[Federal Register Volume 85, Number 113 (Thursday, June 11, 2020)]
[Rules and Regulations]
[Pages 35574-35594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10861]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2017-0035; FF09E22000 FXES11130900000 201]
RIN 1018-BA43
Endangered and Threatened Wildlife and Plants; Removing the Borax
Lake Chub From the List of Endangered and Threatened Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; availability of post-delisting monitoring plan.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are
removing the Borax Lake chub (currently listed as Gila boraxobius), a
fish native to Oregon, from the Federal List of Endangered and
Threatened Wildlife on the basis of recovery. This final rule is based
on a review of the best available scientific and commercial
information, which indicates that the threats to the Borax Lake chub
have been eliminated or reduced to the point where the species no
longer meets the definition of an endangered or threatened species
under the Endangered Species Act of 1973, as amended (Act).
[[Page 35575]]
DATES: This rule is effective July 13, 2020.
ADDRESSES: This final rule, the post-delisting monitoring plan, and
supporting documents are available on the internet at http://www.regulations.gov in Docket No. FWS-R1-ES-2017-0035, or at https://ecos.fws.gov. In addition, the supporting file for this final rule will
be available for public inspection by appointment, during normal
business hours, at: U.S. Fish and Wildlife Service, Oregon Fish and
Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 97266;
telephone: 503-231-6179.
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, Oregon
Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR
97266; telephone: 503-231-6179. If you use a telecommunications device
for the deaf (TDD), call the Federal Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
protection through listing if it is endangered or threatened.
Conversely, a species may be removed from the Federal List of
Endangered and Threatened Wildlife (List) if the Act's protections are
determined to be no longer required based on extinction, recovery, or
the listed entity not meeting the statutory definition of a species.
Removing a species from the List can be completed only by issuing a
rule. This rule removes the Borax Lake chub (Gila boraxobius) from the
List due to recovery.
The basis for our action. We have determined that the Borax Lake
chub is no longer at risk of extinction now nor likely to become so in
the foreseeable future, and the following criteria for delisting
described in the species recovery plan have been met or exceeded:
The presence of a naturally reproducing population of
Borax Lake chub in Borax Lake that is free of exotic species;
Permanent protection of the 160-acre (65-hectare) parcel
of land surrounding and including Borax Lake;
Removal of threats to subsurface waters from geothermal
energy exploration or development;
Reestablishment of ponds and natural marshes adjacent to
Borax Lake in order to create more chub habitat;
A viable, self-sustaining population of Borax Lake chub;
Permanent protection of a second 160-acre (65-hectare)
parcel of land to the north of Borax Lake;
Withdrawal of Borax Lake waters from appropriation (i.e.,
diversion and use under water right);
Establishment of a fence around the 640-acre (259-hectare)
critical habitat area to prevent vehicle entry;
Establishment of monitoring programs to survey habitat and
fish population status; and
Lack of any new threats to the species or ecosystem for 5
consecutive years.
We consider the Borax Lake chub to be a conservation-reliant
species, which we consider to be a species that has generally met
recovery criteria but requires continued active management to sustain
the species and associated habitat in a recovered condition (see Scott
et al. 2005, entire). To address this management need, the Bureau of
Land Management (BLM), the Oregon Department of Fish and Wildlife
(ODFW), and the Service developed, and are implementing, the Borax Lake
chub cooperative management plan (CMP) (USFWS et al. 2018), and are
committed to the continuing long-term management of this species.
Peer review and public comment. We evaluated the species' needs,
current conditions, and future conditions to support our February 26,
2019, proposed rule. We sought comments from independent specialists to
ensure that our determination is based on scientifically sound data,
assumptions, and analyses. We invited these peer reviewers to comment
on the draft post-delisting monitoring plan. We considered all comments
and information we received during the public comment period on the
February 26, 2019, proposed rule to delist the Borax Lake chub and the
draft post-delisting monitoring plan when developing this final rule.
Background
Previous Federal Actions
On May 28, 1980, we published a rule in the Federal Register to
emergency-list the Borax Lake chub (as Gila sp.) as endangered and to
designate critical habitat for the species (45 FR 35821). The emergency
rule provided protection to this species for 240 days, until January
23, 1981.
On October 16, 1980, we proposed to list the Borax Lake chub (as
Gila boraxobius) as an endangered species and to designate critical
habitat (45 FR 68886). The distribution of the Borax Lake chub is
limited to Borax Lake, its outflow, and Lower Borax Lake in Harney
County, Oregon. The proposed listing action was taken because proposed
geothermal development in and around Borax Lake, and human modification
of the lake, threatened the integrity of the species' habitat and,
hence, its survival.
On October 5, 1982, we published a final rule in the Federal
Register (47 FR 43957) listing the Borax Lake chub (as Gila boraxobius)
as endangered and designating areas totaling 640 acres (ac) (259
hectares (ha)) in and around Borax Lake as critical habitat for the
Borax Lake chub. A recovery plan for the species was completed on
February 4, 1987 (USFWS 1987).
Our most recent 5-year review of the status of Borax Lake chub,
completed on August 23, 2012 (USFWS 2012), concluded that the Borax
Lake chub's status had substantially improved since listing, and that
the Borax Lake chub no longer met the definition of an endangered
species, but may meet the definition of a threatened species throughout
all of its range, under the Act (16 U.S.C. 1531 et seq.); the review
recommended the Borax Lake chub be reclassified from endangered to
threatened (i.e., ``downlisted''). However, this final rule, which is
based on information contained in the 2012 status review as well as
additional information that subsequently became available, removes the
Borax Lake chub from the List (i.e., ``delists'' the species) due to
recovery.
On February 26, 2019, we published a proposed rule in the Federal
Register (84 FR 6110) to delist the Borax Lake chub on the basis of
recovery. In that document, we requested information and comments from
the public and peer reviewers regarding the proposed rule and the draft
post-delisting monitoring plan for the Borax Lake chub.
Species Information
At the time of listing, the genus Gila was considered to include
three subgenera: Gila, Siphateles (including the Borax Lake chub), and
Snyderichthys (Uyeno 1961, pp. 84-85; Bailey and Uyeno 1964, pp. 238-
239). Since our final listing determination (47 FR 43957; October 5,
1982), analysis of lepidological (scale morphology and arrangement) and
osteological (structure and function of bones) characters (Coburn and
Cavender 1992, pp. 344-347) and mitochondrial ribosomal RNA sequences
(Simons and Mayden 1997, p. 194; 1998, p. 315; Simons et al. 2003, pp.
71-76) have indicated that the genus Gila in the broad sense was not
descended from a common ancestor not shared with other groups.
Therefore, the three subgenera were elevated to genera.
[[Page 35576]]
The American Fisheries Society (Page et al. 2013, p. 78) has also
followed this approach and classified the Borax Lake chub within the
genus Siphateles. Consequently, the current scientific name of the
Borax Lake chub is Siphateles boraxobius. This taxonomic revision
changed the name of the listed entity from Gila boraxobius to
Siphateles boraxobius, but did not alter the description, distribution,
range, or listing status of the species from what it was at the time of
listing. Based on this revision, we consider Siphateles boraxobius to
be the most appropriate scientific name for this taxon. Because we are
removing the species from the List, we are not amending the species'
scientific name on the List, but relevant documents, such as the post-
delisting monitoring plan for the species, will reflect this usage.
A recent genetic assessment by Smith et al. (2019, pp. 497-499)
affirms genetic divergence between Alvord chub (Siphateles alvordensis)
and Borax Lake chub approximately 6,000 to 9,000 years ago, presumably
as Lake Alvord dried at the end of the last period of glaciation,
isolating Borax Lake. The analysis further supports the status of these
two as distinct species consistent with past studies of morphological
data (Williams and Bond 1980, entire).
The Borax Lake chub is a small minnow (Family: Cyprinidae) endemic
to Borax Lake and its outflows. Borax Lake is a 10.2-ac (4.1-ha)
geothermally heated, alkaline spring-fed lake in southeastern Oregon.
The lake is perched 30 feet (ft) (10 meters (m)) above the desert floor
on large sodium-borate deposits (Williams and Bond 1980, p. 297). Water
depth averages approximately 3.3 ft (1.0 m), with a maximum measured
depth of 88.6 ft (27 m) at the thermal vent (Scheerer and Jacobs 2005,
p. 6). The lake bottom includes patches of bedrock and fine gravel,
with a sparse growth of aquatic plants, and is covered with thick,
fluffy silt. Average lake temperatures range from a high of 39.2
degrees Celsius ([deg]C) (102.6 degrees Fahrenheit ([deg]F)) to a low
of 22 [deg]C (71.6 [deg]F) near the shoreline (Scheerer et al. 2013,
pp. 3-6). Borax Lake chub prefer the shallow habitats along the margins
of the lake (Perkins et al. 1996, p. 8).
The Borax Lake chub is an opportunistic omnivore. The diets of
juveniles and adults are very similar and include aquatic and
terrestrial insects, algae, mollusks and mollusk eggs, aquatic worms,
fish scales, spiders, and seeds (Williams and Williams 1980, p. 113).
Males and females can reach reproductive maturity within one year.
Spawning occurs primarily in the spring months but can occur year-
around (Williams and Bond 1983, pp. 412-413). The reproductive behavior
and length of incubation is unknown.
Population abundance estimates for the Borax Lake chub were
conducted annually from 1986 to 1997, from 2005 to 2012, and from 2015
to 2017. Over this period, the population abundance has shown a high
degree of variability, ranging from a low of 1,242 in 2015, to a record
high of 76,931 in 2017 (Scheerer et al. 2015, p. 3; Meeuwig 2017, pers.
comm.). A pattern of population reduction followed by a 1- to 5-year
period of rebuilding has been observed multiple times during the period
of record. The mechanisms contributing to variability in abundance are
not entirely clear, but Scheerer et al. (2012, p. 16) surmised that
because Borax Lake chub experience water temperatures that are at or
near their thermal critical maximum (Williams and Bond 1983, p. 412),
survival and recruitment are likely higher during years when water
temperatures are cooler in the lake. Water temperatures in Borax Lake
are driven by a deep geothermal aquifer with water temperatures up to
40 [deg]C (140 [deg]F) (Perkins et al. 1996, p. 2). Water temperature
is also influenced by a variety of other factors, including air
temperature, inflow from smaller geothermal and cool water springs,
ephemeral thermoclines between areas of relatively cooler and warmer
water, and wind.
Recovery and Recovery Plan Implementation
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of threatened and
endangered species unless we determine that such a plan will not
promote the conservation of the species. Recovery plans are not
regulatory documents and are instead intended to establish goals for
long-term conservation of a listed species; define criteria that are
designed to indicate when the threats facing a species have been
removed or reduced to such an extent that the species may no longer
need the protections of the Act; and provide guidance to our Federal,
State, and other governmental and nongovernmental partners on methods
to minimize threats to listed species. There are many paths to
accomplishing recovery of a species, and recovery may be achieved
without all recovery criteria being fully met. For example, one or more
criteria may have been exceeded while other criteria may not have been
accomplished or become obsolete, yet the Service may judge that,
overall, the threats have been minimized sufficiently, and the species
is robust enough, to reclassify the species from endangered to
threatened or perhaps to delist the species. In other cases, recovery
opportunities may have been recognized that were not known at the time
the recovery plan was finalized. These opportunities may be used
instead of methods identified in the recovery plan.
Likewise, information on the species may subsequently become
available that was not known at the time the recovery plan was
finalized. The new information may change the extent that criteria need
to be met for recognizing recovery of the species. Recovery of species
is a dynamic process requiring adaptive management that may, or may
not, fully follow the guidance provided in a recovery plan.
The following discussion provides a brief review of recovery
planning and implementation for the Borax Lake chub, as well as an
analysis of the recovery criteria and goals as they relate to
evaluating the status of the taxon.
The Borax Lake Chub Recovery Plan (USFWS 1987, pp. 27-30) described
an ``interim objective'' for potential reclassification to threatened
status, as well as a ``primary objective'' for recovery that could
result in removal of the species from the List (i.e., delisting). It
established the following four conditions as criteria for
reclassification from endangered to threatened status (i.e.,
downlisting):
(1) The presence of a naturally reproducing population of the Borax
Lake chub in Borax Lake that is free of exotic species;
(2) Permanent protection of the 160-ac (65-ha) parcel of land
surrounding and including Borax Lake (T37S, R33E, sec. 14) by The
Nature Conservancy (TNC) or other appropriate public resource agency;
(3) Removal of threats to subsurface waters from geothermal energy
exploration or development; and
(4) Reestablishment of ponds and natural marshes adjacent to Borax
Lake in order to create more chub habitat, and reestablishment of Lower
Borax Lake by waters from Borax Lake in order to create more habitat.
The recovery plan stated that conditions to meet the primary
objective of recovery (i.e., delisting) include the above four
downlisting conditions as well as the following six additional
conditions:
(1) A viable, self-sustaining population of Borax Lake chub, which
is defined as a naturally sustaining population that is free of exotic
species
[[Page 35577]]
and fluctuates in size within the seasonal ranges observed in 1986-
1987;
(2) Permanent protection of a second 160-ac (65-ha) parcel of land
to the north of Borax Lake (T37S, R33E, sec. 11) by TNC or another
appropriate public resource agency;
(3) Withdrawal of Borax Lake waters from appropriations (i.e.,
diversion and use under water right);
(4) Establishment of a fence around the 640-ac (259-ha) critical
habitat area to prevent vehicle entry;
(5) Establishment of monitoring programs to survey habitat and fish
population status; and
(6) Lack of any new threats to the species or ecosystem for 5
consecutive years.
Recovery Plan Implementation
Significant conservation objectives that address the primary
threats to the Borax Lake chub have been accomplished through
implementing the 1987 recovery plan, including protection of the Borax
Lake ecosystem from disturbances through acquisition of key private
lands, protection of subsurface and surface waters, closure of fragile
lands to vehicle access, removal of livestock grazing, monitoring, and
other recovery actions. The following discussion summarizes information
on recovery actions that have been implemented under each downlisting
and delisting criterion.
Conservation Management Plan
In recognition of the fact that we consider the Borax Lake chub to
be a conservation-reliant species, the BLM, the ODFW, and the Service
developed, and are implementing, the Borax Lake chub CMP (USFWS et al.
