[Federal Register: September 6, 2001 (Volume 66, Number 173)]
[Rules and Regulations]               
[Page 46548-46561]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH06

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the Kootenai River population of the white sturgeon 
(Acipenser transmontanus). A total of 18 river kilometers (11.2 river 
miles) of the Kootenai River in Idaho is designated as critical 
    Section 7 of the Act requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to destroy or 
adversely modify designated critical habitat. State or private actions, 
with no Federal involvement, would not be affected by this rulemaking 
action. As required by section 4 of the Act, we considered economic and 
other impacts prior to making a final decision on what area to 
designate as critical habitat.

DATES: This rule becomes effective on October 9, 2001.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Upper Columbia Fish and Wildlife Office, 11103 East 
Montgomery Drive, Spokane, Washington 99206.

FOR FURTHER INFORMATION CONTACT: Bob Hallock, U.S. Fish and Wildlife 
Service, Upper Columbia Fish and Wildlife Office, see ADDRESSES 
section; telephone 509/891-6839, facsimile 509/891-6748.



    The Kootenai River population of the white sturgeon (Acipenser 
transmontanus) is 1 of 18 land-locked populations of white sturgeon 
known to occur in western North America. The Kootenai River originates 
in Kootenay National Park in British Columbia, Canada, then flows south 
into Montana, northwest into Idaho, then north through the Kootenai 
Valley back into British Columbia, where it flows through Kootenay Lake 
and joins the Columbia River at Castlegar, British Columbia. Kootenai 
River white sturgeon occur in Idaho, Montana, and British Columbia, and 
are restricted to approximately 270 river kilometers (km) (168 river 
miles (mi)) of the Kootenai River extending from Kootenai Falls, 
Montana, located 50 river km (31 mi) below Libby Dam, Montana, 
downstream through Kootenay Lake to Corra Lynn Dam at the outflow from 
Kootenay Lake in British Columbia.
    Bonnington Falls, a natural barrier downstream of Kootenay Lake, 
has isolated the Kootenai River population of white sturgeon since the 
last glacial advance roughly 10,000 years ago (Apperson 1992). 
Approximately 45 percent of the species' range, based on river 
kilometers, is located within British Columbia. Apperson and Anders 
(1991) found that at least 36 percent of the sturgeon tracked during 
1989 over-wintered in Kootenay Lake. They further believe that sturgeon 
do not commonly occur upstream of Bonners Ferry, Idaho, which includes 
most of the Kootenai River watershed in the United States.
    The Kootenai River population of white sturgeon is threatened by 
factors including hydropower operations, flood control operations, poor 
recruitment, loss of habitat, and possibly, contaminants (water quality 
impacts). For more detailed discussions of the ecology of the Kootenai 
River population of white sturgeon, see the September 6, 1994, Federal 
Register notice listing this population as endangered (59 FR 45989), 
and the September 30, 1999, ``Recovery Plan for the White Sturgeon 
(Acipenser transmontanus): Kootenai River Population'' (U.S. Fish and 
Wildlife Service 1999). The final listing rule and the recovery plan 
incorporate the best available biological information on Kootenai River 
white sturgeon.
    Although the Service, in cooperation with other agencies, has 
gained important life history information during the 7 years since 
listing the species, considerable uncertainty remains in accurately 
delineating critical habitat for the Kootenai River population of white 
sturgeon. However, we rely on the best currently available information, 
including our 1999 recovery plan for the species, to designate critical 
habitat; we will now summarize the recent findings and remaining areas 
of uncertainty. Information being gathered now and in the future may 
require substantially amending this rule, the associated analyses of 
impacts, and any recommendations under section 7 of the Act.
    In 1997, Paragamian et al. (1997) estimated that there may be 1,468 
adult sturgeon remaining in the Kootenai River population, with a male-
to-female ratio of 1.7:1, or about 539 females. With 7 percent of these 
females reproductively active in a given year (Apperson and Anders 
1991), and an assumed average of 100,000 eggs per female, there may be 
as many as 3.8 million eggs released on average annually. To increase 
the probability of survival of fertilized eggs, the U.S. Army Corps of 
Engineers (COE) has provided various augmentation flows from Libby Dam. 
However, during the last 10 years of intensive monitoring, only one 
hatching fry has been found, and no free-swimming larvae or young-of-
the-year have been captured. To date, only 17 juvenile sturgeon have 
been captured that can be associated with the experimental augmentation 
flows between 1991 and 1997. Because of sampling gear limitations, the 
success of sturgeon recruitment during the 1998 and 1999 augmentation 
flows cannot be assessed at this time. Considering the extent of 
occupied habitat in the United States and Canada, we believe that we 
have not yet accounted for other naturally recruited sturgeon from 
these same year classes that are present in the system. However, 
because of the high incidence of recapture of marked juvenile sturgeon 
in this system, the number of additional juvenile sturgeon is believed 
to be small.
    There is evidence that very high levels of mortality of sturgeon 
eggs and sac fry are occurring annually. While we anticipate high 
levels of mortality at early life stages of a highly fecund species 
such as the Kootenai River white sturgeon, during 10 years of intensive 
monitoring we have never captured a free-swimming larvae or young-of-
the-year sturgeon, and have captured a total of only 17 juveniles. This 
suggests exceptionally high levels of mortality are occurring at the 
sites now being used for spawning, egg incubation, and yolk sac fry 
    White sturgeon are broadcast spawners that release adhesive eggs 
which then sink to the river bottom (Stockley 1981, Brannon et al. 
1984). In the lower Columbia River, most sturgeon eggs are sheltered by 

[[Page 46549]]

themselves and incubating on rocky substrate near the spawning site 
(Parsley et al. 1993). Rocky substrates also provide cover for yolk sac 
larvae before they become free-swimming. However, in the Kootenai 
River, most of the current sturgeon spawning sites are over sandy 
substrate, and most eggs are found drifting along the river bottom 
covered with fine sand particles (Paragamian et al. in press). 
Recently, U.S. Geological Survey (USGS) geologists have analyzed core 
samples from the river bed and identified a ``buried gravel/cobble 
geomorphic reach'' throughout the reach of river from Bonner's Ferry 
downstream to the mouth of Deep Creek (Gary Barton, USGS, pers. comm. 
2001). Purposes of this ongoing study are to determine the conditions 
that may have caused this gravel/cobble substrate to be buried, and 
when this may have occurred.
    Through 10 years of monitoring, we have determined that 10 degrees 
Celsius (50 degrees Fahrenheit) is the optimum temperature for spawning 
for this species. When significant sturgeon recruitment last occurred 
in the Kootenai River (in the year 1974), and when preferred spawning 
temperatures were near 10 degrees Celsius, the following conditions 
were recorded: base flows of 40,000 cfs (1,120 cubic meters per second 
(cms)), peak flows of 55,000 cfs (1,540 cms), and a water surface 
elevation at Bonners Ferry of 1,765.5 ft (538.5 m) above sea level 
while at peak flows. We do not know the locations or the substrate 
composition of the spawning sites selected by adults under these 1974 
conditions. The more extreme flow events common in the unregulated 
Kootenai River prior to impoundment may have caused gravel to be 
exposed within the spawning area. For example, the flood of record 
(1894) at Bonners Ferry, Idaho, was estimated to have been 157,000 cfs 
(4,396 cms), and peak flows in the range of 70,000 cfs (1,960 cms) were 
not unusual prior to construction of Libby Dam, which became fully 
operational in 1975. These flow, water surface elevation, and 
temperature conditions have not all been replicated at one time since 
    In the Kootenai River, spawning has not resulted in significant 
levels of recruitment, and it is unclear whether this is due to: (1) 
The current spawning site selection is a predominant behavioral 
response to changed river velocities and depths from the operations of 
Libby Dam, which may be causing the sturgeon to spawn primarily at new 
sites below the confluence with Deep Creek, about 3 river miles below 
Bonners Ferry, with unsuitable sandy riverbed substrates; or (2) the 
substrate at historic spawning sites has been altered by the operations 
of Libby Dam that have greatly reduced peak flood flows and associated 
stream energy. In turn, this may be causing rocky substrate, otherwise 
suitable for egg incubation and sac fry development, to be covered with 
sand. Since intensive monitoring began 10 years ago, there is evidence 
that some sturgeon in spawning condition enter the reach of river 
between Bonner's Ferry and the mouth of Deep Creek each year, but few 
have remained to spawn there.
    Suitable water and sediment quality are necessary for viability of 
early life stages of Kootenai River white sturgeon, including both 
incubating eggs and yolk sac larvae, and normal breeding behavior. In 
1992, Apperson documented elevated levels of copper in both Kootenai 
River sediments and sturgeon oocytes (the eggs before maturation), and 
found low levels of the polychlorinated biphenyl Arochlor 1260 in river 
water. Because offspring of wild sturgeon captured and spawned in the 
hatchery appeared to survive and develop normally on filtered hatchery 
water, the question regarding quality of the river habitat remains. 
Subsequent studies of biota and survival (egg and larvae) have 
continued the concern as to the role water and sediment quality is 
playing in the lack of recruitment to the sturgeon population. Although 
most sturgeon eggs released in the Kootenai River are not believed to 
live long enough to hatch into larvae and begin feeding, various 
constituent nutrients trapped in Lake Koocanusa, above Libby Dam, 
including nutrients, nitrogen, and phosphorus, may affect the food base 
of those larvae that do hatch. The operations of Libby Dam can affect 
water temperatures in the spawning reach, especially during 
intermediate and low water years. Water temperature may affect spawning 
behavior. Optimum spawning temperature is near 10 degrees Celsius, and 
sudden drops of 2 to 3 degrees Celsius cause males to become 
reproductively inactive. Water and sediment quality and the effects of 
contaminants on sturgeon recruitment remain an area of concern and 
    Researchers with the USGS are conducting a study of possible 
changes in riverbed substrate and water depths in the Kootenai River 
from Kootenay Lake, British Columbia, to above Bonners Ferry, Idaho, 
which may have resulted from the last 26 years of operations at Libby 
Dam. Further, there is an ongoing study involving the releases of large 
numbers (over 100,000) of four-day-old, hatchery-reared, yolk sac 
larvae over both sandy and rocky substrates in the Kootenai River, 
which is also intended to address uncertainties involving the sturgeon 
population's riverbed substrate needs.

