[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Rules and Regulations]
[Pages 73739-73768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29332]
[[Page 73739]]
Vol. 77
Tuesday,
No. 238
December 11, 2012
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Lost River Sucker and Shortnose Sucker; Final Rule
Federal Register / Vol. 77 , No. 238 / Tuesday, December 11, 2012 /
Rules and Regulations
[[Page 73740]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2011-0097; 4500030114]
RIN 1018-AX41
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Lost River Sucker and Shortnose Sucker
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for the Lost River sucker and shortnose sucker under the
Endangered Species Act. In total, approximately 146 miles (234
kilometers) of streams and 117,848 acres (47,691 hectares) of lakes and
reservoirs for Lost River sucker and approximately 136 miles (219
kilometers) of streams and 123,590 acres (50,015 hectares) of lakes and
reservoirs for shortnose sucker in Klamath and Lake Counties, Oregon,
and Modoc County, California, fall within the boundaries of the
critical habitat designation. The effect of this regulation is to
conserve Lost River sucker's and shortnose sucker's habitat under the
Endangered Species Act.
DATES: This rule becomes effective on January 10, 2013.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as
supporting documentation used in preparing this final rule, are
available for public inspection, by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Klamath Falls Fish and
Wildlife Office, 1936 California Avenue Klamath Falls, OR 97601;
telephone 541-885-8481; facsimile 541-885-7837.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/klamathfallsfwo, at http://www.regulations.gov in Docket No. FWS-R8-ES-
2011-0097, and at the Klamath Falls Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this critical habitat designation
will also be available at the Fish and Wildlife Service Web site and
Field Office set out above, and may also be included in the preamble
and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Laurie R. Sada, Field Supervisor, U.S.
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office,
telephone 541-885-8481; facsimile 541-885-7837. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a final rule to designate
critical habitat for the Lost River sucker and shortnose sucker. Under
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
(Act), any species that is determined to be an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule.
We, the U.S. Fish and Wildlife Service (Service), listed these two
species as endangered on July 18, 1988 (53 FR 27130). On December 1,
1994, we published in the Federal Register a proposed critical habitat
designation for Lost River sucker and shortnose sucker (59 FR 61744);
that proposal was never finalized. On December 7, 2011, we published a
revised proposed critical habitat designation in the Federal Register
(76 FR 76337). Section 4(b)(2) of the Act states that the Secretary
shall designate critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat.
The critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for Lost River sucker and shortnose
sucker. We are designating:
Approximately 146 miles (mi) (234 kilometers (km)) of
streams and 117,848 acres (ac) (47,691 hectares (ha)) of lakes and
reservoirs for Lost River sucker.
Approximately 136 mi (219 km) of streams and 123,590 ac
(50,015 ha) of lakes and reservoirs for shortnose sucker.
We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we have
prepared an analysis of the economic impacts of the critical habitat
designations and related factors. We announced the availability of the
draft economic analysis (DEA) in the Federal Register on July 26, 2012
(77 FR 43796), allowing the public to provide comments on our analysis.
We have incorporated the comments and have completed the final economic
analysis (FEA) concurrently with this final determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from two knowledgeable
individuals with scientific expertise to review our technical
assumptions, analysis, and whether or not we had used the best
available information. These peer reviewers generally concurred with
our methods and conclusions and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final revised
designation. We also considered all comments and information received
from the public during the comment period.
Background
It is our intent to discuss in this final rule only those topics
directly relevant to the development and designation of critical
habitat for the Lost River sucker and shortnose sucker under the Act.
For more information on the biology and ecology of the Lost River
sucker and shortnose sucker, refer to the final listing rule published
in the Federal Register on July 18, 1988 (53 FR 27130), and to the
Draft Revised Recovery Plan for the Lost River Sucker and Shortnose
Sucker (Service 2011), which is available from the Klamath Falls Fish
and Wildlife Office (see ADDRESSES section). For information on Lost
River sucker and shortnose sucker critical habitat, refer to the
proposed rule to designate critical habitat for the Lost River sucker
and shortnose sucker published in the Federal Register on December 7,
2011 (76 FR 76337). Information on the associated draft economic
analysis for the proposed rule to designate revised critical habitat
was published in the Federal Register on July 26, 2012 (77 FR 43796).
Previous Federal Actions
The Lost River sucker and shortnose sucker were listed as
endangered on July 18, 1988 (53 FR 27130). A recovery plan for Lost
River sucker and shortnose sucker was finalized on March 17, 1993
(Service 1993). Five-year reviews for the Lost River sucker and
shortnose sucker were completed on July 19, 2007 (73 FR 11945; March 5,
2008). We have collected a considerable amount of
[[Page 73741]]
scientific information since we issued the 1993 recovery plan, and we
issued an updated Draft Revised Recovery Plan for the Lost River Sucker
and Shortnose Sucker in 2011 (Service 2011).
On September 9, 1991, the Service received a 60-day notice of
intent to sue from the Oregon Natural Resources Council (ONRC) for
failure to prepare a recovery plan and to designate critical habitat
for the Lost River sucker and shortnose sucker. On November 12, 1991,
ONRC filed suit in Federal Court (Wendell Wood et al. v. Marvin
Plenert, et al. (Case No. 91-06496-TC (D. Or.))). The Service entered
into a settlement agreement and agreed to complete a final recovery
plan by March 1, 1993, and a proposal to designate critical habitat on
or before March 10, 1994, and publish a final critical habitat rule by
November 29, 1994.
On December 1, 1994, we published proposed critical habitat for
Lost River sucker and shortnose sucker (59 FR 61744); that proposal was
never finalized. The ONRC (now known as Oregon Wild) recently contacted
the Department of Justice and requested that we issue a final critical
habitat rule within a reasonable amount of time. On May 10, 2010, a
settlement agreement was reached that stipulated the Service submit a
final rule designating critical habitat for the Lost River sucker and
the shortnose sucker to the Federal Register no later than November 30,
2012 (Wood et al. v. Thorson et al., No. 91-cv-6496-TC (D. Or.)). As
per the settlement agreement, a revised proposed critical habitat rule
was published in the Federal Register on December 7, 2011 (76 FR
76337). The notice of availability for the draft economic analysis
accompanying this rule was published in the Federal Register on July
26, 2012 (77 FR 43796).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Lost River sucker and shortnose
sucker during two comment periods. The first comment period associated
with the publication of the proposed rule (76 FR 76337) opened on
December 7, 2011, and closed on February 6, 2012. We also requested
comments on the proposed critical habitat designation and associated
draft economic analysis during a comment period that opened July 26,
2012, and closed on August 27, 2012 (77 FR 43796). We did not receive
any requests for a public hearing. We also contacted appropriate
Federal, State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule and
draft economic analysis during these comment periods.
During the first comment period, we received 15 comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received three comment letters addressing
the proposed critical habitat designation or the draft economic
analysis. All substantive information provided during comment periods
has either been incorporated directly into this final determination or
addressed below. Comments received were grouped into general issues
specifically relating to the proposed critical habitat designation for
Lost River sucker and shortnose sucker, and are addressed in the
following summary and incorporated into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from two of the
peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Lost River sucker and shortnose sucker. The peer reviewers
generally concurred with our methods and conclusions and provided
additional information, clarifications, and suggestions to improve the
final critical habitat rule. Peer reviewer comments are addressed in
the following summary and incorporated into the final rule as
appropriate.
Peer Reviewer Comments
(1) Comment: One peer reviewer stated that the Service should
consider riparian and wetland habitats along river corridors as cover
for rearing in the Cover or Shelter section.
Our Response: We agree with the peer review comment and have
included these areas in the Cover or Shelter section of this rule.
(2) Comment: One peer reviewer questioned our use of the term
``small group'' and thought the term is subjective and does not provide
an accurate description of the Lost River sucker population that spawns
at Upper Klamath Lake shoreline areas. The peer reviewer stated that
the subpopulation of Lost River suckers in the Upper Klamath Lake
consists of at least several thousand individuals and could very well
be greater in number than the entire number of adult Lost River suckers
in the Lost River subbasin.
Our Response: We agree with the peer reviewer comment and have not
referred to this component of the Lost River sucker population as a
``small group'' in this rule.
(3) Comment: One peer reviewer stated that most Lost River sucker
and shortnose sucker larvae spawned in the Williamson and Sprague River
drift downstream very rapidly after swim-up and are in the lake by May,
which they considered spring and not mid-summer as stated in the
proposed rule.
Our Response: We agree and have made this correction in this rule.
(4) Comment: One peer reviewer stated that larval shortnose suckers
appear to have a greater affinity for shoreline and marsh habitat than
larval Lost River suckers though this differentiation is absent by the
time they are juveniles.
Our Response: The updated information provided by the peer reviewer
has been noted, and we have changed the text in this rule accordingly.
(5) Comment: One peer reviewer stated that the construction of the
dams on the Klamath River and creation of Clear Lake Reservoir did
create more habitat, but changed the type of habitat from lotic (river)
to lentic (lake). The peer reviewer also stated uncertainty about the
regulatory implications of what a critical habitat designation means
for habitats that have been altered.
Our Response: We agree with the peer reviewer that construction of
dams did create more habitat, but changed the type of habitat from
lotic (river) to lentic (lake). Though altered from historical
conditions, these areas currently provide space for individual and
population growth and for normal behavior of Lost River sucker and
shortnose sucker (see Space for Individual and Population Growth and
for Normal Behavior section) and contain the features essential to the
conservation of these species. As such, areas designated as critical
habitat are subject to regulations under the Act.
(6) Comment: One peer reviewer stated that most (but probably not
all) Lost River sucker and shortnose sucker larvae in the Sprague River
rapidly outmigrate to Upper Klamath Lake. This same pattern of rapid
outmigration has not been shown in the Clear Lake or Gerber Reservoir
spawning tributaries.
Our Response: We agree and have noted this pattern is known to
occur in the Upper Klamath Lake system but not within the Clear Lake or
Gerber
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spawning tributaries, and we have included this information in this
final rule.
(7) Comment: One peer reviewer noted that in the proposed rule we
identified the maximum algal toxin concentration identified in Primary
Constituent Element (PCE) 1 to be less than 1.0 microgram ([micro]g)
per liter (L). The peer reviewer stated that this is the World Health
Organization maximum concentration of microcysin in drinking water and
is probably conservative for suckers. The peer reviewer also stated
that the term ``algal toxin'' does not reflect the specific information
available on the effects of toxins on fish and should be changed to
``microcystin.''
Our Response: The peer reviewer suggests 1.0 microgram per liter is
probably a strict criterion for Lost River sucker and shortnose sucker
exposure to microcystin through their environment. However, VanderKooi
et al. (2010, p. 2) indicate the route of sucker exposure to
microcystin is orally via the food chain (from chironomids that feed on
Microcystis sp.) rather than via environmental exposure at the gills.
During their investigation, water quality samples revealed microcystin
levels as high as 17 and 6 micrograms per liter in 2007 and 2008,
respectively. Because we are unaware at what levels microcystin has a
negative effect on suckers, we have changed the PCE to reflect ``low
levels'' of microcystin as opposed to a World Health Organization
concentration threshold for human drinking water.
(8) Comment: One peer reviewer pointed out that preliminary tag-
return data indicate that bird predation could substantially affect
juvenile Lost River sucker and shortnose sucker survival, and that
predation may affect other life stages as well. The peer reviewer
suggested that management that reduces bird-fish interactions could
improve Lost River sucker and shortnose sucker survival and may warrant
a mention in the special management considerations.
Our Response: We have included the updated information provided by
the peer reviewer in this rule.
(9) Comment: One peer reviewer stated that it did not appear, based
on 2011 passive integrated transponder (PIT) tag detections at a remote
station on Willow Creek and data collected from adult suckers fitted
with radio transmitters, that the relatively low lake levels observed
in 2011 adversely affected suckers' ability to access Willow Creek.
Our Response: We have reviewed the information submitted by the
peer reviewer and have modified the text to clarify the relationship
between flows in Willow Creek, Clear Lake elevation, and access to
sucker spawning areas.
(10) Comment: One peer reviewer asked whether the most up-to-date
lake bathymetry data indicate that access by Lost River sucker and
shortnose sucker to Pelican Bay in Upper Klamath Lake could be affected
at lower lake levels and if so, at what lake elevation would this
occur?