2018), and are committed to the continuing long-term management of this
species. While the CMP provides agency commitments for long-term
stewardship of Borax Lake and Borax Lake chub, the CMP is a voluntary
agreement and delisting is not dependent upon implementation of the
actions described in the CMP. However, we anticipate the plan will be
implemented into the foreseeable future for the following reasons.
First, each of the cooperating agencies has established a long record
of engagement in conservation actions for the Borax Lake chub,
including the BLM's prior contributions through land acquisition and 3
decades of habitat management around Borax Lake; scientific research
and monitoring by the ODFW dating back to 1986; and funding support,
coordination of recovery actions, and legal obligations by the Service
to monitor the species into the future under the Borax Lake chub post-
delisting monitoring plan. In addition, all three cooperating agencies
are active participants in the Oregon Desert Fishes Working Group, an
interagency group facilitated by the Service that meets annually to
discuss recent monitoring and survey information for multiple fish
species, including Borax Lake chub, as well as to coordinate future
monitoring and management activities.
Second, implementation of the CMP is already underway. For example,
under the guidance of the CMP, the BLM has conducted quarterly site
visits to determine the general health of the Borax Lake ecosystem. The
BLM and TNC have maintained the fence and gate around Borax Lake to
prevent unauthorized vehicle access. ODFW has maintained water
temperature and water elevation monitoring equipment, monitored the
State of Oregon's Department of Geology and Mineral Industries (DOGAMI)
drilling permits, and conducted regular abundance estimates to assess
the status of the population. The Service has continued to provide
funding, when available, to support monitoring efforts.
Third, the conservation mission and authorities of these agencies
authorize this work even if the species is delisted. For example, the
Burns District BLM's resource management plan (RMP) and BLM Manual
6840.06E both provide general management direction for special status
species, including the Borax Lake chub. ``Special status'' species for
the BLM include sensitive, proposed for listing, threatened, and
endangered species. When delisted, the Borax Lake chub will still be
considered a ``special status'' species, as it meets the criteria to be
``sensitive'' for the BLM. According to the BLM's Criteria for
determining FS R6 and OR/WA BLM Sensitive and Strategic Species (July
13, 2015), all federally delisted species that are suspected or
documented on BLM or U.S. Forest Service lands are considered
``sensitive'' for the duration of their post-delisting monitoring plan
unless the species meets some of the other criteria for being
``sensitive.'' In this case, being a State/Oregon Biodiversity
Information Center (ORBIC) rank 1 species, with a Heritage program/
NatureServe rank of S1 puts the Borax Lake chub firmly in the
``sensitive'' category (Huff 2019, pers. comm.; ORBIC 2016, p. 5).
Special status species lists and criteria are updated and transmitted
to the BLM Districts approximately every 3 years through the State
Director, who then directs the Districts to use the new list (Huff
2019, pers. comm.). The Federal Land Policy and Management Act of 1976
(43 U.S.C. 1701 et seq.) directs the BLM to manage public land to
provide habitat for fish and aquatic wildlife and to protect the
quality of water resources. The ODFW's State of Oregon Wildlife
Diversity Plan (Oregon Administrative Rule (OAR) 635-100-0080), Oregon
Native Fish Conservation Policy (OAR 636-007-0502), and the Oregon
Conservation Strategy (ODFW 2016) each provide protective measures for
the conservation of native fish including the Borax Lake chub, which
will remain to the best of our knowledge on the ODFW's sensitive
species list even when the species is removed from the Federal List.
The Service is authorized to assist in the protection of fish and
wildlife and their habitats under authorities provided by the Act (16
U.S.C. 1531 et seq.), the Fish and Wildlife Coordination Act (16 U.S.C.
661 et seq.), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-
742j, not including 742d-l).
Fourth, there is a practical reason to anticipate implementation of
the CMP into the foreseeable future: The CMP actions are technically
not complicated to implement, and costs are relatively low. We also
have confidence the actions called for in the CMP will be effective in
the future because they have already proven effective as evidenced by
the information collected from recent actions and associated monitoring
such as the annual downloading of air and water temperature loggers at
Borax Lake and conducting site evaluations consistent with the
guidelines in the CMP.
Lastly, the Service, ODFW, and BLM collaboratively developed the
Borax Lake chub CMP to outline individual agency roles and
responsibilities, and commitments into the future, regarding Borax Lake
chub, the Borax Lake ecosystem, and surrounding lands (USFWS et al.
2018). If an evaluation by the Service suggests the habitat and
population are at risk, the Service will evaluate the need to again add
the species to the List (i.e., ``relist'' the species) under the Act.
Taken together, it is therefore reasonable to conclude that the CMP
will be implemented as anticipated, and that the long-term recovery of
the Borax Lake chub will be maintained and monitored adequately.
Downlisting Criteria
Downlisting Criterion 1: The presence of a naturally reproducing
population of Borax Lake chub in Borax Lake that is free of exotic
species.
This criterion has been met. To be considered naturally
reproducing, Borax Lake chub need to reproduce in their natural habitat
in Borax Lake with no human intervention, such as supplementation with
hatchery- or
[[Page 35578]]
aquarium-raised fish. The Borax Lake chub population has never been
supplemented with hatchery- or aquarium-raised fish and continues to
reproduce naturally on an annual basis. In the 3 decades Borax Lake
chub have been monitored, there has been only one documented occurrence
of an exotic fish species. In 2013, an ODFW biologist observed a
nonnative fish that was believed to be a bass given observed morphology
(Scheerer et al. 2013, pp. 2-3, 9-10). Subsequent efforts to capture or
observe this fish or other nonnative fishes were unsuccessful, and none
has been seen in subsequent monitoring. The survival in Borax Lake of
this nonnative fish, or of any other commonly introduced nonnative
fishes, is unlikely given the geothermally heated high water
temperatures.
We consider this criterion met based on the lack of need for
conservation actions supporting the species' reproductive success and
the fact that only a single occurrence of a nonnative species has been
documented. As noted above, we determined the likelihood of survival of
this nonnative fish was low, and no observations or detections of this
or other nonnative fishes have been made during subsequent surveys. See
``Delisting Criterion 1'' and C. Disease or Predation for additional
discussion regarding the potential for exotic species introduction into
Borax Lake.
Downlisting Criterion 2: Permanent protection for the 160-acre
parcel of land surrounding and including Borax Lake (T37S, R33E, sec.
14) by TNC or other appropriate public resource agency.
This criterion has been met. In 1983, TNC leased two 160-ac (65-ha)
private land parcels, one surrounding Borax Lake and the other
immediately to the north. In 1993, TNC acquired both parcels. TNC also
acquired subsurface mineral rights to the land surrounding Borax Lake.
TNC designated the land surrounding Borax Lake, and the 160-ac (65-ha)
parcel to the north, as a preserve for the purpose of conserving the
Borax Lake ecosystem. With the purchase of the two parcels by TNC, all
lands designated as critical habitat for the Borax Lake chub are in
public or conservation ownership. The diversion of water for irrigation
and livestock grazing within designated critical habitat ceased. TNC no
longer permits vehicular access to the preserve except for access for
people with disabilities or for scientific research.
In addition to the above, in 1983, the BLM designated 520 ac (210
ha) of public land surrounding Borax Lake as an ``area of critical
environmental concern'' (ACEC) to protect Borax Lake chub and its
habitat. In 2005, the record of decision for the resource management
plan for the Andrews Resource Area added 80 ac (32 ha), for a total
600-ac (243-ha) Borax Lake ACEC (BLM 2005, p. 70). Following this
designation, the area was fenced to exclude livestock from entering the
ACEC and discourage grazing in the area, as closing critical habitat to
livestock grazing was called for in the recovery plan in order to
decrease disturbance to soils, marsh vegetation and outflow channels
(USFWS 1987, pp. 4, 31, 39). The lake is now completely enclosed by
fencing, including most of the 640 ac (259 ha) of designated critical
habitat, except for a small portion that serves as a parking area for
pedestrian access to the lake.
Downlisting Criterion 3: Removal of threats to subsurface waters
from geothermal energy exploration or development.
This criterion has been met. While this criterion does not identify
a geographic area for which threats of geothermal energy exploration or
development should be removed, the recovery plan's step-down outline
and narrative describing recovery actions clearly identify this
criterion as pertaining to Borax Lake and two 160-ac (65-ha) parcels of
private land surrounding Borax Lake (USFWS 1987, pp. 30-45). These
lands were eventually purchased by TNC and designated as critical
habitat for Borax Lake chub, thereby removing the threat of geothermal
development within close proximity to Borax Lake. Although the recovery
plan did not explicitly call for removal of potential geothermal
development threats outside of designated critical habitat, the Service
has acknowledged that geothermal development outside critical habitat,
but in proximity to Borax Lake, may constitute a potential threat
(USFWS 2012, p. 24).
Numerous geologic studies have been conducted in the vicinity of
Borax Lake, yet there is limited detailed information regarding the
extent of the geothermal aquifer and the configuration of geothermal
fluid flow pathways surrounding Borax Lake (Schneider and McFarland
1995, entire; Fairley et al. 2003, entire; Fairley and Hinds 2004, pp.
827-828; Cummings 1995, pp. 12-19). As such, the best available
scientific information does not allow us to determine the precise
geographic distance over which geothermal development may represent a
threat to the Borax Lake chub and the Borax Lake ecosystem. Given the
lack of scientific information (i.e., depth, extent, source of water,
etc.) on the Borax Lake aquifer, a reasonable position is that
geothermal development outside of critical habitat may represent a
potential threat to Borax Lake chub and that the closer the development
is to critical habitat, the greater the likelihood that development
could affect the Borax Lake chub and the Borax Lake ecosystem.
With the passage of the Steens Mountain Cooperative Management and
Protection Act of 2000 (Steens Act; 16 U.S.C. 460nnn et seq.) and the
completion of the Steens Andrews Resource Management Plan (BLM 2005),
the BLM has withdrawn the Alvord Known Geothermal Resource Area from
mineral and geothermal exploration and development (BLM 2005a, p. 49).
The Steens Act congressionally designated a ``mineral withdrawal area''
encompassing approximately 900,000 ac (364,217 ha) on BLM-administered
lands. The mineral withdrawal area contains the majority of the Alvord
Known Geothermal Resource Area (Alvord KGRA), including Borax Lake and
surrounding public lands, with the exception of 332 ac (134 ha) of BLM-
administered land located approximately 4.5 mi (7.2 km) from Borax Lake
(BLM 2005a, p. I-2; BLM 2005b, p. 4).
Private lands within the vicinity of Borax Lake are not affected by
the mineral withdrawal. Approximately 2,000 ac (809 ha) of privately
owned lands occur within a radius of approximately 1 to 3 miles (mi)
(1.6 to 4.8 kilometers (km)) from Borax Lake. Based on geothermal
development investigated by various entities over the last 3 decades,
it is reasonable to assume that future geothermal development may be
explored on private land in the vicinity of Borax Lake. However, as of
2018, there are no active proposals in place for such development.
The most recent exploration for geothermal resource development
occurred in 2008, when the BLM received an inquiry from Pueblo Valley
Geothermal LLC regarding permitting processes for geothermal
exploratory drilling and the potential for developing a geothermal
electrical generation plant in the Alvord Lake basin potentially within
3 to 5 mi (4.8 to 8.0 km) of Borax Lake. Pueblo Valley Geothermal LLC
submitted a proposal to the BLM on January 31, 2012, for a binary
geothermal plant that would produce 20 to 25 megawatts. Pueblo Valley
Geothermal LLC also sought to acquire approximately 3,360 ac (1,360 ha)
of BLM land via land exchange in order to develop their project. The
BLM responded with a letter (Karges. 2012, pers. comm.) explaining that
the BLM-managed lands surrounding the private lands under lease are
part of the
[[Page 35579]]
Leasable and Saleable mineral withdrawal enacted by the Steens Act and
implemented under the Steens Mountain Cooperative Management and
Protection Area Resource Management Plan. The BLM informed Pueblo
Valley Geothermal LLC that they would not be able to complete an
exchange for various reasons, including: (1) Difficulties in proposing
and mitigating a project that would alter land designated as Visual
Resource Management Class 2 (the visual resource management objective
for class 2 is to retain the existing character of the landscape, and
the level of change to the characteristic landscape should be low); (2)
the lack of time and staffing to complete a feasibility analysis; and
(3) the BLM's requirement that the exchange demonstrate a clear public
benefit. The BLM suggested the best route would be to find a geothermal
resource outside of the mineral withdrawal area and pursue exploration
and development there. Pueblo Valley Geothermal LLC subsequently has
become inactive and filed to dissolve their LLC status in the State of
Oregon on December 26, 2013.
As stated previously, although the passage of the Steens Act
designated a mineral withdrawal area on public lands surrounding Borax
Lake, it does not include 322 ac (134 ha) of BLM-administered lands and
2,000 ac (809 ha) of private land located within a radius of
approximately 1 to 4.5 mi (1.6 to 7.24 km) from Borax Lake. Therefore,
while we view this criterion as having been met, we acknowledge there
remains a potential for geothermal development on lands not formally
withdrawn from geothermal or mineral development in the Alvord Basin
and that future development of these resources constitutes a potential
threat to Borax Lake chub. That said, we have determined the likelihood
of this threat becoming operative in the foreseeable future is low.
See ``Delisting Criterion 3'' and D. The Inadequacy of Existing
Regulatory Mechanisms for additional discussion regarding the threat of
geothermal resource development.
Downlisting Criterion 4: Reestablishment of ponds and natural
marshes adjacent to Borax Lake in order to create more chub habitat,
and reestablishment of Lower Borax Lake by waters from Borax Lake in
order to create more habitat.
The intent of this criterion was to restore natural processes and
maximize habitat for Borax Lake chub, and that has been accomplished.
Although the reestablishment of Lower Borax Lake has not occurred, the
Service determined subsequent to the development of the recovery plan
that the reestablishment of the lake was not necessary for the recovery
of the species. The 5-year review in 2012 (USFWS 2012, pp. 7, 26)
concluded that Lower Borax Lake does not provide suitable habitat for
Borax Lake chub due to desiccation during summers with low
precipitation and to unsuitable habitat in the winter due to freezing.
As a result, we no longer consider reestablishment of Lower Borax Lake
to be a necessary action for Borax Lake chub recovery.