Previous Federal Action

    Federal action on the Kootenai River population of white sturgeon 
began on November 21, 1991, when we included this population as a 
category 1 candidate species in the Notice of Animal Candidate Review 
(56 FR 58804), based on field studies conducted by the Idaho Department 
of Fish and Game. Category 1 candidate species are taxa for which the 
Service has on file enough substantial information on biological 
vulnerability and threats to propose them for endangered or threatened 
status. On June 11, 1992, the Service received a petition from the 
Idaho Conservation League, North Idaho Audubon, and the Boundary 
Backpackers to list the Kootenai River population of white sturgeon as 
threatened or endangered under the Act. The petition cited the lack of 
natural flows affecting juvenile recruitment as the primary threat to 
the continued existence of the wild sturgeon population. Pursuant to 
section 4(b)(A) of the Act, the Service determined that the petition 
presented substantial information indicating that the requested action 
may be warranted, and published this finding in the Federal Register on 
April 14, 1993 (58 FR 19401). A proposed rule to list the Kootenai 
River population of white sturgeon as endangered was published on July 
7, 1993 (58 FR 36379), with a final rule following on September 6, 1994 
(59 FR 45989).
    In the September 6, 1994, final rule listing the Kootenai River 
population of white sturgeon as endangered (59 FR 45989), we stated 
that the designation of critical habitat was not determinable. As 
identified in the final listing determination, the primary threat to 
this species involves effects of the greatly altered natural hydrograph 
in the Kootenai River downstream of and beginning with the operations 
of Libby Dam in 1975. Adaptive management involving flow augmentation 
and monitoring during the last six years has indicated that this threat 
is most crucial during the first year of life, especially the first 
three weeks of life of the sturgeon (fertilized egg through free-
swimming larvae). Biological factors relevant to the species' early 
life stage habitat needs are discussed in the ``Primary Constituent 
Elements'' section of this final rule.
    Section 4(a)(3) of the Act and its implementing regulations (50 CFR

[[Page 46550]]

424.12) require that, to the maximum extent prudent and determinable, 
the Secretary designate critical habitat at the time the species is 
determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)) state that designation of critical habitat is not 
determinable if information is not sufficiently well known to permit 
identification of an area as critical habitat. Our regulations (50 CFR 
424.12(a)(1)) also state that designation of critical habitat is not 
prudent when one or both of the following situations exist: (1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    At the time of listing, we found critical habitat not determinable 
because the information necessary to perform the required impacts 
analyses of such a designation was lacking. We believed there was 
insufficient biological information to accurately delineate the habitat 
essential to the species, and, in the absence of this delineation, the 
required analysis of impacts could not be completed accurately. In 
addition, specific areas of critical habitat could not be identified 
without additional information on the life history and habitat 
requirements of the sturgeon. Biological information needs then 
identified by the Service included information concerning specific 
river reaches or areas necessary for spawning, reproduction, and 
rearing of offspring; and water quality, temperature, and velocity 
required to meet the needs of various life history stages (e.g., 
spawning, early rearing, and juvenile migration).
    We published a final Recovery Plan on September 30, 1999 (U.S. Fish 
and Wildlife Service 1999). The recovery strategy identified in this 
recovery plan emphasized the importance of reestablishing successful, 
natural spawning of Kootenai River white sturgeon, minimizing the loss 
of genetic variability, and successfully mitigating the biological and 
physical habitat changes caused by human development within the 
Kootenai River basin.
    On June 30, 1999, the Center for Biological Diversity filed a 
complaint on the Service's failure to designate critical habitat for 
the Kootenai River population of white sturgeon. As part of a court 
decision of August 30, 2000, in Center for Biological Diversity v. 
Bruce Babbitt, Secretary of the Department of the Interior, and the 
United States Fish and Wildlife Service, C99-3202 SC, we entered into a 
court-approved settlement agreement to submit a proposed rule for 
designation of critical habitat for the Kootenai River population of 
white sturgeon to the Federal Register by December 15, 2000. The 
proposed rule for designation of critical habitat was published on 
December 21, 2000 (65 FR 80698). The public comment period on the 
proposed rule was open from December 21, 2000, until February 20, 2001. 
On April 26, 2001, we announced the availability of the draft economic 
analysis and reopened the public comment period (66 FR 20962). The 
second public comment period closed on May 29, 2001.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: (i) 
the specific areas within the geographic area occupied by the species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon 
determination that such areas are essential for conservation of the 
species. The term ``conservation'' as defined in section 3(3) of the 
Act means ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary'' (i.e., the species is recovered and removed from the list 
of endangered and threatened species). Section 3 of the Act further 
states that, except where determined by the Secretary of the Interior, 
critical habitat shall not include the entire geographic area which can 
be occupied by threatened or endangered species. In addition, critical 
habitat shall not be designated in foreign countries (50 CFR 424.12 
    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
as critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. However, we cannot exclude areas from critical habitat when 
the exclusion will result in the extinction of the species.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
    When we designate critical habitat at the time of listing, as 
required under section 4 of the Act, or under short court-ordered 
deadlines, we may not have the information necessary to identify all 
areas which are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we know to be 
critical habitat, using the best information available to us.
    Within the geographic area of the species, we will designate only 
currently known essential areas. Essential areas should already have 
the features and habitat characteristics that are necessary to sustain 
the species. We will not speculate about what areas might be found to 
be essential if better information became available, or what areas may 
become essential over time. If the information available at the time of 
designation does not show that an area provides essential life cycle 
needs of the species, then the area should not be included in the 
critical habitat designation. Within the geographic area of the 
species, we will not designate areas that do not now have the primary 
constituent elements, as defined at 50 CFR 424.12(b), that provide 
essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, we do not designate critical habitat in 
areas outside the geographic area occupied by the species unless the 
best scientific and commercial data demonstrate that the unoccupied 
areas are essential for the conservation needs of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 