Our Response: We have in our files the most up-to-date bathymetry
data acquired from the U.S. Bureau of Reclamation (USBOR 2012) and are
in the process of validating the data to determine how lake level
alterations may affect access to Pelican Bay. However, this validation
process does not influence our decision to designate Pelican Bay in
Upper Klamath Lake as critical habitat because that area provides the
physical and biological features essential to the conservation of the
Lost River sucker and shortnose sucker.
(11) Comment: One peer reviewer stated that the pH does not rise as
a result of algal decomposition. As a result of photosynthesis, pH is
elevated in Upper Klamath Lake during the peak of the Aphanizomenon
flos-aque bloom. When the bloom subsides and cells decompose pH
decreases to around or just above neutral (pH 7).
Our Response: We agree and have addressed the peer reviewer
comments for this section.
(12) Comment: One peer reviewer notified us that Larson and Brush
(2010) have an updated estimate of the amount of wetland acreage
converted to agriculture and may be a good updated source to cite.
Our Response: The Larson and Brush (2010) reference provides
consistent information on amount of wetland loss surrounding Upper
Klamath Lake; they state 66 percent has been converted to agriculture,
and the proposed rule states approximately 70 percent. However, the
citation is more contemporary, and we agree that it is a good source to
cite and have therefore done so.
(13) Comment: One peer reviewer questioned our rationale for
designating the Wood River as critical habitat for Lost River suckers
but not shortnose suckers. The reviewer stated that almost all suckers
captured at the mouth of the Wood River by the U.S. Geological Survey
(USGS) in 2001 were either shortnose suckers or Klamath largescale
suckers.
Our Response: After careful review of the peer reviewer comment and
data provided, as well as review of additional information from USBOR
that was not in our files when we were developing the proposed rule, we
have determined that portions of the Wood River and Crooked Creek
contain the features essential to the conservation of the shortnose
sucker, and we have designated those areas as critical habitat for the
species. The approximate area identified includes 0.31 miles (mi) (0.50
kilometers (km)) of Wood River and 7.26 mi (11.67 km) of Crooked Creek.
Our determination to include this additional area as critical habitat
for the shortnose sucker is based on information that the area contains
the features essential for ensuring that multiple viable spawning
populations are conserved throughout the species' range and the area
provides spawning and rearing habitat for the species. The additional
area we determined and have designated as critical habitat for the
shortnose sucker coincides with the area we previously proposed and are
now designating for the Lost River sucker. Information documenting
shortnose sucker in the Wood River and Crooked Creek is on file and
available upon request (see FOR FURTHER INFORMATION CONTACT section).
(14) Comment: One peer reviewer questioned our rationale for
designating the upper Sprague River as critical habitat for Lost River
suckers but not shortnose suckers. The reviewer provided USGS tagging
data to indicate that at least a small percentage of shortnose suckers
ascend the Sprague River at least as far upstream as Braymill, and the
peer reviewer stated that some likely go further.
Our Response: The upper Sprague River (upstream of Braymill) was
not designated as critical habitat for shortnose sucker because a very
small percentage of the radio-tagged individuals have been documented
in that reach. In fact, the vast majority of radio-tagged shortnose
sucker were not observed migrating upstream beyond Braymill, suggesting
that they spawn further downstream than Lost River sucker. Based on
this information, we have determined that, although the area on the
Sprague River upstream of Braymill contains physical and biological
features used by the shortnose sucker, those features are not essential
to the conservation of the species in this location. The area,
therefore, does not meet the definition of critical habitat for
shortnose suckers. However, this finding does not signal that habitat
outside the designated area is unimportant or may not be needed for
recovery of the species. As such, no change has been made to include
shortnose sucker critical habitat on Sprague River above Braymill.
(15) Comment: One peer reviewer commented on the Application of the
``Adverse Modification'' Standard
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section of the proposed rule and stated that other activities that may
affect critical habitat include groundwater use and wetland alteration
and that these two activities should be specifically mentioned. Water
quantity is covered under 1 and sedimentation is covered under 2, but
other activities that may affect water quality should be mentioned in
adverse modification.
Our Response: We agree that groundwater use and wetland alteration
are important factors that may affect habitat for Lost River sucker and
shortnose sucker. We have included both of these activities in the
Application of the ``Adverse Modification'' Standard section.
(16) Comment: One peer reviewer stated that the rationale for all
water quality limits should be stated and citations given.
Our Response: The water quality limits for temperature, dissolved
oxygen, and pH were based on stress thresholds developed by Loftus
(2001). We have included this information in the Critical Habitat
section below.
(17) Comment: One peer reviewer and several commenters stressed
that Tule Lake and segments of the Lost River are essential to the
conservation and recovery of the species and should therefore be
designated as critical habitat.
Our Response: Outside of Upper Klamath Lake, Clear Lake Reservoir,
and Gerber Reservoir, Tule Lake is the only known water body where
significant Lost River sucker and shortnose sucker populations occur.
Historically, Tule Lake was approximately 110,000 ac (44,516 ha) in
size during high water times (NRC 2004, p. 96) and was connected to
spawning habitat within the Lost River (a tributary of Tule Lake); fish
movement occurred between Tule Lake and the upper Lost River basin. Due
to habitat alterations from construction of the Klamath Reclamation
Project (Project), Tule Lake currently has a maximum size of
approximately 13,000 ac (5261 ha; NCR 2004, p. 96) during high water
times and fish movement to the upper Lost River basin is no longer
possible. Currently, Lost River sucker and shortnose sucker larvae can
pass through the fish screen on the A-canal diversion on Upper Klamath
Lake, upstream of Tule Lake, and are found throughout the canal system
on the Project. We believe Lost River sucker and shortnose sucker in
Tule Lake originate from Upper Klamath Lake and move through the canals
on the Project to Tule Lake, which serves as a drainage sump for the
Project for used agricultural runoff. Fish collected from fish salvage
efforts from Project canals at the end of the irrigation season also
provide Lost River sucker and shortnose sucker individuals to Tule
Lake.
The habitat of Tule Lake, although able to support Lost River
sucker and shortnose sucker, does not provide spawning habitat or
contain a viable self-sustaining population of Lost River suckers or
shortnose suckers (see Criteria Used To Identify Critical Habitat item
(4) below). Without the inadvertent influx of additional fish from
Upper Klamath Lake, the population of Lost River sucker and shortnose
sucker would most likely dissipate. In addition, as planned water
conservation efforts are implemented in the water service area and on
the Project, water within the drainage system would most likely be
reduced. This reduction in water may limit future movement of Lost
River sucker and shortnose sucker from Upper Klamath Lake to Tule Lake.
With less water in the system, fish salvage efforts and the number of
fish collected and provided to Tule Lake would be further reduced.
In determining which areas to identify as critical habitat, we
examined the geographic locations currently occupied by Lost River
sucker and shortnose sucker, like Tule Lake, to see if the physical or
biological features (PBFs) essential to the conservation of these
species were present. Anderson-Rose Dam completely blocks access to
suitable spawning habitat for Lost River sucker and shortnose sucker in
Tule Lake. Habitat downstream of the dam does not appear to provide
suitable spawning and rearing habitat, and no successful spawning or
recruitment is known to occur in Tule Lake or its tributaries.
Currently, Tule Lake functions only as a sink for Lost River sucker and
shortnose sucker populations and does not meet the criteria used to
identify critical habitat (see Criteria Used To Identify Critical
Habitat). Therefore, we are not designating Tule Lake as critical
habitat as this habitat does not provide the physical or biological
features essential to the conservation of either species.
Although the current habitat conditions in Tule Lake fail to meet
the definition of critical habitat, the Lost River sucker and shortnose
sucker populations in this water body remain important for recovery of
the species. Areas that are important to the conservation of the
species, both inside and outside the critical habitat designation, will
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act, (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
insure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species, and (3) section 9 of
the Act's prohibitions on taking any individual of the species,
including taking caused by actions that affect habitat. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of this species. The Tule Lake populations of
Lost River sucker and shortnose sucker are important because they
represent additional populations of suckers throughout the species'
ranges and may provide source populations of suckers for potential
augmentation or research opportunities. Furthermore, the Draft Revised
Recovery Plan for the Lost River Sucker and Shortnose Sucker (Service
2011) includes high-priority actions to improve conditions for these
populations and restore access to sufficient suitable spawning habitat,
and as a result, Tule Lake may be able to contribute even more
substantially to recovery in the future.
Comments From State(s)
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments received from the State of Oregon regarding the proposal to
designate critical habitat for the Lost River sucker and shortnose
sucker are addressed below. We did not receive comments from the State
of California.
(18) Comment: The State suggested that the Wood River, Sycan River,
Lost River, and Miller Creek should be designated as critical habitat
since Lost River sucker and shortnose sucker are present.
Our Response: We agree with the commenter and, as a result of the
information that was not available to us at the time of writing the
proposed critical habitat rule, as well as new information that has
been gathered since the proposed rule was published, we have refined
this final designation and included additional areas we have determined
to meet the definition of critical habitat for the shortnose sucker in
the Wood River. These areas coincide with areas we previously proposed
as critical habitat for the Lost River sucker. However, we have
determined that the areas identified within the Sycan River, Lost
River, and Miller Creek do not meet the criteria we used to identify
critical habitat for the shortnose or Lost River
[[Page 73744]]
sucker (see Criteria Used To Identify Critical Habitat). Therefore, we
are not designating these areas as critical habitat as these areas do
not provide the essential physical or biological features necessary for
contribution to conservation of either species.
Public Comments
Expansion of Designation
(19) Comment: Several commenters suggested that wetlands, including
Agency Ranch and Barnes Ranch, surrounding Upper Klamath Lake and
Agency Lake, should be designated as critical habitat to maximize Lost
River sucker and shortnose sucker recovery potential.
Our Response: Major wetland areas surrounding Upper Klamath Lake,
including the Williamson River delta and the Upper Klamath National
Wildlife Refuge, were proposed and are being included in the
designation of critical habitat. However, some lands adjacent to these
areas (i.e., Barnes Ranch, Agency Ranch) have not been included because
they do not meet the definition of critical habitat. Although Lost
River sucker and shortnose sucker are present occasionally on the
ranches, they enter via an unscreened diversion. Once on the ranches,
they are considered lost to the population. We will continue to work on
restoration of these ranches and issues related to water diversion in
the future for the benefit of sucker recovery.
(20) Comment: A commenter suggested that the Service needs to
designate the entire Clear Lake National Wildlife Refuge as critical
habitat for the two species.
Our Response: We have defined the lateral extent of critical
habitat in Clear Lake Reservoir by the perimeter of the water body as
mapped according to the USGS 2009 National Hydrography Dataset.
Designating the surrounding Refuge uplands would be inconsistent with
designating lateral extent of critical habitat in other waterbodies
because the Refuge uplands do not contain the physical or biological
features essential to the conservation of these species.
(21) Comment: A commenter stated that Lower Klamath Lake should be
included as critical habitat.
Our Response: Please see the definition of critical habitat in the
rule below. Although Lower Klamath Lake was occupied historically, it
was not occupied at the time of listing. Lower Klamath Lake was
historically connected to the Klamath River, but the construction of
the railroad, dikes, and water management facilities has significantly
altered this habitat. Lower Klamath Lake is no longer connected to the
Klamath River and is dry in portions of the year. Because the habitat
within Lower Klamath Lake is significantly altered and no longer
connected to the Klamath River, we have determined that this area does
not meet the definition of critical habitat under section 3(5)(A)(ii)
of the Act.
(22) Comment: One commenter was opposed to the designation and/or
apparent expansion of critical habitat for the Lost River sucker and
shortnose sucker.
Our Response: Under section 4(b)(3)(A) of the Act, we are required
to designate critical habitat to the maximum extent prudent and
determinable for any endangered or threatened species. On December 1,
1994, we published in the Federal Register proposed critical habitat
for Lost River sucker and shortnose sucker (59 FR 61744); that proposal
was never finalized. In a stipulated settlement agreement we agreed to
submit to the Federal Register a final critical habitat designation for
the Lost River sucker and the shortnose sucker no later than November
30, 2012 (Wood et al. v. Thorson et al., No. 91-cv-6496-TC (D. Or.)).