Numerous actions to maintain lake levels and restore natural
outflows (and thereby reestablish ponds and natural marshes) have
occurred at Borax Lake since the Borax Lake chub was listed. Beginning
in 1983, TNC, with assistance from the BLM and the ODFW, repaired holes
in the northern and eastern shorelines of the lake, and deepened the
outflow channel on the southwestern shoreline to promote flow to Lower
Borax Lake (USFWS 1987, p. 23). In 1984, the Service and TNC manually
constructed several channels diverting water from the southwestern
outflow channel into the adjacent marsh (USFWS 1987, p. 25). By 2003,
there was no open-water connection between Borax Lake and Lower Borax
Lake, but Lower Borax Lake did contain water at that time (Williams and
Macdonald 2003, p. 7).
The only habitat outside of Borax Lake that provides habitat for
Borax Lake chub is the wetland (referred to as ``the marsh'' in the
1982 listing rule (47 FR 43957; October 5, 1982)) to the south of Borax
Lake, the overflow channel that connects the wetland to Borax Lake, and
a second overflow channel on the northern end of the lake. Although the
wetland at times maintains water year-round, water levels are variable
and are influenced by a groundwater vent in the wetland and overflow
from Borax Lake. The seasonal pattern and overall contribution of
groundwater inputs to the wetland are not understood. In September
2015, the wetland was dry, due in part from reduced flow from Borax
Lake caused by a vegetation plug in the overflow channel and presumably
no or reduced contribution from groundwater. Later that fall, the
wetland was observed to be full, presumably due to increased
groundwater inputs. In response to the reduced flow in the overflow
channel, the ODFW manually removed vegetation in spring 2016, to
provide a more consistent flow through the overflow channel (Scheerer
2016, pers. comm.). Therefore, while groundwater inputs to the wetland
are unpredictable, the increased flow through the overflow channel due
to manual vegetation removal by the ODFW is anticipated to increase the
likelihood of maintaining habitat in the wetland for the Borax Lake
chub. While the wetland and several overflow channels do not represent
a large amount of habitat for the Borax Lake chub, they are potentially
important cool-water refuge habitats during periods of above-average
air temperatures when suitable cool-water habitat in Borax Lake may be
reduced. An associated discussion can be found under ``Delisting
Criterion 1'' and A. The Present or Threatened Destruction,
Modification, or Curtailment of Its Habitat or Range in this final
rule.
Delisting Criteria
In addition to the four downlisting criteria, the recovery plan
also identified six additional criteria for delisting.
Delisting Criterion 1: A viable, self-sustaining population of
Borax Lake chub, which is defined as a naturally sustaining population
that is free of exotic species and fluctuates in size within the
seasonal ranges observed in 1986 to 1987.
This criterion has been met. Data collected from 1986 through 2019
show a self-sustaining population persists at Borax Lake. The
population is naturally sustaining without the need for
supplementation, such as propagation in a hatchery or in aquaria.
The Borax Lake chub is a species that demonstrates high annual
variability in population abundance, ranging from a low of 1,242
estimated fish in 2015, to a high of 76,931 in 2017 (see table, below).
As recently as 2010 and 2011, the population estimates were 25,489 and
26,571, respectively. The latest population estimate was 44,933 in
2019. Prior to 2015, the lowest population estimate was 4,132 in 1988.
Such population variability, with opportunistic demographic resilience,
is relatively common for small desert fishes (Winemiller 2005, pp. 878-
879). In the case of the Borax Lake chub, population variation likely
results from a combination of factors including short life span,
seasonal and annual variability in habitat conditions, and occurrence
in water temperatures at the edge of the species' thermal tolerance.
Given our improved knowledge of natural variability as described above,
we have concluded that the portion of this delisting criterion that
called for population levels to fluctuate within the narrow range of
population estimates conducted in 1986 and 1987 is unrealistic, and is
no longer reasonable
[[Page 35580]]
to maintain as a recovery goal for this species.
Table of Population Mark-Recapture Estimates for Borax Lake Chub From 1986 to 2019, Including Adjusted Lincoln-
Peterson and Huggins Closed Capture Models1
----------------------------------------------------------------------------------------------------------------
Lower 95% Upper 95%
Year 2 Estimate confidence limit confidence limit
----------------------------------------------------------------------------------------------------------------
1986................................................ 15,276 13,672 17,068
1987................................................ 8,578 7,994 9,204
1988................................................ 4,132 3,720 4,589
1989................................................ 14,052 13,016 15,172
1990................................................ 19,165 18,117 20,273
1991................................................ 33,000 31,795 34,251
1992................................................ 25,255 24,170 26,388
1993................................................ 35,650 34,154 37,212
1994................................................ 13,421 12,537 14,368
1995................................................ 35,465 33,533 37,510
1996................................................ 8,259 7,451 9,153
1997................................................ 10,905 10,377 11,459
2005................................................ 14,680 12,585 17,120
2006................................................ 8,246 6,715 10,121
2007................................................ 9,384 7,461 11,793
2008................................................ 12,401 10,681 14,398
2009................................................ 14,115 12,793 15,573
2010................................................ 25,489 23,999 27,071
2011................................................ 26,571 24,949 28,301
2012................................................ 9,702 9,042 10,452
2015................................................ 1,242 1,077 1,456
2016................................................ 9,003 8,045 10,560
2017................................................ 76,931 68,444 86,952
2019................................................ 44,933 41,083 49,148
----------------------------------------------------------------------------------------------------------------
\1\ Adjusted Lincoln-Peterson and Huggins closed capture models are referenced in Scheerer et al. 2012, p. 7.
See Salzer 1992, p. 17; Salzer 1997, no pagination; Scheerer and Bangs 2011, p. 4; Scheerer et al. 2012, pp. 6-
7; Scheerer et al. 2015, p. 3; Scheerer et al. 2016, p. 5; Meeuwig 2017, pers. comm.; Bangs 2019, pers. comm.
\2\ Surveys were not conducted from 1998 to 2004, from 2013 to 2014, and in 2018.
Since the time of listing, two known mortality events occurred
during periods when high air temperature and water coincided; during
these events, maximum air and water temperatures exceeded 37 [deg]C and
41 [deg]C, respectively (Williams et al. 1989 p. 8-10, Scheerer et al.
2016, p. 9). Despite dramatic declines, population abundance quickly
rebounded following these two mortality events. In the summer of 1987,
a significant portion of larger adult fish were lost during a heat-
related mortality event; however, juvenile fish were plentiful during a
fall sampling event using fine meshed traps, leading researchers at the
time to conclude that smaller fish were less susceptible to heat-
related mortality (Williams et al. 1989, p. 14, Scoppetone et al. 1995,
p. 43). In later years, traps were used with larger mesh that did not
allow researchers to capture juvenile fish. Between 2005 and 2016, ODFW
noted a significant negative relationship between water temperature and
population abundance (Scheerer et al. 2016, p. 9), noting the duration
of days higher than the suggested thermal tolerance of the species.
Daily maximum water temperatures recorded during this period often
exceeded the suggested Borax Lake chub thermal tolerance by a wide
margin (Scheerer et al. 2016, p. 7). However, in the summer of 2017,
water temperature was higher than the suggested thermal tolerance for a
longer duration than any period in the 2005-2016 record, although peak
daily maximum temperatures were lower than some years (ODFW 2020, in
prep). June-August maximum air temperatures were similar to maximum air
temperatures observed during the mortality events observed in 1989 (NW
Climate Toolbox). Rather than the expected results of a decline in
population abundance, the estimated population abundance in the fall of
2017 was twice as high as any previous estimate. Thus, while the 2015
estimate of 1,242 fish represents the lowest estimate on record, the
pattern of variability observed over 3 decades of monitoring population
abundance underscores the resiliency of this species and its ability to
rebound quickly (see table, above).
With one exception, periodic surveys since 2005 have not identified
any exotic species within Borax Lake (Scheerer and Jacobs 2005, 2006,
2007, 2008, 2009, and 2010; Scheerer and Bangs 2011; Scheerer et al.
2012, 2015, and 2016). However, in 2013, during shoreline surveys
conducted by the ODFW, biologists noted a large fish with paired dorsal
fins (presumably a bass) (Scheerer et al. 2013, p. 10). No additional
sightings of the bass occurred during the ODFW surveys (Hurn 2014,
pers. comm.) or during subsequent efforts to capture the bass (see C.
Disease or Predation, below). Survival of the bass is believed to be
unlikely given the high water temperatures in Borax Lake. No known
occurrence of disease or predation affecting the population of Borax
Lake chub has occurred since the time of listing (47 FR 43957; October
5, 1982). The best available scientific data indicate Borax Lake chub
are a viable, self-sustaining population in habitat currently free from
exotic species.
Delisting Criterion 2: Permanent protection for the 160-acre parcel
of land to the north of Borax Lake (T37S, R33E, sec. 11) by TNC or
other appropriate public resource agency.
This criterion has been met. In 1983, TNC leased two 160-ac (65-ha)
private land parcels, one surrounding Borax Lake and the other
immediately to the north of the lake. TNC purchased these two parcels
in 1993, placing both parcels in public or conservation ownership and
protection.
[[Page 35581]]
Delisting Criterion 3: Withdrawal of Borax Lake waters from
appropriations.
This criterion has been met. With the acquisition of Borax Lake by
TNC, surface waters on their land cannot be appropriated by others.
Additionally, in 1991, the ODFW filed an application for the water
rights to Borax Lake for conservation purposes. The water right was
certified and issued to the Oregon Water Resources Department on
December 16, 1998, for the purpose of providing habitat for the Borax
Lake chub (OWRD 1998, entire).
Delisting Criterion 4: Establishment of a fence around the 640-acre
critical habitat area to prevent vehicle entry.
This criterion has been mostly met. The Andrews/Steens Resource
Area, Burns District BLM, has constructed facilities to modify public
access and enhance public understanding of the Borax Lake area. The
Burns District BLM closed access roads in the vicinity of Borax Lake,
realigned the fence surrounding Borax Lake to limit vehicle access, and
designated visitor parking. Partial funding for the fencing project
came from the BLM's Threatened and Endangered Species Recovery Fund, an
initiative started in 2010 that supports projects targeting key
recovery actions for federally listed and candidate species occurring
on BLM lands. The BLM plans to install interpretive signs at the
designated parking area (USFWS et al. 2018, p. 7). The lake is now
completely enclosed by fencing, although approximately 30 ac (12 ha) of
critical habitat remains outside the fenced portion of the critical
habitat, leaving approximately 0.6 mi (1 km) of road accessible to
vehicles within designated critical habitat. The remaining area of the
critical habitat will remain unfenced to provide for vehicle access,
parking, and interpretative signs, while still protecting the Borax
Lake environment. The BLM and ODFW will continue to assess the
effectiveness of the vehicle closure for protection of the Borax Lake
area. Barring any new information indicating that the existing fencing
is insufficient to protect the Borax Lake chub, fencing of the
remaining critical habitat appears to be unnecessary.
Delisting Criterion 5: Establishment of monitoring programs to
survey habitats and fish population status.
This criterion has been met. Numerous studies of the ecology and
habitat of Borax Lake have been conducted (Salzer 1992; Scoppettone et
al. 1995; Furnish et al. 2002; Scheerer and Jacobs 2005, 2006, 2007,
2008, 2009, 2010; Scheerer and Bangs 2011; Scheerer et al. 2012, 2013).
TNC conducted abundance estimates from 1986 through 1997. The ODFW
conducted mark-recapture population surveys from 2005 through 2012, and
again in 2015 and 2016; developed a survey protocol; and recommended a
long-term monitoring strategy (Scheerer and Jacobs 2005, 2006, 2007,
2008, 2009, 2010; Scheerer and Bangs 2011; Scheerer et al. 2012, 2013,
2015, 2016). The ODFW also conducted surveys to monitor the condition
of the lake shoreline, outflows, and adjacent wetlands. Additional
physical data, including hydrologic information, substrate mapping,
outflow monitoring, tracking of water levels, and geological and slope
stability, were gathered in the 1990s (Scoppettone et al. 1995; Wilson
2000).
Following delisting, the Borax Lake chub post delisting monitoring
(PDM) plan will facilitate the implementation of annual monitoring,
except for surveys to estimate population abundance, which will be
conducted once every 3 years over a 10-year period (four population
surveys total), which will begin following the effective date of this
rule (see DATES, above). Given the Borax Lake chub is a short-lived
fish (few survive beyond 1 year; Scoppettone et al. 1995, p. 36),
periodic monitoring over this time period will allow us to address any
possible negative effects to the Borax Lake chub. Additionally, the
chub experienced wide fluctuation in its population year-to-year.
Limited point estimates for a widely fluctuating population can lead to
difficulty assessing long-term trends. Therefore, although the minimum
PDM period required by the Act is 5 years, as described above, we chose
to extend the population abundance monitoring cycle to once every 3
years and the total monitoring period to 10 years to ensure we can
accurately measure changes in trends.
Furthermore, with the understanding that the Borax Lake chub is a
conservation-reliant species, the BLM, ODFW, and Service developed a
CMP (USFWS et al. 2018) that outlines long-term management actions
necessary to provide for the continued persistence of habitats
important to Borax Lake chub. The CMP was agreed to, finalized, and
signed by the BLM, ODFW, and Service in June 2018. The cooperating
parties committed to the following monitoring actions: (1); Borax Lake
chub population monitoring; (2) habitat and shoreline monitoring; (3)
water temperature monitoring and assessment of potential impacts from
climate change; and (4) lake-level monitoring and management to assure
ODFW's water right is maintained (USFWS et al. 2018, p. 1). The CMP has
no termination date. While the CMP provides agency commitments for
long-term stewardship of Borax Lake and Borax Lake chub, the CMP is a
voluntary agreement, and delisting is not dependent upon implementation
of the actions described in the CMP.
Delisting Criterion 6: Lack of any new threats to the species or
ecosystem for 5 consecutive years.
This criterion has been met. Although this final rule identifies
climate change as a new potential stressor in the future, we have
determined it is not operative on the species or its habitat currently,
and is not anticipated to negatively affect the species in the
foreseeable future. Increases in ambient air temperatures have caused
impacts to Borax Lake chub when they coincided with periods of elevated
temperatures from the geothermal inflow to the lake. The frequency of
these impacts may potentially increase in the future. Subsequent to the
publication of the proposed rule to delist Borax Lake chub (84 FR 6110;
February 26, 2019), additional analyses of available 2017 data were
conducted that resulted in a slightly modified interpretation (from
that presented in the proposed rule) of the relationship between air
and water temperature (ODFW 2020, in prep). The new analyses indicate
that increased air temperature may slow the cooling of the geothermal
waters at Borax Lake, and we anticipate that thermal refuge associated
with shallow margin habitat and cool and cold water vents in the lake,
along with the species' ability to rebound quickly following periods of
elevated water temperatures, will provide resilience against any future
potential effects of climate change. See our discussion under A. The
Present or Threatened Destruction, Modification, or Curtailment of Its
Habitat or Range, below, for a more detailed description on potential
effects of climate change.
