levees completed by the Corps in 1961, it appears that the
ordinary high-water lines originally delineating State lands on the
Kootenai River in the upper meander reach and braided reach are
essentially unchanged. Because of the scale of the available maps, it
is possible that minor river channel changes have occurred since
Statehood, and that some small portions of private lands now occur
within the ordinary high-water lines. However, we understand that most
of the lands where these changes may have occurred lie within the
flowage and seepage easements purchased by the Federal government under
Public Law 93-251, section 56, passed in 1974 (Ziminske 1999). In
addition, when the river meanders, the ``government lot'' or parcel
owners abutting State-owned riverbed/banks may request parcel boundary
adjustments to the new ordinary high-water line, and corresponding
adjustments in taxable acreage. The lateral extent of the State-owned
riverbed/banks along the steep levees may be closely approximated today
through the Corps definition of ordinary high-water line cited above.
Thus, we believe the area we previously designated as critical habitat,
and the areas we are now designating as critical habitat are within
lands owned by the State of Idaho.

Unit Description

We present a brief description of the designated unit, and reasons
why it meets the definition of critical habitat for the Kootenai
sturgeon, below.

Unit 1 (Braided Reach)

This unit begins at RM 159.7 (RKM 257.0), below the confluence with
the Moyie River, and extends downstream within the Kootenai River to RM
152.7 (RKM 245.9), at Bonners Ferry. Within this unit the valley
broadens, and the river forms an intermediate-gradient braided reach as
it courses through multiple shallow channels over gravel and cobbles
(Barton 2004a). This unit was occupied by the sturgeon at the time of
listing, and is currently occupied by foraging and migrating sturgeon.
Spawning has not been documented here. Gravel and cobble are exposed
along the bottom of the Kootenai River in the braided reach and are
exposed intermittently in the upstream part of the transition zone
(Barton 2004a). The braided reach provides temperatures, depths, and
velocities required to trigger spawning only intermittently, if at all,
for three reasons. The construction of Libby Dam resulted in average
peak flows at Bonner's Ferry declining from approximately 75,000 cfs to
35,000 cfs, or by approximately 53 percent. In addition, the average
elevation of Kootenay Lake and the backwater effect have been reduced
in much of the braided reach by about 7.2 ft (2.2 m). Finally, a large
portion of the braided reach has become wider and shallower due to loss
of energy and bed load accumulation (the accumulation of large stream
particles, such as gravel and cobble carried along the bottom of the
stream) (Barton 2005a, unpublished data). The increase in bed load is a
result of the broadening of the braids and velocity reductions. We have
one area of concern regarding whether this reach contains critical
habitat, and it is the subject of our request for comment. That is, are
the velocities necessary to trigger spawning current produced by the
operation of Libby Dam. Modeling done by the USGS indicates that the
maximum mean water column velocity is 2.6 fps, which is approximately
25% less than that required in our PCEs for sturgeon. We believe other
than velocity, we have data demonstrating that the temperatures, depth,
and substrate requirements are currently met by the operation of the
Dam.

Effect of Critical Habitat Designation

Section 7 Consultation

If a species is listed or critical habitat is designated, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a 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 (action agency)
must enter into consultation with us. Through this consultation, the
action agency ensures that their actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Federal activities that may affect the Kootenai sturgeon or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal

[[Page 6390]]

agency, such as a permit from the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from
the Service, or some other Federal action, including funding (e.g.,
Federal Highway Administration or Federal Emergency Management Agency
funding), will also continue to be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat and actions on non-Federal and private lands that are
not federally funded, authorized, or permitted do not require section 7
consultation.
Each of the areas designated in this rule are believed to contain
sufficient PCEs to provide for one or more of the life history
functions of the Kootenai sturgeon.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat also may jeopardize the continued existence of the Kootenai
sturgeon. Federal activities that, when carried out, may adversely
modify critical habitat for the Kootenai sturgeon include, but are not
limited to:
(1) Actions which would affect flows in ways that would reduce the
value of the PCEs essential to the conservation of the species. For
example, flood control and hydroelectric operations may destroy or
adversely modify critical habitat by altering riverbed substrate
composition, or by reducing flows, water velocity, cumulative backwater
effects, and water depths essential for normal breeding behavior,
migration, breeding site selection, shelter, dispersal, survival of
incubating eggs and developing free embryos.
(2) Actions which would significantly change water temperature in a
manner that is not compatible with the conservation needs of the
Kootenai sturgeon. For example, changes in existing flood control or
hydroelectric operations may adversely modify water temperatures within
critical habitat necessary for normal breeding behavior.
(3) Actions that would significantly affect channel morphology or
geometry in a manner that is not compatible with the conservation needs
of the Kootenai sturgeon. Such activities could include, but are not
limited to: Changes in land management activities accelerating sediment
releases into the Kootenai River; channelization; levee reconstruction;
stream bank stabilization; gravel removal; and road, railroad, bridge,
pipeline, or utility construction.
(4) Actions that are likely to significantly alter water chemistry
in an adverse manner. Such activities could include the release of
chemicals or biological pollutants into the waters in, or upstream of,
critical habitat.

