Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Lost River Sucker and Shortnose Sucker, 76337-76358 [2011-31380]

Download as PDF Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules deletion in the preamble to the direct final Notice of Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this deletion action, we will not take further action on this Notice of Intent for Deletion. If we receive adverse comment(s), we will withdraw the direct final Notice of Deletion and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Deletion based on this Notice of Intent for Deletion. We will not institute a second comment period on this Notice of Intent for Deletion. Any parties interested in commenting must do so at this time. For additional information, see the direct final Notice of Deletion which is located in the Rules section of this Federal Register. List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193. Dated: November 14, 2011. Al Armendariz, Regional Administrator, Region 6. [FR Doc. 2011–31266 Filed 12–6–11; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 11–192, RM–11646; DA 11– 1924] Television Broadcasting Services; Lincoln, NE Federal Communications Commission. ACTION: Proposed rule. AGENCY: The Commission has before it a petition for rulemaking filed by Lincoln Broadcasting, LLC (‘‘LBL’’), the licensee of KFXL–TV, channel 51, Lincoln, Nebraska, requesting the substitution of channel 15 for channel 51 at Lincoln. LBL’s proposal complies with the Commission announcement that it would lift the current freeze on the acceptance of channel substitution rulemaking proceeding for petitions proposing to relocate from channel 51. emcdonald on DSK5VPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 LBL also states that the proposed facility will increase the net total population served by the station by almost 700,000 persons. LBL believes the grant of this petition would serve the public interest. DATES: Comments must be filed on or before January 6, 2012, and reply comments on or before January 23, 2012. ADDRESSES: Federal Communications Commission, Office of the Secretary, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Howard M. Liberman, Esq., Drinker Biddle & Reath, 1500 K Street NW., Suite 1100, Washington, DC 20005. FOR FURTHER INFORMATION CONTACT: Joyce L. Bernstein, joyce.bernstein@fcc.gov, Media Bureau, (202) 418–1647. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission’s Notice of Proposed Rule Making, MB Docket No. 11–192, adopted November 21, 2011, and released November 22, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC’s Reference Information Center at Portals II, CY–A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS (http:// www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission’s duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone 1–(800) 478–3160 or via email http:// www.BCPIWEB.com. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to fcc504@fcc.gov or call the Commission’s Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104–13. In addition, therefore, it does not contain any proposed information collection burden ‘‘for small business concerns with fewer than 25 employees,’’ pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 76337 Commission consideration or court review, all ex parte contacts (other than ex parte presentations exempt under 47 CFR 1.1204(a)) are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1208 for rules governing restricted proceedings. For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420. List of Subjects in 47 CFR Part 73 Television, Television broadcasting. Federal Communications Commission Barbara A. Kreisman, Chief, Video Division, Media Bureau. Proposed Rules For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for Part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336, and 339. § 73.622(i) [Amended] 2. Section 73.622(i), the PostTransition Table of DTV Allotments under Nebraska is amended by removing channel 51 and adding channel 15 at Lincoln. [FR Doc. 2011–31403 Filed 12–6–11; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R8–ES–2011–0097; 4500030114] RIN 1018–AX41 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Lost River Sucker and Shortnose Sucker Fish and Wildlife Service, Interior. ACTION: Proposed rule; reproposal. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Lost River sucker (Deltistes luxatus) and shortnose sucker (Chasmistes brevirostris) under the Endangered Species Act of 1973, as amended (Act). In total, we are proposing as critical SUMMARY: E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76338 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules habitat approximately 146 miles (234 kilometers) of streams and 117,848 acres (47,691 hectares) of lakes and reservoirs for Lost River sucker and approximately 128 miles (207 kilometers) of streams and 123,590 acres (50,015 hectares) of lakes and reservoirs for shortnose sucker. The proposed critical habitat is located in Klamath and Lake Counties, Oregon, and Modoc County, California. On December 1, 1994, we published proposed critical habitat for Lost River sucker and shortnose sucker. This new proposed rule uses updated information concerning Lost River sucker’s and shortnose sucker’s ecology, as well as the technological advancements made available since preparing the 1994 proposed rule, to inform our proposed critical habitat designation for Lost River sucker and shortnose sucker. DATES: We will accept comments received or postmarked on or before February 6, 2012. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by January 23, 2012. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Enter Keyword or ID box, enter Docket No. FWS–R8–ES–2011–0097, which is the docket number for this rulemaking. (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R8–ES–2011– 0097; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. We will not accept email or faxes. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Laurie R. Sada, Field Supervisor, U.S. Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 1936 California Avenue, Klamath Falls, OR 97601; telephone 541–885–8481; facsimile 541–885–7837. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Public Comments We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 Therefore, we request comments or information from government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning: (1) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent. (2) Specific information on: (a) The amount and distribution of Lost River sucker and shortnose sucker habitat; (b) What areas, that were occupied at the time of listing (or are currently occupied) contain physical and biological features essential to the conservation of the species, should be included in the designation and why; (c) Special management considerations or protection that may be needed for the physical and biological features essential to the conservation of the species in critical habitat areas we are proposing, including managing for the potential effects of climate change; and (d) What areas not occupied at the time of listing that meet our criteria for being essential for the conservation of the species should be included in the designation and why. (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (4) Information on the projected and reasonably likely impacts of climate change on the Lost River sucker and shortnose sucker, the features essential to its conservation, and the areas proposed as critical habitat. (5) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act; (6) Any probable economic, national security, environmental, cultural, or other relevant impacts of designating as critical habitat any area that may be included in the final designation. In particular, we seek information on any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts; and (7) Whether we could improve or modify our approach to designating PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by email or fax or to an address not listed in the ADDRESSES section. We will post your entire comment—including your personal identifying information—on http:// www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat for these species in this proposed rule. For further information on the Lost River sucker’s and shortnose sucker’s biology and habitat, population abundance and trend, distribution, demographic features, habitat use and conditions, threats, and conservation measures, please see the final listing rule (53 FR 27130; July 18, 1988), the 2007 5–year reviews completed for the Lost River sucker and shortnose sucker (Service 2007a and 2007b), and the Draft Revised Lost River Sucker and Shortnose Sucker Recovery Plan (Service 2011). These documents are available on the Klamath Falls Fish and Wildlife Office web site at http://www.fws.gov/klamathfallsfwo/ or on the Environmental Conservation Online System http://ecos.fws.gov/ecos/ indexPublic.do). Lost River sucker and shortnose sucker are members of the fish family Catostomidae and are endemic to the upper Klamath River basin (National Research Council of the National Academies (NRC) 2004, pp. 184, 189). Both species predominantly inhabit lake environments but also utilize riverine, marsh, and shoreline habitats for portions of their life history. Lost River sucker and shortnose sucker spawn in the spring in rivers and creeks in areas with a moderate velocity of water flow E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS containing gravel or cobble substrate at depths less than 1.3 meters (m) (4.3 feet (ft)) (Moyle 2002, pp. 200, 204). In addition, a small group of Lost River sucker spawns at several shoreline springs along the eastern portion of Upper Klamath Lake (Janney et al. 2008, p. 1813). Lost River sucker are distributed within Upper Klamath Lake and its tributaries (Klamath County, Oregon), Clear Lake Reservoir and its tributaries (Modoc County, California), Tule Lake (Siskiyou and Modoc Counties, California), Lost River (Klamath County, Oregon, and Modoc County, California), Link River (Klamath County, Oregon), and the Klamath River mainstem, including Keno, J.C. Boyle, Copco, and Iron Gate Reservoirs (Klamath County, Oregon, and Siskiyou County, California; Moyle 2002, p. 199; NRC 2004, pp. 190–192). The distribution of shortnose sucker overlaps with that of Lost River sucker, but shortnose sucker also occurs in Gerber Reservoir (Klamath County, Oregon) and upper Willow Creek (Modoc County, California, and Lake County, Oregon), a tributary to Clear Lake Reservoir (Buettner and Scoppettone 1991, p. 18; Moyle 2002, p. 203; NRC 2004, pp. 190– 192). Lost River sucker and shortnose sucker were once widespread in the upper Klamath River basin and were important to subsistence, commercial, and recreational fishers (Moyle 2002, pp. 200–201, 204; Service 2011, pp. 1, 28–29). Lost River sucker and shortnose sucker have been extirpated from portions of their historic range (Moyle 2002, pp. 200, 204), and previous efforts to monitor angler catch rates have indicated extreme population declines relative to former levels (Scoppettone and Vinyard 1991, p. 367; NRC 2004, p. 203). Putative factors for declines include introduction of exotic species and habitat loss and alteration, primarily due to construction of dams, water diversions, and draining of wetlands (Scoppettone and Vinyard 1991, pp. 368–369, 371; Moyle 2002, pp. 200–201, 204). Previous Federal Actions The Lost River sucker and shortnose sucker were listed as endangered on July 18, 1988 (53 FR 27130). A recovery plan for Lost River sucker and shortnose sucker was finalized on March 17, 1993 (Service 1993). Five-year reviews for the Lost River sucker and shortnose sucker were completed on July 19, 2007 (73 FR 11945; March 5, 2008). A considerable amount of scientific information has been collected since the 1993 recovery plan and an updated, revised draft VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 recovery plan for the Lost River sucker and shortnose sucker was released in 2011 (Service 2011). On September 9, 1991, the Service received a 60–day notice of intent to sue from the Oregon Natural Resources Council (ONRC) for failure to prepare a recovery plan and to designate critical habitat for the Lost River sucker and shortnose sucker. On November 12, 1991, ONRC filed suit in Federal Court (Wendell Wood et al. v. Marvin Plenert, et al. (Case No. 91–06496–TC (D. Or.))). The Service entered into a settlement agreement and agreed to complete a final recovery plan by March 1, 1993, and a proposal to designate critical habitat on or before March 10, 1994, and publish a final critical habitat rule by November 29, 1994. On December 1, 1994, we published proposed critical habitat for Lost River sucker and shortnose sucker (59 FR 61744); that proposal was never finalized. The ONRC (now known as Oregon Wild) recently contacted the Department of Justice and requested that we issue a final critical habitat rule within a reasonable amount of time. On May 10, 2010, a settlement agreement was reached that stipulated the Service submit a final rule designating critical habitat for the Lost River sucker and the shortnose sucker to the Federal Register no later than November 30, 2012 (Wood et al. v. Thorson et al., No. 91–cv–6496– TC (D. Or.)). Given this settlement agreement, advancement in our understanding of Lost River sucker’s and shortnose sucker’s ecology, and the technological advancements made available since preparing the former proposed rule, we now issue a new proposed critical habitat rule. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 76339 the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies insure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain physical and biological features which are essential to the conservation of the species and which may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical and biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76340 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species’ life-history processes, are essential to the conservation of the species. Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 materials and expert opinion or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. Climate change will be a particular challenge for biodiversity because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325–326). The synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah et al. 2005, p.4). Current climate change predictions for terrestrial areas in the Northern Hemisphere indicate warmer air temperatures, more intense precipitation events, and increased summer continental drying (Field et al. 1999, pp. 1–3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 1181). Climate change may lead to increased frequency and duration of severe storms and droughts (McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015; Golladay et al. 2004, p. 504). The specific effects of climate change on the upper Klamath River basin have not been thoroughly investigated; however, potential effects include increased temperatures, drier summers, and higher snowpack elevation (Koopman et al. 2009, p. 3). As a result of increased temperatures, it is anticipated the peak spring runoff of tributary streams will shift earlier in the year from spring to late winter (Poff et al. 2002, p. 11). Thus, we anticipate Lost River sucker and shortnose sucker may experience altered timing of spawning migrations, i.e., spawning migrations may occur earlier in the year. Furthermore, altered stream flow into lakes may lead to lower lake levels (Poff et al. 2002, p. 15). Lower lake levels may prevent fish from accessing refugia or shoreline spawning areas, such as spring-influenced habitat, that may be important during periods of poor water quality (Banish et al. 2009, p. 165). As lakes warm in response to increased temperatures, algal production increases (Poff et al. 2002, p. 13), which may exacerbate hypereutrophic (nutrient rich) systems, such as Upper Klamath Lake. Nuisance algal blooms are already considered a threat to Lost River sucker and shortnose sucker (Perkins et al. 2000, pp. 24–25, 30), and therefore may be a heightened threat in the face of climate change. Diseases such as gill rot caused by the Columnaris bacterium also are likely to become more of a concern with higher water temperatures (NRC 2004, p. 201). PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Physical or Biological Features In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical and biological features essential to the conservation of the species which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS historical, geographical, and ecological distributions of a species. We derive the specific physical or biological features required for Lost River sucker and shortnose sucker from studies of this species’ habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the Federal Register on July 18, 1988 (53 FR 27130), and the Draft Revised Recovery Plan for the Lost River Sucker and Shortnose Sucker (Service 2011). We have determined that Lost River sucker and shortnose sucker require the following physical or biological features: Space for Individual and Population Growth and for Normal Behavior Lakes, streams, marshes, and spring habitats with migratory corridors between these habitats provide space for individual and population growth and for normal behavior of Lost River sucker. Lost River sucker spend most of their lives within lakes although they primarily spawn in streams (Moyle 2002, p. 199). Spawning occurs in late winter and early spring in major tributaries to lakes where they occur. In addition, a small proportion of Lost River sucker utilize spring areas within Upper Klamath Lake for spawning (Janney et al. 2008, p. 1813). After hatching, larval Lost River sucker drift downstream within spawning tributaries and reach lakes by midsummer. Larval habitat is generally along the shoreline, in water 10 centimeters (cm) to 50 cm (6 inches (in) to 20 in) deep where emergent vegetation provides cover from predators, protection from currents and turbulence, and abundant food (Cooperman and Markle 2004, p. 375). As larval suckers grow into the juvenile stage, they increasingly use deeper habitat with and without emergent vegetation. Adult Lost River sucker primarily use deep (greater than 2.0 m (6.6 ft)), open-water habitat as well as spring-influenced habitats that act as refugia during poor water quality events (Banish et al. 2009, pp. 159–161, 165). Reservoirs also figure prominently in meeting the requirements for space for individual and population growth and for normal behavior of Lost River sucker. Much of the upper Klamath River basin landscape has been hydrologically altered since AngloEuropean settlement, including construction of reservoirs. Some reservoirs have adversely affected Lost River sucker, while others may provide benefits. For example, the dam on Malone Reservoir blocks access to VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 historical Lost River sucker habitat for individuals migrating in the mainstem Lost River. In contrast, construction of hydroelectric dams on the mainstem Klamath River and construction of Clear Lake Reservoir likely have increased the amount of available habitat. Because shortnose sucker share the same habitats as Lost River sucker, the lakes, reservoirs, streams, marshes, and spring habitats with migratory corridors between these habitats also provide space for individual and population growth and for normal behavior of shortnose sucker. Therefore, based on the information above, we identify lakes, reservoirs, streams, marshes, and spring habitats with migratory corridors between these habitats to be a physical or biological feature essential for the conservation of both Lost River sucker and shortnose sucker. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Adult Lost River sucker have subterminal mouths and gill raker structures that are adapted for feeding primarily on benthic macroinvertebrates in lake environments (NRC 2004, p. 190). Prey selection, however, appears to be a function of developmental shifts in habitat use. Lost River sucker larvae feed near the surface of the water column, primarily on chironomids (commonly called ‘‘midges’’; a family of small flies whose larval and pupal stages are mainly aquatic) (Markle and Clauson 2006, pp. 494–495). Juvenile Lost River sucker rely less on surfaceoriented feeding and shift to prey items from benthic areas. For instance, Markle and Clauson (2006, pp. 495–496) documented that juvenile Lost River suckers consumed chironomid larvae as well as micro-crustaceans (amphipods, copepods, cladocerans, and ostracods). As adults, Lost River sucker consume many of these same items (Moyle 2002, pp. 199–200). Shortnose sucker have terminal mouths and gill raker structures adapted for feeding on zooplankton (Moyle 2002, p. 203; NRC 2004, p. 190). Similar to Lost River sucker, shortnose sucker also exhibit an ontogenetic shift in prey selection (Markle and Clauson 2006, pp. 494–495). Adult shortnose sucker also consume many of the same prey items as juveniles, including chironomid larvae, amphipods, copepods, cladocerans, and ostracods (Moyle 2002, p. 203; Markle and Clauson 2006, pp. 494–495). Habitats must provide the necessary conditions, including water with sufficient phytoplankton and fine aquatic substrate, to harbor prey species PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 76341 in sufficient quantity and diversity to meet the nutritional and physiological requirements necessary to maintain Lost River sucker and shortnose sucker populations. Therefore, based on the information above, we identify an abundant food base, including a broad array of chironomids, microcrustaceans, and other small aquatic macroinvertebrates, to be a biological feature necessary for both Lost River sucker and shortnose sucker. Cover or Shelter The cover and shelter components, including emergent vegetation and depth, are the same for shortnose sucker as for Lost River sucker. Lost River sucker and shortnose sucker larvae density is generally higher within and adjacent to emergent vegetation than in areas devoid of vegetation (Cooperman and Markle 2004, p. 374; Crandall et al. 2008, p. 413; Erdman and Hendrixson 2009, p. 18; Cooperman et al. 2010, p. 34). Emergent vegetation provides cover from predators and habitat for prey such as zooplankton, macroinvertebrates, and periphyton (Klamath Tribes 1996, p. 12; Cooperman and Markle 2004, p. 375). Such areas also may provide refuge from wind-blown current and turbulence, as well as areas of warmer water temperature, which may facilitate larval growth (Cooperman and Markle 2004, p. 375; Crandall 2004, p. 7; Cooperman et al. 2010, pp. 35–36). Different life stages use different water depths as cover or shelter. Juvenile Lost River sucker and shortnose sucker primarily use relatively shallow (less than approximately 1.2 m (3.9 ft)) vegetated areas, but may also begin to move into deeper, unvegetated, off-shore habitats (Buettner and Scoppettone 1990, pp. 33, 51; Markle and Clauson 2006, p. 499). Data from Upper Klamath Lake indicate juveniles of less than 1 year often are found at depths less than 1.0 m (3 ft) in May and June, but shift in late July to water 1.5 to 2.0 m (5 to 6.5 ft) deep (Burdick and Brown 2010, p. 50; no similar data exist from other occupied water bodies). Similarly, 1-year-old juveniles occupy shallow habitats during April and May, but may move into deeper areas along the western shore of Upper Klamath Lake (e.g., Eagle Ridge trench) until dissolved oxygen levels become reduced in mid- to lateJuly (Bottcher and Burdick 2010, p. 17; Burdick and VanderKooi 2010, p. 13). Juveniles then appear to move into shallower habitat along the eastern shore or main part of Upper Klamath Lake (Bottcher and Burdick 2010, p. 17). It is assumed that sub-adults, i.e., individuals that display all of the E:\FR\FM\07DEP1.SGM 07DEP1 76342 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS characteristics of adults with the exception of reproductive maturity and reproductive structures (e.g., tubercles), utilize habitats similar to adults (NRC 2004, p. 199). Adult Lost River sucker and shortnose sucker inhabit water depths of 0.9 to 4.8 m (3.0 to 15.7 ft) (Reiser et al. 2001, p. 5–26; Banish et al. 2009, p. 161). In addition, cover (e.g., large woody debris) is sparse in many of the lentic habitats occupied by adult Lost River sucker and shortnose sucker, so water depth or turbidity may provide concealment from avian predators (Banish et al. 2009, p. 164). Therefore, based on the information above, we identify lakes and reservoirs with adequate amounts of emergent vegetation of appropriate depth and water quality to provide for cover and shelter as described above to be a physical or biological feature for Lost River sucker and shortnose sucker. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Throughout their range, Lost River sucker ascend large tributary streams to spawn, generally from February through April, often corresponding with spring snowmelt (Moyle 2002, p. 200; NRC 2004, p. 194). They have been documented migrating upstream as many as 120 kilometers (km) in the Sprague River (75 miles (mi)) (Ellsworth et al. 2007, p. 20). Beginning at the same time, a segment of the Lost River sucker population uses shoreline areas affected by input of spring discharge for spawning in Upper Klamath Lake (Janney et al. 2008, p. 1813). In rivers, spawning occurs in riffles and pools over gravel and cobble substrate at depths less than 1.3 m (4.3 ft) and velocities up to 85 cm per second (2.8 ft per second; Buettner and Scoppettonne 1990, p. 20; Moyle 2002, p. 200; NRC 2004, p. 194). At shoreline spring habitat, spawning occurs over similar substrate and at similar depths. Females broadcast their eggs, which are fertilized most commonly by two accompanying males (Buettner and Scoppettone 1990, p. 17). The fertilized eggs settle within the top few inches of the substrate until hatching, around 1 week later. Generally, larvae spend little time in rivers after swim-up, but quickly drift downstream to lakes (Cooperman and Markle 2003, pp. 1147–1149). Downstream movement occurs mostly at night near the water surface (Ellsworth et al. 2010, pp. 51–52). Larvae transform into juveniles by mid-July at about 25 mm (0.98 in) total length. Juvenile Lost River sucker primarily occupy relatively shallow (less than approximately 50 cm (1.6 ft)), vegetated areas, but also may begin to move into deeper, unvegetated, VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 off-shore habitats as they grow (Buettner and Scoppettone 1990, pp. 32–33; NRC 2004, p. 198). Throughout their range, shortnose sucker ascend large tributary streams to spawn, generally from February through May, often corresponding with spring snowmelt (Moyle 2002, p. 204; NRC 2004, p. 194). Shortnose sucker have been documented migrating upstream as far as 13 km (8 mi) in the Sprague River (Ellsworth et al. 2007, p. 20). Spawning at shoreline springs in Upper Klamath Lake by shortnose sucker is presently rare (NRC 2004, p. 194). In lotic habitat, spawning occurs in similar habitat as Lost River sucker spawning, although spawning may occur in areas with greater stream flow (up to 125 cm per second (4.1 ft per second); Moyle 2002, p. 204). At shoreline spring habitat, spawning occurs over similar substrate and at similar depths to Lost River sucker spawning. Females broadcast their eggs, which are fertilized most commonly by two accompanying males (Buettner and Scoppettone 1990, p. 44). Larval out-migration, and larval and juvenile rearing patterns, are similar to Lost River sucker (Buettner and Scoppettone 1990, p. 51; Cooperman and Markle 2004, pp. 374–375; NRC 2004, p. 198; Ellsworth et al. 2010, pp. 51–52). Therefore, based on the information above, we identify accessible lake and river spawning locations with suitable water flow, gravel and cobble substrate, and water depth (as well as flowing water) for larval out-migration and juvenile rearing habitat as described above to be physical features for both Lost River sucker and shortnose sucker. Primary Constituent Elements for Lost River Sucker and Shortnose Sucker Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of Lost River sucker and shortnose sucker in areas occupied at the time of listing, focusing on the features’ primary constituent elements. We consider primary constituent elements to be the specific elements of physical and biological features that are essential to the conservation of the species. Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the primary constituent elements specific to self-sustaining Lost River sucker and shortnose sucker populations are: (1) Water. Areas with sufficient water quantity and depth within lakes, reservoirs, streams, marshes, springs, PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 groundwater sources, and refugia habitats with minimal physical, biological, or chemical impediments to connectivity. Water should exhibit depths ranging from less than 1.0 m (3.28 ft) up to 4.5 m (14.8 ft) to accommodate each life stage. The water quality characteristics should include water temperatures of less than 28.0 °Celsius (82.4 °F); pH less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; algal toxins (less than 1.0 microgram (mg) per L); and un-ionized ammonia (less than 0.5 mg per L). Elements also include natural flow regimes that provide flows during the appropriate time of year or, if flows are controlled, minimal flow departure from a natural hydrograph. (2) Spawning and rearing habitat. Streams and shoreline springs with gravel and cobble substrate at depths typically less than 1.3 m (4.3 ft) with adequate stream velocity to allow spawning to occur. Areas identified in PCE1 containing emergent vegetation adjacent to open water that provides habitat for rearing . This facilitates growth and survival of suckers, as well as protection from predation and protection from currents and turbulence. (3) Food. Areas that contain an abundant forage base, including a broad array of chironomidae, crustacea, and other aquatic macroinvertebrates. With this proposed designation of critical habitat, we intend to identify the physical and biological features essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the primary constituent elements sufficient to support the lifehistory processes of the species. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. Special management considerations or protection may be necessary to eliminate or reduce the magnitude of threats that affect these species. Threats identified in the final listing rule for these species include: (1) Poor water quality; (2) potential entrainment at water diversion structures; (3) lack of access to essential spawning habitat; (4) lack of connectivity to historical habitat (i.e., migratory impediments); (5) degradation of spawning, rearing, and E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules adult habitat; and (6) predation by or competition with nonnative fish. Poor water quality is particularly associated with high abundance of the blue-green alga Aphanizomenon flosaque. Core samples of bottom sediments indicate that A. flos-aque was not present in Upper Klamath Lake prior to the 1900s (Bradbury et al. 2004, p. 162; Eilers et al. 2004, p. 14). Its appearance is believed to be associated with increases in productivity of the lake through human influence (NRC 2004, pp. 108–110). This alga now dominates the algal community from June to November, and, because of the high phosphorus concentrations and its ability to fix nitrogen, is able to reach seasonally high biomass levels that eventually produce highly degraded water quality (Boyd et al. 2002, p. 34). Once the algal bloom subsides, decomposition of the massive amounts of biomass can lower dissolved oxygen and raise pH to levels harmful or fatal to fish (Perkins et al. 2000, pp. 24–25; Wood et al. 2006, p. 1). Additionally, other cyanobacteria (Microcystis sp.) may produce toxins harmful to sucker liver tissue (VanderKooi et al. 2010, p. 2). Special management considerations or protections are therefore needed to protect water quality from the deleterious effects of algal blooms and may include reducing excess phosphorus concentrations by fencing cattle out of riparian areas, reconfiguring agricultural waterways, increasing riparian stands of vegetation, and restoring wetland habitat that is crucial for filtering sediment and nutrients. Hydrographs of both Clear Lake Reservoir and Upper Klamath Lake exhibit patterns of a snow-melt driven system with highest inflows and levels during spring and early summer, although groundwater also is a significant contributor to Upper Klamath Lake (Gannett et al. 2007, p. 1). However, Clear Lake Reservoir, Gerber Reservoir, and Upper Klamath Lake are managed to store and divert water for irrigation every year. Clear Lake Reservoir is highly sensitive to drought and downstream water delivery because of its small watershed, low precipitation, minimal groundwater input, and high evaporation rates (NRC 2004, p. 129). In the dry years of 1991 and 1992, the U.S. Bureau of Reclamation (BOR) drew down the level of Clear Lake Reservoir to extremely low levels for irrigation supply (Moyle 2002, p. 201). In 1992, Lost River sucker within Clear Lake Reservoir were examined and exhibited signs of stress, including high rates of parasitism and poor body condition (NRC 2004, p. 132). VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 These signs of stress began to decline as the water level in Clear Lake Reservoir rose in 1993, at the end of the drought (NRC 2004, p. 132). In 2009, when lake levels were again low due to drought, diversions from Clear Lake Reservoir were halted in mid-summer, and there were no diversions in 2010. Additionally, low lake levels adversely affect Clear Lake Reservoir sucker populations by limiting access to Willow Creek, the sole spawning tributary (Barry et al. 2009, p. 3). Likewise, the amount of available larval habitat and suitable shoreline spring spawning habitat in Upper Klamath Lake is significantly affected by even minor changes in lake elevation (Service 2008, p. 79). Therefore, special management considerations or protections are needed to address fluctuations in water levels due to regulated flow and lake elevation management. Special management may include the following actions: managing bodies of water such that there is minimal flow departure from a natural hydrograph; maintaining, improving, or reestablishing instream flows to improve the quantity of water available for use; and maintaining or improving groundwater use. The effects of fluctuations in water levels due to regulated flow management may affect the ability of Lost River sucker and shortnose sucker to access refugia during periods of poor water quality. For example, Pelican Bay appears to act as a key refugium during periods of poor water quality, and efforts to maintain the quality and quantity of the habitat there may be beneficial for suckers (Banish et al. 2009, p. 167). Therefore, special management considerations or protections are needed to address access to refugia and may include the following: maintaining appropriate lake depths to allow access to refugia; restoring degraded habitats to improve quantity of flow at refugia as well as refugia quality; and maintaining or establishing riparian buffers around refugia to improve refugia water quality. The Klamath Project (Project) stores and later diverts water from Upper Klamath Lake for a variety of Project purposes. These operations result in lake levels and flows at the outlet of the lake that differ from historic conditions, some of which increase movement of juvenile fish downstream of Upper Klamath Lake. As such, special management considerations or protections for water quantity may be needed to address water intake at water diversion structures to improve water diversion efficiency to increase the quantity of water available as habitat. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 76343 Throughout the Upper Klamath Lake and Lost River Basin, timber harvesting and associated activities (e.g., road building) by Federal, State, tribal, and private landowners have resulted in soil erosion on harvested lands and transport of sediment into streams and rivers adjacent to or downstream from those lands (Service 2002, p. 65; NRC 2004, pp. 65–66). Past logging and road building practices often did not provide for adequate soil stabilization and erosion control. A high density of forest roads remain in the upper Klamath River basin, and many of these are located near streams where they likely contribute sediment (USFS 1995, p. 7), which results in an increase of fine soil particles that can cover spawning substrata. The major agricultural activity in the upper Klamath River basin, livestock grazing, also has likely led to an increase in sediment and nutrient loading rates by accelerating erosion (Moyle 2002, p. 201; Service 2002, pp. 56, 65; McCormick and Campbell 2007, pp. 6–7). Livestock, particularly cattle, have heavily grazed flood plains, wetlands, forest, rangelands, and riparian areas, resulting in the degradation of these areas. Grazing alters the streamside riparian vegetation and compacts soil surfaces, increasing groundwater runoff, lowering streambank stability, and reducing cover. The increase in sediment accumulation and nutrient loading is consistent with the changes in land use in the upper Klamath River basin occurring over the last century (Bradbury et al. 2004, pp. 163–164; Eilers et al. 2004, pp. 14–16). Therefore, special management considerations or protections may be required to improve water quality and include: reducing sediment and nutrient loading by protecting riparian areas from agricultural and forestry impacts, reducing road density to prevent excess sediment loading, and improving cattle management practices. Lost River sucker and shortnose sucker have limited hydrologic connection to spawning or rearing habitat. For example, low lake levels adversely affect Clear Lake Reservoir sucker populations by limiting access to the Willow Creek drainage, the sole spawning tributary (Barry et al. 2009, p. 3). Likewise, the amount of suitable shoreline spring spawning habitat in Upper Klamath Lake is significantly affected by even minor changes in lake elevation, but it is unknown exactly how such levels directly affect annual productivity. Several shoreline springspawning populations, including Harriman Springs and Barkley Springs, E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76344 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules have been lost or significantly altered due to railroad construction (Andreasen 1975, pp. 39–40; NRC 2004, p. 228). Historically, wetlands comprised hundreds of thousands of hectares throughout the range of the species (Gearhart et al. 1995, pp. 119–120; Moyle 2002, p. 200; NRC 2004, pp. 72– 73), some of which likely functioned as crucial habitat for larvae and juveniles. Other wetlands may have played vital roles in the quality and quantity of water. Loss of ecosystem functions such as these, due to alteration or separation of the habitat, is as detrimental as physical loss of the habitat. Approximately 70 percent of the original 20,400 ha (50,400 ac) of wetlands surrounding Upper Klamath Lake was diked, drained, or significantly altered beginning around 1889 (Akins 1970, pp. 73–76; Gearhart et al. 1995, p. 2). Additionally, of the approximately 13,816 ha (34,140 ac) of wetlands connected to Upper Klamath Lake, relatively little functions as rearing habitat for larvae and juveniles, partly due to lack of connectivity with current spawning areas (NRC 2004, pp. 72–73). Therefore, special management considerations or protections may be needed for water quantity to improve access to spawning locations and quality and quantity of wetlands used as rearing habitat. This may be accomplished by: improving lake level management to allow access to spawning locations during late winter and early spring, restoring access to wetland rearing habitat, and creating wetland rearing habitat adjacent to lakes and reservoirs. The exotic fish species most likely to affect Lost River sucker and shortnose sucker is the fathead minnow. This species may prey on young Lost River sucker and shortnose sucker and compete with them for food or space (Markle and Dunsmoor 2007, pp. 571– 573). For example, fathead minnow were first documented in the upper Klamath River basin in the 1970s and are now the numerically dominant exotic fish in Upper Klamath Lake (Simon and Markle 1997, p. 142; Bottcher and Burdick 2010, p. 40; Burdick and VanderKooi 2010, p. 33). Additional exotic, predatory fishes found in sucker habitats, although typically in relatively low numbers, include yellow perch (Perca flavescens), bullhead (Ameiurus species), largemouth bass (Micropterus salmoides), crappie (Pomoxis species), green sunfish (Lepomis cyanellus), pumpkinseed (Lepomis gibbosus), and Sacramento perch (Archoplites interruptus) (NRC 2004, pp. 188–189). VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 Special management considerations or protections may be needed to protect the forage base from predation by exotic fish species and could be accomplished by the following: reducing conditions that allow exotic fishes to be successful and restoring conditions that allow Lost River sucker and shortnose sucker to thrive, conducting evaluations to determine methods to remove exotic fish species, and determining methods to reduce or eliminate competition for the forage base upon which Lost River sucker and shortnose sucker depend to survive. Criteria Used To Identify Critical Habitat As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we consider whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. We are proposing to designate only areas within the geographical area occupied by the species at the time of listing, and that are also presently occupied, because these areas are sufficient for the conservation of Lost River sucker and shortnose sucker and have all of the physical or biological features essential to the conservation of Lost River sucker and shortnose sucker. The Draft Lost River Sucker and Shortnose Sucker Recovery Plan (Service 2011) recognizes two recovery units, each containing occupied management units. The steps we followed in identifying critical habitat were: 1. Our initial step in identifying critical habitat was to determine, in accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, the physical or biological habitat features essential to the conservation of the species, as explained in the previous section. 