Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2013-0575; Directorate Identifier 2013-NE-21-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013-0111R1, dated June 3, 2013 (referred to hereinafter as “the MCAI), to correct an unsafe condition for the specified products. The MCAI states:

These engines have been approved by the aviation authority of France, and are approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other engines of the same type design. This proposed AD would require replacement of the 2nd-stage turbine disc.

We estimate that this proposed AD affects 6 products of U.S. registry. We also estimate that it would take about 5 hours per product to comply with this proposed AD. The average labor rate is $85 per hour. Required parts cost about $6,560 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $41,910. Our cost estimate is exclusive of possible warranty coverage.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Why we need to publish a rule. Under the Act, if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations and revisions of critical habitat can only be completed by issuing a rule. Elsewhere in today's Federal Register (and available online at www.regulations.gov at Docket Number FWS-R2-ES-2013-0083), we propose to designate critical habitat for the sharpnose shiner ( Notropis oxyrhynchus ) and smalleye shiner ( N. buccula ) under the Act.

This rule consists of a proposed rule to list the sharpnose shiner and smalleye shiner as endangered species. The sharpnose shiner and smalleye shiner are currently candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding status of and threats to the sharpnose shiner and smalleye shiner.

The basis for our action. Under the Act, we can determine if a species is in danger of extinction throughout all or a significant portion of its range now (endangered) or likely to become endangered in the foreseeable future (threatened). As part of our analysis we consider whether it is endangered or threatened because of any five factors affecting its continued existence: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that habitat loss and modification due to river fragmentation and decreased river flow resulting mainly from reservoir impoundments and drought are primary threats to the species.

We will seek peer review. We are seeking comments from knowledgeable individuals with scientific expertise to review our analysis of the best available science and application of that science and to provide any additional scientific information to improve this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal.

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 other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The sharpnose and smalleye shiners' biology, range, and population trends, including:

(a) Biological or ecological requirements of these species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for these species, their habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) Information on the projected and reasonably likely impacts of climate change on sharpnose and smalleye shiners.

(6) The relationship between groundwater withdrawal and the reduction of surface water flow in areas occupied by sharpnose and smalleye shiners.

(7) The relationship between saltcedar encroachment and the reduction of surface water flow.

(8) The causation of toxic golden algal blooms and their potential effect on sharpnose and smalleye shiners.

(9) Sources of surface water contamination, particularly petroleum products, in the upper Brazos River basin.

(10) Information regarding future reservoir impoundments (and other fish barrier construction) within the upper Brazos River basin and their potential effects on surface water flows and fish migration within habitat occupied by these species.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq. ) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

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 at Docket No. FWS-R2-ES-2013-0083, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The June 2013 Sharpnose Shiner and Smalleye Shiner Species Status Assessment Report (SSA Report; Service 2013, entire; see Status Assessment for the Sharpnose Shiner and Smalleye Shiner section, below), as well as comments and materials we receive and other supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov at Docket Number FWS-R2-ES-2013-0083 or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. We will hold a public hearing on Wednesday, September 4, 2013. The public information session will begin at 5:00 p.m., and the public hearing will begin at 6:30 p.m. and end at 8:00 p.m. Central Time. The public informational session and hearing will be held in the Upstairs Conference Room at Abilene Civic Center, 1100 North 6th Street, Abilene, Texas. People needing reasonable accommodation in order to attend and participate in the public hearing should contact Erik Orsak, Field Supervisor, Arlington, Texas, Ecological Services Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT ).

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of five appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology and ecology of riverine fishes and are currently reviewing the species status report, which will inform our final determination. We will invite comment from the peer reviewers during this public comment period.

We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.

On June 13, 2002, the sharpnose shiner ( Notropis oxyrhynchus ) and smalleye shiner ( N. buccula ) were made candidates for listing (67 FR 40657) under the Act. On May 11, 2004, we received a petition to list the sharpnose shiner and smalleye shiner, which were already on the candidate list; we published our petition finding on May 11, 2005 (70 FR 24899). Because the sharpnose shiner and smalleye shiner were previously identified through our candidate assessment process, the species had already received the equivalent of a substantial 90-day finding and a warranted, but precluded, 12-month finding (67 FR 40657, June 13, 2002). Through the annual candidate review process (69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012), the Service continued to solicit information from the public regarding these species.

The June 2013 SSA Report (Service 2013, entire; available online at www.regulations.gov under Docket Number FWS-R2-ES-2013-0083), provides a thorough assessment of sharpnose shiner and smalleye shiner biology and natural history, and assesses demographic risks, threats, and limiting factors in the context of determining viability and risk of extinction for the species. In the SSA Report, we compile biological data and a description of past, present, and likely future threats (causes and effects) facing the sharpnose shiner and smalleye shiner. Because data in these areas of science are limited, some uncertainties are associated with this assessment. Where we have substantial uncertainty, we have attempted to make our necessary assumptions explicit in the SSA Report. We base our assumptions in these areas on the best available scientific and commercial data. Importantly, the SSA Report does not represent a decision by the Service on whether these taxa should be proposed for listing as endangered or threatened species under the Act. The SSA Report does, however, provide the scientific basis that informs our decisions, which involve the further application of standards within the Act and its regulations and policies.

Our June 2013 SSA Report documents the results of the comprehensive biological status review for the sharpnose shiner and smalleye shiner, and provides a thorough account of the species' overall viability and, conversely, extinction risk (Service 2013, entire). The following is a summary of the results and conclusions from the SSA Report.

The sharpnose shiner and smalleye shiner are small minnows native to arid prairie streams of Texas originating from the Brazos River. The naturally occurring historical distribution the sharpnose shiner included the Brazos River, Colorado River, and Wichita River in Texas, while the naturally occurring historical distribution of the smalleye shiner included only the Brazos River.

In conducting our status assessment, we first considered what each of the two shiners need to ensure viability. We generally define viability as the ability of the species to persist over the long term and, conversely, to avoid extinction. We then evaluated whether those needs currently exist and the repercussions to the species when those needs are missing, diminished, or inaccessible. We next considered the factors that are causing the species to lack what it needs, including historical, current, and future factors. Finally, considering the information reviewed, we evaluated the current status and future viability of the species in terms of resiliency, redundancy, and representation. Resiliency is the ability of the species to withstand stochastic events and, in the case of the shiners, is best measured by the extent of suitable habitat in terms of stream length. Redundancy is the ability of a species to withstand catastrophic events by spreading the risk and can be measured through the duplication and distribution of resilient populations across its range. Representation is the ability of a species to adapt to changing environmental conditions and can be measured by the breadth of genetic diversity within and among populations and the ecological diversity of populations across the species' range. In the case of the shiners, we evaluate representation based on the extent of the geographical range and the variability of habitat characteristics within their range as indicators of genetic and ecological diversity.