Exclusions Under Section 4(b)(2) of the Act

Pursuant to section 4(b)(2) of the Act, we must consider relevant
impacts in addition to economic ones. We determined that the lands
within the designation of critical habitat for the Kootenai sturgeon
are not owned or managed by the Department of Defense, there are
currently no habitat conservation plans for the Kootenai sturgeon, and
the designation does not include any Tribal lands or trust resources.
We have conducted an economic analysis and will determine whether there
are any areas suitable for exclusion as we consider its results and the
public comments received on this interim rulemaking.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species concerned.
We conducted an economic analysis to estimate the potential
economic effect of the designation. This analysis has been made
available for public review on the date of the publication of this rule
and we will accept comments on the draft analysis until the comment
period closes.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the Kootenai River white sturgeon. This information is
intended to assist the Secretary in making decisions about whether the
benefits of excluding particular areas from the designation outweigh
the benefits of including those areas in the designation. This economic
analysis considers the economic efficiency effects that may result from
the designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The geographic area of analysis includes one new unit designated as
critical habitat and a unit previously designated as critical habitat
in 2001. Future costs (2006 through 2025) associated with conservation
activities for the sturgeon is estimated to range from $370 million to
$790 million on a present value basis and $690 million to $1.2 billion
expressed in undiscounted dollars. Annualized impacts associated with
the conservation related impacts range from $35 million to $74 million.
The activity most potentially affected is the operations of Libby Dam.
However, all but $20,000 to $30,000 in post-designation anticipated
costs (undiscounted dollars) are joint costs; the sturgeon water flows
and almost all of the resulting potential impacts will likely occur
whether or not the new braided reach unit, or a portion thereof, is
added to the existing designation.
A copy of the economic analysis with supporting documents are
included in our administrative record and may be available for
downloading from the Internet at FW1SPOK_crithab_stur@R1.fws.gov or
by contacting the Upper Columbia Fish and Wildlife Office directly (see
ADDRESSES section above).
For the purpose of this interim final rule, we have considered the
economic and other relevant impacts of the designation based on
currently available information, and are not excluding any areas from
the designation at this time. We will reconsider the issue before
promulgating the final rule that will replace this interim final rule.

Peer Review

In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we have sought the expert
opinions of five

[[Page 6391]]

appropriate and independent specialists regarding this interim rule.
The purpose of such review is to ensure that our critical habitat
designation is based on scientifically sound data, assumptions, and
analyses. We have sent peer reviewers copies of this rule. We have
invited these peer reviewers to comment on the specific assumptions and
conclusions regarding the designation of critical habitat.
We have considered all comments and information received on this
revision of the final rule during this peer review process. However,
based on comments received during the public review process the final
decision may differ from this interim rule.

Public Hearing

The Act provides for a public hearing on this rule, if requested.
Given the high likelihood of requests, we have scheduled a public
hearing to be held on February 22, 2006, at the Kootenai River Inn,
7169 Plaza St, Bonners Ferry, ID. Anyone wishing to make oral comments
for the record at the public hearing is encouraged to provide a written
copy of their statement and present it to us at the hearing. In the
event there is a large attendance, the time allotted for oral
statements may be limited. Oral and written statements receive equal
consideration.
Persons needing reasonable accommodations in order to attend and
participate in the public hearing should contact Patti Carroll at 503-
231-2080 as soon as possible. In order to allow sufficient time to
process requests, please call no later than 1 week before the hearing
date.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, and so forth) aid or reduce
its clarity? (4) Is the description of the rule in the SUPPLEMENTARY
INFORMATION section of the preamble helpful? (5) What else could we do
to make the rule easier to understand?
Send a copy of any comments on how we could make this rule easier
to understand to: Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may
e-mail your comments to this address: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we
determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine, based on the best scientific data available, that the
failure to designate such area as critical habitat will result in the
extinction of the species.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA) (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. The SBREFA also amended the RFA
to require a certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect Kootenai River white sturgeon. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate

[[Page 6392]]

consultation for ongoing Federal activities.
Approximately 30 small agriculture operations could be impacted by
conservation measures for the sturgeon. These operations represent
approximately seven percent of the number of small farms operating
within the county. The geographic area of analysis includes one new
unit (Unit 1: Braided Reach) designated as critical habitat and the
unit previously designated as critical habitat in 2001 (Unit 2: Meander
Reach). However, the flow-related agriculture impacts are joint costs;
the sturgeon flows and resulting impacts will occur whether or not the
proposed unit (Unit 1), or a portion thereof, is added to the existing
designation. Considering these conservation-related impacts are also
co-extensive with the listing, there are unlikely to be burdens to
small agricultural operations from the designation of Unit 1. We have
therefore determined that this rule will not have a significant
economic impact on a substantial number of small entities.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on Kootenai River white
sturgeon and its habitat. First, if we conclude, in a biological
opinion, that a proposed action is likely to jeopardize the continued
existence of a species or adversely modify its critical habitat, we can
offer ``reasonable and prudent alternatives.'' Reasonable and prudent
alternatives are alternative actions that can be implemented in a
manner consistent with the scope of the Federal agency's legal
authority and jurisdiction, that are economically and technologically
feasible, and that would avoid jeopardizing the continued existence of
listed species or result in adverse modification of critical habitat. A
Federal agency and an applicant may elect to implement a reasonable and
prudent alternative associated with a biological opinion that has found
jeopardy or adverse modification of critical habitat. An agency or
applicant could alternatively choose to seek an exemption from the
requirements of the Act or proceed without implementing the reasonable
and prudent alternative. However, unless an exemption were obtained,
the Federal agency or applicant would be at risk of violating section
7(a)(2) of the Act if it chose to proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal or plant species,
we may identify reasonable and prudent measures designed to minimize
the amount or extent of take and require the Federal agency or
applicant to implement such measures through non-discretionary terms
and conditions. We may also identify discretionary conservation
recommendations designed to minimize or avoid the adverse effects of a
proposed action on listed species or critical habitat, help implement
recovery plans, or to develop information that could contribute to the
recovery of the species.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. We can only describe the general
kinds of actions that may be identified in future reasonable and
prudent alternatives. These are based on our understanding of the needs
of the species and the threats it faces, as described in the final
listing rule and this critical habitat designation. Within the final
critical habitat, the types of Federal actions or authorized activities
that we have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies;
(3) Regulation of timber harvest, grazing, mining, and recreation
by the USFS and BLM;
(4) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities;
(5) Hazard mitigation and post-disaster repairs funded by the FEMA;
and
(6) Activities funded by the EPA, U.S. Department of Energy, or any
other Federal agency.
It is likely that a project proponent could modify a project or
take measures to protect Kootenai River white sturgeon. The kinds of
actions that may be included if future reasonable and prudent
alternatives become necessary include conservation set-asides,
restoration of degraded habitat, and regular monitoring. These are
based on our understanding of the needs of the species and the threats
it faces, as described in the final listing rule and critical habitat
designation. These measures are not likely to result in a significant
economic impact to project proponents.
In summary, we have considered whether this would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons and based on currently
available information, that it is not likely to affect a substantial
number of small entities. Federal involvement, and thus section 7
consultations, would be limited to a subset of the area designated. A
regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)

Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination.

Executive Order 13211

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule to
designated critical habitat for the Kootenai River white sturgeon is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal

[[Page 6393]]

mandate is a provision in legislation, statute or regulation that would
impose an enforceable duty upon State, local, tribal governments, or
the private sector and includes both ``Federal intergovernmental
mandates'' and ``Federal private sector mandates.'' These terms are
defined in 2 U.S.C. 658(5)-(7). ``Federal intergovernmental mandate''
includes a regulation that ``would impose an enforceable duty upon
State, local, or tribal governments'' with two exceptions. It excludes
``a condition of Federal assistance.'' It also excludes ``a duty
arising from participation in a voluntary Federal program,'' unless the
regulation ``relates to a then-existing Federal program under which
$500,000,000 or more is provided annually to State, local, and tribal
governments under entitlement authority,'' if the provision would
``increase the stringency of conditions of assistance'' or ``place caps
upon, or otherwise decrease, the Federal Government's responsibility to
provide funding,'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. Four small local governments, Libby, Montana
(population 2,626), Bonners Ferry, Idaho (population 2,515), Troy,
Montana (population 957), and Moyie Springs, Idaho (population 656),
are located either adjacent to, or in the vicinity of the existing and
proposed critical habitat. All four of the local governments have
populations that fall within the criteria (fewer than 50,000 residents)
for ``small entity.'' There is one record of a section 7 consultation
between Bonners Ferry and the Service since the sturgeon was listed in
1994. This was an informal consultation on the installation of
residential water meters. The proposed work will not occur within
waterways or riparian areas and will not affect the sturgeon. As such,
a Small Government Agency Plan is not required. We will, however,
further evaluate this issue as we conduct our economic analysis and
revise this assessment if appropriate.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
will request information from, and coordinate development of this rule
with appropriate State resource agencies in Idaho. The designation of
critical habitat in areas currently occupied by the Kootenai sturgeon
imposes no additional restrictions to those currently in place and,
therefore, has little incremental impact on State and local governments
and their activities. The designation may have some benefit to these
governments in that the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
primary constituent elements of the habitat necessary to the
conservation of the species are specifically identified. While making
this definition and identification does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have revised the final rule designating critical
habitat in accordance with the provisions of the Endangered Species
Act. This rule uses standard property descriptions and identifies the
primary constituent elements within the designated areas to assist the
public in understanding the habitat needs of the Kootenai sturgeon.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. 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 OMB
control number.

