[Federal Register: July 9, 2008 (Volume 73, Number 132)]
[Rules and Regulations]
[Page 39505-39523]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy08-21]
[[Page 39505]]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Critical Habitat Revised
Designation for the Kootenai River Population of the White Sturgeon
(Acipenser transmontanus); Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2008-0072] [92210-1117-0000-FY08-B4]
RIN 1018-AU47
Endangered and Threatened Wildlife and Plants; Critical Habitat
Revised Designation for the Kootenai River Population of the White
Sturgeon (Acipenser transmontanus)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
the designation of critical habitat for the Kootenai River population
of the white sturgeon (Acipenser transmontanus) (Kootenai sturgeon)
under the Endangered Species Act of 1973, as amended (Act). In total,
18.3 river miles (RM) (29.5 river kilometers (RKM)) of the Kootenai
River are designated as critical habitat within Boundary County, Idaho.
DATES: This rule becomes effective August 8, 2008.
ADDRESSES: This final rule is available on the Internet at http://
www.regulations.gov and http://www.fws.gov/easternwashington.
Supporting documentation we used in preparing this final rule will be
available for public inspection, by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Upper Columbia Fish and
Wildlife Office, 11103 E. Montgomery Drive, Spokane, WA 99206;
telephone 509-891-6839; facsimile 509-891-6748.
FOR FURTHER INFORMATION CONTACT: Susan Martin, Field Supervisor, Upper
Columbia Fish and Wildlife Office (see ADDRESSES). If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Home Range
The Kootenai sturgeon, listed as endangered in 1994 (September 6,
1994; 59 FR 45989), is restricted to approximately 168 RM (270 RKM) of
the Kootenai River in Idaho, Montana, and British Columbia, Canada. One
of 18 land-locked populations of white sturgeon known to occur in
western North America, the range of the Kootenai sturgeon extends from
Kootenai Falls, Montana, located 31 RM (50 RKM) below Libby Dam,
Montana, downstream through Kootenay Lake to Corra Linn Dam at the
outflow from Kootenay Lake in British Columbia. The downstream waters
of Kootenay Lake drain into the Columbia River system. For the purposes
of this rule, this portion of the Kootenai River is divided into three
geomorphic reaches: (1) The canyon reach, which extends from Kootenai
Falls at RM 193.9 (RKM 312.0) in Montana to RM 159.7 (RKM 257.0) below
the confluence with the Moyie River in Idaho; (2) the braided reach,
which begins at the end of the canyon reach and extends downstream to
RM 152.6 (RKM 246.0) at Bonners Ferry; and (3) the meander reach, which
extends from the end of the braided reach at RM 152.6 (RKM 246.0)
downstream to the confluence with Kootenay Lake in British Columbia at
RM 74.6 (RKM 120.0). This reach includes an area described as the
``transition zone'' between RM 142.7 (RKM 245.9) and RM 151.8 (RKM
244.5) that joins the braided and meander reaches.
Critical habitat is currently designated in the braided reach from
RM 159.7 (RKM 257.0), below the confluence with the Moyie River,
downstream to RM 152.7 (RKM 245.9) at Bonners Ferry, and continues
downstream into the meander reach to RM 141.4 (RKM 228), for a total of
18.3 RM (29.5 RKM) (71 FR 6383).
The canyon reach is characterized by rocky substrates and a
relatively high water surface gradient. Downstream the valley broadens,
and the river forms the low-gradient ``braided reach'' as it courses
through multiple shallow channels over gravel and cobbles (Barton et
al. 2005, p. 19; Berenbrock 2005a, p. 7). The meander reach is
characterized by primarily sandy substrate, a low water-surface
gradient, a series of deep holes, and low water velocities under
present river operations. A deep hole (39 to 49 feet (ft) (12 to 19
meters (m)) deep) exists near Ambush Rock at approximately 151.7 RM
(RKM 244.2) (Berenbrock 2005b, pp. 7-8) and is frequented by sturgeon
in spawning condition. Both adult and juvenile sturgeon forage in and
migrate freely throughout the lower Kootenai River, but apparently no
longer commonly occur upstream of Bonners Ferry, Idaho (Partridge 1983,
pp. 1, 23, 25; Apperson and Anders 1990, pp. 19, 22, 23, 25; Apperson
and Anders 1991, pp. 36-37, 39-44, 48-49), although there are no
apparent physical barriers to sturgeon migration within these three
geomorphic reaches of the Kootenai River. However, during recovery team
discussions, shallow waters in the braided reach that have occurred
since construction of Libby Dam have been suggested as a possible
behavioral barrier to migration into the upstream canyon reach, where
suitable spawning and incubation habitats appear to exist.
Population Status and Life History
Although information is not available specifically for Kootenai
sturgeon, white sturgeon in general are very long-lived, with females
living from 34 to 70 years; some individuals may approach or exceed 100
years of age (NatureServe 2008; PSMFC 2008). It is believed that
Kootenai sturgeon do not reach sexual maturity until 28 and 30 years,
respectively, for males and females (Paragamian et al. 2005, p. 525).
Thereafter, females spawn at 4-to 6-year intervals.
The number of Kootenai sturgeon has decreased from approximately
7,000 individuals in the 1970s to fewer than an estimated 500 adults by
2005, with fewer than 30 females projected to be spawning annually
after the year 2015 (Paragamian et al. 2005, p. 526). Decreases in the
abundance of Kootenai sturgeon were first noted beginning in the mid-
1960s. These decreases were attributed primarily to the effects of
diking and pollutants (Partridge 1983, p. 42). Almost no recruitment of
juveniles has been detected since 1974, soon after Libby Dam began
operating (Partridge 1983, p. 28; Apperson and Anders 1991, p. 45;
Paragamian et al. 2005, p. 524). The current rate of population decline
is estimated to be 9 percent per year, based on annual mortality rates
in the absence of significant recruitment (Paragamian et al. 2005, p.
528). The final listing rule for the Kootenai sturgeon cites the
hydropower and flood control operations of Libby Dam, a U.S. Army Corps
of Engineers (Corps) facility upstream in Montana, as the primary
threat to the Kootenai sturgeon because these operations adversely
affect spawning and incubation habitat (September 6, 1994; 59 FR
45989).
Many Kootenai sturgeon spend part of their lives in Kootenay Lake
in British Columbia and migrate upstream to spawn in the Kootenai
River. The sturgeon have been described as having a unique two-step
pre-spawning migration process, migrating first from the lower river
and Kootenay Lake during autumn to staging reaches in the Kootenai
River, then migrating in spring to the spawning reach near Bonners
Ferry, Idaho (Paragamian et al. 2001, p. 22; Paragamian et al. 2002, p.
608). Successful reproduction is dependent upon Kootenai sturgeon
spawning at
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sites where the eggs can settle in an area that supports their
viability, and where the free embryos that emerge from the eggs have
appropriate habitat for development and protection from predators
(mobile or free embryos are embryos that have hatched and still have
the yolk sac attached; larvae refers to young fish that have absorbed
the yolk sac and are actively feeding). For the Kootenai sturgeon,
these needs appear to be met by rocky substrates for spawning and
attachment of eggs, and meeting in-water minimum flow, depth, and
temperature requirements on at least an intermittent basis during the
spawning period from May through the end of June.
Although rocky substrates do not seem to be a cue for spawning site
selection, they appear to be essential to the viability of eggs and the
survival of free embryos. White sturgeon are broadcast spawners and
release demersal eggs (eggs that quickly sink to the bottom) that are
initially adhesive upon exposure to water (Paragamian et al. 2001, pp.
24, 27, and references therein; Anders et al. 2002, p. 73). Rocky
substrates provide fixed surfaces for the attachment of the adhesive
eggs during incubation and also provide shelter for the ``hiding
phase,'' the period following hatching in which free embryos seek cover
from predators in the inter-gravel spaces (Brannon et al. 1985, p. 58;
Parsley et al. 2002, pp. 58-59). Although we have little information
specific to spawning substrates for Kootenai sturgeon, in other areas
where white sturgeon are reliably reproducing and recruiting, the river
bed at spawning sites typically consists of several miles of gravel,
cobble, and boulder substrates that provide shelter and cover during
this free embryo hiding phase. Successful spawning and incubation
sites, such as the tailraces at Bonneville and Ice Harbor Dams on the
Columbia River, have at least 5 RM (8 RKM) of suitable rocky substrate
before transitioning into sandy substrate (Parsley et al. 1993, Table
2, p. 220 and p. 224).
White sturgeon spawn in fast-flowing water, and water velocity
appears to act as a cue for spawning. In the reach of the lower
Columbia River immediately below Bonneville Dam, water velocity at
spawning sites ranged from 2.6 to 9.2 ft per second (ft/s) (0.8 to 2.8
m per second (m/s)) (Parsley et al. 1993, Table 2, p. 220). Parsley and
Beckman (1994, Figure 2, p. 815) suggest that optimal spawning
conditions may occur when the mean water column velocity is 4.9 ft/s
(1.8 m/s) or greater. In the Sacramento River, observed white sturgeon
spawning sites had water velocities exceeding 3.3 ft/s (1.0 m/s)
(Schaffter 1997, pp. 1, 113). White sturgeon spawning in fast-flowing
water greater than or equal to 3.3 ft/s (1.0 m/s) may experience
reduced predation on eggs by limiting access of some predators to
spawning and incubation areas (Brannon et al. 1985, p. 13; Miller and
Beckman 1996, pp. 338-339; Anders et al. 2002, p. 73 and Table 1, p.
75; Parsley et al. 2002, p. 60). Fast-flowing waters also serve to
maintain the exposed rocky substrate essential for successful egg
incubation and the free embryo hiding phase of the Kootenai sturgeon's
reproduction cycle.