Our assessment found that both species of shiners have an overall low viability (or low probability of persistence) in the near term (over about the next 10 years) and a decreasing viability (increasing risk of extinction) in the long-term future (over the next 11 to 50 years). For the shiners to be considered viable, individual fish need specific vital resources for survival and completion of their life cycles. Both species need wide, shallow, flowing waters generally less than half a meter deep (1.6 ft) with sandy substrates, which are found in mainstem rivers in the arid prairie region of Texas. The most important part of their life history is their reproductive strategies. Both species broadcast-spawn eggs and sperm into open water asynchronously (fish not spawning at the same time) from April through September during periods of low flow and synchronously (many fish spawning at the same time) during periods of elevated streamflow. Their eggs are semi-buoyant and remain suspended 1 or 2 days in flowing water as they develop into larvae. Larval fish remain suspended in the flowing water column an additional 2 to 3 days as they develop into free-swimming juvenile fish. In the absence of sufficient water velocities, suspended eggs and larvae sink into the substrate and subsequently die.

To sustain populations of the shiners, experimental analysis suggests estimated mean spawning season river flows of 2.61 cubic meters per second (m 3 s −1 ) (92 cubic feet per second (cfs)) and 6.43 m 3 s −1 (227 cfs) are required for the sharpnose and smalleye shiners, respectively. It is also estimated that populations of shiners require approximately 275 kilometers (km) (171 miles (mi)) of unobstructed, flowing water during the breeding season to support a successfully reproductive population. This length of stream allows the eggs and larvae to remain suspended in the water column and survive until they mature sufficiently to swim on their own. In addition, these fish only naturally live for 1 or 2 years, making the populations particularly vulnerable when the necessary streamflow conditions for reproduction are lacking for more than one season. Across their range, these species also need unobstructed river lengths to allow for upstream and downstream movements to survive seasons with poor environmental conditions in certain river reaches. Unobstructed river reaches allow some fish to survive and recolonize degraded reaches when conditions improve.

The current conditions of both species indicate that they do not have the necessary resources for persistence in the immediate future. Both species have experienced dramatic range reduction, with both fish having lost at least half of their historical range. Both species are now restricted to one population in the upper Brazos River basin. As a result, sharpnose and smalleye shiners currently lack redundancy, which is significantly reducing the viability of these species as a whole. In addition, streamflows within their current extant range are insufficient during some years to support successful reproduction, such as occurred in 2011. These fish have been resilient to past stressors that occur over short durations, and their populations appear capable of recovering naturally even when an entire year's reproductive effort is lost. However, without human intervention, given their short lifespan and restricted range, stressors that persist for two or more reproductive seasons (such as a severe drought) severely limit these species' current viability, placing them at a high risk of extinction now.

The two primary factors affecting the current and future conditions of these shiners are river fragmentation by impoundments and alterations of the natural streamflow regime (by impoundments, drought, groundwater withdrawal, and saltcedar encroachment) within their range. Other secondary factors, such as water quality degradation and commercial harvesting for fish bait, likely also impact these species but to a lesser degree. These multiple factors are not acting independently, but are acting together as different sources (or causes), which can result in cumulative effects to lower the overall viability of the species.

Fish barriers such as impoundments are currently restricting the upstream and downstream movement of migrating fish and prevent survival of the semi-buoyant eggs and larvae of sharpnose and smalleye shiners. This is because the eggs and larvae cannot remain suspended in the water column under non-flowing conditions in reservoirs or if streamflows cease. Of the area once occupied by one or both species in the Brazos, Colorado, and Wichita Rivers, only two contiguous river segments remain with unobstructed lengths (without dams) greater than 275 km (171 mi): The upper Brazos River (where the fish are extant) and the lower Brazos River (where the fish are functionally extirpated). The effects of habitat fragmentation have occurred and continue to occur throughout the range of both species and are expected to increase if proposed new reservoirs are constructed. Habitat fragmentation is affecting both species at the individual, population, and species levels, and puts the species at a high risk of extinction currently and increasingly so into the long-term future.

The historical ranges of both species have been severely fragmented, primarily by large reservoir impoundments, resulting in the isolation of one population of each species in the upper Brazos River basin. The construction of Possum Kingdom Reservoir in 1941, for example, eliminated the ability of these species to migrate downstream to wetter areas when the upper Brazos River experiences drought. There is also a number of existing in-channel structures (primarily pipeline crossings and low-water crossings) within the occupied range of these species, some of which are known to restrict fish passage during periods of low flow. Species extirpation has already occurred in areas where river segments have been fragmented and reduced to less than 275 km (171 mi) in length.

In addition, future fragmentation of the remaining occupied habitat of the upper Brazos River by new impoundments would decrease the contiguous, unfragmented river habitat required by these species for successful reproduction. Texas does not have adequate water supplies to meet current or projected water demand in the upper Brazos River region, and additional reservoir construction is considered imminent. Possible new impoundments include the 2012 State Water Plan's proposed Post Reservoir in Garza County, the Double Mountain Fork Reservoir (East and West) in Stonewall County, and the South Bend Reservoir in Young County. Because extirpation of these species is expected to occur in occupied river fragments reduced to less than 275 km (171 miles) in length, any new structures further fragmenting stream habitats significantly increase the likelihood of extinction for both species.

The natural flow regime is considered one of the most important factors to which native riverine species, like the shiners, become adapted, and alterations to it can have severe impacts on fishes. A majority of sharpnose and smalleye shiner reproductive output occurs through synchronized spawning during periods of elevated flow associated with storms, although successful reproduction is also possible during periods of low to moderate flow. When streamflows are insufficient, the fish cannot successfully spawn and reproduce. There are several environmental changes that are a source of declining streamflows within the range of the shiners. Downstream of reservoirs, streamflows are lowered and stabilized, which has reduced or, in some areas, eliminated successful reproduction in these species. In addition, groundwater withdrawal and depletion will reduce or eliminate the remaining springs and seeps of the Brazos River basin, which will lower river flow. Drought is another obvious source of impact that negatively affects streamflow and has severe impacts on sharpnose and smalleye shiner reproduction. Severe droughts in this region are expected to become more common as a result of ongoing climate change. Finally, saltcedar encroachment is another source of environmental change that not only is affecting streamflows but also restricts channel width and increases channel depth. These stream channel changes reduce the amount of wide channels and shallow waters preferred by sharpnose and smalleye shiners. Flow reduction and an altered flow regime have occurred and continue to occur throughout the range of these species and are expected to impact both species at the individual, population, and species levels.