[[Page 46551]]

which areas are critical habitat, a primary source of information 
should be the listing package for the species. Additional information 
may be obtained from a recovery plan, articles in peer-reviewed 
journals, conservation plans developed by states and counties, 
scientific status surveys and studies, and biological assessments, 
unpublished materials, and expert opinion or personal knowledge.
    Critical habitat provides non-regulatory benefits to the species by 
informing the public and private sectors of areas that are important 
for species recovery and where conservation actions would be most 
effective. Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for conservation of 
that species, and can alert the public as well as land- and water-
managing agencies to the importance of those areas. Critical habitat 
also identifies areas that may require special management 
considerations or protection, and may help provide protection to areas 
where significant threats to the species have been identified or help 
to avoid accidental damage to such areas.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent expert opinions from four persons who 
are familiar with this species to peer-review the proposed critical 
habitat designation. Two of these experts provided us with a written 
response generally supporting the designation based on the best 
available information. They also provided additional information that 
we have incorporated into the rule.
    Both reviewers suggested that with additional information there may 
be a need to modify or expand critical habitat in the future. One 
reviewer suggested expansion of critical habitat upstream to include 
gravel/cobble substrates that may be used for sturgeon spawning under 
exceptional runoff conditions in the future. Our detailed response to 
this suggestion is included in the ``Summary of Comments and 
Recommendations'' section of this rule.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations in 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements) essential to the conservation of the 
species, and which may require special management considerations and 
protection. These physical and biological features include but are not 
limited to the following: space for individual and population growth, 
and for normal behavior; food, water, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing of offspring; and, habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distributions of a species.
    The important habitat features that provide for breeding and 
rearing of offspring through the free-swimming larvae stage include: 
water temperatures, depths, and flows sufficient to trigger sturgeon 
breeding, and water volumes and substrates sufficient to provide cover 
and shelter to incubating eggs and yolk sac larvae.
    We have determined the primary constituent elements of critical 
habitat for the Kootenai River population of white sturgeon from 
studies of their habitats, life history, and population biology 
described and referenced above. Kootenai River flows may affect the 
sturgeon in two ways--flows may affect normal breeding behavior, 
including site selection, or alter the riverbed substrate, which may 
affect survival of eggs and cover for yolk sac larvae. Flows may also 
affect the efficiency of predators to locate eggs and sac fry larvae. 
The four primary constituent elements of Kootenai River sturgeon 
critical habitat are:
    1. A flow regime that creates a hydrologic profile characterized by 
flow magnitude, timing, and velocity, and water depth and quality 
(including temperatures) necessary for normal behavior involving 
breeding site selection, breeding and fertilization, and cover for egg 
incubation and yolk sac fry development.
    2. A flow regime that creates a hydrologic profile characterized by 
water of sufficient duration and magnitude to restore or maintain 
riverbed substrate necessary for attachment and shelter of incubating 
eggs and cover for yolk sac fry in inter-gravel spaces.
    3. A flow regime that creates a hydrologic profile characterized by 
flow magnitude, time, velocity, depth, and duration necessary for the 
normal behavior of adult and juvenile sturgeon.
    4. Water and sediment quality necessary for normal behavior, 
including breeding behavior, and viability of all life stages of the 
Kootenai River white sturgeon, including incubating eggs and yolk sac 
    The area we are designating as critical habitat for the Kootenai 
River population of white sturgeon provides the above constituent 
elements and requires special management considerations or protection 
to ensure their contribution to the species' conservation.

Critical Habitat Designation

    Based on the best available information, we designate the following 
area as critical habitat for the Kootenai River population of white 
sturgeon: that portion of the Kootenai River within Boundary County, 
Idaho, from river kilometer 228 (about river mile 141.4, below Shorty's 
Island) to river kilometer 246 (about river mile 152.6, above the 
Highway 95 Bridge at Bonners Ferry, Idaho). The lateral extent of 
critical habitat is up to the ordinary high-water lines (as defined by 
the COE in 33 CFR 329.11) on each bank of the Kootenai River within 
this 18-kilometer (11.2-mile) reach.

Land Ownership

    The reach of the Kootenai River designated as critical habitat lies 
within the ordinary high-water lines as defined for regulatory purposes 
(33 CFR 329.11). Upon statehood in 1890, the State of Idaho claimed 
ownership of the bed of the Kootenai River and its banks up to ordinary 
high-water lines. Numerous private-, public-, and tribally-owned 
parcels abut these State-owned riverbed/banks, including lands managed 
by the Service at the Kootenai National Wildlife Refuge, and trust 
lands managed by the Kootenai Tribe of Idaho.
    Based upon early U.S. Forest Service (USFS) maps from 1916, USGS 
maps from 1928, and the confining effects of the private levees 
completed by the COE in 1961, it appears that within this reach of the 
Kootenai River the ordinary high-water lines originally delineating 
State lands are essentially unchanged. Because of the scales of the 
available maps, it is possible that minor river channel changes have 
occurred since statehood, and that some small portions of private lands 
now occur within the ordinary high-water lines. However, we understand 
that most of the lands where these changes may have occurred lie within 
the flowage and seepage easements purchased by the Federal Government 
under Public Law 93-251, section 56, passed in 1974. In addition, when 
the river meanders, the ``government lot'' or parcel owners abutting 
State-owned riverbed/banks may request parcel boundary adjustments to 
the new ordinary high-water line, and corresponding

[[Page 46552]]

adjustments in taxable acreage. Although the elevations of ordinary 
high water may have been lowered by the operations of Libby Dam since 
1974, the lateral extent of the State-owned riverbed/banks along the 
steep levees may be closely approximated today through the COE's 
definition of ordinary high-water line cited above. Thus, we believe 
the land we have designated as critical habitat is within lands owned 
by the State of Idaho.

Effect of Critical Habitat Designation

Section 7 Consultation

    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1), and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition. We anticipate that 
federally funded or assisted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. Similarly, critical habitat designations made 
on the basis of the best information available at the time of the 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.
    Critical habitat receives regulatory protection only under section 
7 of the Act through the prohibition against destruction or adverse 
modification of critical habitat with regard to actions carried out, 
funded, or authorized by a Federal agency. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``* * * the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of protection to areas designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional protections under the Act against such activities.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for 
both the survival and recovery of the species. Individuals, 
organizations, State, Tribal, and local governments, and other non-
Federal entities are affected by the designation of critical habitat 
only if their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding. Thus, 
activities on Federal lands that may affect the Kootenai River white 
sturgeon or its critical habitat, if designated, will require section 7 
consultation. Actions on private or State lands receiving funding or 
requiring a permit from a Federal agency also will be subject to the 
section 7 consultation process if the action may affect the species or 
its critical habitat. Federal actions not affecting the species or its 
critical habitat, as well as actions on non-Federal lands that are not 
federally funded or permitted, will not require section 7 consultation.
    Federal agencies are required to evaluate their actions with 
respect to any species that is listed as endangered or threatened, and 
with respect to its designated critical habitat. Regulations 
implementing these interagency cooperation provisions of the Act are 
codified at 50 CFR part 402.
    If we find a proposed agency action is likely to destroy or 
adversely modify the critical habitat, our biological opinion may 
include reasonable and prudent alternatives to the action that are 
designed to avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives are defined at 50 CFR 
402.02 as alternative actions that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that we believe would avoid destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative vary accordingly.
    Regulations at 50 CFR 402.16 also require Federal agencies to 
reinitiate consultation in instances where we have already reviewed an 
action for its effects on listed species if critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed, if those actions may affect designated critical habitat.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of the Kootenai River population of white sturgeon is appreciably 
reduced. We note that such activities may also jeopardize the continued 
existence of the species. A wide range of Federal activities may 
include land and water management actions of Federal agencies (e.g., 
Bonneville Power Administration, Natural Resources Conservation 
Service, Bureau of Indian Affairs, USFS, EPA, COE, and the U.S. Fish 
and Wildlife Service), and related or similar actions of other 
federally regulated projects (e.g., road and bridge construction or 
maintenance activities by the Federal Highway Administration; dredge 
and fill projects, sand and gravel mining, bank stabilization 
activities conducted by the COE; and NPDES permits authorized by the 
EPA). These activities may destroy or adversely modify critical habitat 
if they alter the primary constituent elements (defined above) to an 
extent that the value of critical habitat for both the survival and 
recovery of the Kootenai River population of white sturgeon is 
appreciably reduced. Activities that, when carried out, funded, or 
authorized by a Federal agency, may destroy or adversely modify 
critical habitat include, but are not limited to:
    (1) Altering the flow regime within the critical habitat in ways 
that prevent the necessary conditions for breeding and fertilization. 
For example, flood control and hydroelectric operations