Due to advancement in our understanding of Lost River sucker and
shortnose sucker ecology and habitat requirements, and technological
advancements in mapping made available since preparing the 1994
proposed rule, we published a revised proposed critical habitat rule in
the Federal Register on December 7, 2011 (76 FR 76337). This final
critical habitat rule does not represent an expansion of the 1994
proposed rule. Rather, this rule represents approximately 73 percent
less habitat than was proposed for designation in the 1994 rule.
(23) Comment: One commenter stated the Service should consider
expanding the lateral reach of critical habitat to include a riparian
buffer zone that is fully adequate to ensure water quality is
maintained within the designated waters.
Our Response: We used bankfull conditions to determine the aquatic
limits of critical habitat for the Lost River sucker and shortnose
sucker. Bankfull width can be described as the flow that just fills the
stream channel to the top of its nearest banks but below a point where
the water begins to overflow onto a floodplain. Most aquatic systems,
including those in the Klamath Basin, do not maintain water year-round
at the bankfull limits even during years with high water availability.
As a result, the actual aquatic limit (and by default the habitat
available to the Lost River sucker and shortnose sucker) for the
majority of time is well below the bankfull limit. Therefore, some
riparian and wetland vegetation likely occurs in most of these areas
and are by default part of the designation. These riparian and wetland
vegetation areas below the bankfull limit assist in providing
protection from erosion and help maintain water quality. However, we
acknowledge that certain activities that occur outside of the lateral
extent of critical habitat may impact critical habitat. For example,
upland management practices such as road construction and maintenance
or timber harvest may affect adjacent aquatic habitat if measures are
not in place to alleviate any negative effects. We will implement this
rule consistent with our analysis of these effects, and work closely
and cooperatively with Federal agencies (or other entities where a
Federal nexus exists), to ensure any such actions do not adversely
modify designated critical habitat and that conservation measures are
in place to protect the habitat and the two species.
Grazing and Agriculture
(24) Comment: Several commenters stated grazing can be beneficial
for watershed health and are opposed to citing grazing as a threat to
Lost River sucker and shortnose sucker habitat. Additionally, one
commenter stated that if there is no risk to Lost River sucker and
shortnose sucker habitat from grazing then there is no valid reason to
designate critical habitat.
Our Response: The Lost River sucker and shortnose sucker listing
rule (53 FR 27130) first identified livestock grazing (among other
factors) as a threat to both species. We agree with the commenters that
depending on how grazing is managed, there can be beneficial watershed
effects from grazing. However, the purpose of this rule is to determine
the areas that contain the physical and biological features essential
to the conservation of the Lost River sucker and shortnose sucker and
areas otherwise essential for the conservation of the species and not
to discuss the factors leading to the species' decline.
(25) Comment: One commenter stated that the designation of critical
habitat will equate to maintaining elevated water levels in reservoirs
thereby reducing water for agriculture.
Our Response: In and of itself, critical habitat does not have
implications for changes in lake level management or water delivery.
Where a Federal nexus exists, consideration of any effects to the
physical or biological features essential to the conservation of Lost
River sucker and shortnose sucker from water
[[Page 73745]]
delivery and distribution operations, including water quantity and
water quality, would be undertaken to assess the potential for adverse
modification or destruction of habitat. We will continue to work
cooperatively with land managers and water operators to implement Lost
River sucker and shortnose sucker conservation measures in a manner
consistent with the operators' needs to the maximum extent of the law.
Economic Analysis
(26) Comment: One commenter stated that the economic analysis noted
the Service would not anticipate any differences in the recommendation
for avoiding jeopardy versus adverse modification. Thus, the additional
application of the adverse modification standard (i.e., designation of
critical habitat) would be inconsequential and essentially redundant.
Our Response: Under section 4(b)(3)(A) of the Act, we are required
to designate critical habitat to the maximum extent prudent and
determinable for any endangered or threatened species. Although there
may appear to be redundancy in a section 7 analysis on a proposed
Federal action, the purposes of a jeopardy analysis and adverse
modification determination are not the same. A jeopardy analysis
determines if implementation of a proposed action is likely to cause an
appreciable reduction in the likelihood of both the survival and
recovery of a listed species in the wild. In contrast, an adverse
modification analysis determines if the physical or biological features
of critical habitat would remain functional to serve the intended
recovery role for the species as a result of implementation of a
proposed Federal action. Because all the areas being designated are
occupied by the species during some period of its life history, our
effects analysis also includes potential effects to the habitat not
under just an extinction standard but also a conservation standard for
the species. The analysis of effects of a proposed Federal action on
critical habitat is both separate from and different from that of the
effects of a proposed project on the species itself. The jeopardy
analysis evaluates whether a proposed action would appreciably reduce
the likelihood of both survival and recovery of a listed species, while
the destruction or adverse modification analysis evaluates how the
action could affect the conservation value of designated critical
habitat to the listed species. Therefore, the difference in outcomes of
these two analyses represents the regulatory benefit of critical
habitat. The addition of this regulatory benefit for these species may,
in many instances, lead to different results and give rise to different
regulatory requirements, which may then apply to a proposed Federal
action. However, as we stated in the economic analysis, in most cases
for this designation the difference between the two standards would be
minimal.
(27) Comment: One commenter noted an area can be designated as
critical habitat only if it includes both features essential to the
conservation of the species and which may require special management
considerations or protection. Appendix C of the draft economic analysis
specifically demonstrates that the areas of interest to the Klamath
Water Users Association (KWUA) do not require special management
considerations or protection. Thus, the areas of interest to the KWUA
do not qualify as critical habitat under the statutory definition.
Our Response: Appendix C of the economic analysis, which is the
``Incremental Effects Memorandum for the Economic Analysis of the
Proposed Rule To Designate Critical Habitat for Lost River Sucker and
Shortnose Sucker,'' was written to provide information to serve as a
basis for conducting an economic analysis. The focus of the incremental
analysis is to determine the impacts on land uses and activities from
the designation of critical habitat that are above and beyond those
impacts resulting from listing. The incremental analysis does not focus
on special management considerations or protection. Additionally, under
section 3(5)(A)(i) of the Act, the term critical habitat is defined as
the specific areas within the geographic area occupied by the species
at the time it is listed on which are found those physical or
biological features that are (I) essential to the conservation of the
species and (II) which may require special management considerations or
protection. The definition does not state that an area must require
special management consideration or protection for it to be designated
as critical habitat. Special management considerations or protection
are specifically discussed in the critical habitat rule (see Special
Management Considerations or Protection section below). We designated
the areas of interest to KWUA because we determined that they meet the
definition of critical habitat.
(28) Comment: One commenter noted the Act authorizes the Service to
exclude otherwise eligible areas from designation if it is determined
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat. The proposed rule has not
identified any benefit of specifying Project-related waters as part of
critical habitat. The draft economic analysis has, however, identified
benefits of exclusion, including administrative costs that would arise
if critical habitat was designated. Thus, the areas of interest to the
KWUA should not qualify as critical habitat as the costs of exclusion
outweigh the benefits of designation.
Our Response: As previously noted, under section 4(b)(3)(A) of the
Act, we are required to designate critical habitat to the maximum
extent prudent and determinable for any endangered or threatened
species. In making this determination the Secretary shall designate
areas based on the best scientific data available after taking into
consideration the economic, national security, or any other impact of
specifying any such area as critical habitat. Also under section
4(b)(2) of the Act, the Secretary may exclude an area from critical
habitat if he determines that the benefits of such exclusion outweigh
the benefits of inclusion unless such a failure to designate the area
would result in the extinction of the species concerned. We designated
the identified areas as critical habitat because they contain the
physical or biological features essential to the conservation of Lost
River sucker and shortnose sucker. We also completed an economic
analysis on the proposed designation and did not identify any areas or
activities that may incur disproportionately higher incremental
economic impacts as a result of the designation, and no changes in land
or water management are expected to result from the critical habitat
designation. We believe any administrative costs associated with
consultation for adverse modification would be minimal as these areas
are considered occupied and used by the two species, and consultation
on actions with a Federal nexus would need to occur under section 7 of
the Act regardless of whether the area is designated as critical
habitat or not. As a result of these areas being designated as critical
habitat, having no disproportionately higher incremental economic
impacts, and additional consultation impacts being minimal, the
Secretary is not exercising discretion to exclude the areas of interest
to the KWUA under section 4(b)(2) of the Act.
(29) Comment: One commenter was unable to discern from the draft
economic analysis the estimated total non-Federal costs, or the split
between Federal and non-Federal costs.
[[Page 73746]]
Our Response: Although the draft economic analysis does not
explicitly differentiate between Federal and non-Federal costs,
Exhibits 2-2 and 4-2 provide a breakdown of the per-consultation costs
to the Service, the consulting Federal agency, and third parties
involved in the consultation. In addition, Exhibit A-1 of the draft
economic analysis provides the projected annualized impacts to small
entities anticipated to be third parties to future consultations. As
the majority of consultations forecasted in the economic analysis
involves only Federal agencies, the majority of costs are anticipated
to be borne by Federal agencies.
(30) Comment: One commenter notes that the draft economic analysis
makes reference to the California Environmental Quality Act (CEQA).
Assuming there might be a project in critical habitat that is subject
to CEQA, the draft economic analysis states that the designation
``may'' prevent certain types of projects from ``claiming a categorical
exemption from CEQA.'' The commenter states that there is no analysis,
explanation, or justification for this statement.
Our Response: As noted on page ES-3 of the draft economic analysis,
the designation for the suckers is not expected to result in indirect
impacts resulting from CEQA or other regulations. GIS analysis
indicates that areas proposed as critical habitat in Modoc County,
California, are managed either as national wildlife refuge lands or as
Federal grazing allotments. In addition, no projects on private lands
in these areas were identified during the public comment period.
Therefore, the analysis does not forecast any indirect impacts from
CEQA in these areas. Language on pages ES-3, 4-10, and 4-11 of the
Final Economic Analysis has been updated to clarify this finding.
General Comments
(31) Comment: Designation of critical habitat amounts to Federal
possession of private land.
Our Response: Designation of critical habitat does not affect land
ownership or establish a refuge or preserve, and has no impact on
private landowners implementing actions on their land that do not
require Federal funding or permits. In addition, 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
Lost River sucker and shortnose sucker in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this designation of critical habitat for Lost River
sucker and shortnose sucker does not pose significant takings
implications for lands within or affected by the designation.
(32) Comment: One commenter requested that lands covered under the
draft habitat conservation plan being developed by PacifiCorp and the
Service should be excluded from designated critical habitat.
Our Response: We are in the process of developing a Habitat
Conservation Plan (HCP) with PacifiCorp for the Lost River sucker and
shortnose sucker. The goal of the HCP is to minimize impacts to covered
species, and to permit incidental take resulting from the operation of
their hydroelectric facilities on the Klamath River. Covered lands in
the draft HCP include: (1) The Klamath River (also containing the Link
River), between the outlet of Upper Klamath Lake (River Mile 255) and
the Iron Gate Fish Hatchery below Iron Gate Dam (River Mile 189.3); (2)
lands within 300 feet (ft) (91 meters (m)) of the ordinary high water
line of the Klamath River and its reservoirs between these two
locations; and (3) land areas owned by PacifiCorp adjacent to the
Klamath River that are associated with the hydroelectric facilities.
The PacifiCorp lands adjacent to the Klamath River (identified in
(1) above) do not support the physical or biological features essential
to the conservation of the Lost River sucker and shortnose sucker and
have not been proposed as critical habitat.
The portion of PacifiCorp lands covered by the draft HCP that meets
the definition of critical habitat for the Lost River sucker and
shortnose sucker is within 300 ft (91 m) of the ordinary high water
line (analogous to bankfull width) of the Klamath River downstream to
Keno Dam. However, PacifiCorp's operation of the hydroelectric
facilities do not impact these lands. PacifiCorp has not proposed
conservation activities for these areas. Therefore, the Secretary is
not exercising discretion to exclude these areas under section 4(b)(2)
of the Act.
(33) Comment: One commenter suggested a more current reference
(i.e., USFS 2010, p. 7) for our statement: ``A high density of forest
roads remain in the upper Klamath River basin, and many of these are
located near streams where they likely contribute sediment (USFS 1995,
p. 7).''
Our Response: We acknowledge the updated reference and have
included it in the rule.
(34) Comment: One commenter could find no definition for the
acronym ``PBF.''
Our Response: PBF is physical or biological feature. We neglected
to parenthetically reference PBF after its first use but have corrected
this oversight in this final rule.