Within the reduced range of these species in the upper Brazos River basin, there are currently at least 13 impoundments or other structures affecting (to varying degrees) the amount of stream flow within the occupied range of these species. These reservoirs serve as water supplies for various consumptive water uses and reduce downstream flows available for the fishes. Because the current impoundments restrict stream flow below the minimum levels required for both species, we expect these impoundments to impact both species at the individual, population, and species levels.

Additional future impoundments, reservoir augmentations, and water diversions are under consideration for construction within the upper Brazos River, which would further reduce flows and fragment remaining habitat. The construction of at least some of these structures to meet future water demand in the region is highly likely to occur within the next 50 years. These future impoundments, reservoir augmentatons, and water diversions will further increase the likelihood of extinction for both species.

Besides impoundments and diversions of water from reservoirs, there are other sources causing reduced stream flows in the upper Brazos River basin. One such source is climate change, which is projected to result in warmer temperatures and drier conditions in the upper Brazos River in the future. This trend is already becoming apparent and exacerbates the likelihood of species extinction from loss of river flow. Reductions to river flow and river drying are also expected to increase as groundwater withdrawals negatively impact already reduced spring flows. Saltcedar encroachment also intensifies evaporative water loss along occupied river segments. There are several existing efforts addressing threats to natural flow regimes, including the Texas Environmental Flows Program, saltcedar control programs, and groundwater conservation districts. However, these programs and conservation efforts have not alleviated ongoing and future threats negatively affecting water flow in the upper Brazos River.

The effects of reduced stream flows on the shiners were dramatically demonstrated during the summer spawning season of 2011. During 2011, Texas experienced the worst 1-year drought on record, and the upper Brazos River went dry. Some individual fish presumably found refuge from the drying river in Possum Kingdom Lake downstream. However, the non-flowing conditions in the river made reproduction impossible, and any shiners in the lake would have faced increased predation pressure from large, lake-adapted, piscivorous fish. Fearing possible extinction of these species, State fish biologists from Texas captured sharpnose and smalleye shiners from isolated pools in 2011, prior to their complete drying, and maintained a small population in captivity until they were released back into the lower Brazos River the following year. During the 2011 drought, no sharpnose shiner or smalleye shiner reproduction was documented. Given their short lifespan (they typically live only two reproductive seasons), a similar drought in 2012 would have likely led to extinction of both species. However, 2012 fish survey results of the upper Brazos River indicated drought conditions were not as intense as those in 2011, and sharpnose and smalleye shiners persisted.

As remaining habitat of the shiners becomes more fragmented and drought conditions intensify, the single remaining population of sharpnose shiners and smalleye shiners will become more geographically restricted, further reducing the viability of the species into the future. Under these conditions, the severity of secondary threats, such as water quality degradation from pollution and golden algal blooms, and legally permitted commercial bait fish harvesting, will have a larger impact on the species and a single pollutant discharge, golden algal bloom, or commercial harvesting or other local event will severely increase the risk of extinction of both species.

The shiners currently have limited viability and increased vulnerability to extinction because of their stringent life-history requirement of long, flowing rivers to complete their reproductive cycle. With a short lifespan allowing only one or two breeding seasons and the need for unobstructed river reaches greater than 275 km (171 mi) in length containing average flows greater than 2.61 m 3 s −1 (92 cfs) and 6.43 m 3 s −1 (227 cfs) (for the sharpnose and smalleye shiners, respectively) during the summer, both species are at a high risk of extirpation when rivers are fragmented by fish barriers and flows are reduced from human use and drought-enhanced water shortages. These conditions have already resulted in a significant range reduction and isolation of the one remaining population of both fish into the upper Brazos River. The extant population of each shiner species is located in a contiguous stretch of river long enough to support reproduction, is of adequate size, and is generally considered resilient to local or short-term environmental changes. However, with only one location, the species lack any redundancy, and it is presumed these species lack the genetic and ecological representation to adapt to ongoing threats. Given the short lifespan and restricted range of these species, without human intervention, lack of adequate flows (due to drought and other stressors) persisting for two or more consecutive reproductive seasons would likely lead to species extinction. With human water use and ongoing regional drought, the probability of this happening in the near term (about the next 10 years) is high, putting the species at a high risk of extinction. Over the longer term (the next 11 to 50 years), these conditions will only continue to deteriorate as human water use continues, including possible construction of new dams within the extant range, and as there are enhanced chances of drought due to ongoing climate change. In conclusion, the current condition of both species is at a low viability (low probability of persistence), and their viability is only expected to decline into the future.

Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(b)(1)(a), the Secretary is to make endangered or threatened determinations required by subsection 4(a)(1) solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the species and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is endangered or threatened are provided in section 3 of the Act. An endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” A threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Under section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definitions of endangered or threatened, we determine whether any species is an endangered species or a threatened species because of any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.

Based on our review of the best available scientific and commercial information, we conclude that the sharpnose shiner and smalleye shiner are currently in danger of extinction throughout all of their range, and, therefore, both meet the definition of an endangered species. This finding, explained below, is based on our conclusions that these species exhibit low viability, as characterized by not having the resiliency to overcome persistent threats and insufficient population redundancy. We found the sharpnose shiner and smalleye shiner are in danger of extinction now, and the situation will not improve without significant conservation intervention. We, therefore, find that the sharpnose shiner and smalleye shiner warrant listing as endangered species.

On the basis of our biological review documented in the June 2013 SSA Report, we found that the sharpnose shiner and smalleye shiner are vulnerable to extinction due to their reduced ranges and their highly specific reproductive strategies. These species are currently restricted to the upper Brazos River and its major tributaries, which represents a greater than 70 percent reduction in range for the sharpnose shiner and a greater than 50 percent range reduction for the smalleye shiner. The occupied river segments of the upper Brazos River currently retain the necessary length (greater than 275 km (171 miles)) to support successful broadcast-spawning reproduction in these species. However, these river segments have naturally occurring periods of low flow, periods completely lacking flow, and periods of complete drying—often during the dry summer months, which is also when these species spawn. The eggs and larvae of these species require flowing water of sufficient velocity to keep their eggs and larvae afloat and alive. During periods of insufficient river flow, reproduction is not successful and no young are produced.