Summary of Changes From the Proposed Rule and Draft PDM Plan
We considered all comments and information we received during the
comment period for the proposed rule to delist Borax Lake chub (84 FR
6110; February 26, 2019). This resulted in the following changes from
the proposed rule in this final rule:
We made minor editorial changes and reorganized various
sections of the rule to increase readability.
We conducted additional analyses of available climate
information.
We revisited and reanalyzed available species life-history
information along with air and water temperature data.
[[Page 35582]]
We added additional details regarding the PDM and Borax
Lake chub CMP.
This also resulted in the following changes to the PDM plan:
We modified and extended the PDM from 5 years to 10 years
and increased the frequency and type of information scheduled to be
collected in order to increase our ability to detect changes in habitat
or population abundance that may be attributed to climate change.
We assessed the opportunities for a second population.
Based in part on concerns expressed by public and peer reviewers
regarding potential impacts of climate change, we determined
establishing a secondary refuge population of Borax Lake chub through
translocation would increase population redundancy, and spread risk
inherent to any naturally rare or endemic species. Therefore, in
addition to monitoring Borax Lake, the Service and our partners will
evaluate the feasibility of establishing a secondary refuge population
of Borax Lake chub at a yet-to-be-determined location in the Alvord
Basin during the PDM period as a long-term conservation measure for the
species. Although the species does not require this action to persist
long-term, establishment of a secondary refuge population would provide
additional assurance and conservations benefits. Similar steps have
been taken for other naturally rare or endemic species.
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for listing
species, reclassifying species on the List, or removing species from
listed status. ``Species'' is defined by the Act as including any
species or subspecies of fish or wildlife or plants, and any distinct
vertebrate population segment of fish or wildlife that interbreeds when
mature (16 U.S.C. 1532(16)). The Act defines an endangered species as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a threatened species as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether any species is an
``endangered species'' or a ``threatened species'' because of any of
the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species--such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
We must consider these same five factors in delisting a species. We
may delist a species according to 50 CFR 424.11(e) if the best
available scientific and commercial data indicate that: (1) The species
is extinct; (2) the species does not meet the definition of an
endangered or a threatened species; or (3) the listed entity does not
meet the statutory definition of a species.
A recovered species is one that no longer meets the Act's
definition of endangered or threatened. For species that are already
listed as endangered or threatened, this analysis of threats is an
evaluation of both the threats currently facing the species and the
threats that are reasonably likely to affect the species in the
foreseeable future following delisting or downlisting (i.e.,
reclassification from endangered to threatened) and the removal or
reduction of the Act's protections.
The Act does not define the term ``foreseeable future.'' Our
proposed rule described ``foreseeable future'' as the extent to which
we can reasonably rely on predictions about the future in making
determinations about the future conservation status of the species. The
Service since codified its understanding of foreseeable future in 50
CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. The Service will
describe the foreseeable future on a case-by-case basis, using the best
available data and taking into account considerations such as the
species' life-history characteristics, threat-projection timeframes,
and environmental variability. The Service need not identify the
foreseeable future in terms of a specific period of time. These
regulations did not significantly modify the Service's interpretation;
rather they codified a framework that sets forth how the Service will
determine what constitutes the foreseeable future based on our long-
standing practice. Accordingly, though regulations do not apply to the
final rule for the Borax Lake chub because it was proposed prior to
their effective date, they do not change the Service's assessment of
foreseeable future for the Borax Lake chub as contained in our proposed
rule and in this final rule. We think it is reasonable to define the
foreseeable future for Borax Lake chub to be a range of 20 to 30 years
based on the following analysis. In considering the foreseeable future
as it relates to the status of the Borax Lake chub, we consider the
factors affecting the species, historical abundance trends, and ongoing
conservation efforts. Our period of record for monitoring the Borax
Lake chub and its associated habitat extends back more than 30 years,
which, when combined with our knowledge of factors
[[Page 35583]]
affecting the species, allows us to reasonably predict future
conditions, albeit with diminishing precision over time. We also expect
the ODFW, BLM, and TNC to continue to manage Borax Lake and to conserve
Borax Lake chub. This expectation is based on both the fact that for
over 3 decades, the ODFW, BLM, and TNC have taken actions benefiting
the Borax Lake chub and the Borax Lake ecosystem, as well as the lack
of termination date on the CMP signed by the three entities that
facilitates conservation for the Borax Lake chub into the future.
Furthermore, ODFW's water right for Borax Lake that protects water
levels for the Borax Lake chub is held in perpetuity (OWRD 1998,
entire). Finally, as discussed below, our understanding of the
potential future effects of climate change on Borax Lake chub and its
habitat is based on downscaled climate change projections that extend
out approximately 30 years, to the year 2049 (Alder and Hostetler 2016,
entire).
In examining threats to narrowly distributed endemic species such
as the Borax Lake chub, we must consider that natural rarity (i.e., a
species that only exists in one or a few locations, though it may be
abundant there), in and of itself, does not constitute a threat under
the Act. Natural rarity may increase risk or vulnerability if threats
are operative on the species or its habitat now or in the foreseeable
future, but rarity, in and of itself, does not constitute a threat
under the Act.
In the following analysis, we evaluate the status of the Borax Lake
chub through the five-factor analysis of threats currently affecting
the species, or that are likely to affect the species within the
foreseeable future.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
At the time of listing in 1982 (47 FR 43957; October 5, 1982), the
primary threats to the Borax Lake chub consisted of potential impacts
from geothermal energy development on BLM and private lands near Borax
Lake, diversion of the lake's outflows by alteration of the shoreline
crust, and potential development of a recreation facility. Since the
time of listing, actions have been taken to reduce or eliminate these
threats, as discussed below. We also include an analysis of the effects
of climate change as a potential threat to habitat in the foreseeable
future.
Recreation, Water Diversion, and Shoreline Habitat Alteration
The recreation facility discussed in the 1982 listing rule was
never developed, and acquisition of the property by TNC eliminated the
potential for development of a recreation facility at the Borax Lake
site (Williams and Macdonald 2003, p. 12).
The ODFW filed for water rights at Borax Lake in 1991, and that
water right is now certified and held in trust by the Oregon Water
Resources Department (OWRD 1998, entire), to prevent further attempts
at diverting the water and to ensure maintenance of the water elevation
in Borax Lake (see ``Delisting Criterion 3'' discussion, above). The
purpose of the water right is to provide the required habitat
conditions for Borax Lake chub. The right is established under Oregon
Revised Statute 537.341, with a priority date of August 21, 1991. The
right is limited to the amount of water necessary to maintain a surface
water elevation of 4,081 ft (1,244 m) above mean sea level. The
certificate will remain in place in perpetuity. The certificate does
not need beneficial use (i.e., actively used) every 5 years like many
other water right certificates. As long as Borax Lake chub exist in
Borax Lake, the use is being applied as intended in the water right (J.
Anthony 2020, pers. comm.). The right has been recorded in the State
record of Water Right Certificates as 75919 (OWRD 1998, entire).
The 160-ac (65-ha) private land parcel containing Borax Lake was
purchased by TNC in 1993 (Williams and McDonald 2003, p. 2). Subsurface
mineral rights are included. Since TNC acquisition, surface waters on
their land, upon which Borax Lake is located, can no longer be
appropriated by others. Additionally, TNC ended the practice of
actively diverting surface water from the eastern side of the lake to
reduce the impact from prior water diversions (Williams and McDonald
2003, p. 7). The BLM designated the adjacent 600 ac (243 ha) of public
lands as an ACEC for the conservation of Borax Lake chub, and the area
was fenced to exclude livestock from entering the ACEC (see
``Downlisting Criterion 2'' discussion, above; BLM 2005a, p. 70).
Off-road vehicle damage along the lake shoreline has been
documented in the past (Scheerer and Jacobs 2005, p. 6; 2006, p. 7;
2007, p. 6; 2008, p. 6; 2009, p. 8; 2010, p. 4; Scheerer and Bangs
2011, p. 9; Scheerer et al. 2012, p. 13; Scheerer et al. 2013, p. 6).
As a result, in 2011, the BLM and TNC completed fencing the remaining
perimeter of the lake and most of the associated critical habitat to
exclude unauthorized vehicles (Scheerer and Bangs 2011, p. 11), and in
2013, they installed locks on all access gates (Scheerer et al. 2013,
pp. 9-10). Due to the completion of the perimeter fence, the threat to
Borax Lake chub and its habitat from shoreline habitat alteration by
vehicles has been addressed.
Geothermal Development
Geothermal exploration and development has been pursued in the
Alvord Known Geothermal Resource Area and specifically in the vicinity
of Borax Lake from the early 1970s (Wassinger and Koza 1980, p. 1) to
2013. The Alvord Known Geothermal Resource Area is a 176,835-ac
(71,563-ha) area within the Alvord Basin (Wassinger and Koza 1980, p.
7). Development of geothermal resources was considered in 1980, and
exploratory wells were drilled in 1982 (47 FR 43957; October 5, 1982).
In 1994, Anadarko proposed additional geothermal exploration and
development, and the BLM prepared a notice of intent to prepare an
environmental impact statement (EIS). After receiving public scoping
comments, Anadarko withdrew its development proposal, and no EIS was
written (Geisler 2009, pers. comm.).
The passage of the Steens Act in 2000, and the finalization of the
BLM resource management plan (RMP) (BLM 2005a, p. 71), withdrew mineral
and geothermal resources from development on Federal lands within the
Alvord Known Geothermal Resource Area. The BLM retained 332 ac (134 ha)
of land with high potential for geothermal resources west of Fields and
within 4.5 mi (7.2 km) of Borax Lake open for leasable mineral and
geothermal development (BLM 2005a, p. I-2). Private lands within this
area are not affected by the mineral withdrawal.
In 2008, the BLM and DOGAMI received inquiries on behalf of private
landowners in Alvord Basin regarding the development of geothermal
resources. The BLM was contacted regarding electrical transmission and
right-of-way (ROW) access to cross BLM lands in order to explore and
develop commercial geothermal electrical power (Bird 2008, pers.
comm.). The developer, Pueblo Valley Geothermal LLC, met with the BLM
in 2008, to discuss their interest in obtaining an ROW permit to access
private land and construct a power plant. Although the Steens Act and
subsequent RMP withdrew the Alvord Known Geothermal Resource Area from
geothermal development, the RMP could allow an ROW permit because the
area in question is not within the Cooperative Management and
Protection Area boundary. ROWs are a valid use of public lands under
sections 302 and 501 of the Federal Land Policy and Management Act of
1976 (43 U.S.C.
[[Page 35584]]
1701 et seq.), as amended (BLM 2005a, p. 59). The BLM would be
responsible under the National Environmental Policy Act (42 U.S.C. 4321
et seq.) to analyze any proposed ROW project, including the connected
actions, such as exploratory well drilling and power line construction.
The proposed power plant was anticipated to generate 1 to 10
megawatts (Hall 2011, pers. comm.). Pueblo Valley Geothermal LLC
acquired a 53-year lease on approximately 2,000 ac (809 ha) from
landowners located south of Alvord Lake, and within 3 mi (4.8 km) and
as close as 1 mi (1.6 km) from Borax Lake (Hall 2009, pers. comm.).
Pueblo Valley Geothermal LLC also placed an advertisement in the
publication ``Geothermal Energy Weekly'' seeking investors for a 20- to
25-megawatt geothermal facility (Geothermal Energy Association 2010, no
pagination). The developer indicated in 2011 that they were progressing
with resource assessments regarding the total megawatt and economic
potential (Hall 2011, pers. comm.). No formal permit applications were
received by the BLM or DOGAMI in 2011 (Houston 2008, pers. comm.;
Houston 2010, pers. comm.; Houston 2011, pers. comm.), and as of 2018,
we are not aware of any such applications.
Pueblo Valley Geothermal LLC submitted an informal proposal to the
BLM on January 31, 2012, seeking to acquire 3,360 ac (1,360 ha) of BLM
land in the vicinity of the Borax Lake geothermal aquifer in the
interest of developing an air-cooled binary geothermal plant to produce
20 to 25 megawatts of electricity (McLain 2012, pers. comm.). The BLM
responded with a letter on March 14, 2012, explaining that due to
various reasons including resource concerns, funding, and staffing
priorities, such a land exchange was not feasible at that time (Karges
2012, pers. comm.). Pueblo Valley Geothermal LLC indicated to us that
the proposal to develop geothermal energy on private land in the
vicinity of Borax Lake was not active (Hall 2014, pers. comm.). The
Oregon Secretary of State Office maintains an online business registry
of Limited Liability Company (LLC) companies (Oregon Secretary of State
2019). The list was consulted, and we found that the company, Pueblo
Valley Geothermal LLC, filed an article of dissolution on December 26,
2013. A review of the Harney County Assessor's property records show
that 320 ac (129 ha) of land previously leased by Pueblo Valley LLC,
which is approximately 1 mi (1.6 km) west of Borax Lake, is now owned
by Oregon Geothermal LLC. We do not have any new information on permit
applications from Oregon Geothermal LLC or any other new geothermal
proposals that may arise in the foreseeable future.
Potential impacts resulting from geothermal development that were
identified at the time of listing include effects to water elevation in
Borax Lake due to the interconnecting aquifers or springs. Drilling
could disrupt the hot water aquifer that supplies Borax Lake. Potential
impacts from geothermal energy drilling could include changes to the
aquifer pressure or temperature, and the potential to lessen or
eliminate inflows to the lake from the geothermal aquifer. Changes to
water flow and water temperature may have an adverse impact on the
Borax Lake chub. Although the species tolerates thermal waters,
excessive warming of the lake's water could cause adverse physiological
effects, and, at extremes, would be lethal to the Borax Lake chub.