(35) Comment: One commenter stated that including the unnamed
tributary to Dry Prairie Reservoir, which does not have consistent
habitat available, seems to contradict the sixth criterion used to
identify critical habitat (p. 76345).
Our Response: Despite not having consistent flows each spring, when
flows are present, shortnose suckers have been documented ascending
this unnamed tributary to spawn. We have determined that this unnamed
tributary provides the physical or biological features essential to the
conservation of shortnose sucker and thus provides for the conservation
of the species. As such, we have included this unnamed tributary in
this designation.
(36) Comment: One commenter urged the Service to consider modifying
its special management provisions for exotic predatory fish to include
exotics from other Orders, such as bullfrogs (Lithobates catesbeianus),
that are potential predators on sucker fry.
Our Response: We are unaware of any studies, and the commenter did
not provide studies, documenting bullfrog predation on Lost River
sucker or shortnose sucker. Thus, we have not included bullfrog in the
list of predators.
(37) Comment: Several commenters stated it is premature to issue
the proposed rule absent an economic analysis of the designation.
Our Response: Under our current regulations at 50 CFR 424.19, the
Secretary shall identify any significant activities that would either
affect an area considered for designation as critical habitat or be
likely to be affected by the designation, and shall, after proposing
designation of such an area, consider the probable economic and other
impacts of the designation upon proposed or ongoing activities (77 FR
51503; August 24, 2012). We interpret ``after proposing'' to mean after
publication of the proposed rule. As a result, we issued a draft
economic analysis along with our revised critical habitat proposal in
the Federal Register on July 26, 2012 (77 FR 43796), and
[[Page 73747]]
solicited public comment on both documents.
(38) Comment: One commenter stated that recreational fishing should
be included as one of the factors leading to the decline of suckers.
Our Response: We agree with the reviewer's comment and note that,
although recreational angling for these species is presently
prohibited, historic recreational angling was a reason for decline of
Lost River sucker and shortnose sucker (53 FR 27132). However, the
purpose of this rule is to determine the areas that meet the definition
of critical habitat for the Lost River sucker and shortnose sucker and
identify these areas for designation, not to discuss the factors
leading to the species decline.
(39) Comment: One commenter stated that the natural eutrophication
process of Upper Klamath Lake should be addressed in greater detail,
including a discussion of pre- and post-1900 water quality.
Our Response: This rulemaking is for designating critical habitat.
As a result, we do not think an extended discussion of this topic in a
critical habitat rule is an appropriate venue for dissemination of such
information. We point to several references within the Special
Management Considerations or Protection section below related to a
changing algal community and the hypereutrophic nature of Upper Klamath
Lake, which are available upon request (see FOR FURTHER INFORMATION
CONTACT section).
(40) Comment: One commenter requested that the term ``bankfull''
should be defined.
Our Response: Bankfull width can be described as the flow that just
fills the stream channel to the top of its nearest banks but below a
point where the water begins to overflow onto a floodplain. In lakes or
reservoirs, the lateral extent of bankfull conditions and boundaries
are defined according to the USGS 2009 National Hydrography Dataset. We
used bankfull conditions to determine the aquatic limits of critical
habitat for the Lost River sucker and shortnose sucker. We have defined
the term ``bankfull'' in our Criteria Used To Identify Critical Habitat
section.
(41) Comment: One commenter stated that in the ``Exclusions Based
on Other Relevant Impacts'' section of the proposed rule, we indicated
that there are no other management plans for these species. However,
the Klamath Basin Restoration Agreement (KBRA) is one such example.
Our Response: While the KBRA holds much promise for enhancing
survival and recovery of Lost River sucker and shortnose sucker, it was
not included in this section because the agreement has yet to be
authorized and funded by Congress.
Summary of Changes From Proposed Rule
In preparing this final critical habitat designation, we reviewed
and considered comments from peer reviewers and the public on the
revised proposed critical habitat rule. We also made a draft economic
analysis available and solicited comment from the public on both the
revised proposed designation and the draft economic analysis (77 FR
43796; July 26, 2012). As a result of the peer review and public
comments received, we made slight changes to this final rule as
described in the Summary of Comments and Recommendations section above.
During finalization of our critical habitat designation, we
discovered errors in the calculation of some of the totals for the
proposed units in Table 1 and Table 3 in the revised proposed
designation (76 FR 76337; December 7, 2011). The ownership totals for
Table 1 and Table 3 were incorrect; however, the individual ownership
totals for each unit were correctly identified. We have corrected these
errors, and the correct totals can be found in Table 1 and Table 3 of
this final rule.
In addition, based on a peer review comment we received regarding
the absence of critical habitat for shortnose sucker in the Wood River,
we have reevaluated whether we should include the Wood River as
critical habitat for shortnose sucker. In our revised proposed rule, we
identified this area as critical habitat for the Lost River sucker but
not for the shortnose sucker. As a result of the information that was
not available to us at the time of writing the proposed critical
habitat rule, as well as new information that has been gathered since
the rule was published, we have refined this final designation and
included additional areas for shortnose sucker in the Wood River as
critical habitat to coincide with areas also identified as critical
habitat for the Lost River sucker. This information documents shortnose
sucker habitat and presence in the Wood River, and likely Crooked
Creek, and that these areas are presumably being used by the species
for spawning. Our determination to include this additional area as
critical habitat for the shortnose sucker is based on information that
the area provides spawning and rearing habitat for the species and
contains the physical or biological features and as a result is
important for ensuring multiple viable spawning populations are
conserved throughout the species' range. As such, we have designated
approximately an additional 7 mi (12 km) of stream length in Unit 1 for
shortnose sucker that includes the same sections of the Wood River and
Crooked Creek that were proposed and now designated in Unit 1 for the
Lost River sucker (see Table 4 below).
Critical Habitat
Background
Critical habitat is defined in section 3(5)(A) of the Act as:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the provisions of
section 4 of the Act, on which are found those physical or biological
features
(I) Essential to the conservation of the species and
(II) Which may require special management considerations or
protection; and
(ii) Specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of
section 4 of the Act, upon a determination that such areas are
essential for the conservation of the species.
Conservation, as defined under section 3(3) of the Act, means to
use and 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 pursuant to the Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources 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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
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,
[[Page 73748]]
or enhancement measures by non-Federal 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) of the Act would apply, but even in the
event of a destruction or adverse modification finding, the obligation
of the Federal action agency is not to restore or recover the species,
but to implement reasonable and prudent alternatives to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
specific elements of physical or biological features that further
define the species' life-history requirements that are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area presently occupied by a species only when a
designation limited to its present range would be inadequate to ensure
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 designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are 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 be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. 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 (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for Lost River sucker and shortnose sucker from studies of this
species' habitat, ecology, and life history as described in the
Critical Habitat section of the proposed rule to designate critical
habitat published in the Federal Register on December 7, 2011 (76 FR
76337), and in the information presented below. Additional information
can be found in the final listing rule published in the Federal
Register on July 18, 1988 (53 FR 27130), and the Draft Revised Recovery
Plan for the Lost River Sucker and Shortnose Sucker (Service 2011). We
have determined that Lost River sucker and shortnose sucker require the
following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
Lakes, streams, marshes, and spring habitats with migratory
corridors between these habitats provide space for individual and
population growth and for normal behavior.
Lost River sucker spend most of their lives within lakes although
they primarily spawn in streams (Moyle 2002, p. 199). Spawning occurs
in late winter and early spring in major
[[Page 73749]]
tributaries to lakes where they occur. In addition, a subpopulation of
Lost River sucker utilizes spring areas within Upper Klamath Lake for
spawning (Janney et al. 2008, p. 1813). After hatching, larval Lost
River sucker drift downstream within spawning tributaries and reach
lakes by spring. Larval habitat is generally along the shoreline, in
water 6 inches (in) to 20 in (10 centimeters (cm) to 50 cm) deep where
emergent vegetation provides cover from predators, protection from
currents and turbulence, and abundant food (Cooperman and Markle 2004,
p. 375). As larval suckers grow into the juvenile stage, they
increasingly use deeper habitat with and without emergent vegetation.
Adult Lost River sucker primarily use deep (greater than 6.6 ft (2.0
m)), open-water habitat as well as spring-influenced habitats that act
as refugia during poor water quality events (Banish et al. 2009, pp.
159-161, 165).
Reservoirs also figure prominently in meeting the requirements for
space for individual and population growth and for normal behavior of
Lost River sucker. Much of the upper Klamath River basin landscape has
been hydrologically altered since Anglo-European settlement, including
construction of reservoirs. Some reservoirs have adversely affected
Lost River sucker, while others may provide benefits. For example, the
dam on Malone Reservoir blocks access to historical Lost River sucker
habitat for individuals migrating in the mainstem Lost River. In
contrast, construction of hydroelectric dams on the mainstem Klamath
River and construction of Clear Lake Reservoir likely have increased
the amount of available habitat.
Because shortnose sucker share the same habitats as Lost River
sucker, the lakes, reservoirs, streams, marshes, and spring habitats
with migratory corridors between these habitats also provide space for
individual and population growth and for normal behavior of shortnose
sucker. In contrast to larval Lost River sucker, larval shortnose
sucker are more closely associated with shoreline and marsh habitat,
although this distinction appears to disappear by the time both species
become juveniles. Therefore, based on the information above, we
identify lakes, reservoirs, streams, marshes, and spring habitats with
migratory corridors between these habitats to be a physical or
biological feature essential for the conservation of both Lost River
sucker and shortnose sucker.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Adult Lost River sucker have subterminal mouths and gill raker
structures that are adapted for feeding primarily on bottom-dwelling
(benthic) macroinvertebrates in lake environments (NRC 2004, p. 190).
Prey selection, however, appears to be a function of developmental
shifts in habitat use. Lost River sucker larvae feed near the surface
of the water column, primarily on chironomids (commonly called
``midges''; a family of small flies whose larval and pupal stages are
mainly aquatic) (Markle and Clauson 2006, pp. 494-495). Juvenile Lost
River sucker rely less on surface-oriented feeding and shift to prey
items from benthic areas. For instance, Markle and Clauson (2006, pp.
495-496) documented that juvenile Lost River suckers consumed
chironomid larvae as well as microcrustaceans (amphipods, copepods,
cladocerans, and ostracods). As adults, Lost River sucker consume many
of these same items (Moyle 2002, pp. 199-200).
Shortnose sucker have terminal mouths and gill raker structures
adapted for feeding on zooplankton (Moyle 2002, p. 203; NRC 2004, p.
190). Similar to Lost River sucker, shortnose sucker also exhibit a
shift in prey selection as they mature (Markle and Clauson 2006, pp.
494-495). Adult shortnose sucker also consume many of the same prey
items as juveniles, including chironomid larvae, amphipods, copepods,
cladocerans, and ostracods (Moyle 2002, p. 203; Markle and Clauson
2006, pp. 494-495).
Habitats must provide the necessary conditions, including water
with sufficient phytoplankton and fine aquatic substrate, to harbor
prey species in sufficient quantity and diversity to meet the
nutritional and physiological requirements necessary to maintain Lost
River sucker and shortnose sucker populations. Therefore, based on the
information above, we identify an abundant food base, including a broad
array of chironomids, microcrustaceans, and other small aquatic
macroinvertebrates, to be a biological feature essential for both Lost
River sucker and shortnose sucker.
Cover or Shelter
The cover and shelter components, including emergent vegetation and
depth, are the same for shortnose sucker as for Lost River sucker. Lost
River sucker and shortnose sucker larvae density is generally higher
within and adjacent to emergent vegetation than in areas devoid of
vegetation (Cooperman and Markle 2004, p. 374; Crandall et al. 2008, p.
413; Erdman and Hendrixson 2009, p. 18; Cooperman et al. 2010, p. 34).
Emergent vegetation provides cover from predators and habitat for prey
such as zooplankton, macroinvertebrates, and periphyton (Klamath Tribes
1996, p. 12; Cooperman and Markle 2004, p. 375). Such areas also may
provide refuge from wind-blown current and turbulence, as well as areas
of warmer water temperature, which may facilitate larval growth
(Cooperman and Markle 2004, p. 375; Crandall 2004, p. 7; Cooperman et
al. 2010, pp. 35-36).