Water depth also appears to be an important factor in spawning site
selection for the Kootenai sturgeon. In the Columbia River, sturgeon
eggs collected on mats ranged in depth from 13 to 89 ft (4 to 27 m),
with median spawning depths of 19.7 to 36.1 ft (6 m to 11 m) (Parsley
et al. 1993, Table 2, p. 220). In the Kootenai River, the mean depth of
radio-tagged white sturgeon during the spawning period was 21.3 ft (6.5
m) (Paragamian and Duehr 2005, p. 265). The mean water depth of the
river during the spawning period was 30.8 15.1 ft (9.4
4.6 m) (Paragamian and Duehr 2005, p. 263). In a study
based on sturgeon egg collections in the Kootenai River, Paragamian et
al. 2001 (Table 2, p. 26) report average river depths at egg sites
ranging from 27.9 to 42.7 ft (8.5 to 13.3 m), and eggs were found at
depths ranging from 16.4 to 59 ft (5 to 18 m). Egg collection sites are
likely more shallow than actual spawning sites, because high water
velocity and turbulence in spawning areas may transport eggs to more
shallow water (Parsley 2005, p. 1; Parsley 2006a, p. 1; Parsley 2006b,
p. 1); thus, the depth at which spawning occurs is most likely greater
than the depth at which eggs are found.
Although data collected on white sturgeon spawning in other areas
may be considered as additional support for identifying the water
depths associated with Kootenai sturgeon for spawning, we consider data
specific to the environmental conditions in the Kootenai River to
represent the best available scientific information for the Kootenai
sturgeon. Our synthesis of the best available data specific to the
Kootenai sturgeon, as described, indicates that a minimum water depth
of 23 ft (7 m) is requisite for successful spawning at a level
sufficient to achieve recovery.
Kootenai sturgeon spawn within a fairly narrow range of water
temperatures, from 47.3 to 53.6 degrees Fahrenheit ([deg]F) (8.5 to 12
degrees Celsius ([deg]C)) (Paragamian et al. 2002, p. 27). Paragamian
and Wakkinen (2002, p. 547) identify temperatures between 49.1 and
49.9[deg]F (9.5 and 9.9[deg]C), or roughly 50[deg]F (10[deg]C), as
those at which spawning has the highest probability of occurring in the
Kootenai River. Sudden drops of water temperature greater than
3.6[deg]F (2.0[deg]C) cause males to become reproductively inactive,
thereby negatively affecting egg fertilization (Lewandowski 2004, p.
6).
Successful spawning of Kootenai sturgeon thus appears to require
several synchronous environmental factors during the spawning period:
the presence of sufficient rocky substrates to provide shelter for egg
attachment and for normal free embryo behavior, and fast-flowing (in
excess of 3.3 ft/s (1.0 m/s), deep (equal to or greater than 23 ft (7.0
m)) water at a relatively stable temperature of approximately 50 [deg]F
(10 [deg]C).
Although Kootenai sturgeon continue to spawn annually in the
Kootenai River, this spawning has not resulted in significant levels of
recruitment for over 30 years. A Kootenai sturgeon female is capable of
releasing at least 100,000 eggs per spawning year, and field monitoring
has shown most eggs are being fertilized (Paragamian et al. 2001, p.
26). However, based on data from 1992 through 2001, it is estimated
that on average, a total of only about 10 juvenile sturgeon currently
may be naturally produced in the Kootenai River annually (Paragamian et
al. 2005, p. 524). The last significant sturgeon recruitment in the
Kootenai River occurred in 1974, the last season prior to Libby Dam
becoming fully operational in 1975 (Partridge 1983, p. 28). This
recruitment failure is attributed largely to the spawning of Kootenai
sturgeon over unsuitable sandy substrates (Paragamian et al. 2001, p.
29).
Since the construction of Libby Dam, most Kootenai sturgeon spawn
over sandy substrates in the meander reach below Bonners Ferry. The
meander reach has a low stream gradient, and substrates are composed
primarily of sand and other fine materials overlying lacustrine clay
(Barton 2003, p. 45; Barton et al. 2004, pp. 1, 18-21). Many of the
eggs that are located in this reach are found drifting along the river
bottom, covered with fine sand particles in sites without rocky
substrate (Paragamian et al. 2001, p. 26), and where mean water column
velocities seldom exceeded 3.3 ft/s (1.0 m/s) (Paragamian et al. 2001,
Table 2, p. 26; Barton et al. 2005, Table 3). The sandy substrate in
the current spawning sites in the Kootenai River differs from the rocky
substrate that occurs in successful
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white sturgeon spawning sites elsewhere in the Columbia River Basin
(Paragamian et al. 2001, pp. 28-29; Parsley et al. 1993, Table 2, p.
220 and Figure 6, p. 222; Parsley and Beckman 1994, pp. 812-827; Kock
et al. 2006, pp. 134-135, 139 and references therein).
Laboratory experiments suggest that high embryo or larval mortality
results from smothering by fine-sediment substrates, such as the sand
that dominates the Kootenai River at the present spawning sites (Kock
et al. 2006, pp. 134-141). Larval white sturgeon kept in an aquarium
were observed to burrow into fine sediments with lethal results
(Brannon 2002, as cited in Anders et al. 2002, p. 76). Due to the
predominately sandy substrate in the meander reach and its
unsuitability for egg attachment, incubation, and larval survival, it
is unlikely that this area was the historical spawning site for
Kootenai sturgeon. However, white sturgeon hatchery releases of age 2-
plus years in this area have shown high survival (Ireland et al. 2002,
p. 647), indicating that the meander reach can successfully support age
2-plus year-old juvenile sturgeon.
The altered hydrograph of the Kootenai River below Libby Dam has
resulted in decreased water velocities and depths, with negative
effects on Kootenai sturgeon reproduction. In the current sturgeon
spawning sites in the meander reach, the Kootenai River is
characterized by mean water column velocities less than 3.3 ft/s (1.0
m/s), as well as shifting sand substrates (Barton et al. 2004, pp. 18-
21; Anders et al. 2002, Table 1, p. 75). Low water velocity is believed
to be a factor facilitating predation of sturgeon eggs and free embryos
in the Columbia River (Golder Associates 2005, pp. 1-2, 29-30; Miller
and Beckman 1996, pp. 338-339). Free embryos emerging in low water
velocities (0.8 in/s (2.0 cm/s)), such as those that presently dominate
in the meander reach, remained mobile in the water column 2 days longer
than did those emerging in higher water velocity (3.1 in/s (7.9 cm/s))
(Brannon et al. 1985, pp. 14, 16). This delay in initiating the free
embryo hiding phase may increase the risk of mortality of embryos
emerging in these waters (Brannon et al. 1985, pp. 13-15).
Since Libby Dam became operational, the peak flow events in the
Kootenai River at Bonners Ferry during the sturgeon spawning and
incubation period have been significantly reduced (Partridge 1983, p.
3; Corps 2005, p. 9). Mean spring flows that reached 80,000 cubic feet
per second (cfs) (2,265.3 cubic meters per second (cms)) prior to the
construction of the dam were reduced to flows of less than 10,000 cfs
(283.2 cms) through the early 1990s (Berenbrock 2005a, p. 2). The
median river stage at Bonners Ferry during peak flow events in the
Kootenai River during the sturgeon spawning and incubation period has
been reduced by 14 ft (4.27 m) (U.S. Army Corps of Engineers 2004,
Figure 2-5, p. 10). This is a substantial change, since the braided
reach beginning at Bonners Ferry is now usually less than 7 ft (2.2 m)
deep (Berenbrock 2005, p. 7). There is recent evidence that portions of
the Kootenai River channel within the braided reach have become wider,
shallower, and more unstable since Libby Dam became operational (Barton
2005a, p. 3, and unpublished data). Peak flows of 40,000 cfs (1,200
cms) that typically occurred during the spawning and incubation period
in the Kootenai River over an average of 30 days prior to dam
construction have not been reached for a period of more than 2 days
since the dam was completed, with only two exceptions (Hoffman 2005a,
p. 8).
In summary, natural spawning in the Kootenai River has not resulted
in sufficient levels of recruitment into the aging population of the
Kootenai sturgeon to reverse the strong negative population trend that
has been observed over the last 30 years. This recruitment failure
appears to be related to changes in riverbed substrate and reduced
river flows, reduced water velocities, lowered water depths, and
downstream movement of the velocity transition points with reduced
flows since Libby Dam became operational. While water depth appears to
be a significant factor, it is unclear how other altered parameters may
be involved in causing the sturgeon to spawn primarily at sites below
Bonners Ferry in the meander reach. These sites have unsuitable sandy
riverbed substrates, insufficient rocky substrate (Barton 2003, pp. 1-
48; Barton 2004, pp. 18-21; Anders et al. 2002, pp. 73, 76), and water
velocities insufficient to provide protection from predation for eggs
and free embryos and to assure normal dispersal behavior among free
embryos (Parsley et al. 1993, pp. 220-222, 224-225; Miller and Beckman
1996, pp. 338-339). The braided reach provides suitable rocky
substrates, but a large portion of the braided reach has become wider
and shallower due to loss of energy from reduced flows, reduced
backwater effects, and bed load accumulation (the accumulation of large
stream particles, such as gravel and cobble carried along the bottom of
the stream) (Barton et al. 2004, p. 17; Hoffman 2005, p. 9; Barton
2005a and unpublished data). The increase in bed load is a result of
the broadening of the braids and water velocity reductions.
Further details on the ecology and life history requirements of the
Kootenai sturgeon can be found in our final listing rule (September 6,
1994; 59 FR 45989), the recovery plan for the Kootenai sturgeon (U.S.
Fish and Wildlife Service 1999), our previous final rule designating
critical habitat for the Kootenai sturgeon (September 6, 2001; 66 FR
46548), and our interim rule designating critical habitat for the
Kootenai sturgeon (February 8, 2006; 71 FR 6383).