In summary, proposals to develop geothermal energy resources in the
Borax Lake vicinity have occurred sporadically in the 1970s, in the
1980s, in 1994, and in 2008 through 2012. However, none of these
proposals has moved forward with permitting and implementation over a
4-decade period, and this history leads us to conclude that the
likelihood of geothermal energy development now and in the foreseeable
future is low. Furthermore, while geothermal development in the
vicinity of Borax Lake is considered a potential threat to the Borax
Lake chub, the precise effects of possible geothermal development on
the species are uncertain and unpredictable. The potential effects to
the species would depend upon the specifics, such as the scale of the
project and proximity to Borax Lake, of any geothermal energy
development that might proceed to the implementation phase. Depending
on the particular circumstances of any particular project, such
development could potentially have a negative effect on the species, or
it might have no or negligible effects. The effects of any future
geothermal project proposal on Borax Lake chub would be assessed based
on specific project details and other data available at the time. If an
assessment suggested a future geothermal project would likely cause
significant risk to Borax Lake and the well-being of Borax Lake chub,
and existing regulatory mechanisms did not deter or result in
modifications to the development to minimize or eliminate likelihood of
impacts to the chub, we have the discretion to use the emergency
listing authorities under section 4(b)(7) of the Act, such as we used
in the May 28, 1980, emergency listing of Borax Lake chub (45 FR
35821). The possibility of geothermal development in the vicinity of
Borax Lake will continue to represent a potential threat to Borax Lake
chub and its habitat, but we have determined the likelihood of this
threat becoming operative in the foreseeable future is low.
Effects of Climate Change
The Intergovernmental Panel on Climate Change (IPCC) concluded that
the evidence for warming of the global climate system is unequivocal
(IPCC 2013, p. 3). Numerous long-term climate changes have been
observed including changes in arctic temperatures and ice, widespread
changes in precipitation amounts, ocean salinity, wind patterns, and
aspects of extreme weather including droughts, heavy precipitation, and
heat waves (IPCC 2013, p. 4). The general climate trend for North
America includes increases in mean annual temperatures and
precipitation and the increased likelihood of extreme weather events by
the mid-21st century (IPCC 2014, pp. 1452-1456). Changes in climate can
have direct or indirect effects on species; may be positive, neutral,
or negative; and may change over time, depending on the species and
other relevant considerations such as the effects of interactions of
climate with other variables (e.g., habitat fragmentation) (IPCC 2007,
pp. 8-14, 18-19).
Global climate projections are informative and, in some cases, the
only or the best scientific information available for us to use.
However, projected changes in climate and related impacts can vary
substantially across and within different regions of the world (e.g.,
IPCC 2007, pp. 8-12). Therefore, we use ``downscaled'' projections when
they are available and have been developed through appropriate
scientific procedures, because such projections provide higher
resolution information that is more relevant to spatial scales used for
analyses of a given species (see Glick et al. 2011, pp. 58-61, for a
discussion of downscaling).
Downscaled projections as of 2016 were available for our analysis
from the U.S. Geological Survey (Alder and Hostetler 2016, entire). The
National Climate Change Viewer is based on the mean of 30 models, which
can be used to predict changes in air temperature and precipitation for
the Alvord Lake basin in Harney County, Oregon, based on two emission
scenarios, RCP4.5 and RCP8.5. Scenario RCP4.5 is a moderate emissions
scenario (where atmospheric concentrations of greenhouse gases are
[[Page 35585]]
expected to equal approximately 650 parts per million (ppm) after the
year 2100), and RCP8.5 is the most aggressive emissions scenario (in
which greenhouse gases continue to rise unchecked through the end of
the century) (Alder and Hostetler 2016, entire).
With regard to our analysis for the Borax Lake chub, we used both
the RCP8.5 and RCP4.5 emission scenarios to evaluate projected air
temperature increases. Given the timeframe of our analysis (through
2049), both models predicted similar temperature projections. The
RCP8.5 emissions scenario predicted that during the period from 2025 to
2049, the July mean model maximum air temperature will increase by 2.4
[deg]C (4.3 [deg]F) from the historical mean as compared to projected
increase of 1.9 [deg]C (3.3 [deg]F) under the RCP4.5 emissions
scenario. The models predict very little change in the mean annual
precipitation and runoff for the Alvord Lake basin (Alder and Hostetler
2016, entire).
The relationship between air temperature, water temperature, and
habitat suitability at Borax Lake is highly dynamic and not fully
understood. As a geothermal hot spring, water temperatures at Borax
Lake are likely influenced by the temperature and the rate of outflow
from the primary hot water vent and the other secondary cool water
vents, ephemeral thermoclines between areas with relatively cool and
warm water, and wind direction and velocity. A seasonal component
exists in both the magnitude and temperature of inflow from the main
spring vent, and these relationships are correlated with seasonal
runoff in the Alvord Basin (Cummings et al. 1993, p. 120) and seasonal
air temperature (Williams et al. 1989, p. 16). Water temperature from
the main vent can vary from 40 to 148 [deg]C (104 to 298 [deg]F;
Perkins et al. 1996, p. 2), and air temperature likely reduces the
water temperature at the surface of the lake.
The effects that future increases in air temperature may have on
Borax Lake water temperatures is unknown. Although surface water at the
lake appears to be cooled by the air, an increase in air temperature
does not necessarily correspond to an increase in water temperatures at
Borax Lake over a short-term time scale as other factors may impact
lake temperature, including wind, temperature of water from the vent,
and ephemeral thermoclines (Perkins et al. 1996, p. 15). Climate change
predictions for the region show an increase in wind velocity, but the
uncertainty surrounding the relationship between wind velocity, air
temperature, and water temperature prevent predictions on the effects
of such an increase on the temperature of Borax Lake. Currently, water
temperatures often exceed the suggested (Williams and Bond 1983. p.
412) thermal maximum of the species by a wide margin.
The lake experiences high spatial variability in water
temperatures, caused in part by multiple small cold and cool water
vents, besides the main vent. Borax Lake chub seek out relatively
cooler water during high temperature events (Williams et al. 1989, p.
17). However, water temperature has periodically exceeded the suggested
thermal tolerance of the species across all monitoring locations. Since
the time of listing, two known mortality events occurred during periods
when high air and water temperature coincided. Although the abundance
declines associated with these events were substantial, the population
quickly rebounded. Water temperature monitoring between 2005 and 2016
showed a potential negative relationship between abundance and water
temperature. However, in the summer of 2017, water temperature was
higher than the suggested thermal tolerance for a longer duration than
any period in the 2005-2016 record, although peak daily maximum
temperatures were lower than some years (ODFW 2020, in prep). June-
August maximum air temperatures were similar to maximum air
temperatures observed during the mortality events observed in 1989
(Alder and Hostetler 2019, unpaginated). Rather than the expected
results of a decline in population abundance, the estimated population
abundance in the fall of 2017 was twice as high as any previous
estimate.
Borax Lake chub may be adapted to thermal tolerance, and suggested
that annual progressive acclimation to increased temperature may aid
survival during periods of high temperature (Williams et al. 1989, p.
17). Smaller fish appear to be less susceptible to heat-related
mortality (Williams et al. 1989, p. 14). The rapid maturity of juvenile
fish and prolonged spawning period (Williams and Bond 1983, p. 413;
Scoppetone et al. 1995, p. 41; Perkins et al. 1996, p. 18) may enable
successful spawning during consecutive hot years, even if the
population of larger, and presumably older, fish is reduced.
Although a specific analysis has not been conducted to determine
the amount and suitability of thermal refuge habitat that may be
available under various lake and air temperature conditions, the
availability of shallow margin habitat around the perimeter of the
lake, along with the outflow channel and wetland, likely provides
thermal refuge (i.e., cooler water) habitat for the species during
periods when warm air and water temperatures coincide (Scheerer and
Bangs 2011, pp. 5-8; Scheerer et al. 2012, pp. 7-11). In addition, cool
and cold water vents within portions of the lake that likely contribute
to moderating lake temperatures and provide additional areas of thermal
refuge (Scheerer 2018, pers. comm.). While there is evidence these cool
and cold water vents, as well as warm and hot vents within the lake (in
addition to the primary vent) vary in temperature year to year, the
aggregate of these thermal refuge habitats, along with the species'
ability to rebound quickly following periods of higher than normal air
and water temperatures, are anticipated to provide resilience against
potential future effects of climate change.
Although there are no currently available climate projections on
the persistence of springs into the future, changes to precipitation,
drought, aquifer recharge, or vegetative community around Borax Lake as
a result of climate change would not likely have an impact on the Borax
Lake chub. Borax Lake is perched above the valley floor, there is no
inflow of water from above-ground sources, and the vegetative community
is not likely to change due to the temperature increases predicted.
Summary of Factor A
Since the time of listing in 1982 (47 FR 43957; October 5, 1982),
actions have been taken to reduce or eliminate the destruction and
modification of Borax Lake chub habitat. This includes the acquisition
of Borax Lake and surrounding lands by TNC, the BLM's designation of
adjacent lands as an ACEC, protection of subsurface and surface waters,
protection from mineral withdrawal, and closure of fragile lands to
livestock grazing and unauthorized vehicle access. Although these
measures have removed and minimized various threats to Borax Lake and
surrounding lands, the potential for geothermal development, and
consequent possible impacts to Borax Lake chub and its habitat,
remains. The possibility of geothermal development in the vicinity of
Borax Lake will continue to represent a potential threat to Borax Lake
chub and its habitat, but we have determined the likelihood of this
threat becoming operative in the foreseeable future is low.
[[Page 35586]]
Increases in the ambient air temperature from climate change could
slow the cooling of the geothermal waters in Borax Lake. Cooling of the
waters of Borax Lake, especially the shallow margin areas including
several overflow channels and the wetland, is important to the Borax
Lake chub during warm times of the year given that temperatures in some
areas of the lake often exceed the thermal maximum for this species
(Scheerer and Bangs 2011, p. 8) reported as 34.5 [deg]C (94 [deg]F)
(Williams and Bond 1983, p. 412).
Two previous mortality events were observed following periods when
high water temperature and air temperature coincided. It is reasonable
to assume the frequency of these events due to climate change may
increase such that there is a possibility for consecutive year events
of adult population abundance decline associated with abnormally warm
air and water temperatures. We anticipate that thermal refuge
associated with shallow margin habitat and cool and cold water vents in
the lake, along with the species' ability to rebound quickly following
periods of higher than normal air and water temperatures, will provide
resilience against potential future effects of climate change.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization for commercial, recreational, scientific, or
educational purposes was not a factor in listing (47 FR 43957; October
5, 1982) and is currently not known to be a threat to the Borax Lake
chub, nor is it likely to become so in the foreseeable future.
C. Disease or Predation
Disease was not a factor in listing of the Borax Lake chub (47 FR
43957; October 5, 1982) and is currently not known to be a threat to
Borax Lake chub, nor is it likely to become so in the foreseeable
future.
Likewise, predation was not noted as a factor in the listing of
Borax Lake chub (47 FR 43957; October 5, 1982). Several native species
that are likely predators of the Borax Lake chub, such as garter snakes
and common grebes, are found in and around Borax Lake. The Borax Lake
chub evolved in this habitat in the presence of these predatory
species, and the species has persisted in the presence of these
predators. Although we do not believe predation is a threat currently
or in the foreseeable future, a single observation of an exotic fish
did occur in 2013 (see ``Delisting Criterion 1,'' above, for more
discussion). Exotic fish were not observed in repeated surveys, and no
known impacts to Borax Lake chub occurred. The high water temperatures
and water chemistry in Borax Lake, which likely limited the long-term
survival of this exotic fish, also limit the overall likelihood of
establishment of exotic species in Borax Lake. The establishment of a
perimeter fence around Borax Lake by the BLM and TNC in 2011 further
reduced the likelihood of purposeful or accidental introductions of
exotic species to the extent that we conclude that the threat of
predation has been addressed.
As noted previously in this rule, the BLM, ODFW, and the Service
developed a CMP that will guide future monitoring for nonnative
species, monitoring of Borax Lake chub, vehicle access restrictions,
and public outreach and education (USFWS et al. 2018). While the CMP
provides agency commitments for long-term stewardship of Borax Lake and
Borax Lake chub, this delisting is not dependent upon implementation of
the actions described in the CMP.
D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine the stressors identified within the
other factors as ameliorated or exacerbated by any existing regulatory
mechanisms or conservation efforts. Section 4(b)(1)(A) of the Act
requires that the Service take into account ``those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species.'' In relation to
Factor D under the Act, we interpret this language to require the
Service to consider relevant Federal, State, and Tribal laws,
regulations, and other such binding legal mechanisms that may
ameliorate or exacerbate any of the threats we describe in threat
analyses under the other four factors or otherwise enhance the species'
conservation. Our consideration of these mechanisms is described in
detail within each of the threats or stressors to the species (see full
discussion under this section, Summary of Factors Affecting the
Species). For currently listed species that are being considered for
delisting, we consider the adequacy of existing regulatory mechanisms
to address threats to the species absent the protections of the Act. We
examine whether other regulatory mechanisms would remain in place if
the species were delisted, and the extent to which those mechanisms
will continue to help ensure that future threats will be reduced or
minimized.
The following provides an overview of the existing regulatory
protections that protect the Borax Lake ecosystem and Borax Lake chub.
The Nature Conservancy
The 160-ac (65-ha) private land parcel containing Borax Lake and
the 160-ac (65-ha) parcel to the north of the lake were purchased by
TNC in 1993. Subsurface mineral rights are included in the deed. Since
TNC acquisition, surface waters on their land, upon which Borax Lake is
located, can no longer be appropriated by others. Additionally, TNC
ended the practice of actively diverting surface water from the eastern
side of the lake to reduce the impact from prior water diversions.
BLM--Federal Land and Rights-of-Way
The passage of the Steens Act of 2000 and the completion of the
Steens Andrews RMP withdrew the Alvord KGRA from mineral and geothermal
exploration and development (BLM 2005a). The Steens Act congressionally
designated a mineral withdrawal area encompassing 900,000 ac (364,217.1
ha) of the planning area on BLM-administered lands. The mineral
withdrawal area contains the majority of the Alvord KGRA, including
Borax Lake and surrounding public lands, with the exception of 332 ac
(134.4 ha) located approximately 4.5 mi (7.242 km) from Borax Lake (BLM
2005a). Private lands within this area are not affected by the mineral
withdrawal. Approximately 2,000 ac (809.4 ha) of privately owned land
occur within a 3-mi (4.83-km) radius of Borax Lake and are not subject
to BLM's withdrawal. The BLM has responsibility to review all
applications for geothermal development within the Alvord KGRA that
occur on BLM lands and some applications for development on private
lands if the development requires an ROW for access or transmission
lines across BLM-managed lands. ROWs are a valid use of public lands
under sections 302 and 501 of the Federal Land Policy and Management
Act of 1976 (BLM 2005a). The BLM would be responsible under the
National Environmental Policy Act to analyze the environmental impacts
of any proposed ROW project including the connected action (i.e.,
energy development on private lands). By seeking an ROW, the
development of geothermal energy or mineral withdrawal on private lands
would be subject to consultation. All the private land in proximity to
Borax Lake is surrounded by BLM land; thus any development on these
private lands would require a BLM ROW to move energy out of the
development area. The application for an ROW would trigger consultation
with the Service, and therefore potential impacts of the
[[Page 35587]]
development to Borax Lake chub would be assessed.