Our review found the primary factors leading to a high risk of extinction for these fishes include habitat loss and modification due to river fragmentation and decreased river flow, resulting mainly from reservoir impoundments. Drought, exacerbated by climate change, and groundwater withdrawals also act as sources to reduce stream flows and modify stream habitats. Fragmentation due to reservoir construction has resulted in a substantially reduced range with only one isolated population of each species in the upper Brazos River. With only one isolated population remaining, these species have no redundancy, reduced resiliency due to the inability to disperse downstream, and limited representation. This situation puts the species in danger of extinction from only one adverse event (such as insufficient flow rates for 2 consecutive years). Secondary causes of habitat modifications include water quality degradation and saltcedar encroachment that alters stream channels. As population sizes decrease, localized concerns, such as commercial harvesting of individuals, also increases the risk of extinction.

We evaluated whether the sharpnose shiner and smalleye shiner are in danger of extinction now (i.e., an endangered species) or are likely to become in danger of extinction in the foreseeable future (i.e., a threatened species). The foreseeable future refers to the extent to which the Secretary can reasonably rely on predictions about the future in making determinations about the conservation status of the species. A key statutory difference between an endangered species and a threatened species is the timing of when a species may be in danger of extinction, either now (endangered species) or in the foreseeable future (threatened species). Because of the fact-specific nature of listing determinations, there is no single metric for determining if a species is presently “in danger of extinction.” In the case of the sharpnose shiner and smalleye shiner, the best available information indicates the severe range reduction and isolation of these species to a single population in the upper Brazos River places these species in danger of extinction now, and the situation is exacerbated by the ongoing and intensifying effects of river fragmentation, climate-change-induced drought, saltcedar encroachment, water quality degradation, and commercial bait harvesting. The current threats affecting these species are expected to continue (or even increase without substantial conservaton efforts), causing both species to be in danger of extinction now—as nearly occurred during the drought of 2011. Therefore, because these species have been reduced to less than half of their previously occupied range and because both species are restricted to a single, non-resilient population at a high risk of extinction from a variety of unabated threats, we find both species are in danger of extinction now and meet the definition of an endangered species.

In conclusion, after a review of the best available scientific and commercial information as it relates to the status of the species and the five listing factors, we find the sharpnose shiner and smalleye shiner are in danger of extinction now. Therefore, we propose to list the sharpnose shiner and smalleye shiner as endangered species in accordance with section 3(6) of the Act.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. The threats to the survival of the sharpnose shiner and smalleye shiner occur throughout these species' ranges and are not restricted to any particular significant portion of those ranges. Accordingly, our assessments and determinations apply to the species throughout their entire ranges.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprising species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site ( http://www.fws.gov/endangered ), or from our Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., removal of existing fish barriers), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may not occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection and recovery of the sharpnose shiner and smalleye shiner. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the sharpnose shiner and smalleye shiner are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph may include but are not limited to: Permitting of interbasin water transfers, permitting of large groundwater withdrawal projects, permitting of in-channel mining and dredging, issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers, and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

Our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), is to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of species proposed for listing. The following activities could potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.

(2) Unauthorized destruction or alteration of sharpnose and smalleye shiner habitats (e.g., unpermitted in-stream dredging, impoundment, or construction; water diversion or withdrawal; channelization; discharge of fill material) that impairs essential behaviors such as breeding, feeding, or sheltering, or results in killing or injuring sharpnose or smalleye shiners. Such activities could include, but are not limited to, the destruction of upland riparian areas in a manner that it negatively impacts the river ecosystem.

(3) Capture, survey, or collection of specimens of this taxon without a permit from the Service under section 10(a)(1)(A) of the Act.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of references used in support of this proposed rulemaking is available on the Internet at http://www.regulations.gov under Docket Number FWS-R2-ES-2013-0083 in the June 2013 Status Assessment Report for the Sharpnose Shiner and Smalleye Shiner (Service 2013, Literature Cited) and upon request from the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are the staff members of the Arlington, Texas, Ecological Services Field Office.

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

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act of 1973, as amended (Act), if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within one year. Listing a species as an endangered or threatened species can only be completed by issuing a rule. In the case of Graham's beardtongue, a June 9, 2011, court decision reinstated our January 19, 2006, proposed rule (71 FR 3158) to list Graham's beardtongue as a threatened species and ordered us to reconsider, with all deliberate speed, a new final rule with respect to whether this species should be listed as an endangered or threatened species under the Act. We have determined that enough new information exists to warrant a new proposed rule for the Graham's beardtongue.

This rule consists of a proposed rule to list the Graham's beardtongue and White River beardtongue as threatened species under the Act.

The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

We have determined that energy exploration and development are threats to both Graham's and White River beardtongues. In addition, the cumulative impacts of increased energy development, livestock grazing, invasive weeds, small population sizes, and climate change are threats to these species. Therefore, these species qualify for listing under the Act, which can only be done by issuing a rule.

We will seek peer review. We are seeking comments from knowledgeable individuals with scientific expertise to review our analysis of the best available science and application of that science and to provide any additional scientific information to improve this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal.

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 effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of these species;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns; and

(d) Historical, current, and projected population levels and trends.

(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq. ), which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of these species.

(5) Past and ongoing conservation measures for these species, their habitats or both.

(6) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species.

(7) Any information on the biological or ecological requirements of these species and ongoing conservation measures for these species and their habitats.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

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, Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

For a detailed description of Federal actions concerning Graham's beardtongue, please refer to the January 19, 2006, proposed rule to list the species with critical habitat (71 FR 3158) and the December 19, 2006, withdrawal of the proposed rule to list the species with critical habitat (71 FR 76024).

The document we published on December 19, 2006 (71 FR 76024), withdrew the proposed listing and critical habitat rule for Graham's beardtongue that we published on January 19, 2006 (71 FR 3158). The December 19, 2006, withdrawal also addressed comments we received on the proposed rule to list Graham's beardtongue and summarized threats affecting the species. The withdrawal of the proposed rule was based on information provided during the public comment period. This information led us to conclude that the threats to Graham's beardtongue identified in the proposed rule, particularly energy development, were not as significant as previously believed and that currently available data did not indicate that threats to the species and its habitat, as analyzed under the five listing factors described in section 4(a)(1) of the Act, were likely to endanger the species in the foreseeable future throughout all or a significant portion of its range.