Previous Federal Actions
A description of Federal actions concerning the Kootenai sturgeon
that occurred prior to our September 6, 2001, final rule designating
critical habitat can be found in that final rule (September 6, 2001; 66
FR 46548). That final rule designated 11.2 RM (18 RKM) of the Kootenai
River in the meander reach as critical habitat, from RM 141.4 (RKM 228)
to RM 152.6 (RKM 246).
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, stating, among other issues, that
designated critical habitat for the Kootenai sturgeon was inadequate,
as it failed to include areas of rocky substrate.
On May 25, 2005, the District Court of Montana ruled in favor of
the plaintiffs, and remanded the critical habitat designation to the
Service for reconsideration with a due date of December 1, 2005. We
filed a motion to alter or amend the judgment, and the Court extended
the deadline for releasing a revised critical habitat designation to
February 1, 2006. In the interim, the Court ruled that the 2001
designation of critical habitat remained in effect. In response to the
District Court ruling and to meet the Court's deadline, we published an
interim rule designating an additional reach of the Kootenai River, the
braided reach, as critical habitat for the Kootenai River sturgeon on
February 8, 2006 (71 FR 6383), resulting in a total of 18.3 RM (29.5
RKM) designated; we also completed a Draft Economic Analysis of
Critical Habitat Designation for the Kootenai River White Sturgeon
(Northwest Economic Associates 2006) and the Final Economic Analysis of
Critical Habitat Designation for the Kootenai River White Sturgeon
(ENTRIX, Inc. 2008; ENTRIX was formerly Northwest Economic Associates).
Although the interim rule designating critical habitat for the Kootenai
sturgeon constituted a final
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rule with regulatory effect, it also opened a comment period on the
substance of the rule. This revised final rule considers and
incorporates, where appropriate, the comments received on the interim
rule.
We solicited comments from species experts and the public on the
interim rule and the draft economic analysis. A summary of these
comments and our responses follow.
Summary of Comments and Recommendations
We requested comments from the public on the interim rule's
designation of critical habitat for the Kootenai sturgeon and the
associated draft economic analysis during a comment period that opened
concurrent with the publication of the interim rule on February 8, 2006
(71 FR 6383), and closed on April 10, 2006. In addition, we held an
information meeting and public hearing in Bonners Ferry, Idaho, on
March 16, 2006. We contacted appropriate Federal, State, and local
agencies and Tribes; scientific organizations; and other interested
parties and invited them to comment on the interim rule and draft
economic analysis during this open comment period.
We received six comments during the comment period and public
hearing, all from organizations or individuals. We did not receive any
comments from State or Federal agencies or Tribes. In addition, in
accordance with our peer review policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from five knowledgeable
individuals with scientific expertise that included familiarity with
the Kootenai sturgeon, the geographic region where the species occurs,
and conservation biology principles. All five of the individuals we
contacted responded.
We reviewed all comments received from the public and the peer
reviewers for substantive issues and new information regarding the
designation of critical habitat for the Kootenai sturgeon. All
substantive information provided from the public and the peer reviewers
has been either incorporated directly into this final rule or addressed
in the following summary.
Peer Reviewer Comments
1. Comment: Both the braided channel and the canyon reach are
essential to the conservation of the Kootenai sturgeon. Without these
areas, it is difficult to understand how natural recruitment of the
magnitude and frequency required to recover the sturgeon can occur.
Our Response: We have included the braided channel in this revised
final critical habitat designation because it is essential to
successful spawning and egg attachment and incubation, which are
currently the life stages we believe are limiting natural recruitment
of Kootenai sturgeon. There is limited information on whether, or how,
Kootenai sturgeon use the canyon reach. Information available at this
time indicates the canyon reach has the elements necessary to support
Kootenai sturgeon spawning, but the fish do not currently appear to use
the area for this purpose. We are willing to consider any additional
information demonstrating that the canyon reach is essential to the
conservation of the Kootenai sturgeon.
2. Comment: The background information regarding the need for a
sustained increase in river discharge from Libby Dam to restore natural
spawning habitat conditions is compelling.
Our Response: We identified the primary constituent elements (PCEs)
of Kootenai sturgeon critical habitat based on the best available
scientific information, including a flow regime during the spawning
season that approximates natural variable conditions.
3. Comment: The rule indicates that Kootenai sturgeon spawning and
the initial three weeks of life are the most important stage to
protect, but does not elaborate on why this period was selected. The
commenter offered that while critical data are lacking, their
experience and that of many other sturgeon researchers suggest that
year-class strength and recruitment is established by the end of the
larval life interval, which for white sturgeon occurs at about day 55-
65, not day 21.
Our Response: In designating critical habitat, we consider those
physical and biological features that are essential to the conservation
of the species, and within areas occupied by the species at the time of
listing, that may require special management considerations or
protections. Current data indicate that the population bottleneck that
is limiting Kootenai sturgeon recovery is at the egg attachment and
incubation life phase (Paragamian et al. 2001, pp. 22-33; Paragamian et
al. 2002, pp. 608, 615); thus we have concentrated on this stage as the
most important life phase to protect. We are not aware of data
indicating that the larval period between day 21 and day 65 is
currently limiting Kootenai sturgeon recovery and is in need of special
management. We are willing to consider additional information in this
regard.
4. Comment: The background information states that fertilized eggs
will be deposited just downstream of the spawning site; yet, no data
are given to support this conclusion. The information on spawning of
adults in deep pools with high water velocities suggest most eggs will
not be at the spawning site and that eggs could be distributed
downstream for several kilometers, as happens during white sturgeon
spawning in the Columbia River.
Our Response: We agree with the peer reviewer that fertilized eggs
can drift downstream and may not remain immediately below the spawning
site. In the interim rule published in the Federal Register on February
8, 2006 (71 FR 6383), we state, ``The linear downstream extent of rocky
substrate from spawning sites is also important because eggs and free
embryos are dispersed downstream by the current.''
5. Comment: The rule shows designated critical habitat ending at RM
141.4, which does not include all of the pre-spawning staging reach of
adults (RM 125-152). Furthermore, no estimate of the length of river
reach needed downstream of existing spawning areas for rearing of egg-
larvae-juvenile life intervals is provided. Given recently documented
dispersal behavior of Kootenai sturgeon during early life intervals,
there is not one discrete rearing reach but, instead, a long reach
downstream from egg deposition used for rearing of free embryos and
larvae. Dispersal likely places early juveniles many miles (kilometers)
downstream from the spawning site.
Our Response: We agree with the peer reviewer that areas downstream
from the critical habitat designation are important for the pre-
spawning staging of adult Kootenai sturgeon and rearing of free
embryos, larvae, and juveniles. However, the best available scientific
information indicates that spawning and egg attachment and incubation
are the limiting life stages of Kootenai sturgeon population growth
(Paragamian et al. 2001, pp. 22-33; Paragamian et al. 2002, pp. 608,
615). Therefore, this final rule focuses solely on these life stages
and the physical and biological features essential to support these
life stages that may require special management.
6. Comment: Research data specific to the Kootenai River supports
increasing the primary constituent element for water depth to a minimum
of 23 ft.
Our Response: We concur. The preponderance of applicable scientific
information from the Kootenai River and elsewhere in the range of white
sturgeon where reproduction is successfully occurring suggests a mean
[[Page 39510]]
water depth of at least 23 ft (7 m) is necessary for a level of
spawning that could potentially lead to recovery (Parsley et al. 1993,
Table 2, p. 220; Parsley 1995, p. 1; Parsley and Kappenman 2000, Table
1, p. 199; Paragamian et al. 2001, pp. 28, 30; Golder and Associates
2005, Table 4.1, p. 59 and Table 4.4, p. 62; Barton et al. 2005 p. 37;
Paragamian and Duehr 2005, Figure 2, pp. 264-265; Parsley 2006a, p. 1;
Parsley 2006b, p. 1). Based on public comments and other information
received, a second round of peer review comments was sought
specifically on the primary constituent elements for water depth and
changes in water temperature associated with spawning behavior. We
received five responses, all of which addressed a spawning site depth
criterion of at least 23 ft (7 m). These reviewers acknowledged that
this criterion is well supported by data on sites within the range of
white sturgeon where reproduction is occurring. Based on the
reconsideration of the data, along with public and peer review
comments, we have changed the primary constituent element for water
depth from a minimum of 16 ft (5 m) (February 8, 2006; 71 FR 6383) to
23 ft (7 m) in this final rule.
7. Comment: Regarding the depth Primary Constituent Element (PCE),
there are examples of white sturgeon in other river systems utilizing
shallow water habitat. For example, sturgeon were observed rolling in a
shallow side channel and embryos and larvae were then collected in that
side channel of the Fraser River, British Columbia, Canada (see Perrin
et al. 1999).
Our Response: The lower Fraser River is an area where white
sturgeon continue to reproduce regularly. Perrin et al. (1999, p. iv)
noted that waters of the mainstem Fraser River in the vicinity of the
Minto channel are approximately 33 ft (10 m) deep, and that they had no
actual sturgeon spawning observations in their study. Two eggs were
collected at one location in the adjacent Minto channel at a depth of
9.8 ft (3 m), and where water velocity was 4.3 ft/s (1.3 m/s). Based on
observations by Parsley (2005, p. 1; 2006a, p. 1; 2006b, p. 1), when
water velocity is high, some sturgeon eggs may be redistributed to
shallower sites prior to attachment on substrate. A single female may
release more than 100,000 eggs in a spawning event. Therefore, we
believe that the presence of only two eggs found at a depth of 9.8 ft
(3 m) in the Minto channel of the Fraser River may be anomalous and not
useful in defining minimum spawning habitat water depth. Furthermore,
the comment is based primarily on the capture sites of 20 free embryos;
free embryos are mobile upon hatching (Perrin et al. 1999, p. iii), and
are therefore an unreliable indicator of actual sturgeon spawning
sites.