2. We reviewed the best available scientific data pertaining to the habitat requirements of this species, including information obtained from the Lost River and Shortnose Sucker Recovery Team and the Recovery Implementation Committee, which included biologists from partner agencies and entities including Federal, State, tribal, and private biologists; experts from other scientific disciplines, such as hydrology and forestry; resource users; and other stakeholders with an interest in Lost PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 River sucker and shortnose sucker and the habitats they depend on for survival or recovery. We also reviewed available data concerning Lost River sucker and shortnose sucker habitat use and preferences, habitat conditions, threats, population demographics, and known locations, distribution, and abundances of Lost River sucker and shortnose sucker. We identified the geographical areas occupied by Lost River sucker and shortnose sucker at the time of listing that contain the PBFs essential for the conservation of the species and which contained one or more of the primary constituent elements identified above. This was done by gathering information from the entities listed above and mapping Lost River sucker and shortnose sucker distribution. We used data gathered during the Lost River sucker and shortnose sucker recovery planning process and the Draft Lost River Sucker and Shortnose Sucker Recovery Plan (Service 2011), and supplemented those data with recent data developed by State agencies, tribes, the U.S. Forest Service, Bureau of Land Management, and other entities. These data were used to update Lost River sucker and shortnose sucker status and distribution data for purposes of the proposed critical habitat designation. For areas where we had data gaps, we solicited expert opinions from knowledgeable fisheries biologists in the local area. Material reviewed included data in reports submitted during section 7 consultations, reports from biologists holding section 10(a)(1)(A) recovery permits, research published in peerreviewed scientific journals, academic theses, State and Federal government agency reports, and GIS data. In streams, critical habitat includes the stream channel within the designated stream reach and a lateral extent as defined by the bankfull elevation on one bank to the bankfull elevation on the opposite bank. The lateral extent of critical habitat in lakes and reservoirs is defined by the perimeter of the water body as mapped according to the U.S. Geological Survey 2009 National Hydrography Dataset. Land ownership calculations were based on 2011 Oregon and California Bureau of Land Management State office data layers. An updated data layer of Upper Klamath Lake and newly restored wetlands was provided by the U.S. Geological Survey (USGS), Western Fisheries Research Center, and Klamath Falls Field Station. 3. In selecting areas to propose as critical habitat, we considered factors such as size, connectivity to other aquatic habitats, and rangewide E:\FR\FM\07DEP1.SGM 07DEP1 76345 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules recovery considerations. We took into account the fact that Lost River sucker and shortnose sucker habitats include streams used largely for spawning and outmigration; lakes and reservoirs used for rearing, foraging, and migration; and springs used for spawning and refugia. 4. In determining areas to propose as critical habitat, we relied upon principles of conservation biology, including: (a) Resistance and resiliency, to ensure sufficient habitat is protected throughout the range of the species to support population viability (e.g., demographic parameters); (b) Redundancy, to ensure multiple viable populations are conserved throughout the species’ range; and (c) Representation, to ensure the representative genetic and life history of suckers (e.g., spring spawning and river spawning) were conserved. 5. Using the conservation biology principles and primary constituent elements, we examined the distribution of Lost River sucker and shortnose sucker to determine critical habitat based on the following criteria: Largest occupied areas or populations, most highly connected populations and habitat, areas that can contribute to Lost River sucker and shortnose sucker conservation, and areas with highest conservation potential (e.g., essential PBFs). We then used these criteria to identify those areas that contain habitats essential to the conservation of Lost River sucker and shortnose sucker. Using the conservation biology principles and primary constituent elements, we examined the distribution of Lost River sucker and shortnose sucker to assess whether or not to propose areas as critical habitat. We emphasized areas as essential to the conservation of the Lost River and shortnose sucker which contained populations of highest conservation value with characteristics such as: (a) The largest occupied areas or populations, (b) the most highly connected populations and habitat, (c) areas that can contribute to Lost River sucker and shortnose sucker conservation and recovery. 6. We examined geographic locations currently occupied by Lost River sucker and shortnose sucker and determined that certain areas did not contain the PBFs essential for the conservation of these species, and we have not proposed these areas as critical habitat. Such determinations include those areas where Lost River sucker or shortnose sucker: Are not viable, are not connected to spawning habitat, occur in low densities or abundances in very isolated populations, are greatly impacted by nonnative species, have very low potential for conservation or restoration, or have low connectivity among populations and severe habitat degradation. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical and biological features for Lost River sucker and shortnose sucker. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat. We are proposing for designation of critical habitat lands that we have determined were occupied at the time of listing and contain sufficient elements of physical and biological features to support life-history processes essential to the conservation of the Lost River sucker and shortnose sucker. Proposed Critical Habitat Designation We are proposing two units as critical habitat for Lost River sucker and two units for shortnose sucker with each unit being composed of streams, lakes, and reservoirs. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Lost River sucker and shortnose sucker. The two units we propose as critical habitat for the Lost River sucker, which were both occupied at the time of listing, are: (1) Upper Klamath Lake Unit, including Upper Klamath Lake and tributaries as well as the Link River and Keno Reservoir. (2) Lost River Basin Unit, including Clear Lake Reservoir and tributaries. The two units we propose as critical habitat for the shortnose sucker, which were occupied at the time of listing, are: (1) Upper Klamath Lake Unit, including Upper Klamath Lake and tributaries as well as the Link River and Keno Reservoir. (2) Lost River Basin Unit, including Clear Lake Reservoir and tributaries, and Gerber Reservoir and tributaries. The approximate area and stream length within each proposed critical habitat unit is shown in Tables 1 through 4. TABLE 1—AREA OF LAKES AND RESERVOIRS PROPOSED AS CRITICAL HABITAT FOR LOST RIVER SUCKER [Area estimates reflect all land within critical habitat unit boundaries] Acres (hectares) Critical habitat unit Land ownership by type 1. Upper Klamath Lake .......................................................... Federal ................................................................................... State ....................................................................................... Private/Other .......................................................................... Federal ................................................................................... State ....................................................................................... Private/Other .......................................................................... 15,198 (6,151) 533 (216) 74,684 (30,224) 27,238 (11,023) 0 194 (79) Total ................................................................................. Federal ................................................................................... State ....................................................................................... Private/Other .......................................................................... 42,437 (17,174) 533 (216) 75,249 (30,452) Total ......................................................................... ................................................................................................. 118,219 (47,842) emcdonald on DSK5VPTVN1PROD with PROPOSALS 2. Lost River Basin ................................................................. Note: Area sizes may not sum due to rounding. VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 76346 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules TABLE 2—STREAM LENGTH PROPOSED AS CRITICAL HABITAT FOR LOST RIVER SUCKER [Area estimates reflect all land within critical habitat unit boundaries] Miles (kilometers) Critical habitat unit Land ownership by type 1. Upper Klamath Lake ............................................................. Federal .................................................................................... State ........................................................................................ Private/Other ........................................................................... Federal .................................................................................... State ........................................................................................ Private/Other ........................................................................... 13 (21). 0. 106 (171). 23 (37). Less than 1. 3 (5). Total ................................................................................... Federal .................................................................................... State ........................................................................................ Private/Other ........................................................................... 36 (58). Less than 1. 109 (176). Total ............................................................................ .................................................................................................. 146 (234). 2. Lost River Basin ................................................................... Note: Lengths may not sum due to rounding. TABLE 3—AREA OF LAKES AND RESERVOIRS PROPOSED AS CRITICAL HABITAT FOR SHORTNOSE SUCKER [Area estimates reflect all land within critical habitat unit boundaries] Acres (hectares) Critical habitat unit Land ownership by type 1. Upper Klamath Lake .......................................................... Federal ................................................................................... State ....................................................................................... Private/Other .......................................................................... Federal ................................................................................... State ....................................................................................... Private/Other .......................................................................... 15,198 (6,151) 533 (216) 74,684 (30,224) 32,051 (12,971) 0 1,124 (455) Total ................................................................................. Federal ................................................................................... State ....................................................................................... Private/Other .......................................................................... 47,250 (19,121) 533 (216) 76,179 (30,829) Total ......................................................................... ................................................................................................. 123,961 (50,166) 2. Lost River Basin ................................................................. Note: Area sizes may not sum due to rounding. TABLE 4—STREAM LENGTH PROPOSED AS CRITICAL HABITAT FOR SHORTNOSE SUCKER [Area estimates reflect all land within critical habitat unit boundaries] Miles (kilometers) Critical habitat unit Land ownership by type 1. Upper Klamath Lake ............................................................. Federal .................................................................................... State ........................................................................................ Private/Other ........................................................................... Federal .................................................................................... State ........................................................................................ Private/Other ........................................................................... 6 (9). 0. 34 (54). 72 (116). Less than 1. 16 (26). Total ................................................................................... Federal .................................................................................... State ........................................................................................ Private/Other ........................................................................... 78 (125). Less than 1. 50 (80). Total ............................................................................ .................................................................................................. 128 (207). 2. Lost River Basin ................................................................... emcdonald on DSK5VPTVN1PROD with PROPOSALS Note: Length may not sum due to rounding. We present brief descriptions of the two critical habitat units for Lost River sucker and two critical habitat units for shortnose sucker and the reasons why they meet the definition of critical habitat, below. The areas we are proposing as critical habitat below satisfy each of the criteria stated above under ‘‘Criteria Used To Identify Critical VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 Habitat’’ considerations. These areas will: • Provide sufficient habitat throughout the range of the species to ensure multiple populations are conserved throughout the species’ range; • Support viability of each population; PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 • Ensure Lost River sucker and shortnose sucker are distributed across various habitat types required by different life stages; and • Conserve the full genetic variability and variable life histories (e.g., streamspawning and lake-spawning) of Lost River sucker and shortnose sucker. Each unit for Lost River and shortnose sucker was occupied at the time of listing. E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules Unit 1: Upper Klamath Lake emcdonald on DSK5VPTVN1PROD with PROPOSALS Lost River Sucker The Upper Klamath Lake unit is located in south-central Oregon within Klamath County and consists of 90,415 ac (36,590 ha) and 119 mi (192 km) of proposed critical habitat. This unit includes Upper Klamath Lake and Agency Lake, together with some wetland habitat; portions of the Williamson and Sprague Rivers; Link River; Lake Ewauna; and the Klamath River from the outlet of Lake Ewauna downstream to Keno Dam. This unit is proposed as critical habitat for Lost River sucker because it contains those physical or biological features essential to the conservation of the species which may require special management or protection. This unit, at least seasonally, contains primary constituent elements 1, 2, and 3. The unit represents the largest population of Lost River sucker and provides redundancy in the number of Lost River sucker populations that are needed for conservation. Additionally, this unit contains areas for both river and spring spawning life histories, which is not known to occur elsewhere throughout the range of the species. The physical and biological features which may require special management or protection include maintaining: Water quality by preventing the deleterious effects of nuisance algal blooms, increased sedimentation, excess nutrients, and other factors affecting water quality; water quantity to prevent reductions in water levels that may limit access to spawning locations or refugia and reduce the depth of water used as cover, and cause a lack of access to essential rearing habitat (i.e., marsh and wetland areas); gravel and cobble substrata to prevent the degradation of spawning, rearing, and adult habitat caused by past land management practices; and the forage base to prevent predation by or competition with nonnative fish that may reduce available forage for Lost River sucker. Shortnose Sucker The unit is the same as for Lost River sucker, except that it contains 40 mi (63 km) of streams in proposed critical habitat (because shortnose sucker are not known to occur as far upstream within the Sprague River), along with the 90,415 ac (36,590 ha) of lakes and reservoirs. This unit is proposed as critical habitat for shortnose sucker because it contains those physical and biological features essential to the conservation of the species and which may require special management or protection. This unit, at least seasonally, contains primary constituent elements VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 1, 2, and 3. This unit is essential to shortnose sucker conservation because it supports the largest population of shortnose sucker and provides redundancy in the number of shortnose sucker populations that are needed for conservation. Additionally, this unit ensures shortnose sucker are distributed across various habitat types required by different life stages. The physical and biological features which may require special management or protection include maintaining: Water quality by preventing the deleterious effects of nuisance algal blooms, increased sedimentation, excess nutrients, and other factors affecting water quality; water quantity to prevent reductions in water levels that may limit access to spawning locations or refugia and reduce the depth of water used as cover, and cause a lack of access to essential rearing habitat (i.e., marsh and wetland areas); gravel and cobble substrata to prevent the degradation of spawning, rearing, and adult habitat caused by past land management practices; and the forage base to prevent predation by or competition with nonnative fish that may reduce available forage for shortnose sucker. Unit 2: Lost River Basin Lost River Sucker The Lost River Basin unit is located in south-central Oregon in Klamath and Lake Counties as well as northeastern California in Modoc County and consists of 27,432 ac (11,102 ha) and 26 mi (42 km) of proposed critical habitat. This unit includes Clear Lake Reservoir and its principal tributary. This unit is proposed as critical habitat for Lost River sucker because it contains those physical and biological features essential to the conservation of the species and which may require special management or protection. This unit, at least seasonally, contains primary constituent elements 1, 2, and 3. This unit supports a large population of Lost River sucker and provides redundancy in the number of Lost River sucker populations that are needed for conservation. Additionally, this unit ensures Lost River sucker are distributed across various habitat types required by different life stages. The physical and biological features which may require special management or protection include maintaining: Water quality by preventing the deleterious effects of nuisance algal blooms, increased sedimentation, excess nutrients, and other factors affecting water quality; water quantity to prevent reductions in water levels that may limit access to spawning locations or refugia PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 76347 and reduce the depth of water used as cover, and cause a lack of access to essential rearing habitat (i.e., marsh and wetland areas); gravel and cobble substrata to prevent the degradation of spawning, rearing, and adult habitat caused by past land management practices; and the forage base to prevent predation by or competition with nonnative fish that may reduce available forage for Lost River sucker. Shortnose Sucker The unit is the same as for Lost River sucker, but also includes Gerber Reservoir and its principal tributaries. This unit contains 33,175 ac (13,426 ha) and 88 mi (142 km) of proposed critical habitat. This unit is proposed as critical habitat for shortnose sucker because it contains those physical and biological features essential to the conservation of the species and which may require special management or protection. This unit, at least seasonally, contains primary constituent elements 1, 2, and 3. This unit represents a large population of shortnose sucker and provides redundancy in the number of shortnose sucker populations that are needed for conservation. Additionally, this unit is essential because it ensures shortnose sucker are distributed across various habitat types required by different life stages. The physical and biological features which may require special management or protection include maintaining: Water quality by preventing the deleterious effects of nuisance algal blooms, increased sedimentation, excess nutrients, and other factors affecting water quality; water quantity to prevent reductions in water levels that may limit access to spawning locations or refugia and reduce the depth of water used as cover, and cause a lack of access to essential rearing habitat (i.e., marsh and wetland areas); gravel and cobble substrata to prevent the degradation of spawning, rearing, and adult habitat caused by past land management practices; and the forage base to prevent predation by or competition with nonnative fish that may reduce available forage for shortnose sucker. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76348 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of ‘‘destruction or adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we provide VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy, or destruction or adverse modification of critical habitat, or both. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for Lost River sucker and shortnose sucker. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Lost River sucker and shortnose sucker. These activities include, but are not limited to: (1) Actions that would significantly alter the level of lakes or reservoirs. Such activities could include, but are not limited to, water diversions or water withdrawals. These activities could reduce the amount of habitat necessary for rearing of larvae and juvenile Lost River sucker and shortnose sucker, preclude access to spawning habitat, reduce or prevent access to refugia, and reduce the amount of water needed to provide the physical and biological features necessary for adult Lost River sucker and shortnose sucker. (2) Actions that would significantly increase sediment deposition within stream channels. Such activities could include, but are not limited to, excessive sedimentation from livestock grazing, road construction, channel alteration, timber harvest and management, offroad vehicle use, and other watershed and floodplain disturbances. These activities could reduce and degrade spawning habitat of Lost River sucker and shortnose sucker by increasing the sediment deposition to deleterious levels. (3) Actions that would significantly alter lake, reservoir, and/or channel morphology or geometry. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate Lost River sucker and shortnose sucker habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of Lost River sucker and shortnose sucker. Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: (1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; (2) A statement of goals and priorities; (3) A detailed description of management actions to be implemented to provide for these ecological needs; and (4) A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108– 136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ‘‘The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ There are no Department of Defense lands within the proposed critical habitat designation; as a result no lands are being exempted under section 4(a)(3) of the Act. Exclusions emcdonald on DSK5VPTVN1PROD with PROPOSALS Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species. Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors. An economic analysis was conducted for the December 1, 1994, proposed rule (59 FR 61744) to estimate the economic effects of the proposed critical habitat designation. The previous economic analysis acknowledges the proposed designation would constrain the ability of Federal agencies to engage in activities, or to support the activities of others, that would adversely modify or destroy critical habitat. Major Federal agencies in the upper Klamath River basin indicated their activities would be altered to protect Lost River sucker and shortnose sucker. However, different conclusions were reached by these agencies as to whether these changes were a result of Lost River sucker and shortnose sucker being listed as endangered, from proposed critical habitat designation, or both. The economic analysis further indicated critical habitat designation would negatively affect local employment due to a change in the output of goods and services, primarily from the resource extraction businesses. Conversely, designation also would enhance natural resource amenities, causing economic growth as a result of immigration of people seeking a heightened local and regional quality of life. The economic PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 76349 analysis concluded by determining the effect of designation would be neutral. Additional details can be found in that 1994 proposed rule (59 FR 61750– 61753; December 1, 1994). We are conducting a new economic analysis for this proposed rule, and we will announce the availability of that draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at http://www.regulations.gov, or by contacting the Klamath Falls Fish and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT section). During the development of a final designation, we will consider economic impacts, public comments, and other new information, and areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Lost River sucker and shortnose sucker are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on impacts on national security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-togovernment relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. In preparing this proposal, we have determined that there are currently no HCPs or other management plans for Lost River sucker and shortnose sucker, E:\FR\FM\07DEP1.SGM 07DEP1 76350 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on other relevant impacts. Peer Review In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we are seeking the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during this public comment period on our specific assumptions and conclusions in this proposed designation of critical habitat. We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal. Public Hearings Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in the FOR FURTHER INFORMATION CONTACT section. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. Required Determinations emcdonald on DSK5VPTVN1PROD with PROPOSALS Regulatory Planning and Review— Executive Order 12866 The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this proposed rule under Executive Order 12866 (Regulatory Planning and Review). OMB bases its determination upon the following four criteria: (1) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government. VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 (2) Whether the rule will create inconsistencies with other Federal agencies’ actions. (3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. (4) Whether the rule raises novel legal or policy issues. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, we defer the RFA finding until completion of the draft economic analysis prepared under section 4(b)(2) of the Act and Executive Order 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will announce availability of the draft economic analysis of the proposed designation in the Federal Register and reopen the public comment period for the proposed designation. We will include with this announcement, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. The previous economic analysis (see our 1994 proposed rule at 59 FR 61750– 61753, December 1, 1994) indicated dislocation of workers in the local resource extraction industries would be offset, in the long run, by the creation of additional jobs in other sectors locally or in other areas. At that time, the analysis determined the national PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 adjustment to the proposed designation would be essentially imperceptible as the U.S. economy redeployed labor and other resources that might become unemployed because of the designation. Further, the analysis stated that as buyers, sellers, workers, firms, households, and communities adjusted to the proposed designation, its economic impacts would be spread over a broad economic and spatial landscape. We have concluded that deferring the RFA finding until completion of the new draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that we make a sufficiently informed determination based on adequate, current economic information and provide the necessary opportunity for public comment. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect that the proposed critical habitat designation for the Lost River sucker and shortnose sucker would significantly affect energy supplies, distribution, or use. Although there is a large natural gas pipeline within the Lost River Basin Unit, the Federal Energy Regulatory Commission recently completed a formal biological opinion and conference report with the Service regarding the effect of those operations on Lost River sucker and shortnose sucker and proposed critical habitat. The biological opinion (Service 2010) established strict Terms and Conditions for the conservation of Lost River sucker and shortnose sucker in those habitats that would be impacted by pipeline operations; several of these habitats are included in this proposal. The designation of critical habitat in the areas adjacent to the pipeline will not change current Lost River sucker and shortnose sucker conservation practices surrounding pipeline operations. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) A condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule would significantly or uniquely affect small governments because, based in part on an analysis conducted for the previous proposed designation of critical habitat and extrapolated to this designation, we do not expect this rule to significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate. Takings—Executive Order 12630 In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Lost River sucker and shortnose sucker in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat for Lost River sucker and shortnose sucker does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Oregon and California. The designation of critical habitat in areas currently occupied by the Lost River sucker and shortnose sucker imposes no additional restrictions to those currently in place and, therefore, has little PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 76351 incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical and biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for caseby-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the elements of physical and biological features essential to the conservation of the Lost River sucker and shortnose sucker within the designated areas to assist the public in understanding the habitat needs of the species. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. E:\FR\FM\07DEP1.SGM 07DEP1 76352 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We determined that there are no tribal lands that were occupied by the Lost River sucker and shortnose sucker at the time of listing that contain the features essential for conservation of the species, and no tribal lands unoccupied by the Lost River sucker and shortnose sucker that are essential for the conservation of the species. Therefore, we are not proposing to designate critical habitat for the Lost River sucker and shortnose sucker on tribal lands. Species * Authors The primary authors of this package are the staff members of the Klamath Falls Fish and Wildlife Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to 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 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.11(h), revise the entry for ‘‘Sucker, Lost River’’ and ‘‘Sucker, shortnose’’ under ‘‘FISHES’’ in the List of Endangered and Threatened Wildlife to read as follows: § 17.11 Endangered and threatened wildlife. * * * (h) * * * * * Status * Scientific name * A complete list of references cited is available on the Internet at http:// www.regulations.gov and upon request from the Klamath Falls Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Vertebrate population where endangered or threatened Historic range Common name References Cited * * * Critical habitat When listed Special rules * FISHES * Sucker, Lost River ... * Deltistes luxatus ..... * U.S.A. (CA, OR) ..... * Entire ...................... * E * 313 17.95(e) * Sucker, shortnose .... * Chasmistes brevirostris. * U.S.A. (CA, OR) ..... * Entire ...................... * E * 313 17.95(e) * * emcdonald on DSK5VPTVN1PROD with PROPOSALS * * * 3. In § 17.95, amend paragraph (e) by adding entries for ‘‘Lost River Sucker (Deltistes luxatus)’’ and ‘‘Shortnose Sucker (Chasmistes brevirostris),’’ in the same alphabetical order that the species VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 * (e) Fishes. * * * NA * NA * appear in the table at § 17.11(h), to read as follows: * § 17.95 Lost River Sucker (Deltistes luxatus) * PO 00000 * Critical habitat—fish and wildlife. * Frm 00031 * Fmt 4702 * Sfmt 4702 * * (1) Critical habitat units are depicted for Klamath and Lake Counties, Oregon, E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS and Modoc County, California, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the conservation of Lost River sucker consist of three components: (i) Water. Areas with sufficient water quantity and depth within lakes, reservoirs, streams, marshes, springs, groundwater sources, and refugia habitats with minimal physical, biological, or chemical impediments to connectivity. Water should exhibit depths ranging from less than 1.0 m (3.28 ft) up to 4.5 m (14.8 ft) to accommodate each life stage. The water quality characteristics should include water temperatures of less than 28.0 °Celsius (82.4 °F); pH less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; algal toxins (less than 1.0 microgram (mg) per L); and un-ionized VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 ammonia (less than 0.5 mg per L). Elements also include natural flow regimes that provide flows during the appropriate time of year or, if flows are controlled, minimal flow departure from a natural hydrograph. (ii) Spawning and rearing habitat. Streams and shoreline springs with gravel and cobble substrate at depths typically less than 1.3 m (4.3 ft) with adequate stream velocity to allow spawning to occur. Areas identified in PCE1 containing emergent vegetation adjacent to open water that provides habitat for rearing . This facilitates growth and survival of suckers, as well as protection from predation and protection from currents and turbulence. (iii) Food. Areas that contain an abundant forage base, including a broad array of chironomidae, crustacea, and other aquatic macroinvertebrates. PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 76353 (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created on a base of the U.S. Geological Survey 2009 National Hydrography Dataset, and critical habitat was then mapped using North American Datum (NAD) 83, Universal Transverse Mercator Zone 10N coordinates. (5) Unit 1: Upper Klamath Lake Unit, Klamath County, Oregon. (i) [Reserved for textual description of Unit 1.] (ii) Note: Map of Unit 1, Upper Klamath Lake, follows: BILLING CODE 4310–55–P E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS (6) Unit 2: Lost River Basin Unit, Modoc County, California. VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 (i) [Reserved for textual description of Unit 2.] PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 (ii) Note: Map of Unit 2, Lost River Basin, follows: E:\FR\FM\07DEP1.SGM 07DEP1 ep07de11.005</GPH> 76354 emcdonald on DSK5VPTVN1PROD with PROPOSALS * * * * * Shortnose Sucker (Chasmistes brevirostris) (1) Critical habitat units are depicted for Klamath and Lake Counties, Oregon, and Modoc County, California, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 conservation of the shortnose sucker consist of three components: (i) Water. Areas with sufficient water quantity and depth within lakes, reservoirs, streams, marshes, springs, groundwater sources, and refugia habitats with minimal physical, biological, or chemical impediments to connectivity. Water should exhibit depths ranging from less than 1.0 m (3.28 ft) up to 4.5 m (14.8 ft) to accommodate each life stage. The water PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 76355 quality characteristics should include water temperatures of less than 28.0 °Celsius (82.4 °F); pH less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; algal toxins (less than 1.0 microgram (mg) per L); and un-ionized ammonia (less than 0.5 mg per L). Elements also include natural flow regimes that provide flows during the appropriate time of year or, if flows are controlled, minimal flow departure from a natural hydrograph. E:\FR\FM\07DEP1.SGM 07DEP1 ep07de11.006</GPH> Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76356 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS (ii) Spawning and rearing habitat. Streams and shoreline springs with gravel and cobble substrate at depths typically less than 1.3 m (4.3 ft) with adequate stream velocity to allow spawning to occur. Areas identified in PCE1 containing emergent vegetation adjacent to open water that provides habitat for rearing . This facilitates growth and survival of suckers, as well as protection from predation and protection from currents and turbulence. VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 (iii) Food. Areas that contain an abundant forage base, including a broad array of chironomidae, crustacea, and other aquatic macroinvertebrates. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 on a base of the U.S. Geological Survey 2009 National Hydrography Dataset, and critical habitat was then mapped using North American Datum (NAD) 83, Universal Transverse Mercator Zone 10N coordinates. (5) Unit 1: Upper Klamath Lake Unit, Klamath County, Oregon. (i) [Reserved for textual description of Unit 1.] (ii) Note: Map of Unit 1, Upper Klamath Lake, follows: E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 (i) [Reserved for textual description of Unit 2.] PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 (ii) Note: Map of Unit 2, Lost River Basin, follows: E:\FR\FM\07DEP1.SGM 07DEP1 ep07de11.007</GPH> emcdonald on DSK5VPTVN1PROD with PROPOSALS (6) Unit 2: Lost River Basin Unit, Klamath and Lake Counties, Oregon, and Modoc County, California. 76357 76358 * * * Dated: November 22, 2011. Eileen Sobeck, Acting Assistant Secretary for Fish and Wildlife and Parks. * [FR Doc. 2011–31380 Filed 12–6–11; 8:45 am] BILLING CODE 4310–55–C VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00037 Fmt 4702 Sfmt 9990 E:\FR\FM\07DEP1.SGM 07DEP1 ep07de11.008</GPH> emcdonald on DSK5VPTVN1PROD with PROPOSALS * Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

