[Federal Register Volume 84, Number 178 (Friday, September 13, 2019)]
[Rules and Regulations]
[Pages 48290-48308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19850]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2017-0051; FXES11130900000-178-FF09E42000]
RIN 1018-BC09
Endangered and Threatened Wildlife and Plants; Removing the
Foskett Speckled Dace From the List of Endangered and Threatened
Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are
removing the Foskett speckled dace (Rhinichthys osculus ssp.), a fish
native to Oregon, from the Federal List of Endangered and Threatened
Wildlife on the basis of recovery. This determination is based on a
review of the best available scientific and commercial information,
which indicates that the threats to the Foskett speckled dace have been
eliminated or reduced to the point where it no longer meets the
definition of an endangered or threatened species under the Endangered
Species Act of 1973 (Act), as amended.
DATES: This rule is effective October 15, 2019.
ADDRESSES: This final rule, the post-delisting monitoring plan, and
supporting documents including the Cooperative Management Plan are
available on the internet at http://www.regulations.gov in Docket No.
FWS-R1-ES-2017-0051, or at https://ecos.fws.gov. In addition, the
supporting file for this final rule will be available for public
inspection by appointment, during normal business hours, at: U.S. Fish
and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th
Avenue, Suite 100, Portland, OR 97266; telephone: 503-231-6179.
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, Oregon
Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR
97266; telephone: 503-231-6179. If you use a
[[Page 48291]]
telecommunications device for the deaf (TDD), call the Federal Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
protection through listing if it is endangered or threatened.
Conversely, a species may be removed from the Federal List of
Endangered and Threatened Wildlife (List) if the Act's protections are
determined to be no longer required based on recovery, original data
error, or extinction. Removing a species from the List can be completed
only by issuing a rule. This rule finalizes the removal of the Foskett
speckled dace (Rhinichthys osculus ssp.) from the List due to recovery,
as proposed on January 4, 2018 (83 FR 475).
The basis for our action. We have determined that the Foskett
speckled dace is no longer at risk of extinction and has exceeded or
met the following criteria for delisting described in the species'
recovery plan (USFWS 1998): (1) Long-term protection of habitat,
including spring source aquifers, spring pools and outflow channels,
and surrounding lands, is assured; (2) long-term habitat management
guidelines are developed and implemented to ensure the continued
persistence of important habitat features, and include monitoring of
current habitat and investigation for and evaluation of new spring
habitats; and (3) research into life history, genetics, population
trends, habitat use and preference, and other important parameters is
conducted to assist in further developing and/or refining criteria (1)
and (2), above. We consider the Foskett speckled dace to be a
conservation-reliant species, which we define in this case as a species
that has generally met recovery criteria but requires continued active
management to sustain the species and associated habitat in a recovered
condition (see Scott et al. 2010, entire), given that the Foskett
speckled dace requires active management to maintain suitable habitat.
To address this management need, the Bureau of Land Management (BLM),
the Oregon Department of Fish and Wildlife (ODFW), and the Service
developed, and are implementing, the Foskett speckled dace Cooperative
Management Plan (CMP; USFWS et al. 2015), and are committed to the
continuing long-term management of this species.
Peer review and public comment. We evaluated the species' needs,
current conditions, and future conditions to support our proposed rule.
We sought comments from independent specialists to ensure that our
determination is based on scientifically sound data, assumptions, and
analyses. We invited these peer reviewers to comment on the draft post-
delisting monitoring plan. We considered all comments and information
we received during the public comment period on the proposed rule to
delist the Foskett speckled dace and the post-delisting monitoring plan
when developing this final rule.
Previous Federal Actions
In carrying out our responsibility to administer the Act, we
maintain the Lists of Endangered and Threatened Wildlife and Plants in
title 50 of the Code of Federal Regulations (CFR). We published a final
rule listing the Foskett speckled dace as threatened in the Federal
Register on March 28, 1985 (50 FR 12302). This rule also found that the
designation of critical habitat was not prudent because it would
increase the likelihood of vandalism to the small, isolated springs
that support this species. On April 27, 1998, a recovery plan was
completed for the Foskett speckled dace as well as two other fish of
the Warner Basin and Alkali Subbasin (USFWS 1998).
Our most recent 5-year review, completed on October 26, 2015 (USFWS
2015, entire), concluded that the status of the Foskett speckled dace
had substantially improved since the time of listing according to the
definitions of ``endangered species'' and ``threatened species'' under
the Act and recommended that the Foskett speckled dace be considered
for delisting.
On January 4, 2018, we published a proposed rule in the Federal
Register (83 FR 475) to delist the Foskett speckled dace on the basis
of recovery. In that document, we requested information and comments
from the public regarding the proposed rule and the draft post-
delisting monitoring plan for the Foskett speckled dace.
Species Description
The Foskett speckled dace is in the family Cyprinidae (Girard 1857)
and is represented by one population in Lake County, Oregon: A natural
population that inhabits Foskett Spring on the west side of Coleman
Lake, and an introduced subpopulation at nearby Dace Springs (USFWS
1998, p. 14). The Foskett speckled dace is a small, elongate, rounded
minnow (4 inches (in) (10 centimeters (cm)) with a flat belly. The
snout is moderately pointed, the eyes and mouth are small, and ventral
barbels (i.e., whisker-like sensory organs near the mouth) are present.
Foskett speckled dace have eight dorsal fin rays and seven anal fin
rays, and the caudal fin is moderately forked (USFWS 1998, p. 8). The
color of its back is dusky to dark olive; the sides are grayish green,
with a dark lateral stripe, often obscured by dark speckles or
blotches; and the fins are plain. Breeding males are reddish on the
lips and fin bases.
Life History
Typically, speckled dace breed at age 1 year, and spawning begins
in March to April and extends into July; individual fish can live for
at least 4 years (Scheerer et al. 2015, p. 2). Multiple age classes of
Foskett speckled dace are present at Foskett Spring and successful
reproduction occurs annually (Sheerer and Jacobs 2009, p. 5). To
describe the different habitat types occupied by Foskett speckled dace,
Scheerer split the habitat types into categories. The four habitat
types are defined as the (1) Spring Pool; (2) Spring Brook; (3) Tule
Marsh; and (4) Cattail Marsh. Aside from 1997, Cattail Marsh supports
few Foskett speckled dace; the small population size in the Cattail
Marsh habitat is due to habitat encroachment (Scheerer et al. 2011, pp.
6-7; Scheerer et al. 2016, p. 9). Most of the Cattail Marsh habitat is
outside the fence protecting Foskett Spring habitat, and the habitat is
known to dry periodically (U.S. Fish and Wildlife Service 1998, p. 14).
Young-of-the-year fish are more common in the shallow marsh habitats
(Scheerer et al. 2016, p. 3). Presumably, similar to other dace,
Foskett speckled dace require rock or gravel substrate for egg
deposition (Sigler and Sigler 1987, p. 208). The taxonomy of the
Foskett speckled dace is summarized in the species' 5-year review
(USFWS 2015).
Distribution
The Foskett speckled dace is endemic to Foskett Spring in the
Warner Basin, in southeastern Oregon (see Figure 1). The historical
known natural range of the Foskett speckled dace is limited to Foskett
Spring. At the time of listing in 1985, Foskett speckled dace also
occurred at Dace Spring, a smaller spring located approximately 0.5
miles (mi; 0.8 kilometers (km)) south of Foskett Spring, where
translocation was initiated in 1979 (Williams et al. 1990, p. 243).
Foskett speckled dace were probably distributed throughout
prehistoric Coleman Lake (see Figure 1) during times that it held
substantial amounts of water. The timing of the isolation between the
Warner Lakes and the Coleman Lake Subbasin is uncertain, although it
might have been as recent as 10,000 years ago (Bills 1977, entire). As
[[Page 48292]]
Coleman Lake dried, the salt content of the water increased and
suitable habitat would have been reduced from a large lake to spring
systems that provided adequate freshwater.
[GRAPHIC] [TIFF OMITTED] TR13SE19.018
Given that both Foskett and Dace springs were historically below
the surface elevation of Coleman Lake, it is reasonable to assume that
Foskett speckled dace occupied Dace Spring at some point in the past,
although none was documented in the 1970s. Beginning in 1979, Foskett
speckled dace were translocated into the then-fishless Dace Spring to
attempt to create a subpopulation (see Abundance, below).
Habitat
Foskett Spring is a small, natural thermal artesian spring that
rises from a springhead pool that flows through a narrow, shallow
spring brook into a series of shallow marshes, and then disappears into
the soil of the normally dry Coleman Lake (Scheerer et al. 2016, p. 1;
Sammel and Craig 1981, p. 113). Foskett Spring is a cool-water thermal
spring with temperatures recorded at a constant 64.8 degrees Fahrenheit
([deg]F) (18.2 degrees Celsius ([deg]C)) (Scheerer and Jacobs 2009, p.
5). The spring water is clear, and the water flow rate is consistently
less than 0.5 cubic feet (ft\3\) per second (0.01 cubic meters (m\3\)
per second). The springhead pool has a loose sandy bottom and is
heavily vegetated with aquatic plants. The ODFW estimated approximately
864 square yards (yds\2\) (722 square meters (m\2\)) of wetland habitat
are associated with the Foskett Spring area, including the spring pool,
spring brook, tule marsh, cattail marsh, and sedge marsh (Scheerer and
Jacobs 2005, p. 6; hereafter ``marsh'' unless otherwise noted). Foskett
speckled dace occur in all the wetlands habitats associated with the
spring. The fish use overhanging bank edges, grass, exposed grass
roots, and filamentous algae as cover.
In 1987, the BLM acquired the property containing both Foskett and
Dace springs and the surrounding 161 acres (ac) (65 hectares (ha)), of
which approximately 69 ac (28 ha) were fenced to exclude cattle from
the two springs. After fencing and cattle exclusion, encroachment by
aquatic vegetation reduced the open-water habitat (Sheerer and Jacobs
2007, p. 9). This is a common pattern in desert spring ecosystems and
has resulted in reductions of fish populations at other sites (see
Kodric-Brown and Brown 2007).
In 2005, 2007, and 2009, the ODFW considered Foskett speckled dace
habitat to be in good condition, but limited in extent. They noted that
encroachment by aquatic plants may be limiting the population and that
a decline in abundance of Foskett speckled dace since 1997 was probably
due to the reduction in open-water habitat (Scheerer and Jacobs 2005,
p. 7; 2007, p. 9; 2009, p. 5). Deeper water with moderate vegetative
cover would
[[Page 48293]]
presumably be better habitat, judging from the habitats used by other
speckled dace, although Dambacher et al. (1997, no pagination) noted
that past habitat management to increase open water has been
unsuccessful in the long run due to sediment infilling and regrowth of
aquatic plants. To increase open-water habitat, the BLM and the Service
worked together in 2009 constructing two ponds connected to the outlet
channel of Dace Spring. To address the encroachment by aquatic
vegetation at Foskett Spring, in 2013, the BLM reduced vegetation
biomass by implementing a controlled burn in the surrounding marshes.
In 2013 and 2014, the BLM hand-excavated 11 pools and increased the
open-water habitat around Foskett Spring by 196 yds\2\ (164 m\2\)
(Scheerer et al. 2014, p. 9). The response of Foskett speckled dace to
this habitat enhancement was substantial but relatively short-lived
(see Abundance, below).
The BLM initiated baseline water quality and vegetation monitoring
at Foskett and Dace springs in 1987. Data collected on September 28,
1988, documented that the two springs had similar water chemistry,
temperature, and turbidity (Williams et al. 1990, p. 244). In 2013, the
BLM reconfigured the inlet and outlet to the two ponds at Dace Spring,
allowing greater water flow and improving water quality (Scheerer et
al. 2013, p. 8).
Abundance
The population of Foskett speckled dace has been monitored
regularly by the ODFW since 2005, and, while variable, appears to be
resilient (i.e., capable of withstanding natural variation in habitat
conditions and weather as well as random events). General observations
made during these surveys included the presence of multiple age-classes
and the presence of young-of-the-year, which indicates that breeding is
occurring and young are surviving for multiple years. Bond (1974)
visually estimated the population in Foskett Spring to be between 1,500
and 2,000 individuals in 1974. In 1997, the ODFW obtained mark-
recapture population estimates at both Foskett and Dace springs
(Dambacher et al. 1997, no pagination). The Foskett Spring estimate was
27,787 fish, and the majority of the fish (97 percent) occurred in an
open-water pool located in the marsh outside of the existing Foskett
Spring cattle exclosure. Since 1997, population estimates have varied
from 751 to 24,888 individuals (see Table 1, below).