8. Comment: The derivation of the 5-mile linear extent of the PCE
involving rocky substrate is not cited.
Our Response: We have identified 5 miles (8 kilometers) as a
minimum length of continuous rocky substrate based on observations of
minimum habitat conditions at similar sites below Bonneville and Ice
Harbor Dams where white sturgeon are known to reproduce annually.
Although the authors do not explicitly state the linear extent of the
rocky substrate utilized in these areas, this information is derived
from the observations of spawning locations, water velocity, and
substrate use provided in Parsley et al. 1993.
Comments from the Public
1. Comment: The February 8, 2006, critical habitat interim rule (71
FR 6383) was legally deficient because it failed to alert the public
that a significant practical effect or goal of the critical habitat
designation is increasing the level of Kootenay Lake in British
Columbia.
Our Response: The February 8, 2006, interim critical habitat rule
included a section on special management considerations documenting
that ``threats to the braided reach include shallow water depths'' (71
FR 6388). The public was advised that appropriate special management
would include measures to provide for water depths during the sturgeon
spawning season that would provide for the conservation needs of the
species. The operation of Kootenay Lake is outside the control of
Federal agencies and the Service; nothing in the critical habitat
designation has the legal effect of requiring Canadian authorities to
raise the level of the lake.
2. Comment: The Service should have prepared an environmental
document under the National Environmental Policy Act (NEPA) analyzing
the effect of the critical habitat designation. The court opinion that
held that NEPA is not applicable to critical habitat designations is
limited to its facts and should not apply to the Kootenai sturgeon
critical habitat.
Our Response: The Ninth Circuit, in Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995) (Douglas County), held that NEPA is
inapplicable to critical habitat designations. We contend that the
court's opinion in Douglas County contained no intention to limit the
holding to that specific situation. The opinion speaks in broad terms
that apply to any critical habitat designation, explaining that
requiring a NEPA analysis would be inconsistent with, or redundant to,
Act requirements for designating critical habitat. The court explained:
``The purpose of the ESA [Act] is to prevent extinction of species,
and Congress has allowed the Secretary to consider economic
consequences of actions that further that purpose. But Congress has not
given the Secretary the discretion to consider environmental factors,
other than those related directly to the preservation of the species.
The Secretary cannot engage in the very broad analysis NEPA requires
when designating a critical habitat under the ESA [Act]'' (48 F.3d at
1507).
The court concluded that ``the legislative histories of NEPA and
the ESA (Act) likewise indicate that Congress did not intend that the
Secretary file an Environmental Impact Statement (EIS) before
designating a critical habitat'' (48 F.3d at 1507).
3. Comment: The draft economic analysis is defective because it
does not factor in the increased level of Kootenay Lake that may be
necessary to achieve desired river depths for sturgeon, and the impacts
of higher lake levels are likely to have enormous economic
consequences. No information regarding any costs above the amount that
might be expected as a result of higher Kootenay Lake levels was
provided.
Our Response: The level of Kootenay Lake is controlled by Canadian
authorities; critical habitat designation has no legal effect on the
actions of a foreign government. The draft economic analysis included
an estimate of the cost of crop damage that might be expected as a
result of flows required for Kootenai sturgeon recovery.
4. Comment: The critical habitat designation would result in higher
water tables and an increased risk of flooding, which would be a
compensable taking of private property under the Fifth Amendment. In
addition, a potential ``relative benefits'' defense by the Service,
where the landowner incurs both harm and benefits that must be weighed
against each other, would not apply because no relative benefits would
be imparted by critical habitat designation.
Our Response: Designation of critical habitat imposes no direct
regulatory burden on private parties; it requires Federal agencies to
insure that actions that they authorize, fund, or carry out, do not
adversely modify designated habitat (16 U.S.C. 1536(a)(2)). A private
party with a Federal grant or permit that constitutes a ``nexus'' for
purposes of the Act's section 7 might bear an
[[Page 39511]]
indirect regulatory burden as a result of a critical habitat
designation. Courts assess takings claims based on the degree of
impairment of the property interest, the owner's reasonable
expectations, and the importance of the government interest being
advanced. In light of these factors, we believe that no compensable
taking will occur as a result of designation of critical habitat.
5. Comment: The Service violated the Act by promulgating the
interim rule without the requisite 90-day notice as is indicated under
section 4(b)(5) of the Act.
Our Response: We were under a court order to issue a critical
habitat rule for Kootenai sturgeon by a specific date, and the schedule
imposed by the court made it impracticable to issue a proposed rule
prior to a final rule. We acknowledge that section 4(b)(5) of the Act
requires a 90-day advance notice before the effective date of a final
rule. However, we believe that we remedied the situation as well as
possible by seeking both public and peer review comments on the interim
rule and reconsidering it in light of those comments, as we are doing
here. In the declaration that accompanied our motion to amend the
court's May 25, 2005, judgment, 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.
Under these circumstances, we have determined under 5 U.S.C.
553(b)(3)(B) that we had good cause to issue the interim rule without
prior opportunity for public comment because prior notice and public
procedure would have been impracticable. From the time required to
research the interim 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 have been in violation of the
court order. Thus, in effect, the interim rule served as the proposed
rule for this revised final rule, and the Service treated the interim
rule as the proposed rule for the purpose of complying with ESA Sec.
4(b)(5).
6. Comment: The Service has failed to acknowledge the need for
special management to address PCEs that may not be fully available at
all times or places within designated critical habitat.
Our Response: This final rule designates critical habitat within
the braided and meander reaches of the Kootenai River that will require
special management to restore functional water depth, flow timing, and
water temperature. At this time, these PCEs are intermittently present
within these reaches of the Kootenai River.
7. Comment: The Service used flawed reasoning in stating that Libby
Dam is part of the environmental baseline, and thus that its continued
operation will not result in adverse modification of critical habitat.
The commenter further stated that the operations of Libby Dam are
widely acknowledged as being the primary reason the sturgeon is headed
toward extinction, and the reason why the sturgeon fails to spawn in
the braided reach.
Our Response: The Service's use of the term ``environmental
baseline'' is restricted to the section 7 compliance process under the
Act. In that context, the future effects of Libby Dam operations on the
Kootenai sturgeon and its critical habitat are not part of the
environmental baseline. The Service defines the term ``environmental
baseline'' as ``* * * the past and present impacts of all Federal,
State, or private actions and other human activities in the action
area, the anticipated impacts of all proposed Federal projects in the
action area that have already undergone formal or early section 7
consultation, and the impact of State or private actions which are
contemporaneous with the consultation in process.'' On that basis, the
effects of Libby Dam construction and past operations on the Kootenai
sturgeon and its critical habitat are part of the environmental
baseline.
At the time the sturgeon was listed and critical habitat was
designated, all future operations of Libby Dam were subject to the
jeopardy and adverse modification of critical habitat standards under
section 7(a)(2) of the Act. Because the action of constructing the dam
was completed in 1973, the continued presence of the dam is not an
action subject to the requirements of section 7 of the Act. However,
the effects of future operations on listed species and critical habitat
are subject to the requirements of section 7 of the Act. Subsequently,
we completed formal consultations with the Corps, Bureau of Reclamation
(BOR), and the Bonneville Power Administration (BPA) on the effects of
Libby Dam operations on the sturgeon in 1995, 2000, and 2006; our 2006
Biological Opinion (BO) on the effects of Libby Dam operations on the
Kootenai sturgeon also addressed the effects of dam operations on
designated critical habitat (USFWS 2006b). The latter two consultations
resulted in BOs in which we concluded that future operations of Libby
Dam, as proposed by the Federal action agencies, were likely to
jeopardize the continued existence of the sturgeon and adversely modify
its critical habitat.
In accordance with our regulations, we included a Reasonable and
Prudent Alternative (RPA) to the proposed operation of Libby Dam that
would avoid jeopardy and adverse modification in our 2006 BO. The
Corps, as operator of Libby Dam, and BPA, as marketer of the hydropower
generated at Libby Dam, are currently implementing the RPA.
8. Comment: The current designation of critical habitat, which
includes only the river to the high water mark, improperly excludes
side channel habitats.
Our Response: The braided reach of the Kootenai River designated as
critical habitat includes several side channels that, because of their
structure and condition, function as both foraging and spawning habitat
for the Kootenai sturgeon. These areas have not been excluded from the
designation.
9. Comment: If in the future it is found that designation of this
critical habitat is not necessary, what process is there for removing
it from critical habitat?
Our Response: Section 4(a)(3)(A) of the Act and implementing
regulations at 50 CFR 424.12 require that ``critical habitat shall be
specified to the maximum extent prudent and determinable.'' Critical
habitat is considered not prudent when the identification of critical
habitat can be expected to increase the degree of threat from taking or
other human activity, or if the designation of critical habitat would
not be beneficial to the species. In the absence of a ``not prudent''
finding, the Act requires that we designate critical habitat for listed
species. The Act does provide that critical habitat designations may be
revised, as appropriate. Any revisions would occur through the
rulemaking process.
10. Comment: Hopefully, this designation will not affect the
private gravel operations that take place upstream of the designated
area.
Our Response: The effect of a critical habitat designation is that
activities authorized, funded, or carried out by a Federal agency
require consultation under section 7 of the Act to ensure that they are
not likely to destroy or adversely modify critical habitat. For
example, activities on private or State lands requiring a permit from a
Federal agency, such as a permit from the Corps under section 404 of
the Clean Water Act, a section 10(a)(1)(B) permit from us, or some
other Federal action, including funding (for example, Federal Highway
Administration or Federal Emergency Management Agency funding), would
be subject to the
[[Page 39512]]
section 7 consultation process. Activities on State, Tribal, local, or
private lands that are not carried out, funded, or authorized by a
Federal agency are not subject to any regulatory requirements as a
result of critical habitat designation. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area, and the
designation of critical habitat does not allow government or public
access to private lands.