On December 16, 2008, the Center for Native Ecosystems, Southern Utah Wilderness Alliance, Utah Native Plant Society, and Colorado Native Plant Society filed a complaint in the United States District Court for the District of Colorado challenging the withdrawal of our proposal to list Graham's beardtongue. The court ruled in favor of the plaintiffs on June 9, 2011, vacating our December 2006 withdrawal and reinstating our January 2006 proposed rule.

The best available information for Graham's beardtongue has changed considerably since 2006, when the proposed rule was published and then withdrawn. We believe it is appropriate to publish a revised proposed listing rule to better reflect new information regarding Graham's beardtongue. A revised proposed critical habitat rule for the Graham's beardtongue is published elsewhere in today's Federal Register .

Graham's beardtongue was described as a species in 1937 as an herbaceous perennial plant in the plantain family (Plantaginaceae). For most of the year when the plant is dormant, it exists as a small, unremarkable basal rosette of leaves. During flowering the plant becomes a “gorgeous, large-flowered penstemon” (Welsh et al. 2003, p. 625). Similar to other species in the beardtongue ( Penstemon ) genus, Graham's beardtongue has a strongly bilabiate (two-lipped) flower with a prominent infertile staminode (sterile male flower part)—the “beardtongue” that typifies the genus. The combination of its large, vivid pink flower and densely bearded staminode with short, stiff, golden-orange hairs makes Graham's beardtongue quite distinctive. Each year an individual plant can produce one to a few flowering stems that can grow up to 18 centimeters (cm) (7.0 inches (in)) tall (with some exceptions), with one to 20 or more flowers on each flowering stem.

When we published the proposed listing rule in 2006, there were 109 plant records, or “points,” across Graham's beardtongue's known range, and the total species' population size was estimated at 6,200 individuals. Point data represent a physical location where one or more plants were observed on the ground. Point data are usually collected by GPS and stored as a “record” in a geographic information system database.

Since 2006, we have completed many surveys for this species. The range of Graham's beardtongue is essentially the same as it was in 2006: a horseshoe-shaped band about 80 miles long and 6 miles wide extending from the extreme southeastern edge of Duchesne County in Utah to the northwestern edge of Rio Blanco County in Colorado (Figure 1). However, we have identified larger numbers of plants and a greater distribution of the species across its range. Data we compiled from the Vernal and Meeker Field Offices of the Bureau of Land Management (BLM), and Utah and Colorado Natural Heritage Programs (UNHP and CNHP) include 4,460 points representing 31,702 plants. Most of these locations were documented after 2006. Although the overall number of plants has increased with additional surveys, this does not mean the total population is increasing. Rather, we now have a more complete picture of how many total Graham's beardtongue individuals exist, and this number likely has not changed substantially since the species was named in 1937. We assume that the current known range of this species has not change substantially from what it was historically.

Figure 1. Graham's beardtongue's range.

We mapped all plant points and grouped them into populations (Figure 1). First, we followed standardized methods used by the national network of Natural Heritage Programs, and identified the species' element occurrences (EO). EOs are plant points that are grouped together based on geographic proximity (NatureServe 2004, p. 6). Natural Heritage Program criteria (NatureServe 2004, p. 6) classifies points into discrete EOs if they are within 2 kilometers (km) (1.2 miles (mi)) of each other and separated by suitable habitat. We did not always have specific habitat suitability information and in these cases relied on the 2-km (1.2-mi) distance as our primary classification factor. Next, we included updated survey information collected from 2006 to the present and determined the number of distinct EOs. Overall, we documented 24 EOs: 20 in Utah and 4 in Colorado. For the purpose of this proposed listing rule, we consider EOs to be synonymous with populations and hereafter will use the term “populations” when describing the distribution of the species (Figure 1).

New sites of Graham's beardtongue were found in May of 2013. Approximately 350 plants were counted, about 1 percent of the known population. Because the number counted was only about 1 percent of the total population, including these additional plants does not perceptibly change our threats analysis. We included the new points in our map (Figure 1). However, information from surveys during the 2013 field season continues to be submitted. Once the field season is completed and we have finalized data, we will update the threats analysis using those data.

The biggest change in the population size and distribution of Graham's beardtongue from the 2006 proposed rule to this proposed rule is that many additional surveys were conducted in the middle of the species' range (populations 10 through 20, see Figure 1), increasing the total population estimate for Graham's beardtongue fivefold. In particular, we now estimate that one population (referred to as population 20) comprises about 23 percent of the species' total population, compared to our estimate of only 2 percent in 2006. In 2006, we noted that population 20 was an important connectivity link between the Utah and Colorado populations of this species, and we still consider this to be true, especially given the large number of plants found in this population.

Approximately 59 percent of the total known population of Graham's beardtongue is on BLM-managed lands, with the remainder on non-Federal lands with State and private ownership (Table 1). This distribution is essentially unchanged from our 2006 finding. A land exchange between the BLM and the State of Utah planned for 2013 will decrease the number of known plants on Federal lands and increase the plants on State lands by 1 percent (see X. Inadequacy of Existing Regulatory Mechanisms below for more details).

Table 1. Number of individuals of Graham's beardtongue by land owner.

Two sites of Graham's beardtongue within population 13 (see Figure 1) were monitored from 2004 to 2012, and two additional sites within population 13 were monitored from 2010 to 2012. These sites were stable or slightly declining over the period of study (McCaffery 2013, p. 9). Recruitment for these sites of Graham's beardtongue was low and sporadic (McCaffery 2013, p. 11). In addition, Graham's beardtongue flowered sporadically, indicating that conditions were not always suitable for flowering to occur (McCaffery 2013, p. 9). Small population sizes and low recruitment make this species more vulnerable to stochastic events, and changes in stressors or habitat conditions may negatively impact the long-term growth of these sites (McCaffery 2013, p. 9). No link was found between reproduction and precipitation on a regional level, but it is likely the correct environmental factors driving reproduction and survival have not been measured (McCaffery 2013, p. 10). A combination of several factors could be driving population dynamics of Graham's beardtongue; for example, herbivory and climate could be interacting to influence reproduction. Plants at one of the study sites were negatively impacted by herbivory from tiger moth caterpillars (possibly Arctia caja utahensis ) (see II. Grazing and Trampling, below), but a cool, wet spring in 2011 reduced herbivory on reproductive plants (Dodge and Yates 2011, pp. 7-8). Further studies are necessary to determine if herbivory or other factors are driving population dynamics of this species.