[[Page 46553]]

and water release configuration limitations of Libby Dam may destroy or 
adversely modify critical habitat by altering habitat for normal 
breeding behavior, shelter for incubating eggs, and cover for yolk sac 
    (2) Altering the flow regime within the critical habitat in ways 
that prevent the necessary conditions for incubating eggs and 
developing yolk sac larvae. Flood control and hydroelectric operations 
combined with the water release configuration limitations of Libby Dam 
may destroy or adversely modify critical habitat necessary for 
incubation of eggs and development of yolk sac larvae by altering 
riverbed substrate composition through reduced bed load transport 
energy and unnatural distribution of stream bed sand and silt. Land 
management activities accelerating sediment releases from watersheds 
entering the Kootenai River below Libby Dam, and above or within 
critical habitat, may also destroy or adversely modify this critical 
habitat through increased deposition of sand and silt in the stream 
bed. Other actions, including channelization, levee reconstruction, 
stream bank stabilization, gravel removal, and road and bridge 
construction, may also affect critical habitat.
    (3) Altering water chemistry. Possible actions include the release 
of chemicals or biological pollutants into the waters passing through 
the critical habitat from point sources or by dispersed releases (non-
point sources).
    These examples indicate the types of activities that will require 
consultation in the future and, therefore, that may be affected by 
critical habitat designation. These kinds of activities would also 
generally require consultation when they affect a listed species, 
irrespective of impacts to critical habitat. To properly portray the 
effects of critical habitat designation, we must first compare the 
section 7 requirements for actions that may affect critical habitat 
with the requirements for actions that may affect a listed species. 
Section 7 prohibits actions funded, authorized, or carried out by 
Federal agencies from jeopardizing the continued existence of a listed 
species or destroying or adversely modifying the listed species' 
critical habitat. Actions likely to ``jeopardize the continued 
existence'' of a species are those that would appreciably reduce the 
likelihood of the species' survival and recovery. Actions likely to 
``destroy or adversely modify'' critical habitat are those that would 
appreciably reduce the value of critical habitat for the survival and 
recovery of the listed species. Common to both definitions is an 
appreciable detrimental effect on both survival and recovery of a 
listed species. Given the similarity of these definitions, actions 
likely to destroy or adversely modify critical habitat would almost 
always result in jeopardy to the species concerned, particularly when 
the area of the proposed action is occupied by the species concerned. 
As a result, we do not expect that designation of critical habitat in 
this area, occupied by the Kootenai River population of white sturgeon, 
will result in a regulatory burden substantially above that already in 
place, due to the presence of the already-listed species.
    Federal actions that are found likely to destroy or adversely 
modify critical habitat (or to jeopardize the continued existence of 
the species) may often be modified, through development of reasonable 
and prudent alternatives, in ways that will remove the likelihood of 
destruction or adverse modification of critical habitat (or jeopardy). 
Project modifications may include, but are not limited to, adjustment 
in timing of projects to avoid sensitive periods for the species and 
its habitat; minimization of work and vehicle use in the wetted 
channel; avoidance of pollution; use of alternative material sources; 
sediment barriers; and use of best land management and construction 
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Supervisor, Upper Columbia River Fish and Wildlife 
Office (see ADDRESSES section). Requests for copies of the regulations 
on listed wildlife, and inquiries about prohibitions and permits may be 
addressed to the Division of Endangered Species, U.S. Fish and Wildlife 
Service, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (telephone 
503-231-6158; facsimile 503-231-6243).

Summary of Comments and Recommendations

    We twice requested all interested parties to submit comments or 
information that might bear on the designation of critical habitat for 
Kootenai River white sturgeon (65 FR 80618 and 66 FR 20962). We 
contacted all appropriate State and Federal agencies, Tribes, county 
governments, conservation organizations, and other interested parties 
and invited them to comment. In addition, we published newspaper 
notices inviting public comment and announcing the public hearings in 
the following newspapers--Spokesman Review and Bonner County Daily Bee 
in Idaho, and The Western News (Libby) in Montana.
    We held a public hearing on the proposed rule in Bonners Ferry, 
Idaho, on January 18, 2001. Transcripts of this hearing are available 
for inspection (see ADDRESSES section).
    A total of 21 commenters responded, 13 in writing and 8 orally. One 
commenter supported critical habitat as proposed, five commenters were 
opposed, and the remaining commenters were neutral to designation of 
critical habitat. Ten of the commenters were interested in expansion of 
the economic analysis to address all additional impacts of having 
listed the Kootenai River white sturgeon under the Act. We have 
reviewed all comments received for substantive issues and new data 
regarding critical habitat and the Kootenai River population of white 
sturgeon. Repeated or very similar comments are combined into single 
comments and responses.
    During the public comment periods, we also received numerous 
written and oral comments that involved matters related to our December 
2000 jeopardy biological opinion on the operations of the Federal 
Columbia River Power System, but unrelated to the designation of 
critical habitat. Only those comments involving impacts of our previous 
biological opinions which are applicable to our discussion of the 
economic baseline are addressed here.
    Issue 1: One commenter suggested that we should include the entire 
range of the sturgeon, 168 river miles, as critical habitat.
    Our Response: This is beyond the scope and intent of designating 
critical habitat (50 CFR 424.12 (b and c)). We only designated the 
reach of the river that is essential to the conservation of the 
species. We do not believe that the entire river meets the definition 
of critical habitat. Critical habitat is defined in section 3(5)(A) of 
the Act (see the ``Critical Habitat'' section of this rule).
    Issue 2: One commenter stated that all upstream and upgradient 
habitats up to the watershed divide should be included as critical 
habitat for the sturgeon. Three other commenters suggested expanding 
the area of critical habitat some unspecified distance upstream of 
Bonners Ferry, Idaho.
    Our Response: By regulation, designation of critical habitat 
involves a definable site that is essential for its conservation (50 
CFR 424.12 (b and c)) and may require special management. Exposed 
gravel substrates exist in the Kootenai River bed upstream of the area 
we have designated as critical habitat, and these appear suitable for 
sturgeon spawning and early-life-stage rearing. There are no barriers 
that preclude

[[Page 46554]]