Summary of Changes from the Interim Rule
In developing this revised final critical habitat rule for the
Kootenai sturgeon, we reviewed peer review and public comments received
on the interim rule and draft economic analysis published in the
Federal Register on February 8, 2006 (71 FR 6383), as well as a second
round of peer review comments received specifically on the PCEs. Based
on comments received, including peer review comments, this final rule
modifies the interim rule in the following ways:
(1) We have made the PCEs more explicit to more clearly communicate
the best available scientific information regarding the conservation
needs of the species.
(2) We have modified the depth PCE (PCE 1) from a minimum of 16 ft
(5 m) to a minimum of 23 ft (7 m) to more accurately reflect the best
available science, indicating that mean water depth of at least 23 ft
(7 m) is necessary for spawning site selection by white sturgeon in the
Kootenai River (for example, Paragamian et al. 2001, Table 2, p. 27, p.
29, and Figure 4, p. 29; Paragamian and Duehr 2005, p. 263, 265;
Parsley 2006a, p. 1; Parsley 2006b, p. 1).
(3) In the interim rule, we stated that we added 6.9 RM (11.1 RKM)
to the critical habitat designation, but later stated that this
additional reach extends from ``RM 159.7 (RKM 257) to RM 152.6 (RKM
245.9),'' which is actually 7.1 RM. The area designated as critical
habitat in the interim rule remains unchanged in this revised final
rule. This final rule simply corrects the RM totals to indicate that we
added 7.1 RM to our 2001 designation of 11.2 RM, for a total of 18.3
RM.
(4) We have combined the two former units, the braided reach and
the meander reach, into a single designation because the two units are
contiguous, and clarified the location of the river reaches within the
designation:
(i) The braided reach begins at RM 159.7 (RKM 257.0), below the
confluence with the Moyie River, and extends downstream within the
Kootenai River to RM 152.6 (RKM 246.0) below Bonners Ferry.
(ii) The meander reach begins at RM 152.6 (RKM 246.0) below Bonners
Ferry, and extends downstream to RM 141.4 (RKM 228.0) below Shorty's
Island.
(iii) This designation includes the 0.9 mi (1.5 km) ``transition
zone,'' described in the February 2006 interim rule (71 FR 6383) that
joins the meander and braided reaches at Bonners Ferry.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) 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 (a) essential to the
conservation of the species and (b) which may require special
management considerations or protection; and
(2) 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, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring an endangered
or threatened species to the point at which the measures provided under
the Act are no longer necessary. Such methods and procedures include,
but are not limited to, all activities associated with scientific
resource management, such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and
transplantation, and (in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved), may
include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) of the Act 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 the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by private landowners. Where a
landowner requests Federal agency funding or authorization for an
action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the
landowner's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time of listing
must contain the physical and biological features essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas that provide essential life
cycle needs of the species. Under the Act, we can designate critical
habitat in areas outside the geographical area occupied by the species
at the time it is listed only when we determine that those areas are
essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources include the recovery plan for the species, if
available; 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.
[[Page 39513]]
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that we may
eventually determine to be necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not promote
the recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions. They are also subject 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 require consultation under
section 7 of the Act and 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
information available at the time of these planning efforts calls for a
different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas occupied at
the time of listing to propose as critical habitat within areas
occupied by the species at the time of listing, we consider the
physical and biological features that are essential to the conservation
of the species to be the primary constituent elements laid out in the
appropriate quantity and spatial arrangement for conservation of the
species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, or other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal;
(5) Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.
As required by 50 CFR 424.12(b)(5), we are to list the known PCEs
with our description of critical habitat. The PCEs provided by the
physical and biological features upon which the designation is based
may include, but are not limited to, the following: roost sites,
nesting grounds, spawning sites, feeding sites, seasonal wetland or
dryland, water quality or quantity, host species or plant pollinator,
geological formation, vegetation type, tide, and specific soil types.
Primary Constituent Elements for the Kootenai Sturgeon
We identified the PCEs for Kootenai sturgeon critical habitat based
on our knowledge of the life history, biology, and ecology of the
species, and the physical and biological features of the habitat
necessary to sustain its essential life history functions, as described
in the Background section of this rule. We are changing the PCEs from
those identified in our critical habitat interim rule (February 8,
2006; 71 FR 6383) to better fit our current understanding of the
features needed to support the sturgeon's life history functions, and
to reflect the information received from peer review and public
comment.
This designation focuses solely on spawning and rearing habitats,
the factors that we understand to be currently limiting to sturgeon
conservation (Paragamian et al. 2001, pp. 22-33; Paragamian et al.
2002, pp. 608, 615). All of the following PCEs must be present during
the spawning and incubation period for successful spawning, incubation,
and embryo survival to occur. However, although the PCEs to support
successful spawning must occur simultaneously in time and space, it is
not necessary for them to be present through the entire spawning
period, nor must they be present throughout the entire designated area.
The PCEs are:
(1) A flow regime, during the spawning season of May through June,
that approximates natural variable conditions and is capable of
producing depths of 23 ft (7 m) or greater when natural conditions (for
example, weather patterns, water year) allow. The depths must occur at
multiple sites throughout, but not uniformly within, the Kootenai River
designated critical habitat.
(2) A flow regime, during the spawning season of May through June,
that approximates natural variable conditions and is capable of
producing mean water column velocities of 3.3 ft/s (1.0 m/s) or greater
when natural conditions (for example, weather patterns, water year)
allow. The velocities must occur at multiple sites throughout, but not
uniformly within, the Kootenai River designated critical habitat.
(3) During the spawning season of May through June, water
temperatures between 47.3 and 53.6 [deg]F (8.5 and 12 [deg]C), with no
more than a 3.6 [deg]F (2.1 [deg]C) fluctuation in temperature within a
24-hour period, as measured at Bonners Ferry.
(4) Submerged rocky substrates in approximately 5 continuous river
miles (8 river kilometers) to provide for natural free embryo
redistribution behavior and downstream movement.
(5) A flow regime that limits sediment deposition and maintains
appropriate rocky substrate and inter-gravel spaces for sturgeon egg
adhesion, incubation, escape cover, and free embryo development. Note:
the flow regime described above under PCEs 1 and 2 should be sufficient
to achieve these conditions.
This critical habitat designation is focused on Kootenai sturgeon
spawning habitats and egg attachment and egg incubation habitats, as
these areas are currently the limiting habitat components essential to
Kootenai sturgeon conservation (Paragamian et al. 2001, pp. 22-33;
Paragamian et al. 2002, pp. 608, 615). Maintaining the PCEs in this
designated area is consistent with our recovery objective to re-
establish successful natural recruitment of Kootenai sturgeon (U.S.
Fish and Wildlife Service 1999, p. iv). However, the presence of PCE
components related to flow, temperature, and depth are dependent in
large part on 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. Within the critical habitat reaches, the specific
conditions are variable due to a number of factors such as snowmelt,
runoff, and precipitation. This designation recognizes the natural
variability of these factors, and does not require that the PCEs be
available year-round, or even every year during the spawning period. At
present, the PCEs are achieved only infrequently, such as in 2006
during the ``stacked flow'' operations when the Kootenai River reached
river stage 1,763.61 MSL (feet above mean sea level; 537.5 m) at
Bonners Ferry (Corps 2007, p. 6), resulting in the first documented
movement of tagged female Kootenai sturgeon into the braided reach
above Bonners Ferry (Kootenai Sturgeon Recovery Team 2006, pp. 1-2).
The designation means that sufficient PCE components to support
successful spawning must be present and protected during the spawning
season of May through June at multiple sites throughout, but not
uniformly within,
[[Page 39514]]
the Kootenai River designated critical habitat in all years when
natural conditions (for example, weather patterns, water year) make it
possible.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
occupied by the species at the time of listing contain the physical and
biological features essential to the conservation of the species, and
whether these features may require special management consideration or
protections. In this case, the threats to the physical and biological
features in the area designated as critical habitat that may require
special management considerations or protections include shallow water
depths (loss of deeper water habitat), low water velocities, and sudden
drops in water temperature that adversely affect Kootenai sturgeon
breeding behavior.
Both of the designated reaches provide the physical and biological
features that are essential to the Kootenai sturgeon for spawning, egg
attachment, incubation, and juvenile rearing, and both require special
management to ensure that the appropriate water depths, velocities, and
temperature are achieved during the spawning period in all years when
natural conditions allow.
Libby Dam is operated by the Corps to meet a variety of needs,
including power production, flood control, recreation, and special
operations for the recovery of species listed under the Act, including
Kootenai sturgeon, bull trout, and salmon in the lower Columbia River.
The Corps currently operates the dam so as not to exceed 1,764 MSL at
Bonners Ferry, Idaho (the flood stage designated by the National
Weather Service for the purposes of flood protection). However, flood
stage can be exceeded due to unexpected increased inflow to Libby Dam
or due to tributary flows downstream of Libby Dam (U.S. Fish and
Wildlife Service 2006b, p. 5). The Corps has noted that it considers
1,764 MSL to be the ``current target river stage for Libby Dam
operations'' (Corps 2007, p.1).
The Corps conducted a stacked flow operation in spring 2006 to test
different flow strategies for meeting the habitat attributes identified
for the Kootenai sturgeon in the Service's 2006 BO on the effects of
Libby Dam operations on the Kootenai sturgeon and its critical habitat
(U.S. Fish and Wildlife Service 2006b). The stacked flow operation was
developed to utilize Libby outflows at full powerhouse capacity (25,000
cfs) and temperature control at the dam (to the extent possible) such
that releases were timed to ``stack'' on local tributary inflows to
provide velocities, depth, and temperature conditions specified in the
BO. The operation, initiated in May 2006, controlled releases from the
dam as much as possible to provide the appropriate temperature for
sturgeon migration and spawning (Corps 2006, p. 5). This stacked flow
operation demonstrated that the Corps was able to achieve depth in the
middle of the channel, continuously exceeding 23 ft (7m) as far
upstream as RM 153.1, with some areas exceeding 39 ft (12 m) between RM
152 and 157, at flows below flood stage (Corps 2007, p. 6).