In 1983, the BLM designated 520 ac (210 ha) of public land
surrounding Borax Lake as an ACEC to protect Borax Lake chub and its
habitat. In 2005, the record of decision for the RMP for the Andrews
Resource Area added 80 ac (32 ha), for a total 600-ac (243-ha) Borax
Lake ACEC (BLM 2005a, p. 70). Despite being delisted, the Borax Lake
chub still meets the BLM's special status species criteria and thus the
ACEC will still meet all ACEC designation criteria. While an ACEC
designation can be removed or modified through a land and resource
management plan (RMP) update, the Burns District currently has no plans
to modify the boundary or change the ACEC in any way (M. Anthony 2020,
pers. comm.).
Off-road vehicle damage along the lake shoreline was documented in
the past (Scheerer and Jacobs 2005, p. 6; 2006, p. 7; 2007, p. 6; 2008,
p. 6; 2009, p. 8; 2010, p. 4; Scheerer and Bangs 2011, p. 9; Scheerer
et al. 2012, p. 13; Scheerer et al. 2013, p. 6). As a result, in 2011,
the BLM and TNC completed a perimeter fence surrounding the lake and
most of the associated critical habitat to exclude unauthorized
vehicles, and in 2013, they installed locks on all access gates. Due to
the completion of the perimeter fence, the threat to the Borax lake
chub from shoreline habitat alteration by vehicles has been addressed.
State of Oregon, Department of Geology and Mineral Industries (DOGAMI)
Oregon Revised Statute (ORS) chapter 522 authorizes DOGAMI to
control drilling, re-drilling, and deepening of wells in Oregon for the
discovery and production of geothermal resources. Under this authority,
a developer undertaking geothermal exploration on all land (public and
private) must first obtain a permit from DOGAMI (Oregon Administrative
Rule (OAR) 632-020-0028). DOGAMI process requires circulation of any
permit application to other State agencies that manage natural
resources such as the Water Resources Department, ODFW, Department of
Environmental Quality, State Parks and Recreation Department,
Department of Land Conservation and Development, Department of State
Lands, and the governing body of the county and geothermal heating
district in which the well will be located (ORS 522.125(1)). Any of
these agencies can suggest conditions under which a permit should be
granted or denied. DOGAMI is required to take State agency comments
into consideration when deciding to grant a permit (OAR 632-020-0170).
As part of the conditions for geothermal development on private land, a
developer is required by DOGAMI to provide baseline information needed
to show there would be no connection to geothermal or groundwater
continuity in areas of environmental concern (i.e., Borax Lake or the
BLM's designated ACEC near Borax Lake). Therefore, the DOGAMI is
required to accept comment, and consider protective measures. This
additional review through the DOGAMI process may benefit the Borax Lake
chub through the addition of conservation measures necessary to obtain
a permit for geothermal exploration.
State of Oregon, Oregon Department of Energy's Energy Facility Siting
Council (EFSC)
The EFSC has regulatory and siting responsibility for proposed
generating facilities greater than 35 megawatts in Oregon. The OAR-345-
022-0040 prohibits the EFSC from issuing site certificates for energy
development in protected areas such as BLM's ACECs and State natural
heritage areas such as TNC's Borax Lake Preserve. For proposed energy
developments in unprotected areas, the EFSC applies Division 22 siting
standards for fish and wildlife habitat (OAR 345-022-0060), threatened
and endangered species (OAR 345-022-0070), and general standards of
review (OAR 345-022-000). Specific to Borax Lake chub, OAR 345-022-0060
requires that a proposed facility comply with the habitat mitigation
goals and standards of the ODFW as defined in OAR 635-415-0025. The
ODFW defines Borax Lake chub habitat as a Habitat Category 1 under the
habitat mitigation standard. Habitat Category 1 is defined as
irreplaceable, essential habitat for a species regardless of listing
status, and will not change when the species is delisted. The
mitigation goal for Habitat Category 1 is no loss of either habitat
quantity or quality. The ODFW is required to protect habitats in
Category 1 by recommending or requiring: (1) Avoidance of impacts
through alternatives to the proposed development action, or (2) no
authorization of the proposed development action if impacts cannot be
avoided. To issue a site certificate, the EFSC must find that the
design, construction, and operation of the facility, taking into
account mitigation, are consistent with the fish and habitat mitigation
goals and standards of OAR 635-415-0025 (OAR 345-022-0060 Fish and
Wildlife Habitat).
State of Oregon, Oregon Department of Fish and Wildlife
The Borax Lake chub was listed as endangered in 1987, and then
reclassified to threatened in 2017, under the Oregon Endangered Species
Act (Oregon ESA; ORS 496.012), which prohibits the ``take'' (killing or
obtaining possession or control) of listed species without an
incidental take permit. The State of Oregon determined that Borax Lake
chub fit the definition of threatened rather than endangered due to
substantial progress in conservation and recovery of the species. The
State criteria for recovery of Borax Lake chub are met due to the
following: (1) TNC owns and protects the parcel containing Borax Lake
and the parcel to the north of the lake; (2) natural reproductive
potential is not endangered; (3) primary habitat is protected; (4)
habitat is protected from commercial use; (5) public access is
restricted to foot traffic; (6) no harvest is allowed; (7) only
infrequent scientific or educational use occurs; (8) most surrounding
land is protected from geothermal development on Federal lands; and (9)
water rights of the lake were obtained by the ODFW for the purpose of
conserving Borax Lake chub.
The Oregon ESA applies to actions of State agencies on State-owned
or -leased land, and does not impose any additional restrictions on the
use of private lands (ORS 496.192). The Oregon ESA is implemented by
the State independently from the Federal Endangered Species Act; thus,
this final rule does not directly impact the current State listing of
Borax Lake chub. Under the Oregon ESA, State agencies (other than State
land-owning or land-managing agencies) determine the role they may
serve in contributing toward conservation or take avoidance (OAR 635-
100-0150). The Oregon Endangered Species List is a nonregulatory tool
that helps focus wildlife management and research with the goal of
preventing species from declining to the point of extinction (ORS
496.171, 496.172, 496.176, 496.182, and 496.192). The ODFW commission
reviews Oregon ESA-listed species at least once every 5 years to assess
status relative to the recovery criteria (OAR 635-100-0120). If the
ODFW commission determines that removal from the Oregon ESA list is
warranted, the commission is required to consult with relevant State
and Federal agencies, cities and counties, federally recognized tribes,
the Natural Heritage Advisory Council, and other States, organizations,
or individuals that have a common interest in the species before making
a final
[[Page 35588]]
decision (OAR 635-100-0105). While a Federal delisting under the Act
does not inherently lead to a delisting under the State ESA, it is
reasonable to assume this may be considered by the ODFW commission in
the future. Given the Oregon ESA does not impose regulations on private
lands, the Service does not anticipate that a potential Oregon ESA
delisting would alter or reduce current or future regulatory
protections for the Borax Lake chub.
Per OAR 635-415-0025 (Habitat Mitigation Policy), the ODFW would
provide comments and recommendations on risks to all native fish and
wildlife from a proposed geothermal development project in the Alvord
Basin through all State and county permitting processes. If there was
any indication that a proposed geothermal development project would
have a geothermal or groundwater connection with Borax Lake, the ODFW
would recommend that alternatives be developed or that the action not
be permitted.
The ODFW filed for water rights at Borax Lake in 1991, and that
right is now certified to the Oregon Water Resources Department (OWRD
1998, entire) to prevent further attempts at diverting the water and to
ensure maintenance of the water elevation in Borax Lake (see
``Delisting Criterion 3'' discussion, above). The purpose of the water
right is to provide the required habitat conditions for the Borax Lake
chub. The right is established under ORS 537.341, with a priority date
of August 21, 1991. The right is limited to the amount of water
necessary to maintain a surface water elevation of 4,081 ft (1,244 m)
above mean sea level. The right has been recorded in the State record
of Water Right Certificates as 75919 (OWRD 1998, entire). The
certificate will remain in place in perpetuity. The certificate does
not need beneficial use (i.e., actively used) every 5 years like many
other water right certificates. As long as Borax Lake chub exist in
Borax Lake, the use is being applied as intended in the water right (J.
Anthony 2020, pers. comm.).
The ODFW's Native Fish Conservation Policy calls for the
conservation and recovery of all native fish in Oregon (ODFW 2002,
entire), including Borax Lake chub. The Native Fish Conservation Policy
requires that the ODFW prevent the serious depletion of any native fish
species by protecting natural ecological communities, conserving
genetic resources, managing consumptive and non-consumptive fisheries,
and using hatcheries responsibly so that naturally produced native fish
are sustainable (OAR 635-007-0503). The policy is implemented through
the development of collaborative conservation plans for individual
species management units that are adopted by the Oregon Fish and
Wildlife Commission. To date, the ODFW has implemented this policy by
following the federally adopted recovery plan and will continue to
conserve Borax Lake chub according to the State rules for conserving
native fish and more specifically the commitments made by the ODFW in
the CMP. The State of Oregon Wildlife Diversity Plan (OAR 635-100-
0080), Oregon Native Fish Conservation Policy (OAR 636-007-0502), and
the Oregon Conservation Strategy (ODFW 2016) provide additional
authorities and protective measures for the conservation of native
fish, including the Borax Lake chub.
Thus, the protections of ODFW's Native Fish Conservation Policy,
and policy on geothermal development permitting, as well as the
establishment of a dedicated water right for conservation at Borax
Lake, provide for significant ongoing protection and allow for critical
review of future development projects. In the event ODFW delists the
species under the State ESA, we conclude that none of these protections
will be weakened due to the fact Borax Lake chub will still meet
criteria under these policies.
Additionally, although not a regulatory mechanism, the CMP, which
was prepared jointly and signed by the BLM, ODFW, and Service, is a
conservation measure that will guide future management and protection
of the Borax Lake chub, regardless of its State or Federal listing
status. The CMP, as explained in more detail under Recovery and
Recovery Plan Implementation, above, identifies actions to be
implemented by the BLM, ODFW, and Service to provide for the long-term
conservation of the Borax Lake chub. The approach of developing an
interagency CMP for the Borax Lake chub to promote continued management
post-delisting is consistent with a ``conservation-reliant species,''
described by Scott et al. (2005, pp. 384-385) as those that have
generally met recovery criteria but require continued active management
to sustain the species and associated habitat in a recovered condition.
Summary of Factor D
Significant regulatory protections are provided to the Borax Lake
ecosystem from the conservation ownership of Borax Lake and surrounding
lands by TNC (320 ac; 129 ha), withdrawal of Borax Lake waters from
appropriation, the mineral withdrawal within the Alvord KGRA under the
2000 Steens Act, and the mineral withdrawal and management guidelines
under the BLM's ACEC around Borax Lake (600 ac; 243 ha); these
protections remain unchanged with the delisting of the Borax Lake chub
under the Act. While State and Federal regulatory mechanisms exist that
would protect the Borax Lake ecosystem from potential effects of
development of geothermal resources on 2,000 ac (809 ha) of private
land in proximity to Borax Lake, they do not guarantee a development
proposal would not legally proceed to implementation. They do, however,
ensure State and Federal natural resource agencies will be made aware
of any proposals moving forward for permitting (e.g., DOGAMI) and that
comments by applicable State and Federal resource agencies will be
considered. As noted previously, DOGAMI requires geothermal developers
to provide baseline information to show there would be no connection to
geothermal or groundwater in areas of environmental concern (e.g.,
Borax Lake or the BLM's designated ACEC near Borax Lake). Similarly,
the EFSC requires that a proposed facility comply with the habitat
mitigation goals and standards of the ODFW as defined in OAR 635-415-
0025. These regulatory mechanisms do not completely remove potential
risk to the Borax Lake chub from geothermal development, but they do
reduce the likelihood of impact from development on private lands in
the vicinity of Borax Lake.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
The 1982 listing rule (47 FR 43957; October 5, 1982) did not
identify any other natural or human-caused factors affecting the Borax
Lake chub or its habitat. No threats have arisen under this threat
factor since that time, and none are anticipated in the foreseeable
future. Potential impacts of climate change are addressed in this final
rule under A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range, above.
Overall Summary of Factors Affecting the Borax Lake Chub
The primary factors that threatened the Borax Lake chub at the time
of listing (47 FR 43957; October 5, 1982) were potential impacts from
geothermal energy development, diversion of the lake's outflows by
alteration of the shoreline crust, and potential development of a
recreation facility.
[[Page 35589]]
Most of these threats or potential threats have been removed or
ameliorated by the implementation of actions identified in the Borax
Lake Chub Recovery Plan (see the discussion of downlisting criteria
under Recovery and Recovery Plan Implementation, above). Actions that
have been taken to reduce or eliminate the destruction and modification
of Borax Lake chub habitat (Factor A) include acquisition of Borax Lake
by TNC, the BLM's designation of adjacent lands as an ACEC, protection
of subsurface and surface waters, protection from mineral withdrawal,
and closure of fragile lands to livestock grazing and unauthorized
vehicle access.
Proposals to develop geothermal energy resources in the vicinity of
Borax Lake have occurred sporadically over the last 4 decades, and for
that reason, it is reasonable to expect additional proposals to develop
geothermal energy are likely in the foreseeable future. However, none
of these proposals has moved forward with implementation over a 4-
decade period, and this history leads us to conclude that the
likelihood of geothermal energy development in the vicinity of Borax
Lake in the foreseeable future is low. Furthermore, while geothermal
development in the vicinity of Borax Lake is considered a potential
threat to the Borax Lake chub, the precise effects of possible
geothermal development on the species are uncertain and unpredictable
given the unknown nature of geothermal fluids and their behavior deep
underground. The response of the species would depend upon the
specifics (e.g., scale of the project and proximity to Borax Lake) of
any geothermal energy development that might proceed to the
implementation phase. Depending on the circumstances of any particular
project, such development could potentially have a negative effect on
the species, or it might have no or negligible effects. The possibility
of geothermal development in the vicinity of Borax Lake will continue
to represent a potential threat to Borax Lake chub and its habitat, but
we have determined the likelihood of this threat becoming operative in
the foreseeable future is low.