sturgeon access to this river reach. The modest experimental 
augmentation flows in 1996 and 1997 intended to attract spawning 
sturgeon to this area were successful. However, based on the absence of 
historic observations and 10 years of monitoring sturgeon spawning 
movements through radio tracking of adults and sampling for eggs and 
larvae, there is no evidence that sturgeon have ever used this reach of 
the Kootenai River for spawning or early-life-stage rearing.
    We know peak runoff event river depths and stream energy necessary 
to transport bedload have been altered by the operations of Libby Dam. 
Prior to the operations of Libby Dam, peak flows occasionally exceeded 
100,000 cubic feet per second (cfs), and the average annual peak 
discharge was approximately 75,000 cfs. Since Libby Dam became 
operational, the average annual peak has been reduced to approximately 
35,000 cfs (U.S. Army Corps of Engineers 2001). New information 
supports the proposed designation because it indicates the gravel/
cobble substrate does exist in the area that we proposed. USGS 
geologists have analyzed core samples of the riverbed, and identified a 
``buried gravel/cobble geomorphic reach'' extending from the railroad 
bridge in Bonners Ferry downstream about to the confluence with Deep 
Creek, a distance of about 3 miles, and entirely within critical 
habitat (Gary Barton, USGS, pers. comm. 2001). The purpose of this 
ongoing study is to determine whether it is likely that this gravel/
cobble substrate (that may be suitable for sturgeon spawning/
incubation) has been buried under sand and silt by the reduction in 
peak flow events and the loss of stream energy (necessary to naturally 
transport sediment), which may have occurred since Libby Dam became 
operational. The USGS has recently agreed to expand their ongoing 
studies to determine if there have been changes in the geomorphology of 
this reach of the Kootenai River that may affect the sturgeon.
    At this time we do not have sufficient information to warrant 
expansion of critical habitat upstream of the area now designated. We 
do not believe that designation of all upstream and upgradient habitats 
up to the watershed divide as critical habitat is essential to the 
conservation of the species.
    Issue 3: One commenter stated that poor recruitment since the 
1960's warrants expansion of critical habitat into more diverse 
habitats such as off-channel rearing sites.
    Our Response: The need to evaluate the use of off-channel habitats 
is acknowledged in the recovery plan, and a feasibility study is under 
way to determine if larval and juvenile sturgeon will occupy a 
reconnected meander channel (U.S. Fish and Wildlife Service 1999). Most 
of the off-channel habitat was eliminated long before 1975 when 
recruitment failure was recorded. White sturgeon in other portions of 
the Columbia River basin continue to recruit without off-channel 
habitats. In addition, off-channel Kootenai River habitat on the 
Creston Wildlife Management Area, British Columbia, now support 
introduced largemouth bass, a potential predator of young of the year 
sturgeon, thus supporting the idea that off-channel habitat are not 
suitable for the sturgeon.
    Issue 4: Two commenters stated that the sturgeon's decline has 
resulted from cumulative effects of large-scale watershed alteration. 
Watershed processes that support the sturgeon's life history 
requirements must be restored, or at least not further degraded to 
ensure the ``conservation of the species.''
    Our response: We acknowledge that there may be a variety of 
stressors, such as lack of turbidity, affecting constituent elements 
for sturgeon recruitment in addition to the substantially altered 
hydrograph since 1975, when Libby Dam became fully operational. These 
possible stressors are identified as study needs in the Recovery Plan 
(U.S. Fish and Wildlife Service 1999). However, at this time we have no 
compelling scientific information on any additional stressors that 
would warrant expansion of critical habitat.
    Issue 5: Libby Dam should be decommissioned or converted to a 
``run-of-the-river'' project. Reestablishment of a natural regime with 
associated stream functions is necessary to preclude adverse 
modification of critical habitat.
    Our Response: Our recommendations in the 1995 and 2000 jeopardy 
biological opinions for Kootenai River white sturgeon have been focused 
on incremental reestablishment of the physical and biological features 
essential to the conservation of the species through changes in the 
operations of Libby Dam, including modified flood control procedures 
that allow water storage for the sturgeon and other listed fish, 
increased release capacity at Libby Dam, water temperature management, 
and restoration of channel capacity near Bonners Ferry through levee 
repairs (U.S. Fish and Wildlife Service 1995 and 2000). The intent of 
our recommendations is to modify operations of the Libby Project, as 
necessary, within its originally authorized purposes to conserve the 
    Issue 6: One commenter asked what critical habitat would do for the 
sturgeon and whether the biological opinion will be amended.
    Our Response: Our December 2000 jeopardy biological opinion 
involving the operations of the Libby Project for the next 10 years is 
based on the same biological information used in this designation of 
critical habitat (U.S. Fish and Wildlife Service 2000). The reasonable 
and prudent alternatives in this biological opinion were provided to 
the action agencies (Corps of Engineers (COE), Bonneville Power 
Administration, and Bureau of Reclamation) to avoid jeopardy to 
Kootenai River white sturgeon. Finalization of this critical habitat 
designation will require that our December 2000 biological opinion be 
amended; however, we expect that this will not result in additional 
requirements affecting operations of Libby Dam, as the existing 
measures adequately address critical habitat.
    Issue 7: One commenter stated that the use of the ordinary high-
water line to delineate the lateral margins of critical habitat is 
confusing, and asked for an explanation of why the ordinary high-water 
line was selected.
    Our Response: The ordinary high-water line was selected because it 
has an established definition cited elsewhere in this document, and it 
generally corresponds to the property lines separating State-owned 
lands from other lands in this area. A common indicator of this line is 
a distinct change in vegetation such as a grass or tree line. During 10 
years of monitoring, no sturgeon have been observed spawning along the 
banks or in the vegetation along the Kootenai River near what appears 
to be the ordinary high-water line, and no sturgeon egg has been 
recovered from the river bottom in less than 3 meters (m) (about 10 
feet (ft)) of water. These observations suggest that the primary 
constituent elements and habitat deemed critical for sturgeon 
reproduction in the Kootenai River lie within the ordinary high-water 
lines, and are generally associated with the bed of the river rather 
than with riparian vegetation above the ordinary high-water lines.
    Issue 8: The area delineated as critical habitat does not account 
for Kootenai River water surface elevations, which may be above the 
ordinary high-water lines during sturgeon augmentation flows, and this 
may impact private property adjacent to State lands along the area of 
critical habitat and elsewhere along the Kootenai River.

[[Page 46555]]

    Our Response: Water surface elevations above the ordinary high-
water lines may occur based on our recommendations in the December 2000 
biological opinion on the operations of the Federal Columbia River 
Power System, which includes operations of Libby Dam (U.S. Fish and 
Wildlife Service 2000). Similarly, water surface elevations may 
increase upstream and downstream of this 11.2-mile reach of the 
Kootenai River we are designating as critical habitat. The primary 
constituent elements are not known to be found in any of these adjacent 
areas. Thus, we do not consider lands higher in elevation and outside 
of the ordinary high-water lines to be critical habitat. Potential 
impacts of elevated river stages on private property above or beyond 
designated critical habitat and resulting from recommendations in our 
2000 biological opinion are described as part of the baseline in the 
economics section of this rule.
    Issue 9: One commenter stated that any private lands within the 
area proposed as critical habitat should be identified.
    Our Response: We have determined that the bed and banks of the 
Kootenai River within the area designated as critical habitat that are 
below the ordinary high-water lines are owned entirely by the State of 
Idaho. We have made a written request to the State to verify this 
determination, but we have received no response (U.S. Fish and Wildlife 
Service 2001). No specific exceptions or in-holdings within these 
State-owned lands were identified during the public comment periods.
    Issue 10: One commenter noted that there are many uncertainties 
about factors limiting sturgeon recruitment. The commenter went on to 
state that decisions, such as critical habitat designation, which may 
impact their community should be delayed until research is completed to 
obtain the best available scientific information.
    Our Response: When we designate critical habitat at the time of 
listing, as required under section 4 of the Act, or under short court-
ordered deadlines, we may not have the information necessary to 
identify all areas which are essential for the conservation of the 
species. Nevertheless, we are required to designate those areas we know 
to be critical habitat, using the best information available to us. 
While we may prefer to have additional information, sufficient 
information, including a recovery plan (Service, 1999), is available to 
support a critical habitat designation.
    Issue 11: One commenter asked if local land owners would have to 
consult with the Service to maintain their levees or repair pump 
discharge facilities if these activities occur within critical habitat.
    Our Response: If there is a nexus such as a Federal permit, a 
Federal activity, or if there is Federal funding, the involved Federal 
agency would be responsible for consultation with us. Critical habitat 
would be but another consideration during that consultation.
    Issue 12: One commenter asked if activities such as boating or 
discharges permitted under the National Pollution Distribution 
Elimination System will be affected.
    Our Response: No impact upon boating is anticipated, because the 
constituent elements of critical habitat for the species are not 
affected by boating. National Pollution Distribution Elimination System 
(NPDES) permits are issued by the U.S. Environmental Protection Agency 
(EPA), and are developed based on the Idaho state Water Quality 
Standards. NPDES permits control the pollutants released into waters of 
Idaho. These discharges may be from facilities such as municipal 
wastewater treatment plants, or from industrial discharges. Designation 
of critical habitat adds another consideration involving possible 
adverse modification of that habitat when we consult with Federal 
agencies on actions such as issuing NPDES permits. Through section 7 
consultation, EPA will need to consider what pollutants may be in the 
discharge, how the pollutants compare with Idaho Water Quality 
Standards, and how those pollutants may affect Kootenai River white 
sturgeon, or the constituent elements of critical habitat. EPA provides 
a public comment and review period on any NPDES permits that are 
issued, so information on the effects of pollutants would be available 
at that time.
    Issue 13: Ten commenters have requested that our economic analysis 
be expanded beyond the impacts of critical habitat to include all 
impacts of sturgeon listing and recovery throughout the Kootenai River 
    Our Response: The Service has prepared an addendum to the critical 
habitat economic analysis, and included it in the final economic 
analysis. This addendum describes a baseline of positive and negative 
impacts in the Kootenai River basin associated with the listing as well 
as the impacts anticipated to be associated with critical habitat.
    Issue 14: Three commenters expressed concerns that our 
recommendations in our biological opinion to increase release capacity 
from 25,000 to 35,000 cfs at Libby Dam may impact structures, wells, 
and sewage facilities, and may cause erosion of islands in the vicinity 
of Libby, Montana.
    Our Response: The COE is initiating interagency studies and review 
under the National Environmental Policy Act which will determine the 
extent of any potential impacts associated with increasing releases 
from Libby Dam by 2004.
    Issue 15: One commenter expressed concern over loss of recreation 
income associated with changes in operations of Lake Koocanusa.
    Our Response: See the economics section of this rule. Our 
biological opinion recommends adoption of the COE's VarQ (Variable 
Flow) flood control procedures which will greatly increase the 
probability of Lake Koocanusa refill (McGrane 1999). In addition, we 
recommended that releases for sturgeon be based on the Montana 
Integrated Rule Curves (Marotz et al. 1999) meaning that there will be 
no augmentation for sturgeon during drought years such as this year 
(2001), and greater releases in exceptional runoff years like 1996 and 
1997, when there is no difficulty refilling the reservoir. Relative to 
a best case model, the COE has estimated that with our biological 
opinion there may be a 2.3-ft reduction in average maximum water 
surface elevation of Lake Koocanusa, down to 2455.3 ft, and that may 
result in a 4 percent loss in visitor days on Lake Koocanusa (U.S. Army 
Corps of Engineers 1999). However, with the recently signed Libby 
Coordination Agreement, Lake Koocanusa may be held as much as 10 ft 
higher during August of some years (U.S. and Canadian Entities 1999). 
This increase in water surface elevation is expected to increase 
recreational use by about 12 percent. Losses in reservoir recreational 
use may be compensated for by increases in recreational use and 
associated commercialization of the Kootenai River below Libby Dam. 
This reach of the river supports a trophy rainbow trout fishery. Under 
our biological opinion for bull trout, minimum flows below Libby Dam 
will be increased by 50 to 125 percent during July and August, also 
increasing usable habitat for the rainbow trout population.
    Issue 16: One commenter stated water released for the sturgeon will 
result in a loss of hydroelectric power generation.
    Our Response: All water released to date for sturgeon flow 
augmentation has passed through the generators and produced power. In 
the future, the Federal action agencies may choose to use the spillway 
to provide some sturgeon augmentation flows. The COE will study this 
issue in the next few