Abundance declined substantially from 1997 through 2012, a period
when aquatic plants substantially expanded into open-water habitats
(Scheerer et al. 2016, p. 9). ODFW attributed the higher population
estimates from 2013 through 2015 to habitat management that increased
open water (see below); during these years most fish were found in
these maintained habitats (Scheerer et al. 2016, p. 9). The population
decline documented in 2016 in Foskett Spring was likely a result of
vegetation regrowth into the excavated areas (Scheerer et al. 2016, pp.
6-9). As a result of the vegetation regrowth and population decline in
2016, and consistent with the CMP, the BLM conducted an extensive
habitat enhancement project in 2017. The project entailed excavating
approximately 300 cubic yards (yds\2\) (251 m\2\) of vegetation and
accumulated sediment in the Foskett Spring pool, stream, and portions
of the wetland, resulting in a significant increase in open-water
habitat. Prior to initiating this enhancement project in 2017, the ODFW
conducted a population survey that estimated 4,279 dace in Foskett
Spring (95 percent confidence interval (CI): 3,878-4,782), a moderate
increase in the estimate from the prior year (1,830) (P. Scheerer 2017,
pers. comm.). As noted previously, and as illustrated in Table 1 below,
the variability in abundance is not uncommon for dace species and
appears, based on observations by ODFW biologists, to be driven in part
by the availability of open-water habitat. Given information gained
from prior habitat enhancement actions at Foskett and Dace springs, we
anticipate the extensive habitat enhancement work conducted by the BLM
in 2017 will support abundance commensurate with available habitat in
coming years.
Table 1--Foskett Spring: Population Estimates With 95 Percent Confidence Intervals of Foskett Speckled Dace by Habitat Type
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Habitat type or location
Model Yr \1\ ------------------------------------------------------------------------------------------------------------------------------------- Management
Spring pool Spring brook Tule marsh Cattail marsh Entire site \2\
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Lincoln-Petersen............... 1997 204 (90-317)............ 702 (1,157-2,281)....... no sample............... 26,881 (13,158-40,605).... 27,787 (14,057-41,516)... none.
2005 1,627 (1,157-2,284)..... 755 (514-1,102)......... 425 (283-636)........... 353 (156-695)............. 3,147 (2,535-3,905)...... none.
2007 1,418 (1,003-1,997)..... 719 (486-1,057)......... 273 (146-488)........... 422 (275-641)............. 2,984 (2,403-3,702)...... none.
2009 247 (122-463)........... 1,111 (774-1,587)....... 1,062 (649-1,707)....... 158 (57-310).............. 2,830 (2,202-3,633)...... none.
2011 322 (260-399)........... 262 (148-449)........... 301 (142-579)........... 0......................... 751 (616-915)............ none.
2012 404 (354-472)........... 409 (357-481)........... 220 (159-357)........... 0......................... 988 (898-1,098).......... Controlled burn.
Huggins........................ 2011 NA \3\.................. NA \3\.................. NA \3\.................. NA \3\.................... 1,728 (1,269-2,475)...... none.
2012 633 (509-912)........... 589 (498-1024).......... 625 (442-933)........... 0......................... 1,848 (1,489-2,503)...... Controlled burn.
2013 2,579 (1,985-3,340)..... 638 (566-747)........... 6,891 (5,845-8,302)..... 3,033 (2,500-3,777)....... 13,142 (10,665-16,616)... Pool excavation
and hand
excavation of
spring brook and
marshes.
2014 2,843 (2,010-3,243)..... 7,571 (2,422-13,892).... 11,595 (7,891-12,682)... 2,936 (1,757-7,002)....... 24,888 (19,250-35,510)... Pool excavation
and hand
excavation of
spring brook and
marshes.
State-space.................... 2015 698 (520-2,284)......... 11,941 (5,465-15,632)... 3,662 (2,158-6,565)..... 38 (8-111)................ 16,340 (10,980-21,577)... none.
2016 138 (122-226)........... 656 (609-1240).......... 1,021 (926-1245)........ 14 (12-19)................ 1,830 (1,694-2,144)...... none.
2017 925..................... 1,032................... 2,322................... no survey \4\............. 4,279 (3,878-4,782)...... Mechanical
excavation to
deepen the open
water pools and
channels.
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\1\ Note that there are two population estimates (i.e., Lincoln-Petersen and Huggins) for 2011 and 2012.
\2\ Site estimate totals were calculated from the total number of marked and recaptured fish and are not the sum of the estimates for the habitat types.
\3\ No estimates were calculated; see Scheerer et al. 2015, pp. 4-7.
\4\ The cattail marsh habitat was too shallow to survey in 2017.
No Foskett speckled dace were documented in Dace Spring in the
1970s. In 1979 and 1980, individuals were translocated from Foskett
Spring to Dace Spring (Williams et al. 1990, p. 243; see Table 2,
below). Although an estimated 300 fish were documented in 1986
(Williams et al. 1990, p. 243), this initial effort failed to establish
a subpopulation at Dace Spring due to a lack of successful recruitment
(Dambacher et al. 1997, no pagination).
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Only 19 fish were observed in 1997, and subsequent surveys failed to
locate individuals in Dace Springs (Scheerer and Jacobs 2005, p. 2). In
2009, two pools were created at Dace Spring to increase open-water
habitat and additional individuals were moved to the spring. Although
recruitment was documented, major algal blooms and periods of low
dissolved oxygen resulted in low survival (Scheerer et al. 2012, p. 8).
Habitat manipulation by the BLM in 2013 improved water quality, and
recruitment was documented in 2014 and 2015 (Scheerer et al. 2014, p.
6; Scheerer et al. 2015, p. 5). The two constructed pools at Dace
Spring are currently providing additional habitat and may continue to
serve as a refuge for Foskett speckled dace. Table 2 summarizes
population estimates, translocations, and habitat management at Dace
Spring (Williams et al. 1990, p. 243; Dambacher et al. 1997, no
pagination; Scheerer and Jacobs 2005, p. 2; Scheerer et al. 2012, p. 1;
Scheerer et al. 2013, pp. 2, 8; Scheerer et al. 2014, pp. 6, 9;
Scheerer et al. 2015, p. 5; Scheerer et al. 2016, p. 6; Scheerer et al.
2017, p. 6; Monzyk et al. 2018, p. 10).
Table 2--Dace Spring: Summary of Foskett Speckled Dace Population Estimates
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Year Population estimate Number translocated Habitat management
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Pre-1979............................. 0...................... none................... none.
1979................................. no estimate............ 50..................... none.
1980................................. no estimate............ 50..................... none.
1986................................. 300 \1\................ none................... none.
1997................................. <20 \1\................ none................... none.
2005................................. 0...................... none................... none.
2009................................. no estimate............ none................... construction of two
pools.
2010................................. no estimate............ 49..................... none.
2011................................. 34..................... 75..................... none.
(11-36)................
2012................................. 13 \2\................. none................... none.
2013................................. 34 (17-62)............. 200.................... construction of flow-
through channels.
2014................................. 552 (527-694).......... 324.................... none.
2015................................. 876 (692-1,637)........ none................... none.
2016................................. 1,964 (1,333-4,256).... none................... none.
2017................................. 15,729 (3,470-58,479) none................... none.
\3\.
2018................................. 1,924 (1,890-1,968).... none................... none.
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\1\ No confidence interval calculated.
\2\ In 2012, there were a known total of 13 individuals.
\3\ The very large 2017 estimate lacked precision (reflected in the large 95-percent confidence interval) due to
a likely biased estimator of capture probabilities used for small fish that year (F. Monzyk 2018, pers.
comm.).
Recovery Planning and Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List. However, revisions to
the List (i.e., adding, removing, or reclassifying a species) must
reflect determinations made in accordance with sections 4(a)(1) and
4(b) of the Act. Section 4(a)(1) requires that the Secretary determine
whether a species is endangered or threatened (or not) because of one
or more of five threat factors. Section 4(b) of the Act requires that
the determination be made ``solely on the basis of the best scientific
and commercial data available.'' Therefore, recovery criteria should
help indicate when we would anticipate an analysis of the five threat
factors under section 4(a)(1) would result in a determination that the
species is no longer an endangered species or threatened species (see
Summary of Factors Affecting the Species, below).
While recovery plans provide important guidance to the Service,
States, and other partners on methods of minimizing threats to listed
species and measurable objectives against which to measure progress
towards recovery, they are not regulatory documents and cannot
substitute for the determinations and promulgation of regulations
required under section 4(a)(1) of the Act. A decision to revise the
status of a species or remove it from the List is ultimately based on
analysis of the best scientific and commercial data available to
determine whether a species is no longer considered endangered or
threatened, regardless of whether that information differs from the
recovery plan.
Recovery plans may be revised to address continuing or new threats
to the species as new substantive information becomes available. The
recovery plan identifies site-specific management actions that will
help recover the species, measurable criteria that set a trigger for
eventual review of the species' listing status (e.g., under a 5-year
review conducted by the Service), and methods for monitoring recovery
progress. Recovery plans are intended to establish goals for long-term
conservation of listed species and define criteria that are designed to
indicate when the threats facing a species have been removed or reduced
to such an extent that the species may no longer need the protections
of the Act.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all criteria being fully met. For
example, one or more criteria may be exceeded while other criteria may
not yet be met. In that instance, we may determine that the threats are
minimized sufficiently to delist. In other cases, recovery
opportunities may be discovered that were not known when the recovery
plan was finalized. These opportunities may be used instead of methods
identified in the recovery plan. Likewise, information on the species
may be learned that was not known at the time the recovery plan was
finalized. The new information may change the extent that criteria need
to be met for recognizing recovery of the species. Recovery of a
species is a dynamic process requiring adaptive management that may, or
may not, fully follow the guidance provided in a recovery plan.
[[Page 48295]]
The Oregon Desert Fishes Working Group has been proactive in
improving the conservation status of the Foskett speckled dace. This
group of Federal and State agency biologists, academicians, and others
has met annually since 2007 to: (1) Share species' status information;
(2) share results of new research; and (3) assess ongoing threats to
the species.
The primary conservation objective in the Foskett speckled dace
recovery plan is to enhance its long-term persistence through the
conservation and enhancement of its limited range and habitat (USFWS
1998, entire). The recovery plan states that the spring habitat of the
Foskett speckled dace is currently stable, but extremely restricted,
and any alterations to the spring or surrounding activities that
indirectly modify the spring could lead to the extinction of this
species. While the recovery plan does not explicitly tie the recovery
criteria to the five listing factors in section 4(a)(1) of the Act, our
analysis of whether the species has achieved recovery is based on these
five factors, which are discussed below under Summary of Factors
Affecting the Species. The recovery plan outlines three recovery
criteria (summarized below) to assist in determining when the Foskett
speckled dace has recovered to the point that the protections afforded
by the Act are no longer needed. A detailed review of the recovery
criteria for the Foskett speckled dace is presented in the species' 5-
year review (USFWS 2015), which is available online at https://ecos.fws.gov/docs/five_year_review/doc4758.pdf, at http://www.regulations.gov under Docket No. FWS-R1-ES-2017-0051, or by
requesting a copy from our Oregon Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT). The 2015 5-year review concluded that the
risk of extinction has been substantially reduced, as threats have been
managed, and recommended that the species be proposed for delisting
(USFWS 2015, p. 29). The Foskett speckled dace has exceeded or met the
following criteria for delisting described in the recovery plan:
Recovery Criterion 1: Long-term protection to habitat, including
spring source aquifers, spring pools and outflow channels, and
surrounding lands, is assured.
Criterion 1 has been met. In 1987, the BLM acquired and now manages
the 160-ac (65-ha) parcel of land containing both Foskett and Dace
springs (see below) and fenced 70 ac (28 ha) to exclude cattle from
both springs, although the fence does not include the entire occupied
habitat for Foskett speckled dace. This parcel of land was acquired by
the BLM specifically to provide conservation benefit to the Foskett
speckled dace. We anticipate continued ownership of this habitat by the
BLM in the future in part due to direction in the BLM's Lakeview
District Resource Management Plan (RMP), which includes a management
goal of retaining public land with high public resource values and
managing that land for the purpose for which it was acquired (BLM 2003,
p. 92). Additional support for continued ownership and management of
the site by the BLM rests in the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1701 et seq.), as amended, which directs the BLM to
manage public land to provide habitat for fish and aquatic wildlife and
to protect the quality of water resources. Lastly, continued ownership
and management by the BLM, as well as the protections afforded to
Foskett and Dace springs from public ownership, are supported by the
BLM's involvement as a cooperating agency in the development and
implementation of the CMP that was agreed to, finalized, and signed by
the BLM in August 2015 (USFWS et al. 2015). The BLM's official
commitment to carry out the CMP demonstrates that Criterion 1 has been
met.