Graham's beardtongue is an endemic plant found mostly in exposed oil shale strata of the Parachute Creek Member and other unclassified members of the Green River geologic formation. Most populations are associated with the surface exposure of the petroleum-bearing oil shale Mahogany ledge (Shultz and Mutz 1979, p. 40; Neese and Smith 1982, p. 64). Soils at these sites are shallow with virtually no soil horizon development, and the surface is usually covered with broken shale chips or light clay derived from the thinly bedded shale. About a third of all known point locations of plants in our files grow on slopes that are 10 degrees or less, with an average slope across all known points of 17.6 degrees (Service 2013, p. 2). The species' average elevation is 1,870 meters (m) (6,134 feet (ft)), with a range in elevation from 1,426 to 2,128 m (4,677 to 6,982 ft) (Service 2013, p. 4). Individuals of Graham's beardtongue usually grow on southwest-facing exposures (Service 2013, p. 1).

Graham's beardtongue is associated with a suite of species similarly adapted to xeric growing conditions on highly basic calcareous shale soils, including (but not limited to) saline wildrye ( Leymus salinus ), mountain thistle ( Cirsium eatonii var. eriocephalum ), spiny greasebush ( Glossopetalon spinescens var. meionandra ), Utah juniper ( Juniperus osteosperma ), twoneedle piñon ( Pinus edulis ), and shadscale saltbush ( Atriplex confertifolia ) (UNHP 2013, entire). Graham's beardtongue co-occurs with eight other rare species that are similarly endemic and restricted to the Green River Formation, including White River beardtongue.

Graham's beardtongue individuals may live 20 to 30 years; however, we do not know the plant's average lifespan (Service 2012a, p. 2). Graham's beardtongue is not as genetically diverse as other common, widespread beardtongues from the same region (Arft 2002, p. 5). However, populations 1 through 9 (see Figure 1) have minor morphological differences from the rest of the Graham's beardtongue population (Shultz and Mutz 1979, p. 41) and may, due to geographic isolation, be genetically divergent from the remainder of the species' population, although this hypothesis has never been tested.

Graham's beardtongue usually flowers for a short period of time in late May through early July. Pollinators and flower visitors of Graham's beardtongue include the bees Anthophora lesquerellae, Osmia sanrafaelae, Osmia rawlinsi; the sweat bees Lasioglossum sisymbrii and Dialictus sp.; and the masarid wasp Pseudomasaris vespoides, which is thought to be the primary pollinator for Graham's beardtongue (Lewinsohn and Tepedino 2007, p. 245; Dodge and Yates 2008, p. 30). At least one large pollinator, Bombus huntii (Hunt's bumblebee), is known to visit Graham's beardtongue (71 FR 3158, January 19, 2006), which is not unexpected due to the relatively large size of Graham's beardtongue's flowers compared to other beardtongues.

Graham's beardtongue has a mixed mating system, meaning individuals of this species can self-fertilize, but they produce more seed when they are cross-pollinated (Dodge and Yates 2009, p. 18). Thus, pollinators are important to this species for maximum seed and fruit production. Based on the size of the largest Graham's beardtongue pollinators (i.e., Hunt's bumblebee), we expect they are capable of travelling and transporting pollen for distances of at least 700 m (2,297 ft) (Service 2012b, pp. 8, 12). Therefore, maintaining sufficiently large numbers and population distribution of Graham's beardtongue ensures cross-pollination can occur and prevents inbreeding depression (Dodge and Yates 2009, p. 18). Pollinators generally need a diversity of native plants for foraging throughout the seasons, nesting and egg-laying sites, and undisturbed places for overwintering (Shepherd et al. 2003, pp. 49-50). Thus, it is important to protect vegetation diversity within and around Graham's beardtongue populations to maintain a diversity of pollinators.

On November 28, 1983, White River beardtongue (as Penstemon albifluvis ) was designated as a category 1 candidate under the Act (48 FR 53640). Category 1 candidate species were defined as “taxa for which the Service currently has on file substantial information on biological vulnerability and threat(s) to support the appropriateness of proposing to list the taxa as Endangered or Threatened species. . . . Development and publication of proposed rules on these taxa are anticipated, but because of the large number of such taxa, could take some years” (48 FR 53641, November 28, 1983). In the February 28, 1996, candidate notice of review (CNOR) (61 FR 7596), we abandoned the use of numerical category designations and changed the status of White River beardtongue to a candidate under the current definition. We maintained White River beardtongue as a candidate species in subsequent updated notices of review between 1996 and 2012, including the most recent CNOR published on November 21, 2012 (77 FR 69994).

On September 9, 2011, we reached an agreement with plaintiffs in Endangered Species Act Section 4 Deadline Litig., Misc. Action No. 10-377 (EGS), MDL Docket No. 2165 (D. DC), to systematically review and address the needs of all species listed in the 2010 CNOR, which included White River beardtongue.

White River beardtongue is an herbaceous perennial plant in the plantain family (Plantaginaceae). White River beardtongue is a shrubby plant with showy lavender flowers. It grows up to 50 cm (20 in) tall, with multiple clusters of upright stems. It has long, narrow, green leaves. Like other members of the beardtongue genus and like Graham's beardtongue, it has a strongly bilabiate (two-lipped) flower with a prominent infertile staminode (sterile male flower part), or “beardtongue.” Blooming occurs from May into early June, with seeds produced by late June (Lewinsohn 2005, p. 9).

White River beardtongue was first described as a new species, Penstemon albifluvis, in 1982 (England 1982, entire). In 1984, the taxon was described as variety P. scariosus var. albifluvis (Cronquist et al. 1984, p. 442). P. s. var. albifluvis has a shorter corolla and shorter anther hairs than typical P. scariosus. White River beardtongue is also unique from P. scariosus because it is endemic to low-elevation oil shale barrens near the White River along the Utah-Colorado border (see “Habitat” below for more information), while typical P. scariosus habitat occurs at higher elevations on the West Tavaputs and Wasatch Plateaus of central Utah (Cronquist et al. 1984, p. 442).