Agencies

[Federal Register Volume 76, Number 235 (Wednesday, December 7, 2011)]
[Proposed Rules]
[Pages 76337-76358]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31380]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0097; 4500030114]
RIN 1018-AX41


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Lost River Sucker and Shortnose Sucker

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reproposal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Lost River sucker (Deltistes 
luxatus) and shortnose sucker (Chasmistes brevirostris) under the 
Endangered Species Act of 1973, as amended (Act). In total, we are 
proposing as critical

[[Page 76338]]

habitat approximately 146 miles (234 kilometers) of streams and 117,848 
acres (47,691 hectares) of lakes and reservoirs for Lost River sucker 
and approximately 128 miles (207 kilometers) of streams and 123,590 
acres (50,015 hectares) of lakes and reservoirs for shortnose sucker. 
The proposed critical habitat is located in Klamath and Lake Counties, 
Oregon, and Modoc County, California. On December 1, 1994, we published 
proposed critical habitat for Lost River sucker and shortnose sucker. 
This new proposed rule uses updated information concerning Lost River 
sucker's and shortnose sucker's ecology, as well as the technological 
advancements made available since preparing the 1994 proposed rule, to 
inform our proposed critical habitat designation for Lost River sucker 
and shortnose sucker.

DATES: We will accept comments received or postmarked on or before 
February 6, 2012. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by January 23, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter Docket No. 
FWS-R8-ES-2011-0097, which is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2011-0097; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Laurie R. Sada, Field Supervisor, U.S. 
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 1936 
California Avenue, Klamath Falls, OR 97601; telephone 541-885-8481; 
facsimile 541-885-7837. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Lost River sucker and shortnose 
sucker habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) contain physical and biological features essential 
to the conservation of the species, should be included in the 
designation and why;
    (c) Special management considerations or protection that may be 
needed for the physical and biological features essential to the 
conservation of the species in critical habitat areas we are proposing, 
including managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing that meet our 
criteria for being essential for the conservation of the species should 
be included in the designation and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Lost River sucker and shortnose sucker, the 
features essential to its conservation, and the areas proposed as 
critical habitat.
    (5) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act;
    (6) Any probable economic, national security, environmental, 
cultural, or other relevant impacts of designating as critical habitat 
any area that may be included in the final designation. In particular, 
we seek information on any impacts on small entities, and the benefits 
of including or excluding areas that exhibit these impacts; and
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by email or fax or to an address not listed in the 
ADDRESSES section. We will post your entire comment--including your 
personal identifying information--on http://www.regulations.gov. You 
may request at the top of your document that we withhold personal 
information such as your street address, phone number, or email address 
from public review; however, we cannot guarantee that we will be able 
to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Klamath Falls Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for these species in this proposed 
rule. For further information on the Lost River sucker's and shortnose 
sucker's biology and habitat, population abundance and trend, 
distribution, demographic features, habitat use and conditions, 
threats, and conservation measures, please see the final listing rule 
(53 FR 27130; July 18, 1988), the 2007 5-year reviews completed for the 
Lost River sucker and shortnose sucker (Service 2007a and 2007b), and 
the Draft Revised Lost River Sucker and Shortnose Sucker Recovery Plan 
(Service 2011). These documents are available on the Klamath Falls Fish 
and Wildlife Office web site at http://www.fws.gov/klamathfallsfwo/or 
on the Environmental Conservation Online System http://ecos.fws.gov/ecos/indexPublic.do).
    Lost River sucker and shortnose sucker are members of the fish 
family Catostomidae and are endemic to the upper Klamath River basin 
(National Research Council of the National Academies (NRC) 2004, pp. 
184, 189). Both species predominantly inhabit lake environments but 
also utilize riverine, marsh, and shoreline habitats for portions of 
their life history. Lost River sucker and shortnose sucker spawn in the 
spring in rivers and creeks in areas with a moderate velocity of water 
flow

[[Page 76339]]

containing gravel or cobble substrate at depths less than 1.3 meters 
(m) (4.3 feet (ft)) (Moyle 2002, pp. 200, 204). In addition, a small 
group of Lost River sucker spawns at several shoreline springs along 
the eastern portion of Upper Klamath Lake (Janney et al. 2008, p. 
1813).
    Lost River sucker are distributed within Upper Klamath Lake and its 
tributaries (Klamath County, Oregon), Clear Lake Reservoir and its 
tributaries (Modoc County, California), Tule Lake (Siskiyou and Modoc 
Counties, California), Lost River (Klamath County, Oregon, and Modoc 
County, California), Link River (Klamath County, Oregon), and the 
Klamath River mainstem, including Keno, J.C. Boyle, Copco, and Iron 
Gate Reservoirs (Klamath County, Oregon, and Siskiyou County, 
California; Moyle 2002, p. 199; NRC 2004, pp. 190-192). The 
distribution of shortnose sucker overlaps with that of Lost River 
sucker, but shortnose sucker also occurs in Gerber Reservoir (Klamath 
County, Oregon) and upper Willow Creek (Modoc County, California, and 
Lake County, Oregon), a tributary to Clear Lake Reservoir (Buettner and 
Scoppettone 1991, p. 18; Moyle 2002, p. 203; NRC 2004, pp. 190-192).
    Lost River sucker and shortnose sucker were once widespread in the 
upper Klamath River basin and were important to subsistence, 
commercial, and recreational fishers (Moyle 2002, pp. 200-201, 204; 
Service 2011, pp. 1, 28-29). Lost River sucker and shortnose sucker 
have been extirpated from portions of their historic range (Moyle 2002, 
pp. 200, 204), and previous efforts to monitor angler catch rates have 
indicated extreme population declines relative to former levels 
(Scoppettone and Vinyard 1991, p. 367; NRC 2004, p. 203). Putative 
factors for declines include introduction of exotic species and habitat 
loss and alteration, primarily due to construction of dams, water 
diversions, and draining of wetlands (Scoppettone and Vinyard 1991, pp. 
368-369, 371; Moyle 2002, pp. 200-201, 204).