While little information is available regarding spring flows or the
status of the aquifer, the aquifer has limited capability to produce
water for domestic or stock use (Gonthier 1985, p. 7). Given this, the
few wells that exist in the Warner Valley are unlikely to impact
Foskett or Dace springs. Recovery Criterion 1 addresses listing factor
A (present or threatened destruction, modification, or curtailment of
habitat or range).
Recovery Criterion 2: Long-term habitat management guidelines are
developed and implemented to ensure the continued persistence of
important habitat features and include monitoring of current habitat
and investigation for and evaluation of new spring habitats.
Criterion 2 has been met. With the understanding that the Foskett
speckled dace is a conservation-reliant species, the BLM, ODFW, and
Service developed a CMP (USFWS et al. 2015) that outlines long-term
management actions necessary to provide for the continued persistence
of habitats important to Foskett speckled dace. The CMP was agreed to,
finalized, and signed by the BLM, ODFW, and Service in August 2015. The
cooperating parties committed to the following actions: (1) Protect and
manage Foskett speckled dace habitat; (2) enhance the habitat when
needed; (3) monitor Foskett speckled dace populations and habitat; and
(4) implement an emergency contingency plan as needed to address
potential threats from the introduction of nonnative species,
pollutants, or other unforeseen threats (USFWS et al. 2015, p. 3). The
CMP has no termination date.
Although the CMP is a voluntary agreement among the three
cooperating agencies, we anticipate the plan will be implemented into
the foreseeable future for the following reasons. First, each of the
cooperating agencies have established a long record of engagement in
conservation actions for Foskett speckled dace, including the BLM's
prior contributions through land acquisition and three decades of
habitat management at Foskett and Dace springs; scientific research and
monitoring by the ODFW dating back to 1997; and funding support,
coordination of recovery actions, and legal obligations by the Service
to monitor the species into the future under the Foskett speckled dace
post-delisting monitoring plan. In addition, all three cooperating
agencies are active participants in the Oregon Desert Fishes Working
Group, an interagency group facilitated by the Service that meets
annually to discuss recent monitoring and survey information for
multiple fish species, including Foskett speckled dace, as well as to
coordinate future monitoring and management activities.
Second, implementation of the CMP is already underway. Under the
auspices of the CMP, the BLM has conducted quarterly site visits to
determine the general health of the local spring environment using
photo point monitoring techniques. In 2017, the BLM conducted an
extensive habitat enhancement project by excavating approximately 300
yards (yds\2\) (251 m\2\) of vegetation and accumulated sediment in the
Foskett Spring pool, stream, and portions of the wetland, resulting in
a significant increase in open-water habitat. The BLM also provided
funding to ODFW to conduct estimates of Foskett speckled dace. The ODFW
provided personnel and technical assistance to the BLM for the above-
mentioned excavation work in 2017, and they conducted an abundance
estimate in 2017 to keep track of the long-term trend of the
population. The Service provided personnel and technical assistance to
the BLM for the 2017 excavation work and provided funding to the ODFW
in 2005, 2007, and 2009 at Foskett Spring, and in 2015, 2016, and 2017
to conduct population estimates in both Foskett and Dace springs.
[[Page 48296]]
Third, the conservation mission and authorities of these agencies
authorize this work even if the species is delisted. For example, the
Lakeview District BLM's Resource Management Plan (RMP) and BLM Manual
6840.06E both provide general management direction for Special Status
Species, including the Foskett speckled dace. ``Special Status''
species for the BLM includes sensitive, proposed for listing,
threatened, and endangered species. When delisted, the Foskett speckled
dace would still be considered a ``Special Status'' species, as it
meets the criteria to be ``sensitive'' for the BLM. According to the
BLM's Criteria for determining FS R6 and OR/WA BLM Sensitive and
Strategic Species (July 13, 2015), all federally delisted species that
are suspected or documented on BLM or U.S. Forest Service lands are
considered ``sensitive'' for the duration of their delisting monitoring
plan unless the species meets some of the other criteria for being
``sensitive.'' In this case, being a State/Oregon Biodiversity
Information Center (ORBIC) rank 1 species, with a Heritage program/
NatureServe rank of S1 puts the Foskett speckled dace firmly in the
``sensitive'' category (R. Huff 2018, pers. comm.; ORBIC 2016, p. 5).
Special Status species lists and criteria are updated and transmitted
to the BLM Districts approximately every 3 years through the State
Director, who then directs the Districts to use the new list (R. Huff
2018, pers. comm.). The Federal Land Policy and Management Act of 1976
directs the BLM to manage public land to provide habitat for fish and
aquatic wildlife and to protect the quality of water resources. The
ODFW's State of Oregon Wildlife Diversity Plan (Oregon Administrative
Rule (OAR) 635-100-0080), Oregon Native Fish Conservation Policy (OAR
636-007-0502), and the Oregon Conservation Strategy (ODFW 2016) each
provide protective measures for the conservation of native fish
including Foskett speckled dace, which will remain on the ODFW's
sensitive species list even if the species is removed from the Federal
List. The Service is authorized to assist in the protection of fish and
wildlife and their habitats under authorities provided by the Act (16
U.S.C. 1531 et seq.), the Fish and Wildlife Coordination Act (16 U.S.C.
661 et seq.), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-
742j, not including 742 d-l).
Fourth, there is a practical reason to anticipate implementation of
the CMP into the foreseeable future: the CMP actions are technically
not complicated to implement, and costs are relatively low. We also
have confidence that the actions called for in the CMP will be
effective in the future because they have already proven effective as
evidenced by the information collected from recent habitat actions and
associated monitoring (including abundance data, the effects of
exclosure fences and vegetation encroachment, and vegetation management
through controlled burns and pool expansion) (Scheerer et al. 2016,
entire).
Lastly, if the CMP is not adhered to by the cooperating agencies or
an evaluation by the Service suggests the habitat and population are at
risk, the Service would evaluate the need to again add the species to
the List (i.e., ``relist'' the species) under the Act. Taken together,
it is therefore reasonable to conclude that the CMP will be implemented
as anticipated and that the long-term recovery of the Foskett speckled
dace will be maintained and monitored adequately.
Criterion 2 is further met by the establishment of a refuge
subpopulation of Foskett speckled dace at nearby Dace Spring. As
described earlier in this rule, dating back to 1979, multiple
unsuccessful attempts were made to create a refuge for Foskett speckled
dace at Dace Spring. More recent actions have been more successful.
Habitat modification at Dace Spring by the BLM, first in 2009 and again
in 2013, and translocation of dace from Foskett Spring to Dace Spring
by the ODFW in 2010, 2011, 2013, and 2014, has provided for adequate
abundance of the species over time with reflected natural variability
(see Table 2, above). Natural recruitment was documented in 2014, 2015,
and 2016 (Scheerer et al. 2016, p. 6).
Our decision to delist the Foskett speckled dace is not dependent
on the existence of a subpopulation at Dace Spring. However, the
existence of a subpopulation of Foskett speckled dace, should it be
resilient over the long term, provides increased redundancy to the
species' overall status and may reduce vulnerability to catastrophic
events and any future threats that may appear on the landscape.
Recovery Criterion 3: Research into life history, genetics,
population trends, habitat use and preference, and other important
parameters is conducted to assist in further developing and/or refining
criteria 1 and 2 above.
This criterion has been met through population surveys by the ODFW
and the Service, and investigations into the genetic relatedness of the
Foskett speckled dace to other nearby dace populations. In 1997, the
Service contracted the ODFW to conduct an abundance survey and develop
a population estimate for the Foskett speckled dace. In 2005, 2007,
2009, and 2011 through 2017, the Service again contracted the ODFW to
obtain mark-recapture abundance estimates for both Foskett and Dace
springs, and also in 2018 only at Dace Spring. At Foskett Spring,
habitat-specific population estimates were developed. Captured fish
were measured to develop length-frequency histograms to document
reproduction. In addition to collecting abundance data, ODFW staff
mapped wetland habitats, monitored vegetation, and measured temperature
and water quality at both springs during each survey. Together, the
population estimates and habitat mapping at Foskett Spring suggested a
relationship between open-water habitat and fish abundance (Sheerer et
al. 2016, p. 8). Water quality monitoring highlighted the need for
habitat enhancement at Dace Springs. Thus, these data assisted in
further developing and/or refining recovery criteria 1 and 2.
Summary of Changes From the Proposed Rule
We considered all comments and information we received during the
comment period for the proposed rule to delist Foskett speckled dace
(83 FR 475; January 4, 2018). This resulted in the following changes
from the proposed rule in this final rule:
We made some minor editorial changes to the document.
Based on a request for clarification regarding our
discussion of open-water habitat and population size, we replaced the
word ``variability'' with the word ``abundance'' in one sentence (at
the end of the Abundance discussion, above).
Based on a comment on the uncertainty regarding the
contribution of the Dace Spring population to the overall status of the
species, we revised our discussion of the Dace Spring population (at
the end of the ``Small Population Size'' discussion under Factor E in
Summary of Factors Affecting the Species, below).
Based on comments that the ODFW study only shows an
observed response of Foskett speckled dace abundance to increased open
water and not a direct correlation between the two variables, we have
removed the reference to a direct response from this final rule.
Although we present population information and discuss the relationship
between population size and open-water habitat as suggested by ODFW
(Scheerer et al. 2016, pp. 1, 9), our rationale for delisting Foskett
speckled dace is based on the removal or reduction of threats to the
species, not on population size.
[[Page 48297]]
Based on comments regarding the potential response of the
Foskett speckled dace to the effects of climate change, we added
information to the climate change discussion under Factor E in Summary
of Factors Affecting the Species, below.
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing species, reclassifying
species, or removing species from listed status. ``Species'' is defined
by the Act as including any species or subspecies of fish or wildlife
or plants, and any distinct vertebrate population segment of fish or
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species
may be determined to be an endangered or threatened species because of
any one or a combination of the five factors described in section
4(a)(1) of the Act: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We must consider these same five
factors in delisting a species. We may delist a species according to 50
CFR 424.11(d) if the best available scientific and commercial data
indicate that the species is neither endangered nor threatened for one
or more of the following reasons: (1) The species is extinct; (2) the
species has recovered and is no longer endangered or threatened; or (3)
the original scientific data used at the time the species was
classified were in error.
A recovered species is one that no longer meets the Act's
definition of endangered or threatened. Determining whether a species
is recovered requires consideration of the same five categories of
threats specified in section 4(a)(1) of the Act. For species that are
already listed as endangered or threatened, this analysis of threats is
an evaluation of both the threats currently facing the species and the
threats that are reasonably likely to affect the species in the
foreseeable future following delisting or downlisting (i.e.,
reclassification from endangered to threatened) and the removal or
reduction of the Act's protections.
A species is ``endangered'' for purposes of the Act if it is in
danger of extinction throughout all or a ``significant portion of its
range'' and is ``threatened'' if it is likely to become endangered
within the foreseeable future throughout all or a ``significant portion
of its range.'' The word ``range'' refers to the general geographical
area in which the species occurs at the time a status determination is
made.
The Act does not define the term ``foreseeable future;'' we think
it is reasonable to define the foreseeable future for the Foskett
speckled dace as 30 years based upon the following analysis:
Based on monitoring that began in 1997 by the ODFW, the Foskett
speckled dace population is highly variable in size, and may be linked
to the amount of open-water habitat (Scheerer et al. 2016, p. 8). The
relationship between open-water habitat and population size has not
been thoroughly studied for Foskett speckled dace, but the relationship
has been shown in other types of narrow endemic fishes in spring type
environments (Kodric-Brown and Brown 2007, entire). We have no
information to suggest this apparent relationship would change in the
future. There also is no reason to expect local changes to ground water
levels (see Factor A discussion, below), and climate changes modeled
over the next 30 plus years (i.e., through 2049) are not predicted to
impact the Foskett speckled dace (see Factor E discussion, below).