Different life stages use different water depths as cover or
shelter. Juvenile Lost River sucker and shortnose sucker primarily use
relatively shallow (less than approximately 3.9 ft (1.2 m)) vegetated
areas, but may also begin to move into deeper, unvegetated, off-shore
habitats (Buettner and Scoppettone 1990, pp. 33, 51; Markle and Clauson
2006, p. 499). Data from Upper Klamath Lake indicate juveniles less
than 1 year of age often are found at depths less than 3 ft (1.0 m) in
May and June, but shift in late July to water 5 to 6.5 ft (1.5 to 2.0
m) deep (Burdick and Brown 2010, p. 50). No similar data exist from
other occupied water bodies. Similarly, 1-year-old juveniles occupy
shallow habitats during April and May, but may move into deeper areas
along the western shore of Upper Klamath Lake (e.g., Eagle Ridge
trench) until dissolved oxygen levels become reduced in mid- to late-
July (Bottcher and Burdick 2010, p. 17; Burdick and VanderKooi 2010, p.
13). Juveniles then appear to move into shallower habitat along the
eastern shore or main part of Upper Klamath Lake (Bottcher and Burdick
2010, p. 17).
It is assumed that subadults (individuals that display all of the
characteristics of adults with the exception of reproductive maturity
and reproductive structures (tubercles)) utilize habitats similar to
adults (NRC 2004, p. 199). Adult Lost River sucker and shortnose sucker
inhabit water depths of 3.0 to 15.7 ft (0.9 to 4.8 m) (Reiser et al.
2001, pp. 5-26; Banish et al. 2009, p. 161). In addition, cover (e.g.,
large woody debris) is sparse in many of the lentic habitats occupied
by adult Lost River sucker and shortnose sucker, so water depth or
turbidity may provide concealment from avian predators (Banish et al.
2009, p. 164).
Therefore, based on the information above, we identify lakes and
reservoirs with adequate amounts of emergent vegetation of appropriate
depth and water quality to provide for cover and shelter as described
above to be a
[[Page 73750]]
physical or biological feature essential for the conservation of the
Lost River sucker and shortnose sucker. Although specific data are
lacking, it is also likely that wetland and riparian vegetation along
river corridors are important for juvenile sucker cover and rearing.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Throughout their range, Lost River sucker ascend large tributary
streams to spawn, generally from February through April, often
corresponding with spring snowmelt (Moyle 2002, p. 200; NRC 2004, p.
194). They have been documented migrating upstream as many as 75 mi
(120 km) in the Sprague River (Ellsworth et al. 2007, p. 20). Beginning
at the same time, a segment of the Lost River sucker population uses
shoreline areas affected by input of spring discharge for spawning in
Upper Klamath Lake (Janney et al. 2008, p. 1813). In rivers, spawning
occurs in riffles and pools over gravel and cobble substrate at depths
less than 4.3 ft (1.3 m) and velocities up to 2.8 ft per second (85 cm
per second; Buettner and Scoppettonne 1990, p. 20; Moyle 2002, p. 200;
NRC 2004, p. 194). At shoreline spring habitat, spawning occurs over
similar substrate and at similar depths. Females broadcast their eggs,
which are fertilized most commonly by two accompanying males (Buettner
and Scoppettone 1990, p. 17). The fertilized eggs settle within the top
few inches of the substrate until hatching, around 1 week later. In the
Sprague and Williamson Rivers that drain into Upper Klamath Lake,
larvae spend little time in these rivers after swim-up, but quickly
drift downstream (Cooperman and Markle 2003, pp. 1147-1149). Downstream
movement occurs mostly at night near the water surface (Ellsworth et
al. 2010, pp. 51-52). Larvae transform into juveniles by mid-July at
about 0.98 in (25 mm) total length. Juvenile Lost River sucker
primarily occupy relatively shallow (less than approximately 1.6 ft (50
cm)), vegetated areas, but also may begin to move into deeper,
unvegetated, off-shore habitats as they grow (Buettner and Scoppettone
1990, pp. 32-33; NRC 2004, p. 198).
Throughout their range, shortnose sucker ascend large tributary
streams to spawn, generally from February through May, often
corresponding with spring snowmelt (Moyle 2002, p. 204; NRC 2004, p.
194). Shortnose sucker have been documented migrating upstream as far
as 8 mi (13 km) in the Sprague River (Ellsworth et al. 2007, p. 20).
Spawning at shoreline springs in Upper Klamath Lake by shortnose sucker
is presently rare (NRC 2004, p. 194). In lotic habitat, spawning occurs
in similar habitat as Lost River sucker spawning, although spawning may
occur in areas with greater stream flow (up to 4.1 ft per second (125
cm per second); Moyle 2002, p. 204). At shoreline spring habitat,
spawning occurs over similar substrate and at similar depths to Lost
River sucker spawning. Females broadcast their eggs, which are
fertilized most commonly by two accompanying males (Buettner and
Scoppettone 1990, p. 44). Larval out-migration, and larval and juvenile
rearing patterns, are similar to Lost River sucker (Buettner and
Scoppettone 1990, p. 51; Cooperman and Markle 2004, pp. 374-375; NRC
2004, p. 198; Ellsworth et al. 2010, pp. 51-52).
Therefore, based on the information above, we identify accessible
lake and river spawning locations that contain suitable water flow,
gravel and cobble substrate, and water depth (as well as flowing water)
that provide for larval out-migration and juvenile rearing habitat as
described above to be essential physical or biological features for
both Lost River sucker and shortnose sucker.
Primary Constituent Elements for Lost River Sucker and Shortnose Sucker
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of Lost River sucker and shortnose sucker in areas
occupied at the time of listing, focusing on the features' primary
constituent elements. Primary constituent elements (PCEs) are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to Lost River sucker and shortnose sucker are:
(1) Water. Areas with sufficient water quantity and depth within
lakes, reservoirs, streams, marshes, springs, groundwater sources, and
refugia habitats with minimal physical, biological, or chemical
impediments to connectivity. Water must have varied depths to
accommodate each life stage: Shallow water (up to 3.28 ft (1.0 m)) for
larval life stage, and deeper water (up to 14.8 ft (4.5 m)) for older
life stages. The water quality characteristics should include water
temperatures of less than 28.0 [deg]Celsius (82.4[emsp14][deg]F); pH
less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; low
levels of microcystin; and un-ionized ammonia (less than 0.5 mg per L).
Elements also include natural flow regimes that provide flows during
the appropriate time of year or, if flows are controlled, minimal flow
departure from a natural hydrograph.
(2) Spawning and rearing habitat. Streams and shoreline springs
with gravel and cobble substrate at depths typically less than 4.3 ft
(1.3 m) with adequate stream velocity to allow spawning to occur. Areas
containing emergent vegetation adjacent to open water, provides habitat
for rearing and facilitates growth and survival of suckers, as well as
protection from predation and protection from currents and turbulence.
(3) Food. Areas that contain an abundant forage base, including a
broad array of chironomidae, crustacea, and other aquatic
macroinvertebrates.
With this designation of critical habitat, we have identified the
physical or biological features essential to the conservation of the
species, through the identification of the features' primary
constituent elements that support the life-history processes of the
species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. Threats identified in the final listing rule for these
species include: (1) Poor water quality; (2) potential entrainment at
water diversion structures; (3) lack of access to essential spawning
habitat; (4) lack of connectivity to historical habitat (i.e.,
migratory impediments); (5) degradation of spawning, rearing, and adult
habitat; and (6) avian predation and predation by or competition with
nonnative fish.
Poor water quality is particularly associated with high abundance
of the blue-green alga Aphanizomenon flos-aque. Core samples of bottom
sediments indicate that A. flos-aque was not present in Upper Klamath
Lake prior to the 1900s (Bradbury et al. 2004, p. 162; Eilers et al.
2004, p. 14). Its appearance is believed to be associated with
increases in productivity of the lake through human influence (NRC
2004, pp. 108-110). This alga now dominates the algal community from
June to November, and, because of the high phosphorus concentrations
and its
[[Page 73751]]
ability to fix nitrogen, is able to reach seasonally high biomass
levels that eventually produce highly degraded water quality (Boyd et
al. 2002, p. 34). As a result of photosynthesis during algal blooms, pH
levels increase to stressful levels for fish (Wood et al. 2006, p. 1).
Once the algal bloom subsides, decomposition of the massive amounts of
biomass can lower dissolved oxygen to levels harmful or fatal to fish
(Perkins et al. 2000, pp. 24-25; Wood et al. 2006, p. 1). Additionally,
other cyanobacteria (Microcystis sp.) may produce toxins harmful to
sucker liver tissue (VanderKooi et al. 2010, p. 2). Special management
considerations or protection are therefore needed to protect water
quality from the deleterious effects of algal blooms and may include
reducing excess phosphorus concentrations by fencing cattle out of
riparian areas, reconfiguring agricultural waterways, increasing
riparian stands of vegetation, and restoring wetland habitat that is
crucial for filtering sediment and nutrients.
Hydrographs of both Clear Lake Reservoir and Upper Klamath Lake
exhibit patterns of a snow-melt-driven system with highest inflows and
levels during spring and early summer, although groundwater also is a
significant contributor to Upper Klamath Lake (Gannett et al. 2007, p.
1). However, Clear Lake Reservoir, Gerber Reservoir, and Upper Klamath
Lake are managed to store and divert water for irrigation every year.
Clear Lake Reservoir is highly sensitive to drought and downstream
water delivery because of its small watershed, low precipitation,
minimal groundwater input, and high evaporation rates (NRC 2004, p.
129). In the dry years of 1991 and 1992, the level of Clear Lake
Reservoir was drawn down to extremely low levels for irrigation supply
(Moyle 2002, p. 201). In 1992, Lost River sucker within Clear Lake
Reservoir that were examined exhibited signs of stress, including high
rates of parasitism and poor body condition (NRC 2004, p. 132). These
signs of stress began to decline as the water level in Clear Lake
Reservoir rose in 1993, at the end of the drought (NRC 2004, p. 132).
In 2009, when lake levels were again low due to drought, diversions
from Clear Lake Reservoir were halted in mid-summer, and there were no
diversions again in 2010 in order to comply with the biological
opinion's requirements for minimum lake elevations to avoid harm to
listed fish. Likewise, the amount of available larval habitat and
suitable shoreline spring spawning habitat in Upper Klamath Lake is
significantly affected by even minor changes in lake elevation (Service
2008, p. 79). Therefore, special management considerations or
protection are needed to address fluctuations in water levels due to
regulated flow and lake elevation management. Special management may
include the following actions: Managing bodies of water such that there
is minimal flow departure from a natural hydrograph; maintaining,
improving, or reestablishing instream flows to improve the quantity of
water available for use; and managing groundwater use.
The effects of fluctuations in water levels due to regulated flow
management may affect the ability of Lost River sucker and shortnose
sucker to access refugia during periods of poor water quality. For
example, Pelican Bay appears to act as a key refugium during periods of
poor water quality, and efforts to maintain the quality and quantity of
the habitat there may be beneficial for suckers (Banish et al. 2009, p.
167). Therefore, special management considerations or protections are
needed to address access to refugia and may include the following:
Maintaining appropriate lake depths to allow access to refugia;
restoring degraded habitats to improve quantity of flow at refugia as
well as refugia quality; and maintaining or establishing riparian
buffers around refugia to improve refugia water quality.
The Klamath Project (Project) stores and later diverts water from
Upper Klamath Lake for a variety of Project purposes. These operations
result in fluctuating lake levels and flows at the outlet of the lake
that differ from historic conditions, some of which increase movement
of juvenile fish downstream of Upper Klamath Lake. As such, special
management considerations or protection may be needed to address the
timing and volume of water that is diverted to maintain sufficient lake
elevations.
Throughout the Upper Klamath Lake and Lost River Basin, timber
harvesting and associated activities (road building) by Federal, State,
tribal, and private landowners have resulted in soil erosion on
harvested lands and transport of sediment into streams and rivers
adjacent to or downstream from those lands (Service 2002, p. 65; NRC
2004, pp. 65-66). Past logging and road-building practices often did
not provide for adequate soil stabilization and erosion control. A high
density of forest roads remains in the upper Klamath River basin, and
many of these are located near streams where they likely contribute
sediment (USFS 2010, p. 7). These sediments result in an increase of
fine soil particles that can cover spawning substrata. The major
agricultural activity in the upper Klamath River basin, livestock
grazing, also has likely led to an increase in sediment and nutrient
loading rates by accelerating erosion (Moyle 2002, p. 201; Service
2002, pp. 56, 65; McCormick and Campbell 2007, pp. 6-7). Livestock,
particularly cattle, have heavily grazed floodplains, wetlands,
forests, rangelands, and riparian areas, and this activity has resulted
in the degradation of these areas. Poorly managed grazing operations
can alter the streamside riparian vegetation and compact soil surfaces,
increasing groundwater runoff, lowering streambank stability, and
reducing fish cover.