The historical range of White River beardtongue has not changed since the species was first described in 1982 (England 1982, pp. 367-368). White River beardtongue was first discovered along the north bank of the White River one mile upstream from the Ignacio Bridge (England 1982, pp. 367). The historical range was described as occurring from east central Uintah County, Utah, to Rio Blanco County, Colorado (England 1982, pp. 367).

White River beardtongue's current range extends from Raven Ridge west of Rangely in Rio Blanco County, Colorado, to the vicinity of Willow Creek in Uintah County, Utah. The bulk of the species' range occurs between Raven Ridge and Evacuation Creek in eastern Utah, a distance of about 30 km (20 miles) (Figure 2) (CNHP 2012, entire; UNHP 2012, entire). We acknowledge that herbarium collections from 1977 to 1998 (UNHP 2012, entire) indicate that the species' range might extend farther west to Willow Creek, Buck Canyon, and Kings Well Road. However, we have not revisited these herbarium collection locations to confirm the species' presence; it is possible that the herbarium collections represent individuals of the closely related and nearly indistinguishable Garrett's beardtongue ( Penstemon scariosus var. garettii ). Therefore, we consider these to be unverified locations and exclude these records from further analysis of threats (Figure 2).

We do not have complete surveys for White River beardtongue and thus do not know the total population for this species. The best total population estimate is approximately 11,423 individuals, excluding the unverified locations. It is quite likely that the total population is higher, and it may be as high as 25,000 plants (Service 2012; Franklin 1994), but we do not have survey data to confirm this higher population level. Therefore, we use the 11,423 population figure throughout our analysis in this proposed rule.

Utah Natural Heritage Program and Colorado Natural Heritage Program data include 20 populations of White River beardtongue in Utah and 1 population in Colorado (Figure 2; see our previous explanation of populations and EOs, or element occurrences, in the “Distribution” section for Graham's beardtongue, above). Based on updated survey information from the past few years, we conducted our own analysis in which we combined several of the existing EOs because of close proximity (see Species Information for Graham's beardtongue, above, for more information). Overall, we delineated seven populations in the main portion of White River beardtongue's range. Approximately 62 percent of the known population of White River beardtongue occurs on BLM land, with the remainder occurring on State and private lands (Table 2).

Table 2. Number of individuals of White River beardtongue by land owner.

Two sites of White River beardtongue were monitored from 2004 to 2012 (populations 1 and 6, see Figure 2), and one site was monitored from 2010 to 2012 (population 3, see Figure 2). At one site, plants declined over this time, and the other two sites increased slightly (McCaffery 2013, p. 8). White River beardtongue tended to flower each year regardless of new seedling recruitment, in contrast to Graham's beardtongue (McCaffery 2013, p. 9). Like Graham's beardtongue, White River beardtongue is vulnerable to stochastic events as well as increases in stressors or declining habitat conditions (McCaffery 2013, p. 9). Also like Graham's beardtongue, no link was found between reproduction and precipitation on a regional level (McCaffery 2013, p. 10), but this should be studied on a more local scale. In 2009, a significant recruitment event occurred in two of the study populations (Dodge and Yates 2010, pp. 11-12). Many of these seedlings died between 2009 and 2010, but the net result was an increase in population size by the end of the study (Dodge and Yates 2011, p. 6), and this pulse of recruitment had a strong influence on the estimate of population growth (McCaffery 2013, p. 10). Continued monitoring is necessary to determine how frequent recruitment occurs and how this influences the long-term trends of this species. In addition, like Graham's beardtongue, we need further studies to determine what factors are driving population dynamics of White River beardtongue.

White River beardtongue is restricted to calcareous (containing calcium carbonate) soils derived from oil shale barrens of the Green River Formation in the Uinta Basin of northeastern Utah and adjacent Colorado. It overlaps with Graham's beardtongue at sites in the eastern portion of Graham's beardtongue's range.

White River beardtongue is associated with the Mahogany ledge. The habitat of White River beardtongue is a series of knolls and slopes of raw oil shale derived from the Green River geologic formation (Franklin 1995, p. 5). These soils are often white or infrequently red, fine-textured, shallow, and usually mixed with fragmented shale. These very dry substrates occur in lower elevations of the Uinta Basin, between 1,500 and 2,040 m (5,000 and 6,700 ft). About one-fifth of all known point locations of White River beardtongue are on slopes of 10 degrees or less, with an average slope for all known points of 19.2 degrees (Service 2013, p. 3). The species grows at an average elevation of 1,847 m (6,060 ft), with a range in elevation from 1,523 to 2,044 m (4,998 to 6,706 ft) (Service 2013, p. 4). White River beardtongue individuals usually grow on southwest-facing exposures (Service 2013, p. 1).

Other species found growing with White River beardtongue include (but are not limited to) saline wildrye ( Leymus salinus ), mountain thistle ( Cirsium eatonii var. eriocephalum ), spiny greasebush ( Glossopetalon spinescens var. meionandra ), Utah juniper ( Juniperus osteosperma ), twoneedle piñon ( Pinus edulis ), and shadscale saltbush ( Atriplex confertifolia ) (UNHP 2013, entire), and many of the other oil shale endemics also found growing with Graham's beardtongue (Neese and Smith 1982, p. 58; Goodrich and Neese 1986, p. 283).

This species is probably long-lived due to the presence of a substantial and multi-branched woody stem (Lewinsohn 2005, p. 3), and individual plants living for 30 years are known to occur (Service 2012c, p. 3). Most plants begin to flower when the woody stem reaches 3 to 4 cm (1 to 1.5 in.) in height (Lewinsohn 2005, p. 4), usually in May and June.

The species is pollinated by a wasp, Pseudomasaris vespoides, and several native, solitary bee species in the genera Osmia, Ceratina, Anthophora, Lasioglossum, Dialictus, and Halictus (Sibul and Yates 2006, p. 14; Lewinsohn and Tepedino 2007, p. 235). We consider these pollinators to be medium in size as compared to the larger pollinators generally associated with Graham's beardtongue (see Background-Graham's beardtongue, “Biology”, above). White River beardtongue has a mixed mating system, meaning it can self-fertilize but produces more seed when it is cross-pollinated (Lewinsohn and Tepedino 2007, p. 234). Thus, pollinators are important to this species for maximum seed and fruit production.