The BLM has owned and managed the habitat at Foskett and Dace
Springs since 1987, and ODFW has conducted monitoring of the Foskett
speckled dace for 20 years. The BLM, ODFW, and Service are committed to
long-term continued monitoring and implementation of conservation
measures for the species through the CMP. Modeling of climate change
impacts suggest little change in environmental conditions over the next
30 years (through 2049) in the Warner Lakes Basin. Although we also
looked at climate models that projected an additional 25 years into
2074, we determined that the 30-year timeframe reflects climate change
models that are relevant to the Foskett speckled dace and its habitat,
as well as our ability to project land management decisions; therefore
we think it is reasonable to define the foreseeable future for the
Foskett speckled dace as 30 years.
In considering what factors might constitute threats, we must look
beyond the exposure of the species to a particular factor to evaluate
whether the species may respond to the factor in a way that causes
actual impacts to the species. If there is exposure to a factor and the
species responds negatively, the factor may be a threat, and during the
status review, we attempt to determine how significant a threat it is.
The threat is significant if it drives or contributes to the risk of
extinction of the species, such that the species warrants listing as
endangered or threatened as those terms are defined by the Act.
However, the identification of factors that could impact a species
negatively may not be sufficient to compel a finding that the species
warrants listing. The information must include evidence sufficient to
suggest that the potential threat is likely to materialize and that it
has the capacity (i.e., it should be of sufficient magnitude and
extent) to affect the species' status such that it meets the definition
of endangered or threatened under the Act.
Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range
The Service listed the Foskett speckled dace as threatened in 1985
(50 FR 12302; March 28, 1985), due to the species' very restricted
range, its low abundance, and its extremely restricted and vulnerable
habitat, which was being modified at that time. Potential habitat-
related threats that were identified in the final listing rule included
groundwater pumping for irrigation, use of the area by livestock,
channeling of the springs for agricultural purposes, and other
mechanical modifications of the aquatic ecosystem. The vulnerability of
the habitat was accentuated by its very small size and a water flow
rate of less than 0.5 cubic feet (ft\3\) per second (0.01 cubic meters
(m\3\) per second) (50 FR 12304; March 28, 1985).
Livestock Use and Mechanical Modification
In listing the species, the Service noted that Foskett Spring was a
livestock watering area and grazing occurred in the area, although the
exact impact had not been determined. The Service indicated that
uncontrolled trampling of the springs by livestock could probably have
a negative effect on the aquatic ecosystem and livestock use above
those existing at the time of listing would have a negative impact (50
FR 12304 and 12305; March 28, 1985). Grazing cattle affects the form
and function of stream and pool habitat by hoof shearing, compaction of
soils, and mechanical alteration of the habitat. Since the 1985
listing, the BLM acquired the property containing Foskett and Dace
springs by land exchange in 1987, and fenced 70 ac (28 ha) of the 160-
ac (65-ha) parcel to exclude cattle from both Foskett and Dace springs
as well as the two recently constructed ponds, and protect any Foskett
speckled dace in the springs.
[[Page 48298]]
While the exclusion of cattle likely improved water quality and habitat
stability, it may also have played a role in increasing the extent of
encroaching aquatic vegetation. Although most of the habitat was
excluded from grazing, a portion of the occupied habitat was not
included in the fenced area. Examining the population trends within
this unfenced habitat illustrates the variability of the population and
the ability of the population to respond to management. The Foskett
Spring was revisited in 1997, and 97 percent of the estimated
population of Foskett speckled dace was located in a shallow open-water
pool in a previously dry marsh outside of the exclosure fence
(Dambacher et al. 1997, entire). The changed conditions noted at this
site over time illustrate the natural variability in habitat conditions
of this ephemeral wetland system.
In 2007, 14 percent of the estimated population of 2,984 Foskett
speckled dace was located in the marsh outside of the exclusion fence
(Scheerer and Jacobs 2007, p. 7), and trampling of the wetland habitat
by cattle was evident (USFWS 2015, p. 19). In 2011 and 2012, no Foskett
speckled dace were detected in the marsh outside of the exclusion fence
(Scheerer et al. 2014, p. 6). In response, the BLM conducted a
controlled burn in 2013; and in 2013 and 2014, they excavated open-
water habitat in the marsh. In 2013, over 13,000 Foskett speckled dace
were detected, with nearly 10,000 being in the restored marsh (Scheerer
et al. 2013, p. 9). In 2014, nearly 25,000 Foskett speckled dace were
detected, with nearly 19,000 being in the restored marsh (Scheerer et
al. 2014, p. 9). Unfortunately, the marsh and excavated pools outside
the fence quickly grew dense with vegetation, and the excavated pool
filled in with sediment; it is unclear if the pasture was rested during
this period. The relationship between dace abundance and open water
(Scheerer et al. 2016, p. 8) illustrates the need for periodic
vegetation removal to maintain appropriate habitat for the Foskett
speckled dace (Scheerer et al. 2014, p. 9). While the area outside the
exclusion fence may provide habitat for Foskett speckled dace in the
future, we do not view it as critical to the long-term persistence of
the species. The primary habitat for the fish, and the area that has
received recent habitat management to create open water, is within the
enclosure.
Sometime in fall and/or winter of 2014 to 2015, unauthorized cattle
grazing occurred in both the Foskett and Dace Spring exclosures (Leal
2015, pers. comm.). Cattle accessed the site after a nearby gate was
removed illegally. Based on photos provided by the BLM, it appears the
vegetation utilization was sporadic although heavy in some areas, but
damage to Foskett and Dace springs' streambanks appeared
inconsequential. The BLM has replaced the gate and will continue to
maintain the fence per their commitments outlined in the CMP (USFWS et
al. 2015). Although cattle did access the Foskett and Dace spring
sites, over time these exclosures have sufficiently protected Foskett
and Dace springs from damage from livestock grazing, and use of the
area by livestock remains below the level at the time of listing in
1985. The quarterly site visits committed to by the BLM in the CMP will
increase the ability to detect and remedy any future issues with open
gates or downed fences. However, due to the remoteness of the site, it
is possible unauthorized grazing within the enclosures may infrequently
occur in the foreseeable future. Given the minimal impact of the
singular observation of unauthorized grazing within the enclosures and
the commitment of quarterly monitoring of the site by BLM, we do not
view grazing in the enclosure as a threat in the foreseeable future.
Surveys conducted from 2005 through 2015 at Foskett Spring did not
reveal any sign of artificial channeling of water or mechanized impacts
beyond the remnants of historical activities (i.e., two small rock
cribs and side-casting of material around the spring). The habitat at
Foskett Spring is extremely limited, and past encroachment by aquatic
vegetation has reduced the area of open water. The decline in abundance
of Foskett speckled dace from 1997 to 2011 (see Table 1, above) was
likely due to the reduction in open-water habitat (Scheerer and Jacobs
2005, pp. 5, 7; Scheerer et al. 2012, p. 8). Management to increase
open-water habitat, while very effective in the short term, needs to be
periodically repeated as sediment infilling and subsequent growth of
aquatic vegetation is continuous. As such, periodic management will be
needed in perpetuity to maintain high-quality habitat for the Foskett
speckled dace.
The ODFW recommended that restoration efforts to increase open-
water habitat are needed to increase carrying capacity for Foskett
speckled dace (Scheerer and Jacobs 2007, p. 9; Scheerer and Jacobs
2009, pp. 5-6). Restoration efforts were conducted at Foskett Spring in
2013 and 2014, and resulted in a 164-percent increase in open-water
habitat and a peak population estimate in 2014 of 24,888 individuals
(Scheerer et al. 2016, pp. 8-9). Periodic habitat maintenance at
Foskett and Dace springs will be necessary to maintain open-water
habitat for the Foskett speckled dace. The BLM, ODFW, and Service have
committed to periodic habitat maintenance in the CMP signed in August
2015. As noted earlier in this rule, the CMP identifies actions such as
protection of the aquatic habitat and surrounding land; management of
the habitat to ensure continued persistence of important habitat
features; monitoring of the fish populations and habitat; and
implementation of an emergency contingency plan in case of nonnative
introduction, pollutants, or other unforeseen threats. Implementation
of these actions will significantly reduce or eliminate threats related
to destruction, modification, or curtailment of the Foskett speckled
dace's habitat or range. It is reasonable to conclude the CMP will be
implemented into the foreseeable future for the reasons summarized
under Recovery Planning and Recovery Criteria, above.
Mechanical modification and livestock watering uses are no longer
considered a threat since the BLM acquired the property containing both
Foskett and Dace springs and constructed a fence to exclude cattle from
a majority of the habitat. We anticipate continued monitoring and
maintenance of the exclusion fence into the foreseeable future by the
BLM based on their commitments in the CMP and their long record of
conservation management of habitat at Foskett and Dace springs.
Pumping of Groundwater and Lowering of the Water Table
Streams and lakes in and around the Warner Basin have produced a
variety of unconsolidated Pliocene to Holocene sediments that have
accumulated and contribute to the structure of the aquifer (Gonthier
1985, p. 17). Wells in other portions of the Warner Basin using these
Pleistocene lake bed aquifers tend to have low to moderate yields.
Pleistocene lake bed deposits of clay, sand, and diatomaceous earth
(i.e., soft, crumbly soil formed from the fossil remains of algae) have
a thickness of up to 200 ft (60 m) (Gonthier 1985, pp. 38-39; Woody
2007, p. 64). Hydraulic conductivity (i.e., ease with which a fluid can
move) in these sediments ranges from 25 to 150 ft (7.6 to 46 m) per
day; while transmissivity (horizontal groundwater flow) in valleys in
this sediment-filled basin and range region of Oregon, such as the
Warner Valley aquifer system, ranges from 1,000
[[Page 48299]]
to 15,000 square feet (ft\2\) (92.90 to 1,393.55 square meters (m\2\))
per day (Gonthier 1985, p. 7). This is considered a poor quality
aquifer with limited capability to produce water for domestic or stock
use (Gonthier 1985, p. 7). Therefore, few wells exist in the Warner
Valley and are not likely to impact Foskett or Dace spring.
We have no evidence of groundwater pumping in the area. A query of
the Oregon Water Resources Department database for water rights did not
reveal any wells within 5 mi (8 km) of Foskett Spring. The closest well
listed in the database is 5.9 mi (9.5 km) away along Twentymile Creek.
No other wells were located closer to Foskett Spring.
There are no Oregon Water Resources Department records of water
rights within approximately 5 miles of either spring. Any development
of water resources and filing of water rights on BLM lands would
require a permit (BLM 2003), and we anticipate the likelihood of the
BLM receiving a permit request related to a new water right in the
future would be low. Although groundwater pumping was identified as a
potential threat at the time of listing, we have determined this is not
currently a threat and is not anticipated to be a threat in the
foreseeable future.
Habitat Enhancement and Creation of a Refuge Population
To assess the effects of management on reducing the encroachment of
aquatic vegetation at Foskett Spring and the response of fish to
increased open water, the BLM conducted a controlled burn in 2013 in
the tule and cattail marsh to reduce plant biomass (Scheerer et al.
2014, p. 9). In 2013 and 2014, the BLM excavated pools to increase
open-water habitat. The response of dace to these restoration efforts
was remarkable, with the 2014 population estimated at 24,888 (19,250-
31,500; 95-percent confidence interval) fish, and most of these fish
occupied the restored marsh areas. The population data indicate that
fluctuations in abundance and population trends are tied to the
availability of open water (Scheerer et al. 2016, p. 8) and illustrate
the need for periodic management to maintain open-water habitat.
Habitat restoration at Dace Spring followed by translocations of
dace has resulted in a second subpopulation of Foskett speckled dace.
Two ponds were created in 2009, and connected to the outlet channel of
Dace Spring. Foskett speckled dace were translocated to the ponds. The
2016 population estimate was 1,964 fish, which is a substantial
increase from the 2013 estimate of 34 fish. The estimate includes the
200 dace that were transplanted from Foskett Spring in 2013 (Scheerer
et al. 2014, p. 6). The 2017 population estimate in Dace Spring was
15,729 (confidence interval: 3,470-58,479) (Scheerer et. al. 2017, p.
6), although the broad confidence limits infer low precision. The 2018
estimate at Dace spring was 1,924 (confidence interval: 1,890-1,968)
(Monzyk et al. 2018, p. 10). Reproduction at Dace Spring was documented
by the ODFW in 2014 (Scheerer et al. 2014, p. 6) and in 2015 (Scheerer
et al. 2015, p. 5). The ODFW is evaluating the long-term status of the
Dace Spring subpopulation. Although results appear positive, it is
premature to conclude if establishment of this refuge will be
successful over the long term. While our decision to delist Foskett
speckled dace is not dependent on establishment of a refuge, the
resilience of a subpopulation at Dace Spring may provide increased
redundancy to the species' overall status in the future by reducing
vulnerability to catastrophic events.