National Environmental Policy Act

It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that no
tribal lands were occupied by Kootenai sturgeon at the time of listing,
and no tribal lands that are unoccupied are essential to the
conservation of Kootenai sturgeon. Therefore, no tribal lands are
involved with this rule. However, because of the significant
involvement by the Kootenai Tribe of Idaho (KTOI) in the conservation
aquaculture program and other aspects of Kootenai sturgeon recovery, we
will consult on a government-to-government basis with

[[Page 6394]]

the KTOI during the public comment period.

References Cited

A complete list of all references cited in this designation is
available upon request from the Supervisor, Upper Columbia Fish and
Wildlife Office (see ADDRESSES section above).

Author

The primary author of this notice is Bob Hallock, Upper Columbia
Fish and Wildlife Office (see ADDRESSES section above).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.

0
2. In Sec. 17.11(h), revise the entry for ``Sturgeon, White'' under
``FISHES'' 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

* * * * * * *
Sturgeon, white.................. Acipenser U.S.A. (AK, CA, ID, U.S.A. (ID, MT), E 549 17.95(e) NA
transmontanus. MT, OR, WA), Canada (BC),
Canada (BC). (Kootenai R.
system).

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

0
3. In Sec. 17.95(e), revise the entry for ``KOOTENAI RIVER POPULATION
OF WHITE STURGEON (Acipenser transmontanus)'' under ``FISHES'' to read
as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
White Sturgeon (Acipenser transmontanus); Kootenai River Population
(1) Critical habitat units are depicted for Boundary County, Idaho,
on the map below.
(2) The primary constituent elements of critical habitat for the
Kootenai sturgeon are:
(i) During the spawning season of May through July, a flow regime
that periodically (not necessarily annually) produces flood flows
capable of producing intermittent depths of at least 5 meters
(Paragamian and Duehr 2005, Barton et al. 2005), and mean water column
velocities of at least 3.3 ft/s (1.0 m/s) (Anders et al. 2002, Schafter
1997, Berenbrock 2005) throughout, but not uniformly within the braided
reach.
(ii) Stable, temperatures of roughly 50 degrees F in May into July
with no sudden drops in temperature exceeding 3.6 degrees F at Bonners
Ferry during the spawning season and water temperatures suitable for
natural rates of development of embryos.
(iii) Presence of approximately 5 miles of continuous submerged
rocky substrates for normal free embryo redistribution behavior and
downstream movement (Brannon et al. 1985).
(iv) A flow regime that limits sediment deposition and maintains
appropriate rocky substrate for sturgeon egg adhesion, incubation,
escape cover, and free embryo development (Stockley 1981, Parsley et
al. 1993, Parsley and Beckman 1994).
(3) Note: Map 1 follows:

BILLING CODE 4310-55-P

[[Page 6395]]

[GRAPHIC] [TIFF OMITTED] TR08FE06.000

BILLING CODE 4310-55-C

[[Page 6396]]

(4) Unit 1: Braided Reach, Boundary County, Idaho
Kootenai River from RM 159.7 (RKM 257) to RM 152.6 (RKM 245.9),
from ordinary high water line to opposite bank ordinary high water mark
as defined in 33 CFR 329.11.
(5) Unit 2: Meander Reach, Boundary County, Idaho
Kootenai River from RM 152.6 (RKM 245.9) to RM 141.4 (RKM 228),
from ordinary high water line to opposite bank ordinary high water mark
as defined in 33 CFR 329.11.
* * * * *

Dated: February 1, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-1091 Filed 2-7-06; 8:45 am]

BILLING CODE 4310-55-C