The increase in sediment accumulation and nutrient loading is
consistent with the changes in land use in the upper Klamath River
basin occurring over the last century (Bradbury et al. 2004, pp. 163-
164; Eilers et al. 2004, pp. 14-16). Therefore, special management
considerations or protection may be required to improve water quality
and include: Reducing sediment and nutrient loading by protecting
riparian areas from agricultural and forestry impacts, reducing road
density to prevent excess sediment loading, and improving cattle
management practices.
Lost River sucker and shortnose sucker have limited hydrologic
connection to spawning or rearing habitat. For example, lake levels in
Clear Lake Reservoir in conjunction with flows in Willow Creek, the
sole spawning tributary (Barry et al. 2009, p. 3), may adversely affect
sucker populations during the spawning migration. Lake levels may be
especially pertinent during years when spring runoff is intermediate
and flows are sufficient for spawning migration by the suckers, but are
not sufficient enough to increase lake elevations substantially during
the narrow spawning window. This situation could create a condition in
which flow is adequate for both species to spawn but lake elevation
precludes suckers ability to access the habitat, although further
research is needed to clarify this dynamic. Likewise, the amount of
suitable shoreline spring spawning habitat in Upper Klamath Lake is
significantly affected by even minor changes in lake elevation, but it
is unknown exactly how such levels directly affect annual productivity.
Several shoreline spring-spawning populations, including Harriman
Springs and Barkley Springs, have been lost or significantly altered
[[Page 73752]]
due to railroad construction (Andreasen 1975, pp. 39-40; NRC 2004, p.
228).
Historically, wetlands comprised hundreds of thousands of hectares
throughout the range of the species (Gearhart et al. 1995, pp. 119-120;
Moyle 2002, p. 200; NRC 2004, pp. 72-73), some of which likely
functioned as crucial habitat for larvae and juveniles. Other wetlands
may have played vital roles in the quality and quantity of water. Loss
of ecosystem functions such as these, due to alteration or separation
of the habitat, is as detrimental as physical loss of the habitat.
Roughly 66-70 percent of the original 20,400 ha (50,400 ac) of wetlands
surrounding Upper Klamath Lake was diked, drained, or significantly
altered beginning around 1889 (Akins 1970, pp. 73-76; Gearhart et al.
1995, p. 2; Larson and Brush 2010, p. 19). Additionally, of the
approximately 13,816 ha (34,140 ac) of wetlands connected to Upper
Klamath Lake, relatively little functions as rearing habitat for larvae
and juveniles, partly due to lack of connectivity with current spawning
areas (NRC 2004, pp. 72-73). Therefore, special management
considerations or protection may be needed for water quantity to
improve access to spawning locations and quality and quantity of
wetlands used as rearing habitat. This may be accomplished by:
Improving lake level management to allow access to spawning locations
during late winter and early spring, restoring access to wetland
rearing habitat, and creating wetland rearing habitat adjacent to lakes
and reservoirs.
The exotic fish species most likely to affect Lost River sucker and
shortnose sucker is the fathead minnow. This species may prey on young
Lost River sucker and shortnose sucker and compete with them for food
or space (Markle and Dunsmoor 2007, pp. 571-573). For example, fathead
minnow were first documented in the upper Klamath River basin in the
1970s and are now the numerically dominant exotic fish in Upper Klamath
Lake (Simon and Markle 1997, p. 142; Bottcher and Burdick 2010, p. 40;
Burdick and VanderKooi 2010, p. 33). Additional exotic, predatory
fishes found in sucker habitats, although typically in relatively low
numbers, include yellow perch (Perca flavescens), bullhead (Ameiurus
species), largemouth bass (Micropterus salmoides), crappie (Pomoxis
species), green sunfish (Lepomis cyanellus), pumpkinseed (Lepomis
gibbosus), and Sacramento perch (Archoplites interruptus) (NRC 2004,
pp. 188-189). In addition to exotic fish species, recent information
has shown that American white pelican (Pelecanus erythrorhynchos) and
double-crested cormorant (Phalacrocorax auritus) prey on Lost River
sucker and shortnose sucker (Burdick 2012, p. 1). Special management
considerations or protection may be needed to protect the forage base
from predation by exotic fish species and could be accomplished by the
following: Reducing conditions that allow exotic fishes to be
successful and restoring conditions that allow Lost River sucker and
shortnose sucker to thrive; conducting evaluations to determine methods
to remove exotic fish species; determining methods to reduce avian
predation; and determining methods to reduce or eliminate competition
for the forage base upon which Lost River sucker and shortnose sucker
depend to survive.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of this species. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--are necessary to ensure the
conservation of the species. We are not designating any areas outside
the geographical area occupied by the species because the areas
occupied at the time of listing (and which continue to be occupied) are
sufficient for the conservation of the species. All units are
designated based on sufficient elements of physical and biological
features being present to support Lost River sucker and shortnose
sucker life-history processes.
In determining which areas to consider as critical habitat, we
reviewed the best available scientific data pertaining to the habitat
requirements of this species, including information obtained from the
Lost River sucker and shortnose sucker Recovery Team and the Recovery
Implementation Committee. This review included participation and
information from biologists from partner agencies and entities
including Federal, State, tribal, and private biologists; experts from
other scientific disciplines, such as hydrology and forestry; resource
users; and other stakeholders with an interest in Lost River sucker and
shortnose sucker and the habitats they depend on for survival or
recovery. We also reviewed available data concerning Lost River sucker
and shortnose sucker habitat use and preferences; habitat conditions;
threats; population demographics; and known locations, distribution,
and abundances of Lost River sucker and shortnose sucker. We considered
the following criteria in identifying critical habitat:
(1) In determining areas occupied by the Lost River and shortnose
sucker to designate as critical habitat, we relied upon principles of
conservation biology, including: (a) Representation and resiliency, to
ensure sufficient habitat is protected throughout the range of the
species to support population viability (e.g., demographic parameters);
(b) redundancy, to ensure multiple viable populations are conserved
throughout the species' range; and (c) representation, to ensure the
representative genetic and life history of suckers (e.g., spring
spawning and river spawning) were conserved (Shaffer and Stein 2000,
pp. 301-321; Tear et al. 2005, p. 841).
(2) Using the conservation biology principles and species-specific
habitat needs, we examined the distribution of Lost River sucker and
shortnose sucker to determine critical habitat based on the following
criteria: (a) Largest occupied areas or populations; (b) most highly
connected populations and habitat; (c) areas that can contribute to
Lost River sucker and shortnose sucker conservation; and (d) areas with
highest conservation potential. We then used these criteria to identify
those areas that are necessary to conserve Lost River sucker and
shortnose sucker and which also contain the physical or biological
features that are essential to the conservation of these species. These
criteria reflect the need to protect habitat that can support resilient
populations, as well as habitat that supports life-history diversity in
the species.
(3) In selecting areas to designate as critical habitat, we
considered factors such as size, connectivity to other aquatic
habitats, and rangewide recovery considerations, including the
importance of spawning and rearing habitat and sufficient water quality
(Service 2011). We took into account the fact that Lost River sucker
and shortnose sucker habitats include streams used largely for spawning
and outmigration; lakes and reservoirs used for rearing, foraging, and
migration; and springs used for spawning and refugia.
(4) We examined geographic locations currently occupied by Lost
River sucker and shortnose sucker and determined that certain areas did
not contain elements essential to the conservation of these species,
and we did not consider these areas as essential to the
[[Page 73753]]
conservation of the species. Based on the following criteria, such
determinations include those areas that have had severe habitat
degradation and very low potential for conservation or restoration,
areas that do not contribute to connectivity among populations, and
areas where Lost River sucker or shortnose sucker populations are not
viable; are not connected to spawning habitat; occur in low densities
or abundances in very isolated populations; occur only as sink
populations; and are greatly impacted by nonnative species.
Based on the preceding criteria, we applied the following methods
to identify and map critical habitat:
(1) We identified the geographical areas occupied by Lost River
sucker and shortnose sucker at the time of listing that contain the
physical and biological features essential for the conservation of the
species and which contain one or more of the primary constituent
elements identified above. This was done by gathering information from
the entities listed above and mapping Lost River sucker and shortnose
sucker distribution. As a result of this review, Upper Klamath Lake and
its major tributaries, the head of the Klamath River downstream to Iron
Gate Dam, Clear Lake and its tributaries, Gerber Reservoir and its
tributaries, Tule Lake and the Lost River proper were considered in
this assessment.
(2) We used data gathered during the Lost River sucker and
shortnose sucker recovery planning process and the Revised Draft
Recovery Plan for the Lost River Sucker and Shortnose Sucker (Service
2011), and supplemented those data with recent data developed by State
agencies, tribes, the U.S. Forest Service, Bureau of Land Management,
and other entities. These data were used to update Lost River sucker
and shortnose sucker status and distribution data for purposes of the
critical habitat.
(3) For areas where we had data gaps, we solicited expert opinions
from knowledgeable fisheries biologists in the local area. Material
reviewed included data in reports submitted during section 7
consultations, reports from biologists holding section 10(a)(1)(A)
recovery permits, research published in peer-reviewed scientific
journals, academic theses, State and Federal government agency reports,
and GIS data.
(4) In streams, critical habitat includes the stream channel within
the designated stream reach and a lateral extent as defined by the
bankfull elevation on one bank to the bankfull elevation on the
opposite bank, as well as the distribution information for the Lost
River sucker and shortnose sucker. Bankfull is defined as the flow that
just fills the stream channel to the top of its nearest banks but below
a point where the water begins to overflow onto a floodplain. The
lateral extent of critical habitat in lakes and reservoirs is defined
by the perimeter of the water body as mapped according to the U.S.
Geological Survey 2009 National Hydrography Dataset and distribution
information for each species. Land ownership calculations were based on
2011 Oregon and California Bureau of Land Management State office data
layers. An updated data layer of Upper Klamath Lake and newly restored
wetlands was provided by the USGS, Western Fisheries Research Center,
and Klamath Falls Field Station.
(5) When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
docks and bridges and other structures because such lands lack physical
or biological features for Lost River sucker and shortnose sucker. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this final rule have been
excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0097, on our Internet
sites http://www.fws.gov/klamathfallsfwo, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT
above).
We are designating as critical habitat lands that we have
determined were occupied at the time of listing and continue to be
occupied that contain the physical or biological features to support
life-history processes essential to the conservation of the Lost River
sucker and shortnose sucker.
Two units were designated for each species based on sufficient
elements of physical or biological features being present to support
Lost River sucker and shortnose sucker life processes. Some units
contained all of the identified elements of physical or biological
features and supported multiple life processes. Some segments contained
only some elements of the physical or biological features necessary to
support the Lost River sucker and shortnose suckers' particular use of
that habitat.
Final Critical Habitat Designation
We are designating two units as critical habitat for Lost River
sucker and two units as critical habitat for shortnose sucker. The
critical habitat areas described below constitute our best assessment
at this time of areas that meet the definition of critical habitat. For
Lost River sucker, those two units, which were occupied at the time of
listing and are still occupied, are: (1) Upper Klamath Lake Unit,
including Upper Klamath Lake and tributaries as well as the Link River
and Keno Reservoir, and (2) Lost River Basin Unit, including Clear Lake
Reservoir and tributaries. For shortnose sucker, those two units, which
were occupied at the time of listing and are still occupied, are: (1)
Upper Klamath Lake Unit, including Upper Klamath Lake and tributaries
as well as the Link River and Keno Reservoir, and (2) Lost River Basin
Unit, including Clear Lake Reservoir and tributaries, and Gerber
Reservoir and tributaries.
The approximate area of each critical habitat unit is shown in
tables 1 through 4.