We recognize that, due to existing morphologic constraints and
limitations at Libby Dam, the depth PCE described in this rule (23 ft;
7 m) is currently not achievable on an annual basis in the braided
reach. Since the construction of Libby Dam and the subsequent altered
hydrograph, the braided reach has become shallower and wider (Barton
2005a, unpublished data), thus limiting the ability to achieve the
depth PCE in the braided reach in most years. To address this issue,
the Kootenai Tribe of Idaho, in cooperation with regional partners and
Federal managers, is pursuing the Kootenai River Ecosystem Restoration
Project. This restoration project has as one of its goals to ``restore
and maintain Kootenai River habitat conditions that support all life
stages'' of Kootenai sturgeon. The objectives of the project include
(but are not limited to): adjusting ``the dimension, pattern, and
profile of the river * * * to match current flow, hydraulic, and
sediment transport regimes resulting from the construction and
operation of Libby Dam''; and addressing ``depth requirements'' of
Kootenai sturgeon (Kootenai Tribe of Idaho 2008, p. 4). Until this
project is implemented, we recognize that the ability to meet the depth
PCE in the braided reach is limited. However, we also acknowledge that
the depth PCE has been achieved intermittently under current operating
conditions (stacked flows in 2006).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial information available in determining those
areas that were occupied by the species at the time of listing and
contain PCEs in the quantity and spatial arrangement to support life
history functions essential for the conservation of the species in our
designation of critical habitat. We relied on information in our prior
rulemaking, our recovery plan, more recent information on the
biological needs of the species summarized in our 2006 interim rule
designating critical habitat for the Kootenai sturgeon (71 FR 6383),
and new information gained through the peer review and public comment
process on that interim rule.
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.
This designation focuses solely on those life stages that are,
based on the best available scientific information, limiting
productivity (that is, spawning and egg attachment and incubation),
which is the limiting demographic parameter relative to Kootenai
sturgeon population recovery. Using this framework, we selected those
areas where sturgeon currently spawn in the meander reach; areas with
appropriate rocky substrates in the braided reach where sturgeon may be
expected to spawn successfully under the appropriate temperature,
depth, and flow conditions; and those areas downstream of spawning
sites that are essential for egg attachment and incubation.
Final Revised Critical Habitat Designation
We are designating approximately 18.3 RM (29 RKM) of the Kootenai
River as revised critical habitat within Boundary County, Idaho. This
designation maintains as critical habitat the 7.1 RM (11 RKM) ``braided
reach,'' and the 11.2 RM (18 RKM) ``meander reach,'' from the February
8, 2006, interim rule (71 FR 6383). Included within this designation is
the 0.9 mi (1.5 km) transition zone that joins the meander and braided
reaches at Bonners Ferry, as described in the interim rule. The
critical habitat areas described below constitute our best assessment
at this time of areas determined to be occupied at the time of listing
that contain the physical and biological features essential for the
conservation of the species and that may require special management.
Land Ownership
The reach of the Kootenai River designated as critical habitat lies
within ordinary high-water marks as defined for regulatory purposes (33
CFR 329.11). Upon achieving Statehood in 1890, the
[[Page 39515]]
State of Idaho claimed ownership of the bed of the Kootenai River and
its banks up to ordinary high-water marks. 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 marks 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 marks. 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 riverbeds and banks may
request parcel boundary adjustments to the new ordinary high-water
mark, and corresponding adjustments in taxable acreage. The lateral
extent of the State-owned riverbeds and banks along the steep levees
may be closely approximated today through the Corps' definition of
ordinary high-water mark cited above. Thus, we believe the areas
designated as critical habitat are within lands owned by the State of
Idaho.
Braided Reach
The braided reach begins at RM 159.7 (RKM 257), below the
confluence with the Moyie River, and extends downstream within the
Kootenai River to RM 152.6 (RKM 246) below Bonners Ferry. Within this
reach the valley broadens, and the river forms the braided reach as it
courses through multiple shallow channels over gravel and cobbles
(Barton et al. 2004). This reach was occupied by Kootenai sturgeon at
the time of listing, and is currently occupied by foraging and
migrating sturgeon. Tagged female sturgeon moved into the braided reach
above Bonners Ferry during the spawning period in 2006, although it is
not known whether spawning occurred in the area (Kootenai Sturgeon
Recovery Team 2006, pp. 1-2). Gravel and cobble are exposed along the
bottom of the Kootenai River in the braided reach (Barton et al. 2004,
pp. 18-19; Berenbrock 2005a, p. 7), and water velocities in excess of
3.3 ft/s (1 m/s) are likely achieved on a seasonal basis due to the
high surface gradient in this reach (Berenbrock 2005a, Figure 11, p.
23). At present, the braided reach provides the temperatures, depths,
and velocities required to trigger spawning only occasionally, and
these features require special management for spawning sturgeon.
Meander Reach
The meander reach begins at RM 152.6 (RKM 246) below Bonners Ferry,
and extends downstream to RM 141.4 (RKM 228) below Shorty's Island.
This reach was occupied by Kootenai sturgeon at the time of listing, is
used by foraging and migrating sturgeon, and is currently the primary
spawning reach for Kootenai sturgeon (Paragamian et al. 2002, p. 608,
and references therein). Although most of the reach is composed
primarily of sand substrates unsuitable for successful spawning, some
limited areas of gravel and cobble are present or at least exposed
intermittently (Paragamian et al. 2002, p. 609; Barton et al. 2004, pp.
18-19). Although appropriate depths are available on occasion in this
reach (Paragamian et al. 2001, Table 2, p. 26; Barton 2004, Table 1, p.
9; Berenbrock 2005a, p. 7), the temperatures and velocities required
for successful spawning require special management to be achieved on
more than an infrequent basis.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of a listed species or
destroy or adversely modify designated critical habitat. Decisions by
the Fifth and Ninth Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, destruction or adverse modification is
determined on the basis of whether, with implementation of the proposed
Federal action, the affected critical habitat would remain functional,
or retain the current ability for the PCEs to be functionally
established, to serve its intended conservation role for the species.
Under section 7(a)(2) of the Act, 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. As a result of
this consultation, we document compliance with the requirements of
section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion (BO) for Federal actions that are likely
to adversely affect listed species or critical habitat.
When we issue a BO concluding that a project is likely to
jeopardize the continued existence of a listed species or destroy or
adversely modify critical habitat, we also provide reasonable and
prudent alternatives to the project, if any are identifiable. We define
``reasonable and prudent alternatives'' 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,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected 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 need to request reinitiation of consultation with us on
actions for which formal consultation has been completed, if those
actions may affect subsequently listed species or designated critical
habitat in a manner not previously analyzed.
Federal activities that may affect the Kootenai sturgeon or its
designated critical habitat will require consultation under section
7(a)(2) of the Act. Activities on State, Tribal, local, or private
lands requiring a Federal permit
[[Page 39516]]
(such as a permit from the Corps under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10(a)(1)(B) of the Act) or involving some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency) are
examples of agency actions that may be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local, or private lands
that are not federally funded, authorized, or permitted, do not require
section 7(a)(2) consultations.
Application of the Adverse Modification Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain the
current ability for the PCEs to be functionally established) to serve
its intended conservation role for the species. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and biological features to an extent that appreciably reduce
the conservation value of critical habitat for 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, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and, therefore, should
result in consultation include, but are not limited to:
(1) Actions that would affect flows in ways that would reduce the
value of the PCEs essential to the conservation of the species. For
example, activities that alter riverbed substrate composition, or
reduce flows, water velocity, or water depths essential for normal
breeding behavior, migration upriver to spawning sites, breeding site
selection, shelter, dispersal, or survival of incubating eggs or
developing free embryos.
(2) Actions that would significantly change water temperature or
cause a rapid drop in water temperature during the migration and
spawning period, such as ramping rates associated with upstream
hydroelectric operations or spillway operations, that may adversely
modify water temperatures necessary for normal breeding behavior.
(3) Actions that would significantly affect channel geomorphology,
particularly the reduction or alteration of rocky substrates, which
provide for the successful adhesion and incubation of eggs, as well as
shelter and escape cover for free embryos. Activities that could bury
or remove rocky substrate include, but are not limited to, changes in
land management activities that accelerate sediment releases into the
Kootenai River; channelization; levee reconstruction; stream bank
stabilization; gravel removal; and road, railroad, bridge, pipeline, or
utility construction.
We consider the designated critical habitat to contain the physical
and biological features essential to the conservation of the Kootenai
sturgeon. The designated reaches are within the geographic range of the
species, were occupied by the species at the time of listing, and are
likely to be used for spawning by the Kootenai sturgeon. Federal
agencies already consult with us on activities in areas currently
occupied by the Kootenai sturgeon, in cases where it may be affected by
the action, to ensure that their actions do not jeopardize the
continued existence of the Kootenai sturgeon.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
impact on national security, and any other relevant impact, of
specifying any particular area as critical habitat. The Secretary may
exclude an area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he determines, 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.
In making that determination, the Congressional legislative history is
clear that the Secretary has broad discretion regarding which factor(s)
to use and how much weight to give to any factor.
