Federal Register, Volume 76 Issue 235 (Wednesday, December 7, 2011)

[Federal Register Volume 76, Number 235 (Wednesday, December 7, 2011)]
[Proposed Rules]
[Pages 76337-76358]
From the Federal Register Online via the Government Publishing 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).
----------------------------------------------------------------------
Total................................ Federal.......................... 78 (125).
State............................ Less than 1.
Private/Other.................... 50 (80).
----------------------------------------------------------------------
Total............................ ................................. 128 (207).
----------------------------------------------------------------------------------------------------------------
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 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;
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., stream-spawning 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.

[[Page 76347]]

Unit 1: Upper Klamath Lake
Lost River Sucker
The Upper Klamath Lake unit is located in south-central Oregon
within Klamath County and consists of 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 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 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

[[Page 76348]]

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 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.
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, off-
road vehicle use, and other watershed and floodplain disturbances.
These activities could reduce and degrade spawning habitat of Lost
River sucker and shortnose sucker by increasing the sediment deposition
to deleterious levels.
(3) Actions that would significantly alter lake, reservoir, and/or
channel morphology or geometry. Such activities could include, but are
not limited to, channelization, impoundment, road and bridge
construction, mining, dredging, 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

[[Page 76349]]

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

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. 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 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-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for Lost River sucker and
shortnose sucker,

[[Page 76350]]

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

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.
(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 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.

[[Page 76351]]

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 non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule 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 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
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the 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.

[[Page 76352]]

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.

References Cited

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).

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 Sec. 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:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

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

* * * * * * *
Fishes

* * * * * * *
Sucker, Lost River............... Deltistes luxatus... U.S.A. (CA, OR).... Entire............. E 313 17.95(e) NA

* * * * * * *
Sucker, shortnose................ Chasmistes U.S.A. (CA, OR).... Entire............. E 313 17.95(e) NA
brevirostris.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 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 appear
in the table at Sec. 17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
Lost River Sucker (Deltistes luxatus)
(1) Critical habitat units are depicted for Klamath and Lake
Counties, Oregon,

[[Page 76353]]

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 [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 ([micro]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.
(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.
(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:
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[[Page 76354]]

[GRAPHIC] [TIFF OMITTED] TP07DE11.005

(6) Unit 2: Lost River Basin Unit, Modoc County, California.
(i) [Reserved for textual description of Unit 2.]
(ii) Note: Map of Unit 2, Lost River Basin, follows:

[[Page 76355]]

[GRAPHIC] [TIFF OMITTED] TP07DE11.006

* * * * *
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 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 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 ([micro]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.

[[Page 76356]]

(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.
(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:

[[Page 76357]]

[GRAPHIC] [TIFF OMITTED] TP07DE11.007

(6) Unit 2: Lost River Basin Unit, Klamath and Lake Counties,
Oregon, and Modoc County, California.
(i) [Reserved for textual description of Unit 2.]
(ii) Note: Map of Unit 2, Lost River Basin, follows:

[[Page 76358]]

[GRAPHIC] [TIFF OMITTED] TP07DE11.008

* * * * *

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