Climate change may increase the frequency and duration of above
average air temperatures; when these periods coincide with warm
geothermic water temperature, the combined effect may lead to
reductions in the amount and suitability of habitat for Borax Lake
chub. Water temperatures regularly exceed the proposed thermal maximum
for the species, and above average air temperatures may reduce the
cooling of the water at the surface. However, shallow-water thermal
refuge habitats around the margins of Borax Lake (the overflow channel
and wetland), cool and cold water vents within the lake, increased wind
velocity predicted through climate change, along with the species'
ability to rebound quickly following periods of low population
abundance, are expected to provide resilience against potential future
effects of climate change to the Borax Lake chub.
Factor B (overutilization for commercial, recreational, scientific,
or educational purposes), Factor C (disease or predation), and Factor E
(other natural or manmade factors affecting its continued existence)
were not identified as threat factors in the listing of Borax Lake chub
in 1982 (47 FR 43957; October 5, 1982), and these factors are currently
not known to be threats to the Borax Lake chub now or in the
foreseeable future.
We conclude that existing regulatory mechanisms (Factor D) provide
significant protections to Borax Lake chub and its habitat, especially
on Federal lands, and address most of the reasons that the species was
listed; we have no information to suggest that these regulatory
mechanisms will change in the foreseeable future. No regulatory
mechanisms are in place that fully prevent geothermal development on
private lands in the vicinity of Borax Lake. However, we determined
that this potential threat is not likely to manifest in the foreseeable
future; therefore, we find that there is no need for additional
regulatory mechanisms to address geothermal development.
Summary of Comments and Recommendations
In our proposed rule published on February 26, 2019 (84 FR 6110),
we requested that all interested parties submit written comments on the
proposal by April 29, 2019. We also requested public comments on the
draft post-delisting monitoring plan. We contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We did
not receive any requests for a public hearing.
During the comment period, we received 22 letters or statements
directly addressing the proposed action, including 3 from peer
reviewers, 1 from the State, and 18 from the public. All comments are
posted at http://www.regulations.gov under Docket No. FWS-R1-ES-2017-
0035. Some public commenters and the State support the delisting of the
Borax Lake chub, some did not state whether or not they support the
delisting, and others do not support delisting, although a subset of
these would support downlisting to threatened status. The 3 peer
reviewers do not support the delisting; however, two peer reviewers
would support the species' downlisting to threatened status under the
Act.
We reviewed all comments we received from the peer reviewers, the
State, and the public for substantive issues and new information
regarding the Borax Lake chub. Substantive comments we received during
the comment period are addressed below and, where appropriate, are
incorporated directly into this final rule and the post-delisting
monitoring plan.
State Comments
Section 4(b)(5)(A)(ii) of the Act states that the Secretary must
give actual notice of a proposed regulation under section 4(a) to the
State agency in each State in which the species is believed to occur,
and invite the comments of such agency. Section 4(i) of the Act directs
that the Secretary will submit to the State agency a written
justification for his or her failure to adopt regulations consistent
with the agency's comments or petition. We solicited and received
comments from the Oregon Department of Fish and Wildlife (ODFW). The
ODFW supports our delisting of the Borax Lake chub.
Peer Review and Public Comments on our Proposal To Delist the Borax
Lake Chub
Comment (1): Three peer reviewers and four public commenters
identified climate change as a potential threat to the long-term
persistence of the species and stated that Federal protection under the
Act should be maintained until we have a complete understanding of the
potential impacts of climate change. The peer reviewers and commenters
identified multiple potential effects of climate change, primarily the
influence of increased air temperature on water temperature, and its
influence on the long-term persistence of Borax Lake chub due to
impacts on survival, recruitment, and habitat suitability.
Response: Climate change remains a concern for the long-term
conservation of many aquatic species, including the Borax Lake chub.
However, in the case of the Borax Lake chub, we do not find this
concern rises to the level of justifying the retention of the species'
status as endangered, or reclassifying it to threatened status.
Although we do not fully understand the relationship between air
temperature and other factors influencing water temperature at
[[Page 35590]]
Borax Lake, nor the mechanisms that enable Borax Lake chub to persist
during periods of high water temperature, the species has shown
tremendous capacity to recover from periods of thermal stress, as we
have detailed above under Summary of Factors Affecting the Species and
the ``Delisting Criterion 1'' discussion. While our lack of complete
knowledge of the mechanisms at work does not prohibit us from
determining if the species requires protection under the Act, we
acknowledge the concerns of the reviewers about how the impacts of
climate change may impact the species in the future. We have modified
the PDM to expand and extend the temperature monitoring currently
conducted by ODFW, as suggested by several reviewers, to gain more
knowledge on trends in water temperature in Borax Lake over time. We
included a threshold in the PDM that would trigger the need to visit
Borax Lake and assess the condition of the species and the habitat
during high temperature periods; staff from BLM or ODFW would conduct
this assessment. In addition, during the PDM period, the Service and
our partners will evaluate the feasibility of establishing a refuge
population of Borax Lake chub at a yet-to-be-determined location in the
Alvord Basin as a long-term conservation measure for the species.
Lastly, if climate change degrades habitat to the point that the
likelihood of the species' persistence into the foreseeable future is
low, we have the discretion to use the emergency listing authorities
under section 4(b)(7) of the Act, such as we used in the May 28, 1980,
emergency listing of the Borax Lake chub (45 FR 35821), and will
exercise it as appropriate.
Comment (2): Two peer reviewers and one public commenter
highlighted that the uncertainty of factors influencing spawn timing,
recruitment success, and age structure impedes the accurate prediction
of the effects of climate change on the species and its habitat.
Response: Early work on the Borax Lake chub focused heavily on
determining life-history characteristics of the species and evaluating
the factors identified by the commenters. We acknowledge that we do not
have a complete understanding of these factors, but determine that the
best available scientific and commercial information supports our
conclusion that the species has sufficient resiliency to withstand the
predicted temperature increases, and we do not need complete clarity
regarding these factors before we can assess the potential impacts of
climate change. As discussed above under Summary of Factors Affecting
the Species, the Borax Lake chub has demonstrated flexibility and
variability in its life history, and the ability to quickly rebound
following mortality events, which will make the species resilient to
climate change.
Borax Lake chub have a prolonged spawning period, approximately
October through April, although spawning appears to be infrequent
through the winter. Although it is possible that increased temperatures
in the fall and spring due to climate change may alter spawn timing,
given the long duration over which spawning currently occurs, increased
temperatures during these periods are not expected to impact the
species. We have no information to determine if spawning is more
successful in the fall or spring.
Comment (3): One peer reviewer identified the potential risk of
habitat loss due to a possible collapse of the lake shore in the event
of an earthquake.
Response: While we acknowledge there is scientific evidence the
lake shore has collapsed from past earthquake activity, these
catastrophic events happen on geologic timescales that far exceed our
predictive capabilities. In addition, despite evidence of past lake
shore collapse, the Borax Lake chub has continued to persist. In
acknowledgement of the species' rarity and potential vulnerability to
catastrophic events, the Service and our partners will evaluate, during
the PDM period, the feasibility of establishing a refuge population of
Borax Lake chub at a yet-to-be-determined location in the Alvord Basin
as a long-term conservation measure for the species.
Comment (4): One peer reviewers noted that the impacts of disease
are not clear, and the species may be more susceptible to disease under
increased thermal stress caused by climate change.
Response: We are not aware of any impacts to the persistence of the
species due to disease. Following periods of increased water
temperature, we have not observed changes to the biology, condition, or
population abundance of the species that would lead us to conclude that
stress from increased thermal load leaves the species more vulnerable
to disease. During a cursory fish health examination, 9 of 114 (7.8
percent) fish examined were found to contain a parasitic nematode
(Scoppettone et al. 1995, p. 39), but to our knowledge no other surveys
for disease have been performed. As a part of an ongoing investigation
of the role of disease and parasites in Oregon's nongame fish species,
ODFW plans to study the pathogens in Borax Lake chub during the PDM
period. Potential effects on the persistence of the species will be
unknown until the prevalence and impacts of disease are manifest.
Comment (5): One peer reviewer and four public commenters
identified isolation of Borax Lake as a potential threat to the long-
term persistence of the species.
Response: Species with a limited range are inherently more at-risk
from threats than species with broad distribution. However, natural
rarity (i.e., a species that only exists in one or a few locations,
though it may be abundant there), in and of itself does not constitute
a threat under the Act. Natural rarity may increase risk or
vulnerability if threats are operative (i.e., acting) on the species or
its habitat now or in the foreseeable future, but rarity alone, in the
absence of an operative threat, does not make the species warranted for
protection under the Act. In some circumstances, isolation provides
refuge from contagions, such as disease and invasive species.
In acknowledgement of the species' rarity and potential
vulnerability to a catastrophic event, the Service and our partners
will evaluate, during the PDM period, the feasibility of establishing a
refuge population of Borax Lake chub at a yet-to-be-determined location
in the Alvord Basin as a long-term conservation measure for the
species.
Comment (6): One public commenter noted that Borax Lake chub
population abundance was generally unstable, and identified the need
for population stability prior to delisting.
Response: Population variability, with opportunistic demographic
resilience, is relatively common for small-bodied desert fishes in the
Cyprinid family of fishes (Winemiller 2005, pp. 878-879). The ability
of the population to rapidly respond to changes in habitat condition is
likely an adaptation that has made the species resilient in Borax Lake.
We do not have concerns that interannual fluctuations in adult
abundance pose a threat to the persistence of the species.
Comment (7): One public commenter expressed concern about predation
on Borax Lake chub.
Response: Predation was not identified at the time of listing as a
threat, and we do not view predation as a threat now or in the
foreseeable future. Water temperature and chemistry at Borax Lake
create unsuitable habitat conditions for most common aquatic predatory
species that might be illegally introduced. Several native species that
are likely predators of Borax Lake chub, such as garter snakes and
common
[[Page 35591]]
grebes, are found in and around Borax Lake. The Borax Lake chub both
evolved and has persisted in this habitat in the presence of these
predatory species.
Comment (8): One public commenter noted that Borax Lake chub are
categorized ``vulnerable'' by the International Union for the
Conservation of Nature (IUCN), and this demonstrates the need to
maintain protections for the species under the Act.
Response: Although the species is listed as vulnerable by the IUCN,
this does not automatically equate to the need for Federal protections
under the Act. Like many narrow endemic species, Borax Lake chub will
remain vulnerable to threats. However, the threats that led to the
Federal listing of the species have been ameliorated to the degree that
we have determined protections under the Act are no longer warranted.
Monitoring of the status of Borax Lake chub will be maintained
following the delisting of the species through the PDM. Additional
monitoring and other conservation efforts will be conducted through the
CMP, although we do not rely on the CMP for this delisting
determination.
Comment (9): Four public commenters expressed concern that the
threat of geothermal development in proximity to Borax Lake has not
been fully ameliorated, and this threat may increase if Federal
protections are removed.
Response: As discussed in detail above under Summary of Factors
Affecting the Species, Factors A and D, since the Borax Lake chub was
federally listed under the Act, there have been several changes in land
ownership and management that greatly reduce the likelihood of
geothermal development in proximity to Borax Lake, including passage of
the Steens Act of 2000, the BLM's designation of 600 ac (243-ha) around
Borax Lake as an ACEC, and the acquisition by TNC of 320 ac (130 ha)
that contain and border Borax Lake, which put all critical habitat for
the species under public or conservation ownership. The combination of
these regulatory and conservation-driven protections greatly reduce the
potential for impacts to Borax Lake chub from any future geothermal
development.
That said, we acknowledge some privately owned land surrounding
Borax Lake is not subject to BLM's withdrawal, and proposals to develop
geothermal energy resources in the Borax Lake vicinity occurred
sporadically in the past. However, no past proposals have moved forward
over a 4-decade period, and the likelihood of geothermal energy
development now and in the foreseeable future is low. Furthermore, the
precise effects of possible geothermal development on the species are
uncertain and unpredictable, depending on the project scale and
proximity to Borax Lake. If an assessment suggested a future geothermal
project would likely cause significant risk to Borax Lake and the well-
being of Borax Lake chub, we have the discretion to use the emergency
listing authorities under section 4(b)(7) of the Act. The possibility
of geothermal development in the vicinity of Borax Lake will continue
to represent a potential threat to Borax Lake chub and its habitat, but
we have determined the likelihood of this threat becoming operative in
the foreseeable future is low.
Comment (10): Three public commenters noted that there is
scientific uncertainty in the Service's decision to delist, and while
the species has met recovery criteria, it may become an endangered
species again in the future.
Response: There is almost always uncertainty associated with
scientific data and predictions of such data into the future.
Uncertainty is not a reason to keep a species listed under the Act if
it no longer meets the definition of an endangered or a threatened
species. We must delist species that we determine no longer meet the
Act's definitions of a threatened species or an endangered species. The
Borax Lake chub has clearly met recovery criteria and does not have
operative threats now or in the foreseeable future. If unforeseen
threats arise that are determined to endanger or threaten the long-term
persistence of Borax Lake chub, we have the discretion to use the
emergency listing authorities under section 4(b)(7) of the Act, such as
we used in the May 28, 1980, emergency listing of Borax Lake chub (45
FR 35821).
Comment (11): Four public commenters expressed concerns about land
use at and around Borax Lake, and potential impacts to the species. The
commenters specifically mentioned development, over-fishing, grazing
and livestock use, and vehicle access.
Response: Although signs of historical development, vehicle, and
livestock use are present around Borax Lake, this use occurred prior to
the construction of a perimeter fence by the BLM and TNC in 2011. Some
unauthorized access has occurred since 2011, and the BLM and TNC
quickly responded and modified the fence and gate to prohibit further
unauthorized vehicle access. There is some use of Borax Lake by the
public, but the threat of impacts to the habitat by vehicle use has
been mitigated. We are not aware of any harvest of Borax Lake chub by
the public and do not agree that over-fishing will threaten this
species in the future. Similarly, concerns over development in the
region are not likely to manifest themselves in the near future, as the
Alvord basin is sparsely populated, and Borax Lake is roughly 3 mi (4.8
km) away from the nearest privately owned property; in addition, the
likelihood of geothermal development is considered low. We conclude
that land use is not likely to impact Borax Lake chub in the
foreseeable future.