Previous Federal Actions

    The Lost River sucker and shortnose sucker were listed as 
endangered on July 18, 1988 (53 FR 27130). A recovery plan for Lost 
River sucker and shortnose sucker was finalized on March 17, 1993 
(Service 1993). Five-year reviews for the Lost River sucker and 
shortnose sucker were completed on July 19, 2007 (73 FR 11945; March 5, 
2008). A considerable amount of scientific information has been 
collected since the 1993 recovery plan and an updated, revised draft 
recovery plan for the Lost River sucker and shortnose sucker was 
released in 2011 (Service 2011).
    On September 9, 1991, the Service received a 60-day notice of 
intent to sue from the Oregon Natural Resources Council (ONRC) for 
failure to prepare a recovery plan and to designate critical habitat 
for the Lost River sucker and shortnose sucker. On November 12, 1991, 
ONRC filed suit in Federal Court (Wendell Wood et al. v. Marvin 
Plenert, et al. (Case No. 91-06496-TC (D. Or.))). The Service entered 
into a settlement agreement and agreed to complete a final recovery 
plan by March 1, 1993, and a proposal to designate critical habitat on 
or before March 10, 1994, and publish a final critical habitat rule by 
November 29, 1994.
    On December 1, 1994, we published proposed critical habitat for 
Lost River sucker and shortnose sucker (59 FR 61744); that proposal was 
never finalized. The ONRC (now known as Oregon Wild) recently contacted 
the Department of Justice and requested that we issue a final critical 
habitat rule within a reasonable amount of time. On May 10, 2010, a 
settlement agreement was reached that stipulated the Service submit a 
final rule designating critical habitat for the Lost River sucker and 
the shortnose sucker to the Federal Register no later than November 30, 
2012 (Wood et al. v. Thorson et al., No. 91-cv-6496-TC (D. Or.)). Given 
this settlement agreement, advancement in our understanding of Lost 
River sucker's and shortnose sucker's ecology, and the technological 
advancements made available since preparing the former proposed rule, 
we now issue a new proposed critical habitat rule.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies insure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain physical and biological features which are essential to 
the conservation of the species and which may require special 
management considerations or protection. Critical habitat designations 
identify, to the extent known using the best scientific and commercial 
data available, those physical and biological features that are 
essential to the conservation of the species (such as space, food, 
cover, and protected habitat), focusing on the principal biological or 
physical constituent elements (primary constituent elements) within an 
area that are essential to the conservation of the species (such as 
roost sites, nesting grounds, seasonal

[[Page 76340]]

wetlands, water quality, tide, soil type). Primary constituent elements 
are the elements of physical and biological features that, when laid 
out in the appropriate quantity and spatial arrangement to provide for 
a species' life-history processes, are essential to the conservation of 
the species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We designate as critical habitat areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species. When the best available scientific 
data do not demonstrate that the conservation needs of the species 
require such additional areas, we will not designate critical habitat 
in areas outside the geographical area occupied by the species. An area 
currently occupied by the species but that was not occupied at the time 
of listing may, however, be essential to the conservation of the 
species and may be included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. Climate change will be a particular challenge for 
biodiversity because the interaction of additional stressors associated 
with climate change and current stressors may push species beyond their 
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic 
implications of climate change and habitat fragmentation are the most 
threatening facet of climate change for biodiversity (Hannah et al. 
2005, p.4). Current climate change predictions for terrestrial areas in 
the Northern Hemisphere indicate warmer air temperatures, more intense 
precipitation events, and increased summer continental drying (Field et 
al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 
6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 1181). 
Climate change may lead to increased frequency and duration of severe 
storms and droughts (McLaughlin et al. 2002, p. 6074; Cook et al. 2004, 
p. 1015; Golladay et al. 2004, p. 504).
    The specific effects of climate change on the upper Klamath River 
basin have not been thoroughly investigated; however, potential effects 
include increased temperatures, drier summers, and higher snowpack 
elevation (Koopman et al. 2009, p. 3). As a result of increased 
temperatures, it is anticipated the peak spring runoff of tributary 
streams will shift earlier in the year from spring to late winter (Poff 
et al. 2002, p. 11). Thus, we anticipate Lost River sucker and 
shortnose sucker may experience altered timing of spawning migrations, 
i.e., spawning migrations may occur earlier in the year. Furthermore, 
altered stream flow into lakes may lead to lower lake levels (Poff et 
al. 2002, p. 15). Lower lake levels may prevent fish from accessing 
refugia or shoreline spawning areas, such as spring-influenced habitat, 
that may be important during periods of poor water quality (Banish et 
al. 2009, p. 165). As lakes warm in response to increased temperatures, 
algal production increases (Poff et al. 2002, p. 13), which may 
exacerbate hypereutrophic (nutrient rich) systems, such as Upper 
Klamath Lake. Nuisance algal blooms are already considered a threat to 
Lost River sucker and shortnose sucker (Perkins et al. 2000, pp. 24-25, 
30), and therefore may be a heightened threat in the face of climate 
change. Diseases such as gill rot caused by the Columnaris bacterium 
also are likely to become more of a concern with higher water 
temperatures (NRC 2004, p. 201).
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical and biological 
features essential to the conservation of the species which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the

[[Page 76341]]

historical, geographical, and ecological distributions of a species.
    We derive the specific physical or biological features required for 
Lost River sucker and shortnose sucker from studies of this species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the final listing rule published in the 
Federal Register on July 18, 1988 (53 FR 27130), and the Draft Revised 
Recovery Plan for the Lost River Sucker and Shortnose Sucker (Service 
2011). We have determined that Lost River sucker and shortnose sucker 
require the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    Lakes, streams, marshes, and spring habitats with migratory 
corridors between these habitats provide space for individual and 
population growth and for normal behavior of Lost River sucker.
    Lost River sucker spend most of their lives within lakes although 
they primarily spawn in streams (Moyle 2002, p. 199). Spawning occurs 
in late winter and early spring in major tributaries to lakes where 
they occur. In addition, a small proportion of Lost River sucker 
utilize spring areas within Upper Klamath Lake for spawning (Janney et 
al. 2008, p. 1813). After hatching, larval Lost River sucker drift 
downstream within spawning tributaries and reach lakes by mid-summer. 
Larval habitat is generally along the shoreline, in water 10 
centimeters (cm) to 50 cm (6 inches (in) to 20 in) deep where emergent 
vegetation provides cover from predators, protection from currents and 
turbulence, and abundant food (Cooperman and Markle 2004, p. 375). As 
larval suckers grow into the juvenile stage, they increasingly use 
deeper habitat with and without emergent vegetation. Adult Lost River 
sucker primarily use deep (greater than 2.0 m (6.6 ft)), open-water 
habitat as well as spring-influenced habitats that act as refugia 
during poor water quality events (Banish et al. 2009, pp. 159-161, 
165).
    Reservoirs also figure prominently in meeting the requirements for 
space for individual and population growth and for normal behavior of 
Lost River sucker. Much of the upper Klamath River basin landscape has 
been hydrologically altered since Anglo-European settlement, including 
construction of reservoirs. Some reservoirs have adversely affected 
Lost River sucker, while others may provide benefits. For example, the 
dam on Malone Reservoir blocks access to historical Lost River sucker 
habitat for individuals migrating in the mainstem Lost River. In 
contrast, construction of hydroelectric dams on the mainstem Klamath 
River and construction of Clear Lake Reservoir likely have increased 
the amount of available habitat.
    Because shortnose sucker share the same habitats as Lost River 
sucker, the lakes, reservoirs, streams, marshes, and spring habitats 
with migratory corridors between these habitats also provide space for 
individual and population growth and for normal behavior of shortnose 
sucker. Therefore, based on the information above, we identify lakes, 
reservoirs, streams, marshes, and spring habitats with migratory 
corridors between these habitats to be a physical or biological feature 
essential for the conservation of both Lost River sucker and shortnose 
sucker.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Adult Lost River sucker have subterminal mouths and gill raker 
structures that are adapted for feeding primarily on benthic 
macroinvertebrates in lake environments (NRC 2004, p. 190). Prey 
selection, however, appears to be a function of developmental shifts in 
habitat use. Lost River sucker larvae feed near the surface of the 
water column, primarily on chironomids (commonly called ``midges''; a 
family of small flies whose larval and pupal stages are mainly aquatic) 
(Markle and Clauson 2006, pp. 494-495). Juvenile Lost River sucker rely 
less on surface-oriented feeding and shift to prey items from benthic 
areas. For instance, Markle and Clauson (2006, pp. 495-496) documented 
that juvenile Lost River suckers consumed chironomid larvae as well as 
micro-crustaceans (amphipods, copepods, cladocerans, and ostracods). As 
adults, Lost River sucker consume many of these same items (Moyle 2002, 
pp. 199-200).
    Shortnose sucker have terminal mouths and gill raker structures 
adapted for feeding on zooplankton (Moyle 2002, p. 203; NRC 2004, p. 
190). Similar to Lost River sucker, shortnose sucker also exhibit an 
ontogenetic shift in prey selection (Markle and Clauson 2006, pp. 494-
495). Adult shortnose sucker also consume many of the same prey items 
as juveniles, including chironomid larvae, amphipods, copepods, 
cladocerans, and ostracods (Moyle 2002, p. 203; Markle and Clauson 
2006, pp. 494-495).
    Habitats must provide the necessary conditions, including water 
with sufficient phytoplankton and fine aquatic substrate, to harbor 
prey species in sufficient quantity and diversity to meet the 
nutritional and physiological requirements necessary to maintain Lost 
River sucker and shortnose sucker populations. Therefore, based on the 
information above, we identify an abundant food base, including a broad 
array of chironomids, micro-crustaceans, and other small aquatic 
macroinvertebrates, to be a biological feature necessary for both Lost 
River sucker and shortnose sucker.
Cover or Shelter
    The cover and shelter components, including emergent vegetation and 
depth, are the same for shortnose sucker as for Lost River sucker. Lost 
River sucker and shortnose sucker larvae density is generally higher 
within and adjacent to emergent vegetation than in areas devoid of 
vegetation (Cooperman and Markle 2004, p. 374; Crandall et al. 2008, p. 
413; Erdman and Hendrixson 2009, p. 18; Cooperman et al. 2010, p. 34). 
Emergent vegetation provides cover from predators and habitat for prey 
such as zooplankton, macroinvertebrates, and periphyton (Klamath Tribes 
1996, p. 12; Cooperman and Markle 2004, p. 375). Such areas also may 
provide refuge from wind-blown current and turbulence, as well as areas 
of warmer water temperature, which may facilitate larval growth 
(Cooperman and Markle 2004, p. 375; Crandall 2004, p. 7; Cooperman et 
al. 2010, pp. 35-36).
    Different life stages use different water depths as cover or 
shelter. Juvenile Lost River sucker and shortnose sucker primarily use 
relatively shallow (less than approximately 1.2 m (3.9 ft)) vegetated 
areas, but may also begin to move into deeper, unvegetated, off-shore 
habitats (Buettner and Scoppettone 1990, pp. 33, 51; Markle and Clauson 
2006, p. 499). Data from Upper Klamath Lake indicate juveniles of less 
than 1 year often are found at depths less than 1.0 m (3 ft) in May and 
June, but shift in late July to water 1.5 to 2.0 m (5 to 6.5 ft) deep 
(Burdick and Brown 2010, p. 50; no similar data exist from other 
occupied water bodies). Similarly, 1-year-old juveniles occupy shallow 
habitats during April and May, but may move into deeper areas along the 
western shore of Upper Klamath Lake (e.g., Eagle Ridge trench) until 
dissolved oxygen levels become reduced in mid- to late-July (Bottcher 
and Burdick 2010, p. 17; Burdick and VanderKooi 2010, p. 13). Juveniles 
then appear to move into shallower habitat along the eastern shore or 
main part of Upper Klamath Lake (Bottcher and Burdick 2010, p. 17).
    It is assumed that sub-adults, i.e., individuals that display all 
of the