Summary of Factor A
Securing long-term habitat protections (Recovery Criterion 1) and
developing and implementing long-term management techniques (Recovery
Criterion 2) are important recovery criteria for this species, and many
of the factors discussed above fulfill these criteria, which also were
identified in the most recent 5-year review (USFWS 2015, entire).
Acquisition of the property by the BLM has facilitated the recovery of
the Foskett speckled dace. The recent habitat enhancement work and the
commitments made in the CMP provide assurance that minor oversight and
continued habitat enhancement by the BLM and ODFW will allow the
species to persist at abundance levels commensurate with available
habitat. Although the CMP is voluntary, it is reasonable to conclude,
for reasons summarized under Recovery Planning and Recovery Criteria,
above, that the plan will be implemented by all three cooperating
agencies for the foreseeable future.
Based on the best available information and confidence that current
management will continue into the future as outlined in the CMP, we
conclude that the present or threatened destruction, modification, or
curtailment of habitat or range does not constitute a substantial
threat to the Foskett speckled dace now or in the foreseeable future.
Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization for commercial, recreational, scientific, or
educational purposes was not a factor in listing, nor do we have
information to suggest that it has become a threat since that time.
Therefore, based on the best available information, we conclude that it
does not constitute a substantial threat to the Foskett speckled dace
now or in the foreseeable future.
Factor C. Disease or Predation
The 1985 listing rule states, ``There are no known threats to . . .
Foskett speckled dace from disease or predation'' (50 FR 12304; March
28, 1985). During the 2005 and 2011 population surveys, the ODFW
biologist noted that: ``[t]he fish appear to be in good condition with
no obvious external parasites'' (Scheerer and Jacobs 2005, p. 7;
Scheerer 2011, p. 6). During the 2007 and 2009 population surveys, the
ODFW noted that the Foskett speckled dace appeared healthy and near
carrying capacity for the available habitat at that time (Scheerer and
Jacobs 2007, p. 8; 2009, p. 5). We have no additional information that
would change this conclusion.
The CMP includes quarterly field visits to Foskett and Dace springs
to determine general health of the local spring environment and to
identify threats that necessitate implementation of the emergency
contingency plan, which could include the detection of disease and
introduced predators. The emergency contingency plan describes steps to
be taken to secure Foskett speckled dace in the event their persistence
is under immediate threat (e.g., from introduction of nonnative fish
that may threaten them due to predation or act as a disease vector).
Summary of Factor C
Based on the best available information, we conclude that disease
and predation do not constitute substantial threats to the Foskett
speckled dace now or in the foreseeable future.
Factor D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine whether existing regulatory
mechanisms are inadequate to address the threats to the Foskett
speckled dace discussed under other factors. Section 4(b)(1)(A) of the
Act requires the Service to take into account ``those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species.''
[[Page 48300]]
In relation to Factor D under the Act, we interpret this language to
require us to consider relevant Federal, State, and Tribal laws,
regulations, and other such mechanisms that may minimize any of the
threats we describe in the threats analyses under the other four
factors, or otherwise enhance conservation of the species. We give
strongest weight to statutes and their implementing regulations and to
management direction that stems from those laws and regulations; an
example would be State governmental actions enforced under a State
statute or constitution, or Federal action under statute.
For currently listed species that are being considered for
delisting, we consider the adequacy of existing regulatory mechanisms
to address threats to the species absent the protections of the Act. We
examine whether other regulatory mechanisms would remain in place if
the species were delisted, and the extent to which those mechanisms
will continue to help ensure that future threats will be reduced or
minimized.
The 1985 listing rule states, ``The State of Oregon lists . . .
Foskett speckled dace as [a] ``fully protected subspecies'' under the
Oregon Department of Fish and Wildlife regulations. These regulations
prohibit taking of the fishes without an Oregon scientific collecting
permit. However, no protection of the habitat is included in such a
designation and no management or recovery plan exists [for the Foskett
speckled dace]'' (50 FR 12304; March 28, 1985).
The Foskett speckled dace was listed as threatened by the State of
Oregon in 1987, as part of the original enactment of the Oregon
Endangered Species Act (Oregon ESA). That listing designated Foskett
speckled dace as a ``protected species'' and prohibited take or
possession unless authorized by a permit. The Oregon ESA prohibits the
``take'' (kill or obtain possession or control) of State-listed species
without an incidental take permit. The Oregon ESA applies to actions of
State agencies on State-owned or -leased land, and does not impose any
additional restrictions on the use of Federal land. In recognition of
the successful conservation actions and future management commitments
for the Foskett speckled dace and its habitat, the Oregon Fish and
Wildlife Commission (OFWC) ruled to remove the Foskett speckled dace
from the State List of Threatened and Endangered Species on April 21,
2017.
The ODFW's Native Fish Conservation Policy calls for the
conservation and recovery of all native fish in Oregon (ODFW 2002),
including Foskett speckled dace, now listed as sensitive on the ODFW's
sensitive species list. The Native Fish Conservation Policy requires
that the ODFW prevent the serious depletion of any native fish species
by protecting natural ecological communities, conserving genetic
resources, managing consumptive and nonconsumptive fisheries, and using
hatcheries responsibly so that naturally produced native fish are
sustainable (OAR 635-007-0503). The policy is implemented through the
development of collaborative conservation plans for individual species
management units that are adopted by the OFWC. To date, the ODFW has
implemented this policy by following the federally adopted recovery
plan and will continue to conserve Foskett speckled dace according to
the State rules for conserving native fish and more specifically the
commitments made by the ODFW in the CMP. The State of Oregon Wildlife
Diversity Plan (OAR 635-100-0080), Oregon Native Fish Conservation
Policy (OAR 636-007-0502), and the Oregon Conservation Strategy (ODFW
2016) provide additional authorities and protective measures for the
conservation of native fish, including the Foskett speckled dace.
Finally, the BLM manages the 160-ac (65-ha) parcel of land
containing the Foskett and Dace spring sites consistent with the
Lakeview District's RMP (BLM 2003), which provides general management
guidelines for Special Status Species, and specifically states that the
BLM will manage the Foskett speckled dace and its habitat consistent
with the species' 1998 recovery plan.
Additionally, though not a regulatory mechanism, the CMP, which was
prepared jointly and signed by the BLM, ODFW, and Service, is a
conservation measure that will guide future management and protection
of the Foskett speckled dace, regardless of its State or Federal
listing status. The CMP, as explained in more detail under Recovery
Planning and Recovery Criteria, above, identifies actions to be
implemented by the BLM, ODFW, and Service to provide for the long-term
conservation of the Foskett speckled dace (Recovery Criterion 2). The
approach of developing an interagency CMP for the Foskett speckled dace
to promote continued management post-delisting is consistent with a
``conservation-reliant species,'' described by Scott et al. (2005, pp.
384-385) as those that have generally met recovery criteria but require
continued active management to sustain the species and associated
habitat in a recovered condition. A key component of the CMP is
continued management of aquatic vegetation, as necessary, to promote
open-water habitat important to the species' long-term viability.
Summary of Factor D
In our discussion under Factors A, B, C, and E, we evaluate the
significance of threats as mitigated by any conservation efforts and
existing regulatory mechanisms. Regulatory mechanisms may reduce or
eliminate the impacts from one or more identified threats. Where
threats exist, we analyze the extent to which conservation measures and
existing regulatory mechanisms address those threats to the species.
The existence of regulatory mechanisms like the Lakeview District BLM's
RMP, State conservation measures such as the Oregon Native Fish
Conservation Strategy, along with the other authorities supporting each
cooperating agency's entrance into the CMP agreement, reduce risk to
the Foskett speckled dace and its habitat. For the reasons discussed
above, we anticipate that the conservation measures initiated under the
CMP will continue through at least the foreseeable future, which we
have defined as 30 years. Consequently, we find that conservation
measures, along with existing State and Federal regulatory mechanisms,
are adequate to address threats to the species absent protections under
the Act.
Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence
The 1985 listing rule states, ``Additional threats include the
possible introduction of exotic fishes into the springs, which could
have disastrous effects on the endemic Foskett speckled dace, either
through competitive exclusion, predation, or introduced disease.
Because these fishes occur in such limited and remote areas, vandalism
also poses a potential threat'' (50 FR 12304; March 28, 1985).
No exotic fish introduction or acts of vandalism of the springs
have occurred since the time of listing more than 30 years ago. As
mentioned in the discussion of livestock grazing, sometime in 2014 or
2015, a gate was illegally removed near the springs, but damage to
Foskett and Dace springs' streambanks appeared inconsequential. The BLM
replaced the gate and will continue to maintain the fence per their
commitments outlined in the CMP (USFWS et al. 2015). The Foskett
speckled dace is vulnerable to invasive or nonnative species (aquatic
plants, invertebrates, or fish species). However,
[[Page 48301]]
this vulnerability is reduced in part due to the remoteness of the site
and the lack of recreational or other reasons for the public to visit
the area. It is also reduced by the establishment of a refuge
population in Dace Spring. While the risk of exotic fish introductions
is low, the potential impact is high due to the highly restricted
distribution of the Foskett speckled dace. The CMP includes quarterly
monitoring and an emergency contingency plan to address potential
threats from introduction of nonnative species or pollutants (for
information on how to access the CMP for further reference see
ADDRESSES, above).
Other Risk Factors
A species' habitat requirements, population size, and dispersal
abilities, among other factors, help to determine its vulnerability to
extinction. Key risk factors include small population size, dependence
on a rare habitat type, inability to move away from sources of stress
or habitat degradation, restrictions to a small geographic area, and
vulnerability to catastrophic loss resulting from random or localized
disturbance (Williams et al. 2005, p. 27). The Service listed the
Foskett speckled dace in part due to these factors. This species had a
very restricted natural range; the species occurred in low numbers in a
small spring that was extremely vulnerable to destruction or
modification due to its small size and a water flow rate of less than
0.5 ft\3\ per second (0.01 m\3\ per second). Additionally, the habitat
upon which the Foskett speckled dace depends is fragile and has been
affected by past livestock grazing and mechanical modification.
Small Population Size
Surveys by the ODFW from 2005 through 2017 have documented that the
number of Foskett speckled dace vary considerably through time and by
habitat type (see Table 1, above), and available open-water habitat,
which fluctuates annually, appears to be the key factor in determining
the population size of this species (Scheerer et al. 2016, p. 8). The
lowest population estimate was 751 fish (using the Lincoln-Petersen
model) in 2011, and no individuals were documented in the cattail marsh
that year (see Table 1, above). Management to create more open water in
the marsh habitat at Foskett Spring was initiated in 2012 and completed
in 2014, increasing the amount of open-water habitat by 150 percent, to
approximately 358 yds\2\ (300 m\2\) (Scheerer et al. 2016, pp. 7-9).
The increase in fish abundance in 2013 through 2015 was notable,
especially in the two habitats where management occurred (see Table 1,
above).
Based on the relationship between the amount of open water and the
number of Foskett speckled dace, the CMP includes removing encroaching
vegetation to enhance open-water habitat, and excavating open-water
pools. These activities will be conducted every 5 to 10 years or as
determined necessary to maintain open-water habitat to support healthy
populations of Foskett speckled dace.
Additionally, the ongoing effort by the BLM and the Service to
restore Dace Spring provides the potential for a refuge population of
Foskett speckled dace. Two ponds have been created and connected to the
outlet channel of Dace Spring; Foskett speckled dace have been
translocated to the ponds (see Table 2, above). Reproduction and an
associated population increase was documented by the ODFW in 2014,
2015, 2016, 2017, and 2018. The ODFW is currently evaluating the status
of the Foskett speckled dace in the new ponds, and, although results
are positive, it is premature to predict long-term viability of the
Dace Spring population.
Dependence Upon a Specific Rare Habitat Type and Inability To Disperse
This species is known to occupy only Foskett Spring and Dace
Spring. Due to the small size of Foskett Spring and the lack of
connectivity to other aquatic habitat, there is no opportunity for the
Foskett speckled dace to disperse away from stress, habitat
degradation, or disturbance factors. There are no streams or drainages
or other aquatic connections that provide alternate habitat or allow
for emigration. As noted previously in this rule, the BLM created two
new ponds connected to the outlet channel of Dace Spring, and the ODFW
has introduced Foskett speckled dace into these ponds in an attempt to
establish a refuge population.