Peer Review and Public Comments on Our Post-Delisting Monitoring Plan
Comment (12): Two peer reviewers highlighted the value of water
temperature monitoring at multiple locations in Borax Lake during the
PDM period to provide information on the impacts of climate change on
water temperatures. In addition, the reviewers identified the need for
triggers in the PDM in response to high summer water temperatures that
would signal the need to assess Borax Lake chub population abundance.
One of the reviewers specified the need for a plan to monitor and
respond to short-term events that require immediate management.
Response: Although it was not discussed in the draft PDM, ODFW has
maintained water temperature monitoring equipment at multiple locations
around Borax Lake since 2005. In 2011, ODFW installed additional
monitoring equipment to track water depth, air pressure, and air
temperature. These data are useful for observing trends in habitat
suitability, and provide context for the population monitoring. We have
added temperature monitoring as a component of the PDM.
Previous mortality events have occurred during periods when high
water and air temperatures coincided. Although we have no plans to
remotely monitor water temperatures, monitoring Borax Lake during times
of high air temperature may be prudent. To accomplish this, we have
added an additional monitoring trigger to the PDM: If maximum daily air
temperature is projected to exceed 37.8 [deg]C (100 [deg]F) for 7
consecutive days, or maximum daily air temperature exceeds 45 [deg]C
(113 [deg]F) on a single day, based on regional forecasting. The
selection of these air temperature thresholds were based on high
temperatures observed over the last decade.
In response to this trigger, managers will plan a site visit to
assess the health of the chub population. This would include walking
the shoreline to check water temperature, and visually detect
[[Page 35592]]
mortalities and locate live fish. If live fish are not observed,
managers will plan to set minnow traps for brief periods (e.g., 1 to 3
hours) in areas where water temperatures are the coolest. If no fish
are captured in minnow traps, managers will conduct an assessment of
the population under the protocols described in the PDM at the earliest
possible time. This will be done once air and water temperatures cool,
to lessen stress to the fish.
Comment (13): One peer reviewer recommended incorporating regular
aquatic invasive species monitoring in the PDM.
Response: The draft PDM stated that monitoring should follow the
protocols established by ODFW (Scheerer et al. 2012, p. 4), but it did
not provide details regarding methodology. We included additional
detail in the final PDM to address this issue and provide more clarity.
Since 2005, managers have conducted annual shoreline surveys to take
pictures of Borax Lake from established photo points, maintain data
logging equipment, and assess the condition of the shoreline and extent
of vegetative growth in the wetland. The survival of nonnative species
in Borax Lake is unlikely given the high water temperatures and water
chemistry. We developed an additional PDM trigger if a nonnative
species likely to prey on Borax Lake chub, compete with Borax Lake
chub, or otherwise negatively impact the habitat suitability of Borax
Lake or the life history of Borax Lake chub is detected.
Comment (14): One peer reviewer suggested population monitoring of
Borax Lake chub every 2 years, rather than 3 as written in the draft
PDM, based on the current demographic information.
Response: Regular population monitoring is important during the PDM
period, but we have concluded that sampling every 3 years is prudent.
The age structure and life history of Borax Lake chub is poorly
understood, and some biologists have speculated that the species might
be primarily an annual species (Scheerer et al. 2015, p. 9). Previous
mortality events appear to occur during periods when high water and air
temperatures coincided, and thus we included a PDM trigger to assess
the population following a period of thermal stress, as described under
our response to Comment (12). We have concluded that monitoring every 3
years, with additional sampling following of periods of high air
temperature, will provide enough information to assess the health of
the population during the PDM period.
Determination of the Status of the Borax Lake Chub
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range'' and a ``threatened species'' as a
species ``that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following factors: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
found that significant threats identified at the time of listing (47 FR
43957; October 5, 1982) have been eliminated or reduced. We recognize
that under Factor A (the present or threatened destruction,
modification, or curtailment of its habitat or range), the possibility
of geothermal development in the vicinity of Borax Lake will continue
to represent a potential threat to the Borax Lake chub and its habitat,
but we have determined the likelihood of this threat becoming operative
in the foreseeable future is low. We did not identify any other threats
from development on private lands in the vicinity of Borax Lake. We
have identified climate change as a new potential threat to the Borax
Lake chub, but the magnitude and frequency of this potential threat are
generally unknown at this time. The largest impact identified by the
potential threat of climate change is related to cumulative impacts of
increased air temperature and variability in geothermal water
temperature, yet the species' capacity to persist through changes in
temperatures has been well demonstrated. In the fall of 2017, the
estimated population abundance for Borax Lake chub was twice as high as
any previous estimate while water temperature was higher than the
suggested thermal tolerance for a longer duration than any period in
the 2005-2016 record. We conclude that there are no threats to the
Borax Lake chub under Factor B (overutilization for commercial,
recreational, scientific, or educational purposes), Factor C (disease
or predation), or Factor E (other natural or manmade factors affecting
its continued existence). We conclude that under Factor D (the
inadequacy of existing regulatory mechanisms), the existing regulatory
mechanisms provide significant protections to the Borax Lake chub and
its habitat, especially on Federal lands, but they do not address
potential impacts of geothermal development on private lands. However,
the BLM designated 520 ac (210 ha) of public land surrounding Borax
Lake as an ACEC to protect Borax Lake chub and its habitat, and
regulatory mechanisms exist that would ensure State and Federal natural
resource agencies will be made aware of and provide comment on any
private development proposals moving forward for permitting. Therefore,
we have determined that the likelihood of the threat of geothermal
development in the vicinity of Borax Lake becoming operative in the
foreseeable future is low; therefore, no regulatory mechanisms are
needed to address this potential threat. All of these threats apply
similarly throughout the range of the species in Borax Lake.
Thus, after assessing the best available information, we conclude
that the Borax Lake chub is not currently in danger of extinction, and
is not likely to become so within the foreseeable future, throughout
all of its range.
Determination of Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range.
Having determined that the Borax Lake chub is not in danger of
extinction or likely to become so in the foreseeable future throughout
all of its range, we now consider whether it may be in danger of
extinction or likely to become so in the foreseeable future in a
significant portion of its range. The range of a species can
theoretically be divided into portions in an infinite number of ways,
so we first screen the potential portions of the species' range to
determine if there are any portions that warrant further consideration.
To do the ``screening'' analysis, we ask whether there are portions of
the species' range for which there is
[[Page 35593]]
substantial information indicating that: (1) The portion may be
significant; and (2) the species may be, in that portion, either in
danger of extinction or likely to become so in the foreseeable future.
For a particular portion, if we cannot answer both questions in the
affirmative, then that portion does not warrant further consideration
and the species does not warrant listing because of its status in that
portion of its range. We emphasize that answering both of these
questions in the affirmative is not a determination that the species is
in danger of extinction or likely to become so in the foreseeable
future throughout a significant portion of its range--rather, it is a
step in determining whether a more detailed analysis of the issue is
required.
If we answer these questions in the affirmative, we then conduct a
more thorough analysis to determine whether the portion does indeed
meet both of the significant portion of its range prongs: (1) The
portion is significant; and (2) the species is, in that portion, either
in danger of extinction or likely to become so in the foreseeable
future. Confirmation that a portion does indeed meet one of these
prongs does not create a presumption, prejudgment, or other
determination as to whether the species is an endangered species or
threatened species. Rather, we must then undertake a more detailed
analysis of the other prong to make that determination. Only if the
portion does indeed meet both significant portion of its range prongs
would the species warrant listing because of its status in a
significant portion of its range.
At both stages in this process--the stage of screening potential
portions to identify any portions that warrant further consideration
and the stage of undertaking the more detailed analysis of any portions
that do warrant further consideration--it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. Our selection of which question to address first for a
particular portion depends on the biology of the species, its range,
and the threats it faces. Regardless of which question we address
first, if we reach a negative answer with respect to the first question
that we address, we do not need to evaluate the second question for
that portion of the species' range.
We evaluated the range of the Borax Lake chub to determine if any
area may be a significant portion of the range. The Borax Lake chub is
a narrow endemic that functions as a single, contiguous population and
occurs within a very small area. The species occurs in Borax Lake in
the Alvord Basin and its historical known natural range is limited to
Borax Lake and associated outflows and wetlands. Based on the small
range of the Borax Lake chub, approximately 10.2-ac (4.1-ha), we
determined that there are no separate areas of the range that are
likely to be of greater biological or conservation importance than any
other areas due to natural biological reasons alone. Every threat to
the species in any portion of its range is a threat to the species
throughout all of its range, and so the species has the same status
under the Act throughout its narrow range. Therefore, we conclude,
based on this screening analysis, that the species is not in danger of
extinction or likely to become so in the foreseeable future in any
significant portion of its range. Our conclusion--that we do not
undertake additional analysis if we determine that the species has the
same status under the Act throughout its narrow range--is consistent
with the courts' holdings in Desert Survivors v. Department of the
Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24,
2018); Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946,
959 (D. Ariz. 2017); and Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Borax Lake chub does not meet the
definition of an endangered species or a threatened species in
accordance with sections 3(6) and 3(20) of the Act. Therefore, we are
removing the Borax Lake chub from the List of Endangered and Threatened
Wildlife.
Effects of This Rule
This rule revises 50 CFR 17.11(h) to remove the Borax Lake chub
from the Federal List of Endangered and Threatened Wildlife. On the
effective date of this rule (see DATES, above), the prohibitions and
conservation measures provided by the Act, particularly through
sections 7 and 9, no longer apply to this species, and Federal agencies
are no longer required to consult with the Service under section 7 of
the Act in the event that activities they authorize, fund, or carry out
may affect the Borax Lake chub. This final rule also revises 50 CFR
17.95(e) by removing the designated critical habitat for Borax Lake
chub throughout its range. Current State laws protecting the Borax Lake
chub will likely remain enforceable and continue to provide protection
for this species.
Post-Delisting Monitoring
Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a system to monitor effectively, for not less than
5 years, all species that have been recovered and delisted. The purpose
of this post-delisting monitoring is to verify that a species remains
secure from risk of extinction after it has been removed from the
protections of the Act. The monitoring is designed to detect the
failure of any delisted species to sustain itself without the
protective measures provided by the Act. If, at any time during the
monitoring period, data indicate that protective status under the Act
should be reinstated, we can initiate listing procedures, including, if
appropriate, emergency listing under section 4(b)(7) of the Act.
Section 4(g) of the Act explicitly requires us to cooperate with the
States in development and implementation of post-delisting monitoring
programs, but we remain responsible for compliance with section 4(g) of
the Act and, therefore, must remain actively engaged in all phases of
post-delisting monitoring. We also seek active participation of other
entities that are expected to assume responsibilities for the species'
conservation post-delisting.
Post-Delisting Monitoring Plan Overview
We prepared a PDM plan for the Borax Lake chub, building on and
continuing the research that has taken place in the time since the
species was listed. The PDM plan discusses the current status of the
taxon and describes the methods to be used for monitoring after the
taxon is removed from the Federal List of Endangered and Threatened
Wildlife. Monitoring Borax Lake chub under the PDM will follow the same
sampling protocol used by the ODFW prior to delisting. Monitoring will
consist of several components: Borax Lake chub abundance, invasions of
nonnative species, potential adverse impacts during periods of high air
temperature, potential adverse changes to Borax Lake chub habitat, and
monitoring DOGAMI for drilling applications. The PDM will consist of
annual monitoring of all components, except surveys to estimate
population abundance, which will be conducted once every 3 years over a
10-year period (four population surveys total), which will begin
following the effective date of this rule (see DATES, above). Given the
Borax Lake chub is a short-lived fish (few survive beyond 1 year;
Scoppettone et al. 1995, p. 36), periodic monitoring over this time
period will allow us to address any possible negative effects to
[[Page 35594]]
the Borax Lake chub. Additionally, the chub experienced wide
fluctuation in its population year-to-year. Limited point estimates for
a widely fluctuating population can lead to difficulty assessing long-
term trends. Therefore, although the minimum PDM period required by the
Act is 5 years, as described above, we chose to extend the population
abundance monitoring cycle to once every 3 years and the total
monitoring period to 10 years to ensure we can accurately measure
changes in trends.
The PDM plan identifies measurable management thresholds and
responses for detecting and reacting to occurrence of nonnative species
or significant changes in the Borax Lake chub's habitat, distribution,
abundance, and persistence. If declines are detected equaling or
exceeding these thresholds, the Service, in combination with other PDM
participants, will investigate causes of these declines, including
considerations of habitat changes, substantial human persecution,
stochastic events, or any other significant evidence. The result of the
investigation will be to determine if the Borax Lake chub warrants
expanded monitoring, additional research, additional habitat
protection, or relisting as an endangered or a threatened species under
the Act. If such monitoring data or an otherwise updated assessment of
threats (such as specific information on proposed geothermal
development projects) indicate that relisting the Borax Lake chub is
warranted, emergency procedures to relist the species may be followed,
if necessary, in accordance with section 4(b)(7) of the Act.
Required Determinations
National Environmental Policy Act
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175, and the Department of
the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. 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 do not believe that any Tribes will be affected by this rule.
However, we contacted the Burns Paiute Tribe to coordinate with them
regarding the proposed rule to delist the Borax Lake chub. We provided
the Tribe with a copy of the proposed rule and draft PDM, but we did
not receive any comments from them.
References Cited
A complete list of all references cited in this final rule is
available at http://www.regulations.gov at Docket No. FWS-R1-ES-2017-
0035 or upon request from the person listed under FOR FURTHER
INFORMATION CONTACT.
Authors
The primary authors of this final rule are staff members of the
Service's Oregon 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 hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Sec. 17.11 [Amended]
0
2. Amend Sec. 17.11(h) by removing the entry for ``Chub, Borax Lake''
under FISHES from the List of Endangered and Threatened Wildlife.
Sec. 17.95 [Amended]
0
3. Amend Sec. 17.95(e) by removing the entry for ``Borax Lake Chub
(Gila boraxobius).''
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-10861 Filed 6-10-20; 8:45 am]
BILLING CODE 4333-15-P