Based on the best available information, including the prepared
economic analysis, we believe that all of the revised designated
critical habitat contains the features that are essential for the
conservation of this species. We have additionally determined that
within the designation no lands are owned or managed by the Department
of Defense, no habitat conservation plans currently exist for the
species, and no Tribal lands or trust resources exist. We have found no
areas for which the benefits of exclusion outweigh the benefits of
inclusion, and so have not excluded any areas from this designation of
critical habitat for Kootenai sturgeon based on economic or other
relevant impacts. As such, we have considered, but not excluded, any
lands from this designation based on the potential impacts to these
factors.
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 areas from critical habitat when exclusion will result
in the extinction of the species.
Concurrent with the publication of the interim rule (February 8,
2006; 71 FR 6383), we conducted an economic analysis to estimate the
potential economic effect of the designation (Northwest Economic
Associates 2006). The analysis addressed the economic impacts of adding
the braided reach to existing critical habitat in the meander reach,
which we designated in 2001 (66 FR 46548). The draft economic analysis
on the 2006 interim rule was thus in addition to the economic analysis
that had been prepared earlier on the 2001 designation. The draft
economic analysis was made available for public review on February 8,
2006 (71 FR 6383). We accepted comments on the draft analysis until
April 10, 2006. The final economic analysis was finalized on June 6,
2008 (ENTRIX, Inc. 2008), which is available on the Internet at http://
www.regulations.gov and http://www.fws.gov/easternwashington.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the Kootenai 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
addressed the distribution of any potential impacts of the designation,
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
[[Page 39517]]
burden a particular group or economic sector.
This analysis focused 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
State and other Federal agencies. Economic impacts that result from
these types of protections were not included in the analysis because
they were considered to be part of the regulatory and policy baseline.
The economic analysis relied heavily on secondary sources of
information, including documents and studies conducted for the Corps,
the Service, and other stakeholders. The primary source of information
for the economic analysis was the Upper Columbia Basin Alternative
Flood Control and Fish Operations Draft Environmental Impact Statement
(EIS), and supporting documents, prepared by the Corps and the Bureau
of Reclamation (BOR), and submitted for public comment in November
2005. This EIS was in response to the 2000 National Oceanic and
Atmospheric Administration (NOAA) and Service BOs on the operation of
the Federal Columbia River Power System. The data, assumptions, and
results from the Draft EIS, and its supporting documentation and
modeling, were not independently tested or verified.
The geographic area of analysis included both the meander reach and
the braided reach, for a total of 18.3 miles (29.5 kilometers) of the
Kootenai River from RM 159.7 (RKM 257.0) to RM 141.4 (RKM 228.0). The
economic analysis was based on the reasonable and prudent alternative
in our February 2006 BO on operations of Libby Dam, a component of the
Federal Columbia River Power System. Based on the recommendations in
the 2006 BO, future costs (2006 through 2025) associated with
conservation activities for the sturgeon were estimated to range from
$305 million to $610 million using a 7 percent discount rate and $425
to $900 million using a 3 percent discount rate. Annualized impacts
associated with the conservation related impacts ranged from $29
million to $61 million at 3 percent and $29 million to $58 million at 7
percent. The activity potentially most affected is the operation of
Libby Dam. However, all but $20,000 to $30,000 in post-designation
anticipated costs are joint costs or co-extensive costs (associated
with listing and critical habitat). That is, the sturgeon water flows
and almost all of the resulting potential impacts were determined to
most likely occur regardless of the addition of the braided reach (or a
portion thereof) to the critical habitat designation. The economic
analysis thus concluded that there were minimal incremental impacts
associated with the designation of the braided reach (Northwest
Economic Associates 2006, p. ES-2).
The majority of costs (94 percent) was for hydropower generation
and related infrastructure improvements and was expected to be borne by
Federal agencies. The other 6 percent of costs were related to
agriculture and were expected to be borne by private individuals,
mainly impacts to the Anheuser-Busch hop farm located downstream of the
meander reach.
After weighing the potential benefits and costs of the initial
proposed designation, in 2001 the Secretary chose not to exercise his
authority under section 4(b)(2) of the Act to exclude any areas from
the initial designation of the meander reach (September 6, 2001; 66 FR
46548). In 2006, following the additional designation of the braided
reach, the Secretary again chose not to exercise his authority to
exclude any areas from the designation. Although the geographic area
covered by this final rule is exactly the same as that already
addressed in the 2006 draft economic analysis, we have changed the
depth PCE from 16 ft (5 m) to 23 ft (7 m) in response to public and
peer review comment and the best available scientific information;
thus, we considered whether this change might have any economic impact
on the designation. As described above, the Corps currently operates
Libby Dam with 1,764 ft (537.7 m) as the current target river stage
(Corps 2007, p. 1). In addition, the Corps is managing flows to meet
the habitat attributes described in the 2006 BO, which sets the depth
attribute at 16 to 23 ft (5 to 7 m). Since the Corps has demonstrated
that it can achieve the requisite depth of 23 ft (7 m) under stacked
flows at levels below 1,764 ft (537.7 m), the new PCE can be achieved
at least intermittently within the current authorities of the Corps and
will not require a change to its current operations. We, therefore, do
not foresee any further economic impact of this designation and have
determined that no further revision of the economic analysis is needed.
We have considered the economic and other relevant impacts of the
designation based on the economic analysis and currently available
information, and are not excluding any areas from the designation.
Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
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; and 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
[[Page 39518]]
$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 the Kootenai River population of 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 consultation for ongoing Federal activities.
Approximately 30 small agriculture operations could be impacted by
conservation measures for the sturgeon.These operations represent
approximately 7 percent of the number of small farms operating within
the county. Flow-related agricultural impacts are joint costs in that
these conservation-related impacts are not materially different from
those impacts from listing the sturgeon, so burdens to small
agricultural operations from the critical habitat designation are
unlikely. 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 regulatory requirements for the approximately four small
businesses, on average, that may be subject to consultation each year
regarding their project's impact on the Kootenai River population of
the white sturgeon and its habitat. First, if we conclude in a BO that
a proposed action is likely to jeopardize the continued existence of a
species or destroy 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 BO 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 under 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; for example,
dredge and fill activities could affect navigable waters and wetlands
designated as critical habitat; and
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies.
It is likely that a project proponent could modify a project or
take measures to protect the Kootenai River population of the 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 interim rule designating critical habitat. These measures are
not likely to result in a significant economic impact to small entities
because the cost of these measures would be borne by Federal agencies.
In summary, we have considered whether this designation 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. Therefore, we are certifying that this final designation of
critical habitat for the Kootenai River population of the white
sturgeon will not have a significant economic impact on a substantial
[[Page 39519]]
number of small entities. A regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use
Executive Order 13211, ``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use,'' issued May
18, 2001, requires Federal agencies to submit a ``Statement of Energy
Effects'' for all ``significant energy actions'' in order to present
consideration of the impacts of a regulation on the supply,
distribution, and use of energy. Significant adverse effects are
defined in the Executive Order by the OMB according to the following
criteria:
(1) Reductions in crude oil supply in excess of 10,000 barrels per
day;
(2) Reductions in fuel production in excess of 4,000 barrels per
day;
(3) Reductions in coal production in excess of 5 million tons per
year;
(4) Reductions in natural gas production in excess of 25 million
Mcf (1000 cubic feet) per year;
(5) Reductions in electricity production in excess of 1 billion
kilowatt-hours (kWh) per year or in excess of 500 megawatts (MW) of
installed capacity;
(6) Increases in energy use required by the regulatory action that
exceed any of the thresholds above;
(7) Increases in the cost of energy production in excess of 1
percent;
(8) Increases in the cost of energy distribution in excess of 1
percent; or
(9) Other similarly adverse outcomes.
Two of these criteria are relevant to this analysis: (5) Reductions
in electricity production in excess of one billion kilowatt hours (kWh)
per year or in excess of 500 megawatts (MW) of installed capacity, and
(7) Increases in the cost of energy production in excess of 1 percent.
Our analysis below determines whether the electricity industry is
likely to experience ``a significant adverse effect'' as a result of
Kootenai sturgeon conservation activities.
Based on components of the February 2006 BO, including the relaxed
ramping rates and the increased lake levels at Kootenay Lake, the
modeled hydropower generation numbers will differ from those presented
in the economic analysis. The relaxation of ramping rates at Libby Dam
will enable quicker decision-making responses to market conditions,
while the potential management of Kootenay Lake at higher elevations
during June and July will result in the availability of water used to
generate power downstream in the Federal Columbia River Power System
later in the summer when energy prices are typically higher. However,
the actual impact of the February 2006 BO on power generation cannot be
estimated without additional modeling by the Corps. While the power
generation results cannot be adjusted without additional modeling
efforts, the impact of the February 2006 BO on power generation is
expected to be less than the power generation impacts presented in the
economic analysis. Considering the results of the energy impacts
analysis in the economic analysis were below the thresholds suggested
by OMB, and that the power generation impacts are expected to be less
under the February 2006 BO, the power generation impacts resulting from
the February 2006 BO are also expected to be below OMB thresholds. The
energy impacts analysis from the economic analysis are presented below.
Evaluation of Whether the Designation Will Result in Reductions in
Electricity Production in Excess of One Billion kWh Per Year or in
Excess of 500 MW of Installed Capacity
Installed capacity is ``the total manufacturer-rated capacity for
equipment such as turbines, generators, condensers, transformers, and
other system components'' and represents the maximum rate of flow of
energy from the plant or the maximum output of the plant. As noted in
Section 4 of our economic analysis, modifying dam operations to provide
sturgeon flows in late spring and early summer would result in the
release of water from Libby Dam that otherwise would have been stored
for release the following winter. If run through the powerhouse, the
water would be used to generate electricity during months when the
value of electricity is generally lower. If spilled over the dam, the
water would be lost to use for power generation. After leaving Libby
Dam, these sturgeon flows would then work their way down the Columbia
River Basin, through other hydropower facilities. Depending on the
situation at a particular dam, the water would either be lost to use
for power generation or used to generate electricity during months when
the value of electricity is generally lower. However, these are power
production issues, as installed capacity at Libby Dam and at other
hydropower facilities downstream from Libby remain unchanged.