Restriction to a Small Geographic Area and Vulnerability to Stochastic
Events
The Foskett speckled dace is restricted to one small spring and has
been translocated to two small, constructed ponds at an adjacent
spring. The available open-water habitat at Foskett Spring is naturally
limited, and encroaching aquatic vegetation periodically limits
suitable habitat. However, removing sediments and vegetation to
increase open-water habitat is a proven conservation measure that
results in a significant increase in fish abundance. Because of its
restricted natural distribution and dependence on a single water
source, the Foskett speckled dace is more vulnerable to threats that
may occur than species that are more widely distributed. Foskett
speckled dace has persisted in this habitat, likely since the more
recent pluvial period of the Pleistocene epoch 10,000 to 60,000 years
ago.
Additionally, the CMP provides for management of Foskett Spring and
Dace Spring areas for the long-term conservation of the Foskett
speckled dace. Although it is difficult to plan for and address
potentially catastrophic events (such as vandalism, contaminants, or
introduction of nonnative fish), quarterly site visits and habitat and
population surveys conducted regularly will facilitate the timely
detection of changes to the habitat and as well as other unforeseen
future threats.
Effects of Climate Change
We also analyzed the effects of changing climate to the Foskett
speckled dace and its habitat. The Intergovernmental Panel on Climate
Change (IPCC) concluded that the evidence for warming of the global
climate system is unequivocal (IPCC 2013, p. 3). Numerous long-term
climate changes have been observed including changes in arctic
temperatures and ice, widespread changes in precipitation amounts,
ocean salinity, wind patterns, and aspects of extreme weather including
droughts, heavy precipitation, and heat waves (IPCC 2013, p. 4). The
general climate trend for North America includes increases in mean
annual temperatures and precipitation and the increased likelihood of
extreme weather events by the mid-21st century (IPCC 2014, pp. 1452-
1456). Changes in climate can have direct or indirect effects on
species; may be positive, neutral, or negative; and may change over
time, depending on the species and other relevant considerations such
as the effects of interactions of climate with other variables (e.g.,
habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses,
we used our expert judgment to weigh relevant information, including
uncertainty, in considering the effects of climate change on the
Foskett speckled dace.
Global climate projections are informative and, in some cases, the
only or the best scientific information available for us to use.
However, projected changes in climate and related impacts can vary
substantially across and within different regions of the world (IPCC
2007, pp. 8-12). Therefore, we use ``downscaled'' projections when they
are available and have been developed through appropriate
[[Page 48302]]
scientific procedures because such projections provide higher-
resolution information that is more relevant to spatial scales used for
analyses of a given species (see Glick et al. 2011, pp. 58-61, for a
discussion of downscaling).
Downscaled projections as of 2016 were available for our analysis
of the Foskett speckled dace from the U.S. Geological Survey (USGS)
(https://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp). The
National Climate Change Viewer is based on the mean of 30 models, which
can be used to predict changes in air temperature and precipitation for
the Warner Lakes basin in Lake County, Oregon, for two of the emission
scenarios, RCP4.5 and RCP8.5. Scenario RCP4.5 is a moderate emissions
scenario (where atmospheric concentrations of greenhouse gases are
expected to equal approximately 650 parts per million (ppm) after the
year 2100), and RCP8.5 is the most aggressive emissions scenario (in
which greenhouse gases continue to rise unchecked through the end of
the century) (Alder and Hostetler 2016, entire). At this time, there
are no available climate projections on the persistence of springs into
the future. For the 25-year period from 2025 to 2049, the model set
shows an increase in the mean maximum air temperature of between 2.7
[deg]F (1.6 [deg]C) (RCP4.5) and 3.2 [deg]F (1.8 [deg]C) (RCP8.5), and
an increase in the mean annual minimum air temperature of between 2.5
[deg]F (1.5 [deg]C) (RCP4.5) and 3.1 [deg]F (1.8 [deg]C) (RCP8.5). For
both scenarios, mean precipitation is not predicted to change, but
annual snow accumulation is predicted to decrease by 0.4 in (10.16
millimeters (mm)). The model set also shows evaporative deficit over
this 25 year period with changes projected in evaporation in the summer
that may affect soil moisture for the vegetative community around the
springs. However, the projected increase remains similar to current
conditions and within the confidence intervals for the predicted change
(Alder and Hostetler 2016, entire). Over the subsequent 25-year period
from 2050 to 2074, the model set shows an increase in mean annual
maximum air temperature of between 4.1 [deg]F (2.3 [deg]C) (RCP4.5) to
5.9 [deg]F (3.3 [deg]C) (RCP8.5), and an increase in mean annual
minimum air temperature of between 4.1 [deg]F (2.3 [deg]C) (RCP4.5) to
6.1 [deg]F (3.4 [deg]C) (RCP8.5). For the 2050 to 2074 period, the
model set shows no change in the mean annual precipitation for both
scenarios, and shows a decrease in annual snow accumulation of between
0.2 in (5.4 mm) (RCP4.5) to 0.3 in (7.1 mm) (RCP8.5) for the Warner
Lakes basin (Alder and Hostetler 2016, entire).
An increase in the ambient air temperature may cause slight warming
of Foskett Spring surface water. This may reduce the overall amount of
habitat available for Foskett speckled dace due to an increase in water
temperatures, especially at the lower end of the outlet stream and
marsh habitat. However, Foskett speckled dace have persisted overtime
in these springs located in a naturally variable ephemeral wetland
system, and abundance data indicate Foskett speckled dace may have a
preference for the spring and pool habitats through the stream portion
of the outlet channel as shown in Table 1, as opposed to shallower
marsh habitat that might be more impacted by evaporation.
Furthermore, the occupied habitat for Foskett speckled dace is fed
from a thermal artesian spring that has a fairly consistent temperature
of approximately 65 [deg]F (18 [deg]C) and consistent flow. Springs
have been identified as potential hydrologic refugia that may protect
species from the effects of climate change (McLaughlin et al. 2017, p.
2946). Springs have geologic features that are independent of climate,
and their recharge is decoupled from their discharge; these features
make them less sensitive to, or buffered from, changes in the local
climate, including regional drought intensification (McLaughlin et al.
2017, p. 2946; Cartwright et al. 2017, p. 16).
Summary of Factor E
The 1985 listing rule identified introduction of exotic fishes and
vandalism as potential threats. However, in over 30 years of
monitoring, no exotic fishes have been detected, there is no evidence
of attempts to introduce exotic fish species, and no vandalism has
occurred beyond one singular incident of gate removal. Other potential
threats such as small population size, dependence on a specific or rare
habitat type, the inability to disperse, restriction to a small
geographic area, vulnerability to stochastic events, and climate change
also have been assessed and determined to be minimal. Based on the best
available information, we conclude that other natural or manmade
factors do not constitute a substantial threat to the Foskett speckled
dace now or in the foreseeable future.
Cumulative Impacts
Together, the factors discussed above could result in cumulative
impacts to the Foskett speckled dace. For example, effects of cattle
grazing directly on the habitat in combination with mechanical
disturbances could result in a greater overall impact to Foskett
speckled dace habitat. Although the types, magnitude, or extent of
cumulative impacts are difficult to predict, we are not aware of any
combination of factors that have not already been, or would not be,
addressed through ongoing conservation measures that are expected to
continue post-delisting and into the future, as described above. The
best scientific and commercial data available indicate that the species
experiences natural variably in abundance; the species has maintained
abundance commensurate with available habitat; and the factors
discussed above are not currently leading, nor are they anticipated to
cumulatively lead, to reductions in Foskett speckled dace numbers and/
or reductions of the species' habitat.
Summary of Comments and Recommendations
In our proposed rule published on January 4, 2018 (83 FR 475), we
requested that all interested parties submit written comments on the
proposal by March 5, 2018. We also requested public comments on the
draft post-delisting monitoring plan. We contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We did
not receive any requests for a public hearing. Newspaper notices
inviting general public comment were published in the Lake County
Examiner.
During the comment period, we received 20 letters or statements
directly addressing the proposed action. These included 4 comments from
peer reviewers, 1 from the State, and 15 from the public. All comments
are posted at http://www.regulations.gov under Docket No. FWS-R1-ES-
2017-0051. Nine of the public comments (including comments from the
State) supported the proposed action to delist the Foskett speckled
dace. Nine commenters did not state whether they support the decision
or not. Five provided no relevant information related to Foskett
speckled dace and our proposed action. The remaining two public
commenters objected to the action to delist the Foskett speckled dace;
however, neither provided substantive scientific information regarding
the proposed delisting rule.
We reviewed all comments we received from the peer reviewers and
the public for substantive issues and new information regarding the
Foskett speckled dace. Substantive comments received during the comment
period are
[[Page 48303]]
addressed below and, where appropriate, incorporated directly into this
final rule and the post-delisting monitoring plan.
Peer Review and Public Comments
Section 4(b)(5)(A)(ii) of the Act states that the Secretary must
give actual notice of a proposed regulation under section 4(a) to the
State agency in each State in which the species is believed to occur,
and invite the comments of such agency. Section 4(i) of the Act directs
that the Secretary will submit to the State agency a written
justification for his or her failure to adopt regulations consistent
with the agency's comments or petition. We solicited and received
comments from the Oregon Department of Fish and Wildlife (ODFW). The
ODFW supports our delisting of the Foskett speckled dace and has
delisted Foskett speckled dace from their State endangered species
list.
Comment (1): One commenter stated that the Service should delay
delisting in order to conduct additional monitoring.
Our Response: Extensive habitat and population abundance surveys at
Foskett and Dace springs have been regularly conducted since 2005 and
as a result, we do not agree additional monitoring is necessary prior
to delisting. These data contributed to our analysis of the five threat
factors to the species and our decision to delist the species. We have
determined the threats to Foskett speckled dace have been eliminated or
reduced to the point that protection under the Act is no longer needed.
Monitoring will continue after delisting as described in our post-
delisting monitoring (PDM) plan to confirm the maintenance of the
species' recovered status and amelioration of threats.
Comment (2): Two peer reviewers suggested we consider genetic
analysis published in scientific journals (Ardren et al. 2009; Ardren
et al. 2010; Hoekzema 2013; Hoekzema and Sidlauskas 2014) to discuss
the current taxonomic status of the Foskett speckled dace.
Our Response: We reviewed the information provided by the peer
reviewers, and conclude that the genetic analysis supports the
taxonomic status of the Foskett speckled dace currently and at the time
of listing, specifically that the Service knowingly listed the Foskett
speckled dace as an ``undescribed subspecies.'' We are not seeking a
change in that status, but are delisting the entity as it is currently
classified. Future genetic and taxonomic study may be conducted that
may revise the fish's taxonomic classification. We are not pursuing a
study to describe the Foskett speckled dace, but are making a decision
to remove it from the Federal List of Endangered and Threatened
Wildlife.
Comment (3): Two peer reviewers and several commenters stated that
actions to eliminate threats from physical habitat modification or
water extraction have been implemented. Commenters also stated that the
immediate threats have been adequately addressed, that the Foskett
speckled dace is no longer at risk of extinction, and that criteria for
delisting have been met or exceeded. Commenters noted that the CMP does
not necessarily eliminate threats but provides guidance and actions to
eliminate threats.
Our Response: The Service agrees that the Foskett speckled dace has
recovered due to conservation efforts of the BLM, ODFW, and Service and
qualifies for removal from the Federal List of Endangered and
Threatened Wildlife. Conservation efforts by the BLM, specifically the
acquisition and fencing of the property, have largely removed the
threats from mechanical disturbance to the habitat by precluding
livestock grazing. Any disturbance from machinery or drilling of wells
has also either never materialized or would be subject to the BLM's
evaluation and/or permitting now that this is land managed by the BLM.
Additional conservation actions include the excavation of excess
sediment and vegetation from the spring and outflow and the
implementation of a cooperative management plan with the BLM, ODFW, and
Service. In addition to providing guidance and actions to eliminate
threats, the CMP articulates the agencies' commitment to implementing
those actions.
Comment (4): Two peer reviewers suggest we conduct a survey for
internal and external parasites to assess risk from disease because the
only evidence presented is lack of obvious external parasites. The
reviewers suggest a basic necropsy should be undertaken by ODFW staff
to be certain there are no underlying disease or parasite problems.
Our Response: Our decision to delist the Foskett speckled dace is
based on the removal or reduction of threats to the species identified
at the time of listing, since the time of listing and in the
foreseeable future. At no time has the Service had any information to
indicate that disease may pose a threat to the Foskett speckled dace.
Other studies of disease in fishes occupying nearby waters (in the
Warner basin) have indicated common fish parasites and disease are
present in low levels. These diseases are common in freshwater fishes.