[[Page 46556]]

years, and determine if it can be done without damage to the spillway, 
or without impacting water quality downstream of Libby Dam. If the 
spillway is used, that water would not go through the turbines. 
However, the spillway would only be used when water elevations in Lake 
Koocanusa were high, so water would also likely be passed through the 
turbines at the same time, and power would still be generated. 
Therefore, we do not anticipate any significant change in hydroelectric 
power generation. As a consequence, and as noted later in this 
document, we feel this action will not have a significant effect on 
energy supply, distribution, or use, and so will comply with Executive 
Order 13211.
    Issue 17: One person commented that during 1999 Libby Dam was 
operated only three days for power, and during the remainder of the 
year it was operated for fish.
    Our Response: We are aware of no instance during 1999 when water 
passing through Libby Dam was not used to generate power. This includes 
the periods when releases were shaped for listed fish. The only way 
water passing through Libby Dam would not be used to generate power is 
if there were a spill, and that has not occurred since 1981, before any 
operations for listed fish began.
    Issue 18: One person commented that while rapidly fluctuating water 
levels from load following may be the primary factor causing levee 
erosion through most of Kootenai Valley, peak flow events including 
sturgeon flows are the primary factor causing lateral erosion of the 
river bank and levee upstream of Bonners Ferry in the area of their 
    Our Response: The USGS is evaluating existing information on 
possible changes in channel configuration in the Kootenai River 
upstream of Bonners Ferry that may have occurred since Libby Dam became 
operational. We have asked them to investigate the possibility that 
reduced peak flows since Libby Dam became operational, and the 
resulting loss of energy to transport bed load, may have increased 
streambed gravel deposition, reduced channel capacity and reduced water 
depths above Bonners Ferry. Such changes may influence sturgeon 
spawning site selection. If this has occurred, the rate of lateral 
migration of the river and erosion of banks may also be affected. The 
effects of the operations of Libby Dam may be very different in the 
higher gradient reach of the Kootenai River above Bonners Ferry.
    Issue 19: One person commented that the Service is asking for flows 
up to 60,000 cfs which equates to a stage of 1,764 ft at Bonners Ferry, 
and property owners may suffer a million and a half dollars worth of 
crop damages in the valley, mainly from seepage.
    Our Response: The 2000 biological opinion recommends release 
capacity at Libby Dam be increased from about 25,000 to 35,000 cfs, but 
specific flows for sturgeon are recommended annually, on an in-season 
adaptive management basis. This adaptive management approach considers 
the presence of sturgeon expected to spawn, attainable water 
temperatures, the stage of Kootenay Lake and its associated backwater 
effect, the duration of flows and seepage into agricultural lands, the 
extent of runoff entering the river below Libby Dam, and public safety 
based on levee condition (Service 2000). The highest flow coinciding 
with a sturgeon release was about 45,000 cfs on June 7, 1997. That 
release would have occurred in the absence of a specific recommendation 
for sturgeon because it was necessary to preclude a forced spill at 
Libby Dam and the possibility of an uncontrolled flood. Because of 
concern for flooding, the flow event was extended by the Corps of 
Engineers for 13 days, rather than the recommended 3 days (U.S. Fish 
and Wildlife Service 1999). The highest river stage at Bonners Ferry 
during this multipurpose release was 1,764.4 ft, which occurred at 3:00 
a.m. on June 7, 1997. This was an unusual situation that was influenced 
by the cumulative back water effect of Kootenay Lake during an 
exceptionally high runoff year. Most sturgeon flows have been in the 
range of 27,000 to 40,000 cfs. As authorized, Libby Dam was to control 
a 100-year flood event (0.01 exceedance frequency) to 57,000 cfs at 
Bonners Ferry, based on information that the reconstructed 1894 flood 
had been an 85- to 100-year event (McGrane 1995, 1996). In 1999, with 
additional flow records through 1978 available to better define a 100-
year flood event, the authorized control level during a 100-year event 
was estimated to be 62,000 cfs, which corresponds to an elevation or 
stage at Bonners Ferry of 1768.9 ft (McGrane 1999).
    Presently, because some levee segments have not been well 
maintained, the COE has an operational policy to control the river to 
an elevation of 1,764 ft (a 10-year event or a 0.10 exceedance 
frequency), at Bonners Ferry when possible, and this corresponds to a 
flow of 53,000 cfs (McGrane 1999). This 1,764 ft was the average stage 
of the Kootenai River at Bonners Ferry for the entire month of June 
prior to the operations of Libby Dam (Army Corps of Engineers 2001). 
The average stage for the month of May was 1,761 ft. Although seepage 
from these average stages and durations may have regularly affected 
some lands above river mile 143 (Dion and Whitehead 1973), we are aware 
of no information that a reduction in seepage was an authorized purpose 
of the Libby Project. Seepage is typically among the consequential 
effects of large flood control projects, and any seasonal reduction in 
seepage was an ancillary benefit of the Libby Project. The baseline for 
economic analysis in this document will be those conditions related to 
seepage prior to our 1995 biological opinion, rather than conditions 
related to seepage prior to operations of Libby Dam, addressed under 
other authorities.
    Issue 20: One commenter asked if the designation of critical 
habitat would result in flows greater than those which we have 
recommended in our December 2000 biological opinion.
    Our Response: No. We have no new information which would warrant 
additional increases in flows.