[[Page 73754]]
Table 1--Area of Lakes and Reservoirs Designated as Critical Habitat for
Lost River Sucker
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Land ownership by Size of unit in
Critical habitat unit type acres (hectares)
------------------------------------------------------------------------
1. Upper Klamath Lake......... Federal.............. 15,198 (6,151)
State................ 533 (216)
Private/Other........ 74,684 (30,224)
------------------
Unit Total................ ..................... 90,415 (36,590)
------------------
2. Lost River Basin........... Federal.............. 27,238 (11,023)
State................ 0
Private/Other........ 194 (79)
------------------
Unit Total................ ..................... 27,432 (11,102)
------------------
Total................. ..................... 117,848 (47,691)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 2--Stream Length Designated as Critical Habitat for Lost River
Sucker
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Size of Unit in
Critical habitat unit Land ownership by miles
type (kilometers)
------------------------------------------------------------------------
1. Upper Klamath Lake......... Federal.............. 13 (21)
State................ Less than 1
Private/Other........ 106 (171)
------------------
Unit Total................ ..................... 119 (191)
------------------
2. Lost River Basin........... Federal.............. 23 (37)
State................ Less than 1
Private/Other........ 3 (6)
------------------
Unit Total................ ..................... 27 (43)
------------------
Total................. ..................... 146 (234)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 3--Area of Lakes and Reservoirs Designated as Critical Habitat for
Shortnose Sucker
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Land ownership by Size of unit in
Critical habitat unit type acres (hectares)
------------------------------------------------------------------------
1. Upper Klamath Lake......... Federal.............. 15,198 (6,151)
State................ 533 (216)
Private/Other........ 74,684 (30,224)
------------------
Unit Total................ ..................... 90,415 (36,590)
------------------
2. Lost River Basin........... Federal.............. 32,051 (12,971)
State................ 0
Private/Other........ 1,124 (455)
------------------
Unit Total................ ..................... 33,175 (13,426)
------------------
Total................. ..................... 123,590 (50,015)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 4--Stream Length Designated as Critical Habitat for Shortnose
Sucker
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Size of unit in
Critical habitat unit Land ownership by miles
type (kilometers)
------------------------------------------------------------------------
1. Upper Klamath Lake......... Federal.............. 6 (9)
State................ Less than 1
Private/Other........ 41 (66)
------------------
[[Page 73755]]
Unit Total................ ..................... 47 (76)
------------------
2. Lost River Basin........... Federal.............. 72 (116)
State................ Less than 1
Private/Other........ 16 (26)
------------------
Unit Total................ ..................... 89 (143)
Total................. ..................... 136 (219)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Lost River sucker and
shortnose sucker, below.
Unit 1: Upper Klamath Lake
Lost River Sucker
The Upper Klamath Lake unit is located in south-central Oregon
within Klamath County and consists of approximately 90,415 ac (36,590
ha) of lakes and 119 mi (191 km) of rivers. This unit includes Upper
Klamath Lake and Agency Lake, together with some wetland habitat;
portions of the Williamson and Sprague Rivers; Link River; Lake Ewauna;
and the Klamath River from the outlet of Lake Ewauna downstream to Keno
Dam. This unit was occupied at the time of listing and contains those
physical or biological features essential to the conservation of the
Lost River sucker that may require special management or protection.
This unit, at least seasonally, contains primary constituent elements
1, 2, and 3. The unit represents the largest population of Lost River
sucker and provides redundancy in the number of Lost River sucker
populations that are needed for conservation. Additionally, this unit
contains areas for both river and spring spawning life histories, which
are not known to occur elsewhere throughout the range of the species.
The physical or biological features and the special management or
protection they may require include: Maintaining water quality by
preventing the deleterious effects of nuisance algal blooms, increased
sedimentation, excess nutrients, and other factors affecting water
quality; maintaining water quantity to prevent reductions in water
levels that may limit access to spawning locations or refugia and
reduce the depth of water used as cover, and cause a lack of access to
essential rearing habitat (i.e., marsh and wetland areas); maintenance
of gravel and cobble substrata to prevent the degradation of spawning,
rearing, and adult habitat caused by past land management practices;
and protection of the forage base by management of nonnative fish to
reduce competition for available forage with Lost River sucker and
minimize predation on Lost River sucker.
Shortnose Sucker
The unit is the same as for Lost River sucker, except that it
contains only approximately 47 mi (76 km) of streams because shortnose
sucker are not known to occur as far upstream as Lost River suckers
within the Sprague River. As with the Lost River sucker, this unit also
includes the 90,415 ac (36,590 ha) of lakes and reservoirs. This unit
was occupied at the time of listing and contains those physical or
biological features essential to the conservation of the species and
which may require special management or protection. This unit, at least
seasonally, contains primary constituent elements 1, 2, and 3. This
unit is essential to shortnose sucker conservation because it supports
the largest population of shortnose sucker and provides redundancy in
the number of shortnose sucker populations that are needed for
conservation. Additionally, this unit ensures shortnose sucker are
distributed across various habitat types required by different life
stages.
The physical or biological features and the special management or
protection they may require include: maintaining water quality by
preventing the deleterious effects of nuisance algal blooms, increased
sedimentation, excess nutrients, and other factors affecting water
quality; maintaining water quantity to prevent reductions in water
levels that may limit access to spawning locations or refugia and
reduce the depth of water used as cover, and cause a lack of access to
essential rearing habitat (i.e., marsh and wetland areas); maintenance
of gravel and cobble substrata to prevent the degradation of spawning,
rearing, and adult habitat caused by past land management practices;
and protection of the forage base by management of nonnative fish to
reduce competition for available forage with shortnose River sucker and
minimize predation on shortnose sucker.
Unit 2: Lost River Basin
Lost River sucker
The Lost River Basin unit is located in south-central Oregon in
Klamath and Lake Counties as well as northeastern California in Modoc
County and consists of approximately 27,432 ac (11,102 ha) of lake area
and 27 mi (43 km) of river length. This unit includes Clear Lake
Reservoir and its principal tributary. This unit was occupied at the
time of listing and contains those physical or biological features
essential to the conservation of the species and which may require
special management or protection. This unit, at least seasonally,
contains primary constituent elements 1, 2, and 3. This unit supports a
large population of Lost River sucker and provides redundancy in the
number of Lost River sucker populations that are needed for
conservation. Additionally, this unit ensures Lost River sucker are
distributed across various habitat types required by different life
stages.
The physical or biological features and the special management or
protection they may require include: maintaining water quality by
preventing the deleterious effects of nuisance algal blooms, increased
sedimentation, excess nutrients, and other factors affecting water
quality; maintaining water quantity to prevent reductions in water
levels that may limit access to spawning locations or refugia and
reduce the depth of water used as cover, and cause a lack of access to
essential rearing habitat (i.e., marsh and wetland areas); maintenance
of gravel and cobble substrata to prevent the degradation of spawning,
rearing, and adult habitat caused by past land management
[[Page 73756]]
practices; and protection of the forage base by management of nonnative
fish to reduce competition for available forage with Lost River sucker
and minimize predation on Lost River sucker.
Shortnose Sucker
The unit is the same as for Lost River sucker, but also includes
Gerber Reservoir and its principal tributaries. This unit contains
approximately 33,175 ac (13,426 ha) of lake area and 88 mi (142 km) of
river length. This unit was occupied at the time of listing and
contains those physical or biological features essential to the
conservation of the species and which may require special management or
protection. This unit, at least seasonally, contains primary
constituent elements 1, 2, and 3. This unit represents a large
population of shortnose sucker and provides redundancy in the number of
shortnose sucker populations that are needed for conservation.
Additionally, this unit is essential because it ensures shortnose
sucker are distributed across various habitat types required by
different life stages.
The physical or biological features and the special management or
protection they may require include: maintaining water quality by
preventing the deleterious effects of nuisance algal blooms, increased
sedimentation, excess nutrients, and other factors affecting water
quality; maintaining water quantity to prevent reductions in water
levels that may limit access to spawning locations or refugia and
reduce the depth of water used as cover, and cause a lack of access to
essential rearing habitat (i.e., marsh and wetland areas); maintenance
of gravel and cobble substrata to prevent the degradation of spawning,
rearing, and adult habitat caused by past land management practices;
and protection of the forage base by management of nonnative fish to
reduce competition for available forage with Lost River sucker and
minimize predation on shortnose sucker.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory 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, 442 (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, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 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 for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of 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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
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 continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Lost River sucker and
shortnose sucker. As discussed above, the role of critical habitat is
to support life-history needs of the species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any
[[Page 73757]]
proposed or final regulation that designates critical habitat,
activities involving a Federal action that may destroy or adversely
modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Lost River sucker and shortnose sucker. These
activities include, but are not limited to:
(1) Actions that would significantly alter the level of lakes or
reservoirs. Such activities could include, but are not limited to,
water diversions, groundwater use, or water withdrawals. These
activities could reduce the amount of habitat necessary for rearing of
larvae and juvenile Lost River sucker and shortnose sucker, preclude
access to spawning habitat, reduce or prevent access to refugia, and
reduce the amount of water needed to provide the physical and
biological features necessary for adult Lost River sucker and shortnose
sucker.
(2) Actions that would significantly increase sediment deposition
within stream channels. Such activities could include, but are not
limited to, livestock grazing that causes excessive sedimentation, road
construction, channel alteration, timber harvest and management, off-
road vehicle use, and other watershed and floodplain disturbances.
These activities could reduce and degrade spawning habitat of Lost
River sucker and shortnose sucker by increasing the sediment deposition
to deleterious levels.
(3) Actions that would significantly alter lake, reservoir, and/or
channel morphology or geometry. Such activities could include, but are
not limited to, channelization, impoundment, road and bridge
construction, mining, dredging, wetland alteration, and destruction of
riparian vegetation. These activities may lead to changes in water
flows and levels that would degrade or eliminate Lost River sucker and
shortnose sucker habitats. These actions can also lead to increased
sedimentation and degradation in water quality to levels that are
beyond the tolerances of Lost River sucker and shortnose sucker.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation. Therefore, we are not
exempting lands from this final designation of critical habitat for
Lost River sucker and shortnose sucker pursuant to section
4(a)(3)(B)(i) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, 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. The statute on its face, as well as the 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 in making
that determination.
Under section 4(b)(2) of the Act, the Secretary may exclude an area
from designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors (IEc 2012a).
The draft analysis, dated April 17, 2012, was made available for public
review from July 26, 2012, through August 27, 2012 (77 FR 43796).
Following the close of the comment period, a final analysis (dated
September 25, 2012) of the potential economic effects of the
designation was developed taking into consideration the public comments
and any new information (IEc 2012b).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for Lost River
sucker and shortnose sucker; some of these costs will likely be
incurred regardless of whether we designate critical habitat
(baseline). The economic impact of the final critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred
[[Page 73758]]
regardless of whether critical habitat is designated. The ``with
critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we consider in
the final designation of critical habitat. The analysis looks
retrospectively at baseline impacts incurred since the species was
listed, and forecasts both baseline and incremental impacts likely to
occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Finally, the FEA looks retrospectively at costs that have
been incurred since 1988 (year of the species' listing) (53 FR 27130),
and considers those costs that may occur in the 20 years following the
designation of critical habitat, which was determined to be the
appropriate period for analysis because limited planning information
was available for most activities to forecast activity levels for
projects beyond a 20-year timeframe. The FEA quantifies economic
impacts of Lost River sucker and shortnose sucker conservation efforts
associated with the following categories of activity: (1) Activities
affecting water supply--these activities may include water management
activities such as dam operation and hydropower production within the
reservoirs comprising critical habitat, particularly the Klamath
Project on Upper Klamath Lake; (2) activities affecting water quality--
these activities may include agricultural activities, including
livestock grazing, as well as in-water construction activities; and (3)
activities affecting fish passage--these activities may include flood
control or water diversions that may result in entrainment or lack of
access to spawning habitat.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exercising his discretion to exclude any areas from
this designation of critical habitat for the Lost River sucker and
shortnose sucker based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Klamath Falls Fish and Wildlife Office (see ADDRESSES)
or by downloading from the Internet at http://www.regulations.gov or
http://www.fws.gov/klamathfallsfwo.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that the lands within the designation of critical habitat
for Lost River sucker and shortnose sucker are not owned or managed by
the Department of Defense, and therefore we anticipate no impact on
national security. Consequently, the Secretary is not exercising his
discretion to exclude any areas from this final designation based on
impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no finalized HCPs or other management plans for Lost River
sucker and shortnose sucker, and the final designation does not include
any tribal lands or tribal trust resources. We anticipate no impact on
tribal lands, partnerships, or HCPs from this critical habitat
designation. Accordingly, the Secretary is not exercising his
discretion to exclude any areas from this final designation based on
other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Order 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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 (5 U.S.C 801 et seq.), whenever an agency must 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 effects of the rule on small entities (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 certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Lost River sucker and shortnose sucker will not
have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as
[[Page 73759]]
independent nonprofit organizations; small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents; as well as small businesses. Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on 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., water
management, grazing, transportation, herbicide and pesticide
application, forest management, restoration, or installation of fish
passage). 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 authorized,
funded, or carried out 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 authorize, fund, or carry out
that may affect the Lost River sucker and shortnose sucker. 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
(see Application of the ``Adverse Modification Standard'' section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the Lost
River sucker and shortnose sucker and the designation of critical
habitat. The analysis is based on the estimated impacts associated with
the rulemaking as described in Chapters 4 through 5 and Appendix A of
the analysis and evaluates the potential for economic impacts related
to: (1) Activities affecting water supply--these activities may include
water management activities such as dam operation and hydropower
production within the reservoirs comprising critical habitat,
particularly the Klamath Project on Upper Klamath Lake; (2) activities
affecting water quality--these activities may include agricultural
activities, including livestock grazing, as well as in-water
construction activities; and (3) activities affecting fish passage--
these activities may include flood control or water diversions that may
result in entrainment or lack of access to spawning habitat.