Therefore, as we do not have any information that disease or predation
are a threat, we are not conducting a new study to detect disease.
Based on observations and the best available information, we have
determined it is unlikely parasites or disease represent a threat to
the Foskett speckled dace now or in the foreseeable future.
Comment (5): One peer reviewer commented that the proposed rule
defines foreseeable future as 30 years. As such, the 9-year duration of
the CMP does not match the identified need for monitoring, and after it
concludes, it is possible that Factor D would again threaten the
Foskett speckled dace.
Our Response: We think the commenter is confusing the CMP
(cooperative management plan) with the PDM (post-delisting monitoring
plan). In our draft PDM that was available for public comment, we
stated that the PDM would be in place for 9 years after delisting;
however, the CMP does not have a termination date and will proceed well
into the foreseeable future. Between the proposed and final PDM, we
reassessed the duration of the plan and determined that reducing the
duration of the PDM from 9 years to 5 years and eliminating consecutive
year monitoring will help to minimize unnecessary handling of the fish
and reduce risk to individuals. In addition, 5 years is an adequate
monitoring period to ensure the species remains secure once delisted
because the CMP will continue indefinitely following the PDM period.
Monitoring may be increased during the PDM, depending on information
needs and availability of funding. In the long term, it will be the
responsibility of the BLM and ODFW to monitor and manage the species,
and the strategy for this is detailed in the CMP, which does not have a
termination date. As discussed under Summary of Factors Affecting the
Species, above, we anticipate that the conservation measures initiated
under the CMP will continue through at least the foreseeable future,
which we have defined as 30 years. Consequently, we find that
conservation measures, along with existing State and Federal regulatory
mechanisms, are adequate to address these specific threats, including
Factor D, absent protections under the Act.
Comment (6): One peer reviewer suggested the Service's conclusion
that threats are minimal appears to be unwarranted. The commenter
stated that the Foskett speckled dace currently meets at least two of
the three criteria for rarity (narrow geographic range and narrow
habitat requirements) and that
[[Page 48304]]
threats from vandalism and introduced species that were included in the
1985 listing rule for the species have not changed substantially. The
commenter further stated that most of the factors mentioned in the 2018
proposed delisting (remoteness of the site, minimal visitation, and
lack of connectivity to other water bodies) were equally true at the
time of listing in 1985. The commenter refers to populations of other
endangered species such as the Devil's Hole pupfish (Cyprinodon
diabolis) that have been subjected to vandalism in recent memory (Rocha
2016), despite similar legal protection and monitoring.
Our Response: While rarity may increase risk to a species from an
operative threat, rarity, in and of itself, does not represent a threat
under the Act. The Foskett speckled dace is an endemic species that is
naturally restricted in its distribution to a localized spring system.
Introduced species and vandalism of the springs could represent a
potential threat, but neither has been identified at Foskett Spring nor
have these potential threats occurred during the more than 30 years
since listing. Because of this, we believe it is reasonable to conclude
the likelihood of these threats being realized is very low. There was a
single instance of gate removal near the springs, but the BLM replaced
the gate and committed in the 2015 CMP to monitor the gate to ensure
its integrity. The management and protections provided by the BLM and
ODFW will monitor these potential threats to the species now and into
the foreseeable future and provide for actions to be taken should these
threats be detected. Therefore, we have determined protection under the
Act is no longer warranted for the Foskett speckled dace.
Comment (7): One peer reviewer commented that the current existence
of the refuge population at Dace Spring provides resilience and
robustness, but the long-term stability of the Dace Spring population
is unclear. The reviewer also stated that the introduction to Dace
Spring has failed at least once before, but that if the current
population proves to be viable, its existence would reduce risk to the
Foskett Spring population from its inherent rarity.
Our Response: We agree with the peer reviewer and have incorporated
this information into this final rule (see ``Small Population Size''
under Factor E discussion, above). Although we acknowledge the refuge
population at Dace Spring adds to the security of the population, it is
not required, nor do we depend on it for our determination to remove
the Foskett speckled dace from the Federal List of Endangered and
Threatened Wildlife.
Comment (8): One peer reviewer stated that the CMP conflates the
concept of effective population size (Ne) with census population size
(Nc), which would indicate a low population size for Foskett speckled
dace. The reviewer stated an effective population size of 500 or higher
for the Foskett speckled dace would require a sustained census
population size of at least 2,500 to 3,500 individuals. The reviewer
also stated that this threshold of 500 should be corrected in the CMP,
and genetic studies should calculate Ne as part of the proposed
monitoring.
Our Response: We think the commenter is confusing the CMP
(cooperative management plan) with the PDM (post-delisting monitoring
plan). Regarding the threshold of 500 fish, we are making the
assumption, given what we know about the life history of the fish and
size of the mesh in the minnow traps (the primary method to develop
population estimates) that all fish captured are of reproductive age
(age one or older, or Ne). We will add this specificity to the final
PDM.
Comment (9): We received several peer review comments regarding the
suggested relationship between open-water habitat and abundance of the
species. One commenter questioned whether the proposed rule's
suggestion of a clear link between open-water habitat and population
size of Foskett speckled dace was an overstatement of evidence and said
there appears to be substantial natural variation in recruitment
success and population size independent of the amount of open-water
habitat. Some commenters pointed out that there is limited evidence to
demonstrate all the drivers of the variable abundance exhibited by the
species, and that population size may be a result of other habitat
parameters such as annual weather changes. One commenter suggested that
several decades' worth of data would be needed to establish statistical
confidence in any relationship between open-water habitat and
variability in abundance. Another commenter suggested that a
correlation between open-water habitat and variability in abundance
appeared to be stronger in the marsh habitats at Foskett Spring than in
the pool.
Our Response: Although we have observed a link between open-water
habitat and population size based on surveys by ODFW, we acknowledge
that a strict correlation between open-water habitat and population
size has not been clearly established. However, we note that our
decision to delist the Foskett speckled dace is not based on the
management for open-water habitat or on population estimates; we based
our decision on the removal or reduction of threats to the species
identified at the time of listing (groundwater pumping for irrigation,
use of the area by livestock, channeling of the springs for
agricultural purposes, other mechanical modifications of the aquatic
ecosystem, introduction of exotic fishes, and vandalism). We included
discussion of population estimates as part of the healthy status of the
population at the time we proposed delisting of the Foskett speckled
dace. While not the basis for delisting, the observed increases in
population documented by ODFW give the Service confidence that the
habitat enhancement project conducted by the BLM will likely result in
improved habitat conditions. The value of maintaining and/or increasing
open-water habitat will continue to be assessed in the future by the
BLM and ODFW to determine if additional habitat enhancement activities
benefit the species post-delisting. The BLM and ODFW will use their
discretion and authorities outlined in the CMP to continue conservation
of the Foskett speckled dace into the future. In response to the
commenters, we have removed the reference to a direct response of the
species to open-water habitat from this rule and also clarified the
difference between abundance estimate and variability in abundance (see
Abundance, above).
Comment (10): One commenter stated that it seems unwise to remove
protection under the Act for this species. This commenter expressed
concern that something could ``exterminate'' the fish before the
Government or conservationists could react. They suggest that since the
Foskett speckled dace lives in such a small area, with human activity,
the Government should try to acquire and safeguard all of the fish's
habitat and continue trying to establish new populations where the fish
may have been found in the past. The commenter also stated that because
the fish's habitat is so small, there should not be a lot of economic
tradeoffs, and economic losses are acceptable to preserve the species.
Our Response: The Service analyzed all the reasonably foreseeable
threats to the species and did not find any threats that would
``exterminate'' the Foskett speckled dace. The BLM acquired the land in
1987, and has agreed, via the CMP, to continue management of the parcel
of land on which Foskett Spring is located for the protection and
[[Page 48305]]
conservation of the species. The Foskett speckled dace is known to
occur only in its native Foskett Spring and the nearby Dace Spring,
into which it was transferred for conservation purposes. Therefore, it
is already present in all of its historic habitat.
Section 4(b)(1)(A) of the Act requires us to make status (i.e.,
listing, delisting, and reclassification) determinations based ``solely
on the basis of the best scientific and commercial data available.''
The word ``solely'' was added in the 1982 amendments to the Act (Pub.
L. 97-304, 96 Stat. 1411) to clarify that the determination of
endangered or threatened status was intended to be made ``solely upon
biological criteria and to prevent non-biological considerations from
affecting such decisions.'' In making the clarification, Congress
expressed concerns with the requirements of the Regulatory Flexibility
Act, Paperwork Reduction Act, and Executive Order 12291 potentially
introducing economic and other factors into the basis for
determinations under the Act (H.R. Rep. No. 97-567 at 19-20, May 17,
1982). Therefore, we make status determinations based solely on
biological considerations.
The Service has the authority under the Act to emergency-list the
species if threats re-emerge.
Comment (11): One peer reviewer commented that the extent of
available habitat is small and requires careful management and close
monitoring to ensure that the Foskett speckled dace persists for the
long term. The commenter cautioned against assuming major mechanical
restoration of open pool habitat was always preferred, especially given
things like unintended disturbance of other aspects of the habitat and
related species, and that smaller scale, shovel-based habitat
improvement should be considered.
Our Response: The Foskett speckled dace is a narrow endemic with
limited habitat. With the understanding that the species will require
some habitat management and monitoring into the future, the Service
entered into an agreement with the BLM and ODFW to ensure management
actions take place for the benefit of the Foskett speckled dace. In
order to allow maximum flexibility and responsiveness to conditions in
future management of the species, the CMP is not restrictive with
respect to the type of management actions required. Since the 1985
listing of the Foskett speckled dace, the Service, BLM, and ODFW have
been actively managing Foskett speckled dace habitat for the
conservation of the species. Information learned from decades of
management will inform the partners for optimizing future management
decisions.
Comment (12): One peer reviewer and several other commenters stated
that climate change will have effects that could impact the shallow
water habitat of the Foskett speckled dace. Concerns were noted
regarding the potential increase of drought and drought intensity
through increased evaporation rates and more erratic precipitation.
Our Response: We assessed the potential effects from climate change
using the most current science available, although at this time there
are no available climate projections on the persistence of springs into
the future. Downscaled climate models project an increase in the mean
maximum air temperature of between 2.7 [deg]F (1.6 [deg]C) (RCP4.5) and
3.2 [deg]F (1.8 [deg]C) (RCP8.5), and an increase in the mean annual
minimum air temperature of between 2.5 [deg]F (1.5 [deg]C) (RCP4.5) and
3.1 [deg]F (1.8 [deg]C) (RCP8.5) in the 25-year period from 2025 to
2049. Mean precipitation is not predicted to change, but annual snow
accumulation is predicted to decrease by 0.4 in (10.16 mm) during this
period. Although the higher temperatures may contribute to changes in
summer evaporation affecting soil moisture for the vegetative community
around the springs, the evaporative deficit is projected to remain
similar to current conditions and within the confidence intervals for
the predicted change (Alder and Hostetler 2013, entire).
The thermal artesian springs that make up Foskett speckled dace
habitat have a near constant temperature and flow. Springs have
features that are independent of climate that make springs potential
refugia for species from the effects of climate change (McLaughlin et
al. 2017, p. 2946; Cartwright et al. 2017, p. 16). The springs are
located in a wetland that is ephemeral by nature; the dace have
persisted in the area despite conditions that are somewhat variable
from year to year. Although dace have been found in shallower, marshy
areas, the largest number of individuals have been observed in the
deeper pool habitat. Through implementation of the CMP, the partners
will continue to evaluate habitat conditions at Foskett and Dace
springs and note where the dace are occurring. Future enhancements to
optimize Foskett speckled dace habitat, in the pool areas and marsh
areas, will be based on the best information available at the time.
Comment (13): One commenter stated that this species only occurs at
two springs in an arid area, and humans established the Dace Springs
population. Both populations fluctuate. The commenter also states that
neither population is secure and likely to become even less secure with
increased climate change. The commenter opposes removing the Foskett
speckled dace from the Federal List of Endangered and Threatened
Wildlife.
Our Response: The species is known as a ``narrow endemic,'' which
means it exists in a very small range. While this small range may
increase risk to a species from an operative threat, in and of itself,
its limited range does not represent a threat under the Act. We have
carefully analyzed the potential threats to the species including an
analysis of the potential effects from climate change using the best
information available. The Service has considered this condition in
assessing the potential threat factors listed in section 4(a)(1) of the
Act (see Summary of Factors Affecting the Species, above). Based on the
best available scientific and commercial information, the Service has
determined the threats identified in the 1985 listing rule are either
not as significant as originally anticipated or have been eliminated or
reduced since listing, and we no longer believe the species meets the
definition of an endangered or a threatened species. See also response
to Comment (12), above.