[[Page 76342]]

characteristics of adults with the exception of reproductive maturity 
and reproductive structures (e.g., tubercles), utilize habitats similar 
to adults (NRC 2004, p. 199). Adult Lost River sucker and shortnose 
sucker inhabit water depths of 0.9 to 4.8 m (3.0 to 15.7 ft) (Reiser et 
al. 2001, p. 5-26; Banish et al. 2009, p. 161). In addition, cover 
(e.g., large woody debris) is sparse in many of the lentic habitats 
occupied by adult Lost River sucker and shortnose sucker, so water 
depth or turbidity may provide concealment from avian predators (Banish 
et al. 2009, p. 164).
    Therefore, based on the information above, we identify lakes and 
reservoirs with adequate amounts of emergent vegetation of appropriate 
depth and water quality to provide for cover and shelter as described 
above to be a physical or biological feature for Lost River sucker and 
shortnose sucker.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Throughout their range, Lost River sucker ascend large tributary 
streams to spawn, generally from February through April, often 
corresponding with spring snowmelt (Moyle 2002, p. 200; NRC 2004, p. 
194). They have been documented migrating upstream as many as 120 
kilometers (km) in the Sprague River (75 miles (mi)) (Ellsworth et al. 
2007, p. 20). Beginning at the same time, a segment of the Lost River 
sucker population uses shoreline areas affected by input of spring 
discharge for spawning in Upper Klamath Lake (Janney et al. 2008, p. 
1813). In rivers, spawning occurs in riffles and pools over gravel and 
cobble substrate at depths less than 1.3 m (4.3 ft) and velocities up 
to 85 cm per second (2.8 ft per second; Buettner and Scoppettonne 1990, 
p. 20; Moyle 2002, p. 200; NRC 2004, p. 194). At shoreline spring 
habitat, spawning occurs over similar substrate and at similar depths. 
Females broadcast their eggs, which are fertilized most commonly by two 
accompanying males (Buettner and Scoppettone 1990, p. 17). The 
fertilized eggs settle within the top few inches of the substrate until 
hatching, around 1 week later. Generally, larvae spend little time in 
rivers after swim-up, but quickly drift downstream to lakes (Cooperman 
and Markle 2003, pp. 1147-1149). Downstream movement occurs mostly at 
night near the water surface (Ellsworth et al. 2010, pp. 51-52). Larvae 
transform into juveniles by mid-July at about 25 mm (0.98 in) total 
length. Juvenile Lost River sucker primarily occupy relatively shallow 
(less than approximately 50 cm (1.6 ft)), vegetated areas, but also may 
begin to move into deeper, unvegetated, off-shore habitats as they grow 
(Buettner and Scoppettone 1990, pp. 32-33; NRC 2004, p. 198).
    Throughout their range, shortnose sucker ascend large tributary 
streams to spawn, generally from February through May, often 
corresponding with spring snowmelt (Moyle 2002, p. 204; NRC 2004, p. 
194). Shortnose sucker have been documented migrating upstream as far 
as 13 km (8 mi) in the Sprague River (Ellsworth et al. 2007, p. 20). 
Spawning at shoreline springs in Upper Klamath Lake by shortnose sucker 
is presently rare (NRC 2004, p. 194). In lotic habitat, spawning occurs 
in similar habitat as Lost River sucker spawning, although spawning may 
occur in areas with greater stream flow (up to 125 cm per second (4.1 
ft per second); Moyle 2002, p. 204). At shoreline spring habitat, 
spawning occurs over similar substrate and at similar depths to Lost 
River sucker spawning. Females broadcast their eggs, which are 
fertilized most commonly by two accompanying males (Buettner and 
Scoppettone 1990, p. 44). Larval out-migration, and larval and juvenile 
rearing patterns, are similar to Lost River sucker (Buettner and 
Scoppettone 1990, p. 51; Cooperman and Markle 2004, pp. 374-375; NRC 
2004, p. 198; Ellsworth et al. 2010, pp. 51-52).
    Therefore, based on the information above, we identify accessible 
lake and river spawning locations with suitable water flow, gravel and 
cobble substrate, and water depth (as well as flowing water) for larval 
out-migration and juvenile rearing habitat as described above to be 
physical features for both Lost River sucker and shortnose sucker.
Primary Constituent Elements for Lost River Sucker and Shortnose Sucker
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of Lost River sucker and shortnose sucker in areas 
occupied at the time of listing, focusing on the features' primary 
constituent elements. We consider primary constituent elements to be 
the specific elements of physical and biological features that are 
essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to self-sustaining Lost River sucker and shortnose 
sucker populations are:
    (1) Water. Areas with sufficient water quantity and depth within 
lakes, reservoirs, streams, marshes, springs, groundwater sources, and 
refugia habitats with minimal physical, biological, or chemical 
impediments to connectivity. Water should exhibit depths ranging from 
less than 1.0 m (3.28 ft) up to 4.5 m (14.8 ft) to accommodate each 
life stage. The water quality characteristics should include water 
temperatures of less than 28.0 [deg]Celsius (82.4[emsp14][deg]F); pH 
less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; 
algal toxins (less than 1.0 microgram ([mu]g) per L); and un-ionized 
ammonia (less than 0.5 mg per L). Elements also include natural flow 
regimes that provide flows during the appropriate time of year or, if 
flows are controlled, minimal flow departure from a natural hydrograph.
    (2) Spawning and rearing habitat. Streams and shoreline springs 
with gravel and cobble substrate at depths typically less than 1.3 m 
(4.3 ft) with adequate stream velocity to allow spawning to occur. 
Areas identified in PCE1 containing emergent vegetation adjacent to 
open water that provides habitat for rearing . This facilitates growth 
and survival of suckers, as well as protection from predation and 
protection from currents and turbulence.
    (3) Food. Areas that contain an abundant forage base, including a 
broad array of chironomidae, crustacea, and other aquatic 
macroinvertebrates.
    With this proposed designation of critical habitat, we intend to 
identify the physical and biological features essential to the 
conservation of the species, through the identification of the 
appropriate quantity and spatial arrangement of the primary constituent 
elements sufficient to support the life-history processes of the 
species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. Special management considerations or protection may be 
necessary to eliminate or reduce the magnitude of threats that affect 
these species. Threats identified in the final listing rule for these 
species include: (1) Poor water quality; (2) potential entrainment at 
water diversion structures; (3) lack of access to essential spawning 
habitat; (4) lack of connectivity to historical habitat (i.e., 
migratory impediments); (5) degradation of spawning, rearing, and

[[Page 76343]]

adult habitat; and (6) predation by or competition with nonnative fish.
    Poor water quality is particularly associated with high abundance 
of the blue-green alga Aphanizomenon flos-aque. Core samples of bottom 
sediments indicate that A. flos-aque was not present in Upper Klamath 
Lake prior to the 1900s (Bradbury et al. 2004, p. 162; Eilers et al. 
2004, p. 14). Its appearance is believed to be associated with 
increases in productivity of the lake through human influence (NRC 
2004, pp. 108-110). This alga now dominates the algal community from 
June to November, and, because of the high phosphorus concentrations 
and its ability to fix nitrogen, is able to reach seasonally high 
biomass levels that eventually produce highly degraded water quality 
(Boyd et al. 2002, p. 34). Once the algal bloom subsides, decomposition 
of the massive amounts of biomass can lower dissolved oxygen and raise 
pH to levels harmful or fatal to fish (Perkins et al. 2000, pp. 24-25; 
Wood et al. 2006, p. 1). Additionally, other cyanobacteria (Microcystis 
sp.) may produce toxins harmful to sucker liver tissue (VanderKooi et 
al. 2010, p. 2). Special management considerations or protections are 
therefore needed to protect water quality from the deleterious effects 
of algal blooms and may include reducing excess phosphorus 
concentrations by fencing cattle out of riparian areas, reconfiguring 
agricultural waterways, increasing riparian stands of vegetation, and 
restoring wetland habitat that is crucial for filtering sediment and 
nutrients.
    Hydrographs of both Clear Lake Reservoir and Upper Klamath Lake 
exhibit patterns of a snow-melt driven system with highest inflows and 
levels during spring and early summer, although groundwater also is a 
significant contributor to Upper Klamath Lake (Gannett et al. 2007, p. 
1). However, Clear Lake Reservoir, Gerber Reservoir, and Upper Klamath 
Lake are managed to store and divert water for irrigation every year. 
Clear Lake Reservoir is highly sensitive to drought and downstream 
water delivery because of its small watershed, low precipitation, 
minimal groundwater input, and high evaporation rates (NRC 2004, p. 
129). In the dry years of 1991 and 1992, the U.S. Bureau of Reclamation 
(BOR) drew down the level of Clear Lake Reservoir to extremely low 
levels for irrigation supply (Moyle 2002, p. 201). In 1992, Lost River 
sucker within Clear Lake Reservoir were examined and exhibited signs of 
stress, including high rates of parasitism and poor body condition (NRC 
2004, p. 132). These signs of stress began to decline as the water 
level in Clear Lake Reservoir rose in 1993, at the end of the drought 
(NRC 2004, p. 132). In 2009, when lake levels were again low due to 
drought, diversions from Clear Lake Reservoir were halted in mid-
summer, and there were no diversions in 2010. Additionally, low lake 
levels adversely affect Clear Lake Reservoir sucker populations by 
limiting access to Willow Creek, the sole spawning tributary (Barry et 
al. 2009, p. 3). Likewise, the amount of available larval habitat and 
suitable shoreline spring spawning habitat in Upper Klamath Lake is 
significantly affected by even minor changes in lake elevation (Service 
2008, p. 79). Therefore, special management considerations or 
protections are needed to address fluctuations in water levels due to 
regulated flow and lake elevation management. Special management may 
include the following actions: managing bodies of water such that there 
is minimal flow departure from a natural hydrograph; maintaining, 
improving, or reestablishing instream flows to improve the quantity of 
water available for use; and maintaining or improving groundwater use.
    The effects of fluctuations in water levels due to regulated flow 
management may affect the ability of Lost River sucker and shortnose 
sucker to access refugia during periods of poor water quality. For 
example, Pelican Bay appears to act as a key refugium during periods of 
poor water quality, and efforts to maintain the quality and quantity of 
the habitat there may be beneficial for suckers (Banish et al. 2009, p. 
167). Therefore, special management considerations or protections are 
needed to address access to refugia and may include the following: 
maintaining appropriate lake depths to allow access to refugia; 
restoring degraded habitats to improve quantity of flow at refugia as 
well as refugia quality; and maintaining or establishing riparian 
buffers around refugia to improve refugia water quality.
    The Klamath Project (Project) stores and later diverts water from 
Upper Klamath Lake for a variety of Project purposes. These operations 
result in lake levels and flows at the outlet of the lake that differ 
from historic conditions, some of which increase movement of juvenile 
fish downstream of Upper Klamath Lake. As such, special management 
considerations or protections for water quantity may be needed to 
address water intake at water diversion structures to improve water 
diversion efficiency to increase the quantity of water available as 
habitat.
    Throughout the Upper Klamath Lake and Lost River Basin, timber 
harvesting and associated activities (e.g., road building) by Federal, 
State, tribal, and private landowners have resulted in soil erosion on 
harvested lands and transport of sediment into streams and rivers 
adjacent to or downstream from those lands (Service 2002, p. 65; NRC 
2004, pp. 65-66). Past logging and road building practices often did 
not provide for adequate soil stabilization and erosion control. A high 
density of forest roads remain in the upper Klamath River basin, and 
many of these are located near streams where they likely contribute 
sediment (USFS 1995, p. 7), which results in an increase of fine soil 
particles that can cover spawning substrata. The major agricultural 
activity in the upper Klamath River basin, livestock grazing, also has 
likely led to an increase in sediment and nutrient loading rates by 
accelerating erosion (Moyle 2002, p. 201; Service 2002, pp. 56, 65; 
McCormick and Campbell 2007, pp. 6-7). Livestock, particularly cattle, 
have heavily grazed flood plains, wetlands, forest, rangelands, and 
riparian areas, resulting in the degradation of these areas. Grazing 
alters the streamside riparian vegetation and compacts soil surfaces, 
increasing groundwater runoff, lowering streambank stability, and 
reducing cover. The increase in sediment accumulation and nutrient 
loading is consistent with the changes in land use in the upper Klamath 
River basin occurring over the last century (Bradbury et al. 2004, pp. 
163-164; Eilers et al. 2004, pp. 14-16). Therefore, special management 
considerations or protections may be required to improve water quality 
and include: reducing sediment and nutrient loading by protecting 
riparian areas from agricultural and forestry impacts, reducing road 
density to prevent excess sediment loading, and improving cattle 
management practices.
    Lost River sucker and shortnose sucker have limited hydrologic 
connection to spawning or rearing habitat. For example, low lake levels 
adversely affect Clear Lake Reservoir sucker populations by limiting 
access to the Willow Creek drainage, the sole spawning tributary (Barry 
et al. 2009, p. 3). Likewise, the amount of suitable shoreline spring 
spawning habitat in Upper Klamath Lake is significantly affected by 
even minor changes in lake elevation, but it is unknown exactly how 
such levels directly affect annual productivity. Several shoreline 
spring-spawning populations, including Harriman Springs and Barkley 
Springs,