Small entities may participate in section 7 consultation as a third
party (the primary consulting parties being the Service and the Federal
action agency). It is therefore possible that the small entities may
spend additional time considering critical habitat during section 7
consultation for the suckers. Additional incremental costs of
consultation that would be borne by the Federal action agency and the
Service are not relevant to this screening analysis as these entities
(Federal agencies) are not small.
Chapter 4 of the FEA projects section 7 consultations associated
with seven types of activities. Of these activities, small entities are
not anticipated to incur incremental costs associated with water
management, transportation, herbicide and pesticide application, forest
management, restoration, or installation of fish passage. As described
in Chapter 4, impacts to these activities are expected to be incurred
largely by Federal and State agencies, including the Bureau of
Reclamation, Oregon Department of Transportation, the Federal Highway
Administration, the Federal Aviation Administration, the Forest
Service, the Bureau of Land Management, and the Klamath Basin National
Wildlife Refuge. The analysis does forecast that PacifiCorp will engage
in two section 7 consultations related to its HCP. However, PacifiCorp
not a small entity.
The FEA focused its analysis on the incremental impacts associated
with section 7 consultation on grazing activities, which may be borne
by small entities. Across the study area, which includes the 3 counties
overlapping the proposed critical habitat designation, 125 businesses
are engaged in the beef cattle ranching and farming industry. Of these,
121, or 97 percent, have annual revenues at or below the small business
threshold of $750,000, and thus are considered small (see Exhibit A-1
of the FEA). A section 7 consultation on grazing activity may cover one
or more grazing allotments, and a small entity may be permitted to
graze on one or more of these allotments. Because the number of
allotments and grazing permittees varies from consultation to
consultation, this analysis makes the simplifying assumption that 1
small entity is affected in each of the 20 allotments adjacent to
proposed critical habitat. These 20 small entities represent
approximately 16.5 percent of small grazers across the study area.
The total annualized impacts to the 20 entities that may incur
administrative costs is approximately $24,600, with annualized impacts
of $2,170. Assuming 20 affected small entities and that each entity has
annual revenues of $132,000, these annualized impacts per small entity
are expected to comprise 0.08 percent of annual revenues.
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and currently available
information, we concluded that this rule would not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for Lost River sucker and shortnose sucker will not have a significant
economic impact on a substantial number of small entities, and a
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB
[[Page 73760]]
has provided guidance for implementing this Executive Order that
outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared to not taking the regulatory action under
consideration.
The economic analysis finds that none of these criteria are
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with Lost River sucker and
shortnose sucker conservation activities within critical habitat are
not expected. As such, the designation of critical habitat 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:
(1) 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, or 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; Aid to Families
with Dependent Children 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 onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The FEA concludes incremental impacts may occur due to
administrative costs of section 7 consultations for water management,
grazing, transportation, herbicide and pesticide application, forest
management, restoration, or installation of fish passage; however,
these impacts are not expected to significantly affect small
governments. Consequently, we do not believe that the critical habitat
designation would significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
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 Lost River sucker and shortnose sucker in a
takings implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or 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. We believe that the takings
implications associated with this critical habitat designation will be
insignificant, in part, because only lands that are considered occupied
by the Lost River sucker and shortnose sucker are being included in the
designation. While private property owners may experience impacts from
this designation of critical habitat related to activities requiring a
Federal permit (e.g., an individual requiring a permit from the U.S.
Army Corps of Engineers to develop a retaining wall or boat dock within
critical habitat) they are not expected to be significant. With the
exception of some new consultations and additional administrative costs
related to addressing critical habitat in future consultation efforts,
future impacts related to section 7 consultations and project
modifications are expected to remain largely the same or fewer than
they have in the past. The takings implications assessment concludes
that this designation of critical habitat for Lost River sucker and
shortnose sucker does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in California and Oregon. We
received comments from the Oregon Department of Fish and Wildlife and
have addressed them in the Summary of Comments and Recommendations
section of the rule. The designation of critical habitat in areas
currently occupied by the Lost River sucker and shortnose sucker
imposes nominal additional restrictions to those currently in place
and, therefore, has little incremental impact on State and local
governments and their activities The designation of critical habitat in
areas currently occupied by the Lost River sucker and shortnose sucker
may impose nominal additional regulatory restrictions to those
currently in place and, therefore, may have some incremental impact on
State and local governments and their
[[Page 73761]]
activities. 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).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. 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.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. This final rule uses standard property descriptions and identifies
the elements of physical or biological features essential to the
conservation of the Lost River sucker and shortnose sucker within the
designated areas to assist the public in understanding the habitat
needs of the species.
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 of 1995 (44
U.S.C. 3501 et seq.). 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 (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (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 position was upheld by the U.S. Court of
Appeals 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 (Consultation and
Coordination With Indian Tribal Governments), 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. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands occupied by the Lost River sucker and shortnose sucker at the
time of listing that contain the features essential for conservation of
the species, and no tribal lands unoccupied by the Lost River sucker
and shortnose sucker that are essential for the conservation of the
species. Therefore, we are not designating critical habitat for the
Lost River sucker and shortnose sucker on tribal lands.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Klamath Falls Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Author(s)
The primary authors of this rulemaking are the staff members of the
Klamath Falls Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, 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. Amend Sec. 17.11(h) by revising the entry for ``Sucker, Lost
River'' and ``Sucker, shortnose'' under ``Fishes'' in the List of
Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 73762]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Sucker, Lost River............... Deltistes luxatus... U.S.A. (CA, OR)..... Entire............. E 313 17.95(e) NA
* * * * * * *
Sucker, shortnose................ Chasmistes U.S.A. (CA, OR)..... Entire............. E 313 17.95(e) NA
brevirostris.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (e) by adding an entry for ``Lost
River Sucker (Deltistes luxatus)'' and an entry for ``Shortnose Sucker
(Chasmistes brevirostris)'', in the same order that these species
appear in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Lost River Sucker (Deltistes luxatus)
(1) Critical habitat units are depicted for Klamath and Lake
Counties, Oregon, and Modoc County, California, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of Lost
River sucker consist of three components:
(i) Water. Areas with sufficient water quantity and depth within
lakes, reservoirs, streams, marshes, springs, groundwater sources, and
refugia habitats with minimal physical, biological, or chemical
impediments to connectivity. Water must have varied depths to
accommodate each life stage: Shallow water (up to 3.28 ft (1.0 m)) for
larval life stage, and deeper water (up to 14.8 ft (4.5 m)) for older
life stages. The water quality characteristics should include water
temperatures of less than 82.4 [deg]Fahrenheit (28.0 [deg]Celsius); pH
less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; low
levels of microcystin; and un-ionized ammonia (less than 0.5 mg per L).
Elements also include natural flow regimes that provide flows during
the appropriate time of year or, if flows are controlled, minimal flow
departure from a natural hydrograph.
(ii) Spawning and rearing habitat. Streams and shoreline springs
with gravel and cobble substrate at depths typically less than 4.3 ft
(1.3 m) with adequate stream velocity to allow spawning to occur. Areas
containing emergent vegetation adjacent to open water, provides habitat
for rearing and facilitates growth and survival of suckers, as well as
protection from predation and protection from currents and turbulence.
(iii) Food. Areas that contain an abundant forage base, including a
broad array of chironomidae, crustacea, and other aquatic
macroinvertebrates.
(3) Critical habitat does not include manmade structures (such as
docks and bridges) and the land on which they are located existing
within the legal boundaries on January 10, 2013.
(4) Critical habitat map units. Data layers defining map units were
created on a base of the U.S. Geological Survey 2009 National
Hydrography Dataset, and critical habitat was then mapped using North
American Datum (NAD) 83, Universal Transverse Mercator Zone 10N
coordinates. The maps in this entry establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the Service's
Internet site, http://www.fws.gov/klamathfallsfwo, at http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0097, and at the field
office responsible for the designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
[[Page 73763]]
(5) Note: An index map for designated critical habitat units for
the Lost River sucker follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR11DE12.000
[[Page 73764]]
(6) Unit 1: Upper Klamath Lake Unit, Klamath County, Oregon. Note:
Map of Unit 1, Upper Klamath Lake Unit, of critical habitat for Lost
River sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.001
[[Page 73765]]
(7) Unit 2: Lost River Basin Unit, Klamath County, Oregon. Note:
Map of Unit 2, Lost River Basin Unit, of critical habitat for Lost
River sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.002
* * * * *
Shortnose Sucker (Chasmistes brevirostris)
(1) Critical habitat units are depicted for Klamath and Lake
Counties, Oregon, and Modoc County, California, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
shortnose sucker consist of three components:
(i) Water. Areas with sufficient water quantity and depth within
lakes, reservoirs, streams, marshes, springs, groundwater sources, and
refugia habitats with minimal physical, biological, or chemical
impediments to connectivity. Water must have varied depths to
accommodate each life stage: Shallow water (up to 3.28 ft (1.0 m)) for
juveniles, and deeper water (up to 14.8 ft (4.5 m)) for adults. The
water quality characteristics should include water temperatures of less
than 82.4 [deg]F (28.0 [deg]Celsius); pH less than 9.75; dissolved
oxygen levels greater than 4.0 mg per L; low levels of microcystin; and
un-ionized ammonia (less than 0.5 mg per L). Elements also include
natural flow regimes that provide flows during the appropriate time of
year or, if flows are controlled, minimal flow departure from a natural
hydrograph.
(ii) Spawning and rearing habitat. Streams and shoreline springs
with gravel and cobble substrate at depths typically less than 4.3 ft
(1.3 m) with adequate stream velocity to allow spawning to occur. Areas
containing
[[Page 73766]]
emergent vegetation adjacent to open water provides habitat for rearing
and facilitates growth and survival of suckers, as well as protection
from predation and protection from currents and turbulence.
(iii) Food. Areas that contain an abundant forage base, including a
broad array of chironomidae, crustacea, and other aquatic
macroinvertebrates.
(3) Critical habitat does not include manmade structures (such as
docks and bridges) and the land on which they are located existing
within the legal boundaries on January 10, 2013.
(4) Critical habitat map units. Data layers defining map units were
created on a base of the U.S. Geological Survey 2009 National
Hydrography Dataset, and critical habitat was then mapped using North
American Datum (NAD) 83, Universal Transverse Mercator Zone 10N
coordinates. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site,
http://www.fws.gov/klamathfallsfwo, at http://www.regulations.gov at
Docket No. FWS-R8-ES-2011-0097, and at the field office responsible for
the designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: An index map for designated critical habitat units for
the Lost River sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.003
[[Page 73767]]
(6) Unit 1: Upper Klamath Lake Unit, Klamath County, Oregon. Note:
Map of Unit 1, Upper Klamath Lake Unit, of critical habitat for
shortnose sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.004
[[Page 73768]]
(7) Unit 2: Lost River Basin Unit, Klamath County, Oregon. Note:
Map of Unit 2, Lost River Basin Unit, of critical habitat for shortnose
sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.005
* * * * *
Dated: November 20, 2012.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-29332 Filed 12-10-12; 8:45 am]
BILLING CODE 4310-55-C