Therefore, the screening level analysis focuses on changes in energy
production. Because energy production is affected at Libby Dam and at
hydropower facilities downstream from Libby, the screening level
analysis assesses changes in energy production system-wide.
The Corps modeled the impacts of sturgeon flows on system-wide
electricity production. While model results show a slight increase in
power production at Libby Dam following sturgeon flows, the system-wide
impact is a net loss in power generation. The net loss of 274 gigawatt
hours (GWh) (the greatest energy production impact under the
alternative sturgeon flow scenarios), or 274 million kWh, is less than
27 percent of the one billion kWh threshold suggested by OMB.
Evaluation of Whether the Designation Will Result in an Increase in the
Cost of Energy Production in Excess of One Percent
The Corps and the BOR are the owners and operators of the 31
federally owned hydro projects on the Columbia and Snake Rivers; the
Corps is the owner of Libby Dam. BPA, a Federal agency under the
Department of Energy, markets and distributes the power generated from
these Federal dams and from the Columbia Generating Station. The dams
and the electrical system are known as the Federal Columbia River Power
System. While BPA is part of the Department of Energy, it is not tax-
supported through government appropriations. Instead, BPA recovers all
of its costs through sales of electricity and transmission and repays
the U.S. Treasury in full with interest for any money it borrows.
Revenues collected through power rates cover the costs of operation of
the hydro projects and the transmission system as well as the debt
service required to repay the capital investment in the system; it also
contributes to other costs associated with these projects, such as the
conservation efforts to protect fish and wildlife in the Columbia River
Basin.
BPA's service territory covers all of Washington, Oregon, Idaho,
and western Montana, as well as small portions of California, Nevada,
Utah, Wyoming, and eastern Montana. BPA provides about half the
electricity used in the Northwest and operates over three-fourths of
the region's high-voltage transmission. BPA is also a participant in
the Northwest Power Pool (hereafter ``Pool''), an organization composed
of major generating utilities serving the Northwestern United States
(Oregon, Washington, Idaho, and Montana, as well as Nevada, Utah, and
parts of California and Wyoming), British Columbia, and Alberta. The
Pool was established to more effectively coordinate operations to
``achieve reliable operations of the electrical power system,
coordinate power system planning, and assist in transmission in the
Northwest Interconnected Area.''
[[Page 39520]]
For the purpose of this screening level analysis, the increase in the
cost of energy production due to designation will be compared to the
cost of energy production in the Northwest Interconnected Area (as
defined by the Pool, and including the States of Oregon, Washington,
and Idaho, western Montana, parts of Nevada, and the provinces of
British Columbia and Alberta).
The analysis below considers the probability that one of the
following will lead to an increase in the cost of energy production of
one percent or more: (1) A reduction of approximately 274 GWh of
hydroelectric production (the greatest energy production impact under
the alternative sturgeon flow scenarios); (2) the cost of BPA-funded,
sturgeon-related conservation projects (for example, studies,
monitoring, and fish hatchery); and (3) the capital cost of modifying
Libby Dam to allow passage of an additional 10,000 cfs of sturgeon
flows (above the 25,000 cfs powerhouse capacity) through the powerhouse
or over the spillway or both without violating Montana water quality
standards. These items were all based on the reasonable and prudent
alternatives in the 2006 BO. Because 274 GWh represents a small amount
of the regional generating capacity (31 average MW), the screening
level analysis assumes the electricity will be purchased from an
alternative source, and that the most likely source of replacement
energy is electricity from a gas turbine peaking facility. Reductions
in power value (revenues) due to changes in the timing of power
production are not considered in the screening level analysis as lost
revenues and do not represent an increase in energy production costs.
First, total annual electricity generation is estimated, by fuel
type, for the region (Northwest Interconnected Area). As shown in Table
A-2 of our economic analysis (ENTRIX, Inc. 2008), the region produced
380,281 GWh of electricity in 2006.
Next, the average operating expense is calculated for each fuel
type. In this screening level analysis,the average, in mills per kWh,
is determined for 2006 and then converted into dollars per kWh (ENTRIX,
Inc. 2008, Table A-3).
The energy reduction portion of total sturgeon-related impacts to
energy costs for the region is then calculated assuming (1) no change
in power operations at Columbia River Basin dams (baseline) and (2) the
replacement of 274 GWh of system power with power from a gas turbine
facility (ENTRIX, Inc. 2008, Table A-4). This reduction in
hydroelectric output is not expected to reduce the total cost of
hydroelectric power production since hydroelectric production costs are
largely fixed. Therefore, the estimated cost of annual hydroelectric
energy production under the sturgeon conservation activities
(alternative) remains the same as annual production costs under
baseline operations. The cost of purchasing the 274 GWh of lost system
hydro power from a gas turbine facility is estimated at $13.5 million
annually.
Last, the cost of BPA- and Corps-funded, sturgeon-related
conservation and the capital cost of modifying Libby Dam to allow
passage of an additional 10,000 cfs of sturgeon flows (above the 25,000
cfs powerhouse capacity) through the powerhouse, over the spillway, or
both, without violating Montana water quality standards, is added to
the cost of purchasing 274 GWh of energy from the gas turbine facility.
The impact of these costs is determined by comparing them to the total
regional energy production costs, assuming no change in power
operations at Columbia River Basin hydro facilities. As illustrated in
Table A-4 of our economic analysis (ENTRIX, Inc. 2008), the additional
cost of sturgeon-related conservation efforts is 0.71 percent of the
estimated annual baseline cost of regional energy production, which is
less than the 1 percent threshold suggested by OMB.
In summary, only two adverse effects of energy supply,
distribution, or use were relevant to this analysis, and neither was
considered significant: (1) The net loss of gigawatt hours is
anticipated to be less than 27 percent of the threshold suggested by
OMB, and (2) the additional cost of sturgeon-related energy production
is less than the 1 percent threshold suggested by OMB. Therefore, this
final rule to designate critical habitat for the Kootenai River
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
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal 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, MT
(population 2,626), Bonners Ferry, ID (population
[[Page 39521]]
2,515), Troy, MT (population 957), and Moyie Springs, ID (population
656), are located either adjacent to, or in the vicinity of the
designated 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
with the Corps relating to the City of Bonners Ferry in 2005. 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. Based on the consultation history and the
economic analysis on this critical habitat designation, we do not
foresee any significant impact to small governments.
Takings
In accordance with Executive Order 12630, (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Kootenai River population of the
white sturgeon in a takings implication assessment. The takings
implications assessment concludes that this final designation of
critical habitat does not pose significant takings implications.
Federalism
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with DOI and Department of Commerce policy,
we requested information from, and coordinated development of this rule
with, appropriate State resource agencies in Idaho. The designation of
critical habitat in areas currently occupied by the Kootenai River
population of the white 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 because 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. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that this rule does not
unduly burden the judicial system and that it 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 River population of the white 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 (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. 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 by the Circuit Court of the United States for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (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 the Kootenai River population of the
white sturgeon at the time of listing, and no tribal lands that are
unoccupied are essential to the conservation of the species. 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 sturgeon
recovery, we will continue to consult on a government-to-government
basis with the KTOI as we implement recovery actions and this critical
habitat designation.
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 above).
Author(s)
The primary authors of this notice are staff of the Upper Columbia
Fish and Wildlife Office (see ADDRESSES 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. 17.95(e), revise the entry for ``White Sturgeon (Acipenser
transmontanus); Kootenai River Population '' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
White Sturgeon (Acipenser transmontanus); Kootenai River Population
(1) Critical habitat is designated in Idaho, Boundary County, on
the Kootenai River from river mile (RM) 141.4 (river kilometer (RKM)
228) to RM 159.7 (RKM 257), as indicated on the map in paragraph (3) of
this entry, from ordinary high-water mark to opposite bank ordinary
high-water mark as defined in 33 CFR 329.11.
(2) The primary constituent elements of critical habitat for the
Kootenai River population of the white sturgeon are:
[[Page 39522]]
(i) A flow regime, during the spawning season of May through June,
that approximates natural variable conditions and is capable of
producing depths of 23 feet (ft) (7 meters (m)) or greater when natural
conditions (for example, weather patterns, water year) allow. The
depths must occur at multiple sites throughout, but not uniformly
within, the Kootenai River designated critical habitat.
(ii) A flow regime, during the spawning season of May through June,
that approximates natural variable conditions and is capable of
producing mean water column velocities of 3.3 feet per second (ft/s)
(1.0 meters per second (m/s)) or greater when natural conditions (for
example, weather patterns, water year) allow. The velocities must occur
at multiple sites throughout, but not uniformly within, the Kootenai
River designated critical habitat.
(iii) During the spawning season of May through June, water
temperatures between 47.3 and 53.6 degrees Fahrenheit ([deg]F) (8.5 and
12 degrees Celsius ([deg]C)), with no more than a 3.6[deg]F (2.1[deg]C)
fluctuation in temperature within a 24-hour period, as measured at
Bonners Ferry.
(iv) Submerged rocky substrates in approximately 5 continuous river
miles (8 river kilometers) to provide for natural free embryo
redistribution behavior and downstream movement.
(v) A flow regime that limits sediment deposition and maintains
appropriate rocky substrate and inter-gravel spaces for sturgeon egg
adhesion, incubation, escape cover, and free embryo development.
(3) Note: Map of critical habitat follows:
BILLING CODE 4310-55-S
[[Page 39523]]
[GRAPHIC] [TIFF OMITTED] TR09JY08.005
* * * * *
Dated: June 26, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-15134 Filed 7-8-08; 8:45 am]
BILLING CODE 4310-55-C