    In finalizing critical habitat for the Kootenai River white 
sturgeon, we reviewed the overall approaches to conservation of the 
species taken by local, State, Tribal, and Federal agencies in the U.S. 
and Canada and private individuals and organizations since the species' 
listing in 1994. We also solicited information from knowledgeable 
biologists and reviewed the available information pertaining to habitat 
requirements of the species. This final critical habitat designation 
described below constitutes our best assessment of the area essential 
for the conservation of the sturgeon, and is based on the best 
scientific and commercial information available. The area designated is 
currently within the range occupied by the species, and contains all of 
the primary constituent elements identified in the ``Primary 
Constituent Elements'' section. The area designated is entirely within 
the historic range of the species, and requires special management 
consideration and protection to ensure its contribution to the species' 
    In an effort to map areas essential to the conservation of the 
species, we used data on known Kootenai River sturgeon spawning and 
early-life-stage rearing areas. In the lower Columbia River, where 
white sturgeon continue to spawn successfully, egg incubation sites and 
yolk sac fry development sites are at or slightly downstream of 
spawning sites (Parsley et al. 1993). In the Kootenai River, eggs at 
all stages of

[[Page 46557]]

development and one hatching yolk sac fry have been found at or 
downstream of the spawning sites. Since 1991, sturgeon eggs have been 
recovered in the Kootenai River between river kilometer 228 (river mile 
141.4), below Shorty's Island (Paramagian et al. 1995), and river 
kilometer 246 (river mile 152.6), above the Highway 95 bridge at 
Bonner's Ferry, Idaho (Paragamian et al. in press). Although many of 
the eggs found were unattached and drifting along the river bottom, 
Paragamian et al. (in press) supports the assumption that the Kootenai 
River sturgeon egg collection sites are in the vicinity of the spawning 
sites. Further, since no other spawning sites have been identified in 
10 years of monitoring, we believe these are the same sites where at 
least some successful egg incubation and yolk sac fry development has 
occurred, as evidenced by the 17 wild juveniles captured and aged to 
year classes within this same 10-year study period.
    Existing structures within the critical habitat boundaries, such as 
highway and railroad bridges, do not contain primary constituent 
elements essential for sturgeon conservation, and therefore are not 
included in this critical habitat designation even though they are 
included within mapped critical habitat boundaries. Federal actions 
limited to those structures would not trigger a section 7 consultation, 
unless they affect the species and/or primary constituent elements in 
adjacent critical habitat.

Summary of Changes From the Proposed Rule

    The final designation of critical habitat has no changes from the 
proposed designation.

Economic Analysis

    Economic effects caused by listing the sturgeon as a Federally 
protected endangered species, and by other statutes, are the baseline 
against which the effects of a critical habitat designation are 
evaluated. The economic analysis must then examine the incremental 
economic and conservation benefits and effects of the critical habitat 
designation. Economic effects are measured as changes in national 
income, regional jobs, and household income, when possible. An analysis 
of the designation of critical habitat for the sturgeon was prepared 
(Bioeconomics, Inc. 2001, under contract with Industrial Economics, 
Inc.) and made available for public review and comment (April 18, 2001, 
through May 29, 2001; 66 FR 20962).
    An addendum to the draft economic analysis was prepared and its 
availability is noted below in the ``Economic Analysis'' section. This 
addendum includes additional baseline information associated with the 
listing of the sturgeon and subsequent section 7 consultations, 
responses to public comments on the draft economic analysis, and is 
consistent with the May 11, 2001, ruling by the U.S. Court of Appeals, 
Tenth Circuit.
    The final analysis, which reviewed and incorporated public 
comments, concluded that no additional costs or benefits are estimated 
to accrue from the designation of critical habitat for the sturgeon. 
All estimated costs and benefits from either ongoing impacts of past 
section 7 consultations, or associated with anticipated future 
consultations are attributable to the listing requirements of the Act 
and not any additional requirements associated with critical habitat 
designation. These listing-related impacts are estimated to include 
less than $2,000 per year in additional costs of completing 
consultations involving the sturgeon. Additionally, it is estimated 
that up to approximately $300,000 per year of seepage-related crop 
damage resulting from all water sources may occur in the Kootenai 
Valley. However, there was not sufficient information available to 
segregate crop damage resulting specifically from Kootenai River 
seepage during sturgeon augmentation flows recommended under section 7 
of the Act, from those crop damages resulting from seepage during other 
high river flows, or from those crop damages resulting from entirely 
different water sources. This estimate of seepage-related crop damage 
may be a high estimate depending on actual crop locations, and the flow 
levels and durations of future sturgeon-related river flows. Levee 
owners along the Kootenai River may also benefit from modified river 
flows (reduced hydroelectric load following) resulting from section 7 
consultation that will lead to reduced erosion and maintenance costs on 
most privately owned levees along the river. The small (4 percent) 
estimated loss in visitor use days on Lake Koocanusa, due to releases 
for sturgeon, may be offset by increased summer lake levels resulting 
from the Libby Coordination Agreement between the U. S. and Canada, and 
also by improved recreational fishing opportunities below Libby Dam 
associated with increased and more stable instream flows during July 
and August.
    A copy of the final economic analysis is included in our 
administrative record and may be obtained by contacting the U.S. Fish 
and Wildlife Service, Upper Columbia Fish and Wildlife Office, 11103 
East Montgomery Drive, Spokane, Washington 99206, or at http://

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (EO) 12866, this rule is a 
significant regulatory action and has been reviewed by the Office of 
Management and Budget (OMB).
    (a) In the economic analysis, we determined that this rule will not 
have an annual economic effect of $100 million or more or adversely 
affect an economic sector, productivity, jobs, the environment, or 
other units of government. The Kootenai River population of white 
sturgeon was listed as endangered on September 6, 1994. We have 
recently completed one formal section 7 consultation with the COE, 
Bonneville Power Administration, and the Bureau of Reclamation on 
operations of the Federal Columbia River Power System, in part, to 
ensure that their actions would not jeopardize the continued existence 
of the Kootenai River population of white sturgeon. Based on the 
proposed action, we issued a jeopardy biological opinion on the 
sturgeon in December 2000.
    Under the Act, critical habitat does not impose any restrictions on 
non-Federal persons unless they are conducting activities funded or 
otherwise authorized by a Federal agency (see Table 1).

[[Page 46558]]

 Table 1.--Activities potentially impacted by Kootenai River population
       of white sturgeon listing and critical habitat designation.
                                Activities potentially     potentially
   Categories of activities       affected by species      affected by
                                   listing only \1\     critical habitat
                                                         designation \2\
Potentially Affected            Operation of dams,      None.
 Activities that are Initiated   reservoirs, and other
 by a Federal Agency.            water control
                                 facilities in the
                                 Kootenai River
                                 watershed. Federal
                                 issuance of
                                 scientific permits,
                                 operation of captive
                                 facilities, sturgeon
                                 habitat restoration.
Potentially Affected            Construction and/or     None.
 Activities Initiated by a       operation of
 Private or Other Non-Federal    freshwater
 Entity That May Need Federal    hatcheries, water
 Authorization or Funding.       withdrawal projects,
                                 approval of new or
                                 revised water quality
                                 standards, pesticide
                                 stabilization, gravel
                                 mining, road and
                                 bridge construction,
                                 streamcrossings, and
                                 sturgeon habitat
                                 restoration that
                                 require a Federal
                                 action (permit,
                                 authorization, or
\1\ This column represents the activities potentially affected by
  listing the Kootenai River population of white sturgeon as an
  endangered species (September 6, 1994; 59 FR 45989) under the
  Endangered Species Act.
\2\ This column represents the activities potentially affected by the
  critical habitat designation in addition to those activities
  potentially affected by listing the species.