[[Page 76344]]

have been lost or significantly altered due to railroad construction 
(Andreasen 1975, pp. 39-40; NRC 2004, p. 228). Historically, wetlands 
comprised hundreds of thousands of hectares throughout the range of the 
species (Gearhart et al. 1995, pp. 119-120; Moyle 2002, p. 200; NRC 
2004, pp. 72-73), some of which likely functioned as crucial habitat 
for larvae and juveniles. Other wetlands may have played vital roles in 
the quality and quantity of water. Loss of ecosystem functions such as 
these, due to alteration or separation of the habitat, is as 
detrimental as physical loss of the habitat. Approximately 70 percent 
of the original 20,400 ha (50,400 ac) of wetlands surrounding Upper 
Klamath Lake was diked, drained, or significantly altered beginning 
around 1889 (Akins 1970, pp. 73-76; Gearhart et al. 1995, p. 2). 
Additionally, of the approximately 13,816 ha (34,140 ac) of wetlands 
connected to Upper Klamath Lake, relatively little functions as rearing 
habitat for larvae and juveniles, partly due to lack of connectivity 
with current spawning areas (NRC 2004, pp. 72-73). Therefore, special 
management considerations or protections may be needed for water 
quantity to improve access to spawning locations and quality and 
quantity of wetlands used as rearing habitat. This may be accomplished 
by: improving lake level management to allow access to spawning 
locations during late winter and early spring, restoring access to 
wetland rearing habitat, and creating wetland rearing habitat adjacent 
to lakes and reservoirs.
    The exotic fish species most likely to affect Lost River sucker and 
shortnose sucker is the fathead minnow. This species may prey on young 
Lost River sucker and shortnose sucker and compete with them for food 
or space (Markle and Dunsmoor 2007, pp. 571-573). For example, fathead 
minnow were first documented in the upper Klamath River basin in the 
1970s and are now the numerically dominant exotic fish in Upper Klamath 
Lake (Simon and Markle 1997, p. 142; Bottcher and Burdick 2010, p. 40; 
Burdick and VanderKooi 2010, p. 33). Additional exotic, predatory 
fishes found in sucker habitats, although typically in relatively low 
numbers, include yellow perch (Perca flavescens), bullhead (Ameiurus 
species), largemouth bass (Micropterus salmoides), crappie (Pomoxis 
species), green sunfish (Lepomis cyanellus), pumpkinseed (Lepomis 
gibbosus), and Sacramento perch (Archoplites interruptus) (NRC 2004, 
pp. 188-189). Special management considerations or protections may be 
needed to protect the forage base from predation by exotic fish species 
and could be accomplished by the following: reducing conditions that 
allow exotic fishes to be successful and restoring conditions that 
allow Lost River sucker and shortnose sucker to thrive, conducting 
evaluations to determine methods to remove exotic fish species, and 
determining methods to reduce or eliminate competition for the forage 
base upon which Lost River sucker and shortnose sucker depend to 
survive.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species. In accordance with the Act and its implementing 
regulation at 50 CFR 424.12(e), we consider whether designating 
additional areas--outside those currently occupied as well as those 
occupied at the time of listing--are necessary to ensure the 
conservation of the species. We are proposing to designate only areas 
within the geographical area occupied by the species at the time of 
listing, and that are also presently occupied, because these areas are 
sufficient for the conservation of Lost River sucker and shortnose 
sucker and have all of the physical or biological features essential to 
the conservation of Lost River sucker and shortnose sucker. The Draft 
Lost River Sucker and Shortnose Sucker Recovery Plan (Service 2011) 
recognizes two recovery units, each containing occupied management 
units. The steps we followed in identifying critical habitat were:
    1. Our initial step in identifying critical habitat was to 
determine, in accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, the physical or biological habitat 
features essential to the conservation of the species, as explained in 
the previous section.
    2. We reviewed the best available scientific data pertaining to the 
habitat requirements of this species, including information obtained 
from the Lost River and Shortnose Sucker Recovery Team and the Recovery 
Implementation Committee, which included biologists from partner 
agencies and entities including Federal, State, tribal, and private 
biologists; experts from other scientific disciplines, such as 
hydrology and forestry; resource users; and other stakeholders with an 
interest in Lost River sucker and shortnose sucker and the habitats 
they depend on for survival or recovery. We also reviewed available 
data concerning Lost River sucker and shortnose sucker habitat use and 
preferences, habitat conditions, threats, population demographics, and 
known locations, distribution, and abundances of Lost River sucker and 
shortnose sucker.
    We identified the geographical areas occupied by Lost River sucker 
and shortnose sucker at the time of listing that contain the PBFs 
essential for the conservation of the species and which contained one 
or more of the primary constituent elements identified above. This was 
done by gathering information from the entities listed above and 
mapping Lost River sucker and shortnose sucker distribution.
    We used data gathered during the Lost River sucker and shortnose 
sucker recovery planning process and the Draft Lost River Sucker and 
Shortnose Sucker Recovery Plan (Service 2011), and supplemented those 
data with recent data developed by State agencies, tribes, the U.S. 
Forest Service, Bureau of Land Management, and other entities. These 
data were used to update Lost River sucker and shortnose sucker status 
and distribution data for purposes of the proposed critical habitat 
designation.
    For areas where we had data gaps, we solicited expert opinions from 
knowledgeable fisheries biologists in the local area. Material reviewed 
included data in reports submitted during section 7 consultations, 
reports from biologists holding section 10(a)(1)(A) recovery permits, 
research published in peer-reviewed scientific journals, academic 
theses, State and Federal government agency reports, and GIS data.
    In streams, critical habitat includes the stream channel within the 
designated stream reach and a lateral extent as defined by the bankfull 
elevation on one bank to the bankfull elevation on the opposite bank. 
The lateral extent of critical habitat in lakes and reservoirs is 
defined by the perimeter of the water body as mapped according to the 
U.S. Geological Survey 2009 National Hydrography Dataset. Land 
ownership calculations were based on 2011 Oregon and California Bureau 
of Land Management State office data layers. An updated data layer of 
Upper Klamath Lake and newly restored wetlands was provided by the U.S. 
Geological Survey (USGS), Western Fisheries Research Center, and 
Klamath Falls Field Station.
    3. In selecting areas to propose as critical habitat, we considered 
factors such as size, connectivity to other aquatic habitats, and 
rangewide

[[Page 76345]]

recovery considerations. We took into account the fact that Lost River 
sucker and shortnose sucker habitats include streams used largely for 
spawning and outmigration; lakes and reservoirs used for rearing, 
foraging, and migration; and springs used for spawning and refugia.
    4. In determining areas to propose as critical habitat, we relied 
upon principles of conservation biology, including: (a) Resistance and 
resiliency, to ensure sufficient habitat is protected throughout the 
range of the species to support population viability (e.g., demographic 
parameters); (b) Redundancy, to ensure multiple viable populations are 
conserved throughout the species' range; and (c) Representation, to 
ensure the representative genetic and life history of suckers (e.g., 
spring spawning and river spawning) were conserved.
    5. Using the conservation biology principles and primary 
constituent elements, we examined the distribution of Lost River sucker 
and shortnose sucker to determine critical habitat based on the 
following criteria: Largest occupied areas or populations, most highly 
connected populations and habitat, areas that can contribute to Lost 
River sucker and shortnose sucker conservation, and areas with highest 
conservation potential (e.g., essential PBFs). We then used these 
criteria to identify those areas that contain habitats essential to the 
conservation of Lost River sucker and shortnose sucker. Using the 
conservation biology principles and primary constituent elements, we 
examined the distribution of Lost River sucker and shortnose sucker to 
assess whether or not to propose areas as critical habitat. We 
emphasized areas as essential to the conservation of the Lost River and 
shortnose sucker which contained populations of highest conservation 
value with characteristics such as: (a) The largest occupied areas or 
populations, (b) the most highly connected populations and habitat, (c) 
areas that can contribute to Lost River sucker and shortnose sucker 
conservation and recovery.
    6. We examined geographic locations currently occupied by Lost 
River sucker and shortnose sucker and determined that certain areas did 
not contain the PBFs essential for the conservation of these species, 
and we have not proposed these areas as critical habitat. Such 
determinations include those areas where Lost River sucker or shortnose 
sucker: Are not viable, are not connected to spawning habitat, occur in 
low densities or abundances in very isolated populations, are greatly 
impacted by nonnative species, have very low potential for conservation 
or restoration, or have low connectivity among populations and severe 
habitat degradation.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical and biological features for Lost River sucker and shortnose 
sucker. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical and biological features 
in the adjacent critical habitat.
    We are proposing for designation of critical habitat lands that we 
have determined were occupied at the time of listing and contain 
sufficient elements of physical and biological features to support 
life-history processes essential to the conservation of the Lost River 
sucker and shortnose sucker.

Proposed Critical Habitat Designation

    We are proposing two units as critical habitat for Lost River 
sucker and two units for shortnose sucker with each unit being composed 
of streams, lakes, and reservoirs. The critical habitat areas we 
describe below constitute our current best assessment of areas that 
meet the definition of critical habitat for Lost River sucker and 
shortnose sucker.
    The two units we propose as critical habitat for the Lost River 
sucker, which were both occupied at the time of listing, are:
    (1) Upper Klamath Lake Unit, including Upper Klamath Lake and 
tributaries as well as the Link River and Keno Reservoir.
    (2) Lost River Basin Unit, including Clear Lake Reservoir and 
tributaries.
    The two units we propose as critical habitat for the shortnose 
sucker, which were occupied at the time of listing, are:
    (1) Upper Klamath Lake Unit, including Upper Klamath Lake and 
tributaries as well as the Link River and Keno Reservoir.
    (2) Lost River Basin Unit, including Clear Lake Reservoir and 
tributaries, and Gerber Reservoir and tributaries.
    The approximate area and stream length within each proposed 
critical habitat unit is shown in Tables 1 through 4.

 Table 1--Area of Lakes and Reservoirs Proposed as Critical Habitat for
                            Lost River Sucker
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                 Land ownership by
    Critical habitat unit               type           Acres  (hectares)
------------------------------------------------------------------------
1. Upper Klamath Lake........  Federal..............      15,198 (6,151)
                               State................           533 (216)
                               Private/Other........     74,684 (30,224)
2. Lost River Basin..........  Federal..............     27,238 (11,023)
                               State................                   0
                               Private/Other........            194 (79)
                              ------------------------------------------
    Total....................  Federal..............     42,437 (17,174)
                               State................           533 (216)
                               Private/Other........     75,249 (30,452)
                              ------------------------------------------
        Total................  .....................    118,219 (47,842)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 76346]]


                    Table 2--Stream Length Proposed as Critical Habitat for Lost River Sucker
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
          Critical habitat unit                  Land ownership by type               Miles  (kilometers)
----------------------------------------------------------------------------------------------------------------
1. Upper Klamath Lake....................  Federal..........................  13 (21).
                                           State............................  0.
                                           Private/Other....................  106 (171).
2. Lost River Basin......................  Federal..........................  23 (37).
                                           State............................  Less than 1.
                                           Private/Other....................  3 (5).
                                          ----------------------------------------------------------------------
    Total................................  Federal..........................  36 (58).
                                           State............................  Less than 1.
                                           Private/Other....................  109 (176).
                                          ----------------------------------------------------------------------
        Total............................  .................................  146 (234).
----------------------------------------------------------------------------------------------------------------
Note: Lengths may not sum due to rounding.


 Table 3--Area of Lakes and Reservoirs Proposed as Critical Habitat for
                            Shortnose Sucker
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                 Land ownership by
    Critical habitat unit               type           Acres  (hectares)
------------------------------------------------------------------------
1. Upper Klamath Lake........  Federal..............      15,198 (6,151)
                               State................           533 (216)
                               Private/Other........     74,684 (30,224)
2. Lost River Basin..........  Federal..............     32,051 (12,971)
                               State................                   0
                               Private/Other........         1,124 (455)
                              ------------------------------------------
    Total....................  Federal..............     47,250 (19,121)
                               State................           533 (216)
                               Private/Other........     76,179 (30,829)
                              ------------------------------------------
        Total................  .....................    123,961 (50,166)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


                    Table 4--Stream Length Proposed as Critical Habitat for Shortnose Sucker
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
          Critical habitat unit                  Land ownership by type               Miles  (kilometers)
----------------------------------------------------------------------------------------------------------------
1. Upper Klamath Lake....................  Federal..........................  6 (9).
                                           State............................  0.
                                           Private/Other....................  34 (54).
2. Lost River Basin......................  Federal..........................  72 (116).
                                           State............................  Less than 1.
                                           Private/Other....................  16 (26).
                                          ----------------------------------------------------------------------