Comment (14): One peer reviewer commented that it is reasonable to
assume that population size is a function of available habitat and it
is also a function of prior abundance and of carrying capacity, which
can change within the same available habitat. There is not a
sufficiently long time-series and appropriate analysis for
understanding the Foskett speckled dace's responses to management
intervention. Change in a population from one year to the next might be
positive or negative. If there is an intervention with an anticipated
positive effect, one can expect the variability to still be present but
that the mean response will be positive. Ideally, such an evaluation is
achieved through a time-series with a sufficient pre- and post-response
period to evaluate the response over a variety of annual patterns.
Our Response: We do not have information to show that population
size is strictly a function of habitat at Foskett Spring. However,
observations of other similar fish in similar habitats indicate that
these fish are likely to increase in abundance with an increase in
open-water habitat (Kodric-Brown and Brown 2007, entire). Our decision
to delist the Foskett speckled dace is based on the removal or
reduction of threats to the species. Despite this, we
[[Page 48306]]
have made some assumptions in managing the habitat for greater
abundance of fish in the population. The Service is not conducting
additional studies prior to removal of the Foskett speckled dace from
the Federal List of Endangered and Threatened Wildlife. The future
management and monitoring included in the CMP allows for flexibility in
habitat management and adaptive management to benefit the long-term
stability of the species.
Comment (15): Several peer reviewers commented on the draft post-
delisting monitoring plan. These peer reviewers suggested monitoring
of: (1) Groundwater in and around the vicinity of Foskett and Dace
springs; (2) surface water quality; (3) water levels; (4) the extent of
water; and (5) climatic conditions. In addition, one peer reviewer
suggested a plan to evaluate stability of habitat conditions,
sensitivity to climate or drought, and ultimately vulnerability.
Our Response: Post-delisting monitoring is designed to monitor
those threats identified at the time of listing and any additional
threats we have identified during the species' 5-year status reviews.
Since the time of listing in 1985, water level and quality have not
been found to be adversely impacting the Foskett speckled dace, nor are
they anticipated concerns relating to the future management of the
species. The springs have been found to have near constant flow and
temperature; water levels and temperature have been adequate for the
species, and we anticipate they will continue to be into the future.
Therefore, we did not revise the PDM plan in response to these
comments.
Determination
Standard for Review
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a ``threatened species'' as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following factors: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Determination of Status Throughout All of the Foskett Speckled Dace's
Range
As required by section 4(a)(1) of the Act, we conducted a review of
the status of the Foskett speckled dace and assessed the five factors
to evaluate whether the Foskett speckled dace is endangered or
threatened throughout all of its range. We examined the best scientific
and commercial information available regarding the past, present, and
future threats faced by the species. We found that, with periodic
management, Foskett speckled dace populations are persistent but
cyclical within a range of 751 to 24,888 individuals over the last
decade (see Table 1, above).
As a result of our analysis, we found that impacts believed to be
threats to the habitat of the Foskett speckled dace at the time of
listing (groundwater pumping for irrigation, use of the area by
livestock, channeling of the springs for agricultural purposes, and
other mechanical modifications of the aquatic ecosystem) are either not
as significant as originally anticipated or have been eliminated or
reduced since listing, and we do not expect any of these conditions to
substantially change post-delisting and into the foreseeable future
(Factor A). The finalization of the CMP acknowledges the
``conservation-reliant'' nature of the Foskett speckled dace and the
need for continued management of the habitat at Foskett Spring, and
affirms that the BLM, ODFW, and Service will continue to carry out
long-term management actions. Long-term management actions and
elimination and reduction of threats apply to all populations of the
species, such that both the Foskett Spring population and the Dace
Spring subpopulation are secure.
We found that overutilization for commercial, recreational,
scientific, or educational purposes (Factor B) and disease or predation
(Factor C) still pose no threat to the Foskett speckled dace.
The existence of Federal regulatory mechanisms like the Lakeview
District BLM's management of the area under its RMP and the Federal
Land Policy and Management Act of 1976, State conservation measures
such as the Oregon Native Fish Conservation Strategy, and other
authorities supporting each cooperating agency's entrance into the CMP
agreement reduce risk to the Foskett speckled dace and its habitat
(Factor D).
Finally, in over 30 years of monitoring, no exotic fishes have been
detected in, and there is no evidence of attempts to introduce exotic
fish species into, Foskett speckled dace habitat, no vandalism has
occurred beyond a single incident of gate removal, and other potential
threats (such as small population size, dependence on a specific or
rare habitat type, the inability to disperse, restriction to a small
geographic area, vulnerability to stochastic events, and climate
change) also have been assessed and determined to be minimal. Based on
the best available information, we found that other natural or manmade
factors (Factor E) do not constitute a substantial threat to the
Foskett speckled dace now or in the foreseeable future.
After assessing the best available information, we conclude that
the previously recognized impacts to the Foskett speckled dace no
longer are a threat to the species, such that the Foskett speckled dace
is not currently in danger of extinction, and is not likely to become
so within the foreseeable future throughout all of its range.
Because we determined that the Foskett speckled dace is not in
danger of extinction or likely to become so in the foreseeable future
throughout all of its range, we will consider whether there are any
significant portions of its range in which the species is in danger of
extinction or likely to become so.
Determination of Status Throughout a Significant Portion of the Foskett
Speckled Dace's Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range (SPR). Having determined that the Foskett speckled dace is
not in danger of extinction now or likely to become so in the
foreseeable future throughout all of its range, we now consider whether
it may be in danger of extinction or likely to become so in the
foreseeable future in an SPR. The range of a species can theoretically
be divided into portions in an infinite number of ways, so we first
screen the potential portions of the species' range to determine if
there are any portions that warrant further consideration. To do this,
we look for portions of the species' range for which there is
substantial information indicating that: (1) The portion may be
significant, and (2) the species may be in danger of extinction or
likely to become so in the
[[Page 48307]]
foreseeable future in that portion. A portion only warrants further
consideration if there is substantial information that both of these
statements are true for that portion. Therefore, for a particular
portion, if we determine that there is not substantial information that
one of these statements is true, then the species does not warrant
listing because of its status in that portion of its range.
We evaluated the range of the Foskett speckled dace to determine if
any area may be a significant portion of the range. The Foskett
speckled dace is endemic to Foskett Spring in the Warner Basin. The
known historical, natural range of the Foskett speckled dace is limited
to Foskett Spring. At the time of listing in 1985, Foskett speckled
dace also occurred at nearby Dace Spring, located approximately one-
half mile south of Foskett Spring, where translocation of specimens
from Foskett Spring was initiated in 1979. Because of its narrow range
limited to two springs within a half-mile of each other, and because
speckled dace currently occupying Dace Spring originated from
translocations from Foskett Spring, we find that the species is
comprised of a single, population and that there are no separate areas
of the range that are likely to be of greater biological or
conservation importance than any other areas due to natural biological
reasons alone. Therefore, there is not substantial information that
logical, biological divisions exist that would support delineating one
or more portions within the species' range.
Based on our determination that no natural biological divisions
delineate separate portions of the Foskett speckled dace population, we
conclude that there are no portions of the species' range for which
both (1) the portions are likely to be significant, and (2) the species
is likely to be in danger of extinction or likely to become so in the
foreseeable future in those portions. This makes it unnecessary for us
to undertake any further consideration or analysis of whether this
species is endangered or threatened throughout an SPR. We conclude
therefore that there is no significant portion of the species' range
where it is an endangered species or a threatened species. Our approach
to analyzing SPR in this determination is consistent with the court's
holding in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. August 24, 2018).
Conclusion
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Foskett speckled dace. The threats that led to the species being
listed under the Act (primarily the species' extremely restricted and
vulnerable habitat, which was being modified; Factor A) have been
removed or ameliorated by the actions of multiple conservation partners
over the past 30 years; these actions include securing the property,
and developing and implementing long-term management strategies to
ensure that appropriate habitat is maintained. Given various
authorities that enabled the three cooperating agencies to enter into
the Foskett Speckled Dace CMP, and the long record of engagement and
proactive conservation actions implemented by the three cooperating
agencies over a 30-year period, we expect conservation efforts will
continue to support a healthy, viable population of the Foskett
speckled dace post-delisting and into the foreseeable future. Because
the species is not in danger of extinction now or in the foreseeable
future throughout all or a significant portion of its range, the
species does not meet the Act's definition of an endangered species or
a threatened species. We conclude that the Foskett speckled dace no
longer requires the protection of the Act, and, therefore, we are
removing it from the Federal List of Endangered and Threatened
Wildlife.
Effects of This Rule
This rule revises 50 CFR 17.11(h) to remove the Foskett speckled
dace from the Federal List of Endangered and Threatened Wildlife and
revises 50 CFR 17.44(j) to remove the Foskett speckled dace from the
applicable rule promulgated under section 4(d) of the Act. On the
effective date of this rule (see DATES, above), the prohibitions and
conservation measures provided by the Act, particularly through
sections 7 and 9, no longer apply to this species, and Federal agencies
are no longer required to consult with the Service under section 7 of
the Act in the event that activities they authorize, fund, or carry out
may affect the Foskett speckled dace. There is no critical habitat
designated for this species; therefore, this rule does not affect 50
CFR 17.95. Current State laws related to the Foskett speckled dace will
remain in place and be enforced, and will continue to provide
protection for this species.
Post-Delisting Monitoring
Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a system to monitor effectively, for not less than
5 years, all species that have been recovered and delisted. The purpose
of this post-delisting monitoring is to verify that a species remains
secure from risk of extinction after it has been removed from the
protections of the Act. The monitoring is designed to detect the
failure of any delisted species to sustain itself without the
protective measures provided by the Act. If, at any time during the
monitoring period, data indicate that protective status under the Act
should be reinstated, we can initiate listing procedures, including, if
appropriate, emergency listing under section 4(b)(7) of the Act.
Section 4(g) of the Act explicitly requires us to cooperate with the
States in development and implementation of post-delisting monitoring
programs, but we remain responsible for compliance with section 4(g) of
the Act and, therefore, must remain actively engaged in all phases of
post-delisting monitoring. We also seek active participation of other
entities that are expected to assume responsibilities for the species'
conservation post-delisting.
Post-Delisting Monitoring Plan Overview
We prepared a PDM plan for the Foskett speckled dace, building on
and continuing the research that has taken place in the time since the
species was listed. The PDM plan discusses the current status of the
taxon and describes the methods to be used for monitoring after the
taxon is removed from the Federal List of Endangered and Threatened
Wildlife. The PDM plan: (1) Summarizes the current status of the
Foskett speckled dace; (2) provides an outline of the roles of PDM
cooperators; (3) describes monitoring methods; (4) provides an outline
of the frequency and duration of monitoring; (5) provides an outline of
data compilation and reporting procedures; and (6) defines thresholds
or triggers for potential monitoring outcomes and conclusions of the
PDM.
It is our intent to work with our partners towards maintaining the
recovered status of the Foskett speckled dace.
Required Determinations
National Environmental Policy Act
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the
[[Page 48308]]
Federal Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175, and the Department of
the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
We do not believe that any Tribes will be affected by this rule.
However, we contacted the Burns Paiute Tribe to coordinate with them
regarding the proposed rule to delist the Foskett speckled dace. We
provided the Tribe with a copy of the proposed rule and draft PDM, but
we did not receive any comments from them.
References Cited
A complete list of all references cited in this final rule is
available on the internet at http://www.regulations.gov under Docket
No. FWS-R1-ES-2017-0051 or upon request from the person listed under
FOR FURTHER INFORMATION CONTACT.
Authors
The primary authors of this final rule are staff members of the
Service's Oregon Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Sec. 17.11 [Amended]
0
2. Amend Sec. 17.11 in the table in paragraph (h) under FISHES by
removing the entry for ``Dace, Foskett speckled'' from the List of
Endangered and Threatened Wildlife.
Sec. 17.44 [Amended]
0
3. Amend Sec. 17.44 by:
0
a. Removing the words ``and Foskett speckled dace (Rhinichthys osculus
subspecies)'' from paragraph (j) introductory text; and
0
b. In paragraphs (j)(1) and (2), removing the word ``these'' and adding
in its place the word ``this''.
Dated: August 9, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-19850 Filed 9-12-19; 8:45 am]
BILLING CODE 4333-15-P