    Section 7 of the Act requires Federal agencies to ensure that they 
do not jeopardize the continued existence of the species. Based upon 
our experience with the species and its needs, we conclude that any 
Federal action or authorized action that could potentially cause 
adverse modification of designated critical habitat would currently be 
considered as ``jeopardy'' under the Act. Accordingly, the designation 
of areas within the geographic range occupied by the Kootenai River 
population of white sturgeon does not have any incremental impacts on 
what actions may or may not be conducted by Federal agencies or non-
Federal persons that receive Federal authorization or funding. Non-
Federal persons that do not have a Federal ``sponsorship'' of their 
actions are not restricted by the designation of critical habitat, 
although they continue to be bound by the provisions of the Act 
concerning ``take'' of the species.
    (b) This rule is not expected to create inconsistencies with other 
agencies' actions. As discussed above, Federal agencies have been 
required to ensure that their actions do not jeopardize the continued 
existence of the Kootenai River white sturgeon since its listing in 
1994. The prohibition against adverse modification of critical habitat 
is expected to impose few, if any, additional restrictions to those 
that currently exist. However, we will continue to review this proposed 
action for any inconsistencies with other Federal agency actions.
    (c) This final rule will not significantly impact entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Federal agencies are currently required to ensure 
that their activities do not jeopardize the continued existence of the 
species, and, as discussed above, we do not anticipate that the adverse 
modification prohibition (resulting from critical habitat designation) 
will have any incremental effects in areas of designated critical 
    (d) OMB has determined that this rule will raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our determination.
    We have examined this rule's potential effects on small entities as 
required by the Regulatory Flexibility Act, and have determined that 
this action will not have a significant economic impact on a 
substantial number of small entities.
    As discussed in the economic analysis for this rulemaking and the 
preamble above, this rule is not expected to result in any significant 
restrictions in addition to those currently in existence for areas 
occupied by the Kootenai River population of white sturgeon and 
designated as critical habitat. As indicated in Table 1, we identified 
the types of Federal actions or authorized activities that are of 
potential concern. If these activities sponsored by Federal agencies 
within the designated critical habitat areas are carried out by small 
entities (as defined by the Regulatory Flexibility Act) through 
contract, grant, permit, or other Federal authorization, as discussed 
above, these actions are currently required to comply with the listing 
protections of the Act, and the designation of critical habitat is not 
anticipated to have any significant additional effects on these 
activities in areas of critical habitat occupied by the species. For 
actions that have no Federal connection (such as funding or 
authorization), the current restrictions concerning take of the species 
remain in effect, and this rule will have no additional restrictions.
    Therefore, we are certifying that this final designation of 
critical habitat is not expected to have a significant adverse impact 
on a substantial number of small entities. Thus, no regulatory 
flexibility analysis is necessary.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (EO 13211) 
on regulations that significantly affect energy supply, distribution, 
and use. Executive Order 13211 requires agencies to prepare Statements 
of Energy Effects when undertaking certain actions. As this final rule 
is not expected to

[[Page 46559]]

significantly affect energy supplies, distribution, or use, this action 
is not a significant energy action and no Statement of Energy Effects 
is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. However, as discussed above, these actions are currently 
subject to equivalent restrictions through the listing protections of 
the species, and no further restrictions are anticipated in areas of 
occupied designated critical habitat.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.
    In the economic analysis, we determined the designation of critical 
habitat will not have a significant effect on a substantial number of 
small entities. As discussed under Regulatory Planning and Review 
above, this rule is not expected to result in any restrictions in 
addition to those currently in existence for areas of occupied critical 

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    Under our economic analysis, we determined the designation of 
critical habitat will not cause: (a) any increases in costs or prices 
for consumers, individual industries, Federal, State, Tribal, or local 
government agencies, or geographic regions; or (b) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. As discussed above, we anticipate that the 
designation of critical habitat will not have any additional effects on 
these activities in areas of critical habitat occupied by the species.


    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This rule will not ``take'' private property. The 
designation of critical habitat affects only Federal agency actions. 
The rule will not increase or decrease the current restrictions on 
private property concerning take of the Kootenai River population of 
white sturgeon. Additionally, critical habitat designation does not 
preclude development of habitat conservation plans and issuance of 
incidental take permits. Non-Federal landowners in areas that are 
included in the designated critical habitat will continue to be able to 
make economic use of their property.


    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. The designation of critical habitat in areas currently 
occupied by the Kootenai River white sturgeon imposes no additional 
restrictions on state or private activities than those currently in 
place, and therefore has little incremental impact on State and local 
governments and their activities.
    In keeping with Department of the Interior policy, we requested 
information from and coordinated development of this critical habitat 
designation with appropriate State resource agencies in Idaho. We also 
utilized information on critical habitat submitted by the State during 
the listing of the Kootenai River white sturgeon. The State now has 
representation on our recovery team for this species. Consequently, we 
will continue to coordinate this and any future designation of critical 
habitat with the appropriate State agency.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
will review the final determination. We have made every effort to 
ensure that this final determination contains no drafting errors, 
provides clear standards, simplifies procedures, reduces burden, and is 
clearly written such that litigation risk is minimized.

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

    This designation does not contain any information collection 
requirements for which OMB approval under the Paperwork Reduction Act 
is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 

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, E.O. 13175) and 512 DM 2, we understand 
that Federally recognized Tribes must be related to on a government-to-
government basis. We support tribal measures that preclude the need for 
conservation regulations, and we provide technical assistance to tribes 
who wish assistance in developing and expanding tribal programs for the 
management of healthy ecosystems so that Federal conservation 
regulations, such as designation of critical habitat, on tribal lands 
are unnecessary.
    The Presidential Memorandum of April 29, 1994, also requires us to 
consult with the tribes on matters that affect them, and section 
4(b)(2) of the Act requires us to gather information regarding the 
designation of critical habitat and the effects thereof from all 
relevant sources, including the tribes. Recognizing a government-to-
government relationship with tribes and our Federal trust 
responsibilities, we consulted representatives of the Kootenai Tribe of 
Idaho with regard to trust resources, tribal lands, or tribal rights 
that might be affected by the designation of critical habitat.
    In our deliberations over this critical habitat designation, we 
identified possible effects to the Kootenai Tribe of Idaho or tribal 
resources. These include: (1) Effects of designation of critical 
habitat on State lands adjacent to tribal lands; and (2) the effects on 
tribal resources, such as water deliveries and aquatic resources such 
as the Kootenai River white sturgeon. The Kootenai Tribe of Idaho is 
directly involved in the conservation of the Kootenai River white 
sturgeon, and conducts a conservation aquaculture program. To do this, 
the Tribe diverts a small amount of water directly from the Kootenai 
River within the area of critical habitat. We do not anticipate any 
direct or

[[Page 46560]]

indirect adverse effects to Tribal lands through management actions 
intended to enhance or maintain critical habitat on adjacent State of 
Idaho lands. However, we do anticipate beneficial effects to Tribal 
resources, including maintained water quality and continued 
conservation of the sturgeon, from the designation of critical habitat 
on adjacent non-tribal lands.

References Cited

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


    The primary author of this notice is Bob Hallock, U.S. Fish and 
Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
Record Keeping Requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter 1, title 50 
of the Code of Federal Regulations as set forth below:


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

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

    2. Amend Sec. 17.11 (h), by revising the entry for ``Sturgeon, 
white'' under ``FISHES'' in the List of Endangered and Threatened 
Wildlife to read as follows:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

                   *                  *                  *                  *                  *                  *                  *

                   *                  *                  *                  *                  *                  *                  *
Sturgeon, white..................  Acipenser             U.S.A. (ID, MT)      U.S.A. (ID, MT)      E                       549     17.95(e)           NA
                                    transmontanus.        Canada (B.C.).       Canada (B.C.)
                                                                               (Kootenai R.

                   *                  *                  *                  *                  *                  *                  *

    3. Amend Sec. 17.95(e) by adding critical habitat for the Kootenai 
River population of white sturgeon (Acipenser transmontanus) in the 
same alphabetical order as this species occurs in Sec. 17.11(h) to read 
as follows:

Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Kootenai River population of white sturgeon (Acipenser 
    1. Idaho, Boundary County: Kootenai River from river kilometer 
228 (river mile 141.4) to river kilometer 246 (river mile 152.6), as 
indicated on the map below, from ordinary high-water line to 
opposite bank ordinary high-water line as defined in 33 CFR 329.11.
    2. Primary constituent elements include those that are essential 
for the primary biological needs of normal behavior, water 
requirements, cover, shelter, breeding, and rearing of offspring. 
These elements include the following: (1) A flow and hydrologic 
regime characterized by water magnitude, timing, depth, velocity, 
and quality (including temperatures) necessary for normal behavior 
involving breeding site selection, breeding and fertilization, and 
cover for egg incubation and yolk sac fry development; (2) a flow 
and hydrologic regime characterized by water of sufficient duration 
and magnitude to restore or maintain riverbed substrate necessary 
for cover and shelter for both incubating eggs and yolk sac larvae; 
(3) a flow and hydrologic regime characterized by flow magnitude, 
time, velocity, depth, and duration necessary for the normal 
behavior of adult and juvenile sturgeon; and (4) water and sediment 
quality necessary for normal behavior, including breeding behavior, 
and the viability of all life stages, including incubating eggs and 
yolk sac larvae.
    3. Within this area, existing structures, such as highway and 
railroad bridges, are not included in the critical habitat 

    Note: Map follows.


[[Page 46561]]


* * * * *

    Dated: August 28, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-22342 Filed 9-5-01; 8:45 am]