Based on the medium size of White River beardtongue pollinators, we expect the pollinators are capable of travelling at least 500 meters (1,640 ft) and thus are likely to move pollen across this distance (Service 2012b, pp. 8, 13). Although White River beardtongue has low flower visitation rates by pollinators, there is no evidence that pollinators are limiting for this species (Lewinsohn and Tepedino 2007, p. 235). It is important to maintain the diversity of pollinators by maintaining vegetation diversity for White River beardtongue because it stabilizes the effects of fluctuations in pollinator populations (Lewinsohn and Tepedino 2007, p. 236).

We have very little information regarding the genetic diversity of White River beardtongue. This species, like Graham's beardtongue, is likely not as genetically diverse as other common, sympatric beardtongues (Arft 2002, p. 5).

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Stressors that fall under each of these factors are discussed below individually. We then summarize where each of these stressors or potential threats falls within the five factors.

We consider a species viable if it can persist over the long term, thus avoiding extinction. A species can be conserved (and is thus viable) if it has the three Rs: Representation, resiliency, and redundancy (Shaffer and Stein 2000). Representation, or preserving some of everything, means conserving not just a species but its associated plant communities, pollinators, and pollinator habitats. Resiliency and redundancy ensure there is enough of a species so that it can survive into the future. Resiliency means ensuring that the habitat is adequate for a species and its representative components. Redundancy ensures an adequate number of sites and individuals. This methodology has been widely accepted as a reasonable conservation methodology (Tear et al. 2005, p. 841).

We participated in expert workshops—including experts from The Nature Conservancy, Red Butte Garden, UNHP, CNHP, the Service, the BLM, and the Natural Resources Conservation Service—in 2008 and 2012, to evaluate the best available scientific information for Graham's and White River beardtongues (The Nature Conservancy 2008, entire; Service 2012c, entire). We used the information from these workshops to complete a species status assessment for both Graham's and White River beardtongues. We determined that both species need the following resources for viability:

• Suitable soils and geology

• Sufficient number of pollinators

• Intact associated and adjacent plant community (both within and outside of suitable or occupied habitat)

• Minimum reproductive effort or reproductive success

• Suitable microclimate conditions for germination and establishment

• Sufficient rain and temperatures suitable for breaking seed dormancy and successful reproduction (natural climate)

• Minimum habitat patch or population size

• Genetic diversity or heterozygosity

• Habitat connectivity and integrity

• Viable, long-lived seedbank

• Minimum number of individuals

• Minimum number of viable populations

The list is the same for both Graham's and White River beardtongues because they grow in similar habitat in the same geographic area, even overlapping in places. However, specifics for each resource can differ between the two species.

To determine the current and future status of Graham's and White River beardtongues, through our species status assessment we evaluated if these resource needs are currently met and how these resources are likely to change in the future. If the resources are not currently met or are predicted to be unmet in the future, we determined the cause of the resource insufficiency. The underlying stressor causing the resource insufficiency is then considered a threat to Graham's and White River beardtongues. We discuss these stressors in the following section.

Graham's and White River beardtongues are particularly vulnerable to the effects of energy development because their ranges overlap almost entirely with oil shale and tar sands development areas, as well as ongoing traditional oil and gas drilling.

Impacts from energy exploration and development include the removal of soil and vegetation when unpaved roads, well pads, evaporation ponds, disposal pits, and pipelines are constructed (BLM 2008a, pp. 448-449). Increased disturbance from these developments, coupled with climate change (see IX. Climate Change, below), will facilitate the invasion and spread of nonnative species such as cheatgrass ( Bromus tectorum ), halogeton ( Halogeton glomeratus ) and Russian thistle ( Salsola tragus ) (Brooks and Pyke 2001, entire; Grace et al. 2001, entire; Brooks 2003, p. 432; Friggens et al. 2012, entire), which can outcompete native plants and increase the risk of catastrophic wildfires (see VI. Wildfire and VII. Invasive Weeds, below).

Energy developments also result in increased road traffic and consequent increases in dust emissions; for every vehicle travelling one mile (1.6 km) of unpaved roadway once a day, every day for a year, approximately 2.5 tons of dust are deposited along a 305-m (1,000-ft) wide corridor centered on the road (Sanders 2008, p. 20). Excessive dust can clog plant pores, increase leaf temperature, alter photosynthesis, and affect gas and water exchange (Sharifi et al. 1997, p. 842; BLM 2012a; Ferguson et al. 1999, p. 2), negatively affecting plant growth and reproduction.

Roads may act as a barrier to bee movement by influencing bees to forage on only one side of the road (Bhattacharya et al. 2003, pp. 42-43) or within isolated habitat patches (Goverde et al. 2002, entire). Although bees and other pollinators are quite capable of crossing roads or other human-disturbed areas, the high site fidelity of bumblebees makes them more apt to remain on one side of a disturbed area (Bhattacharya et al. 2003, p. 42). The implication of this type of pollinator behavior for rare plants is that the probability for outcrossing is reduced (Cane 2001, entire), thereby reducing genetic variability and reproductive success.

Habitat loss or fragmentation from energy development can result in higher extinction probabilities for plants because remaining plant populations are confined to smaller patches of habitat that are isolated from neighboring populations (Jules 1998, p. 1; Soons 2003, p. 115). Habitat fragmentation and low population numbers pose a threat to rare plant species' genetic potential to adapt to changing environmental conditions (Mathies et al. 2004, pp. 484-486). Smaller and more isolated populations produce fewer seeds and pollen, and thus attract fewer and a lower diversity of pollinators (Paschke et al. 2003, p. 1,258; Lienert 2004, p. 62); for a more complete discussion, see section VIII. Small Population Size, below).

The Energy Policy Act of 2005 (42 U.S.C. 13201 et seq. ) establishes that oil shale, tar sands, and other strategic unconventional fuels should be developed to reduce the nation's dependence on imported oil. At 42 U.S.C. 15927(m)(1)(B), the Energy Policy Act identifies the Green River Region, including the entire range of Graham's and White River beardtongues, as a priority for oil shale and tar sand development. Provisions of the Energy Policy Act of 2005 provide economic incentives for oil shale development. For example, previous Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq. ) restrictions limited oil shale lease sizes to 2,072 hectares (ha) (5,120 acres (ac)), and restricted leasing opportunities to just one lease tract per individual or corporation. Lease size restrictions effectively limited development because of a lack of available acreage to accommodate necessary infrastructure and facilities. The Energy Policy Act of 2005 now allows an individual or corporation to acquire multiple lease tracts up to 20,234 ha (50,000 ac) in any one State, removing the restrictions of the Mineral Leasing Act of 1920 (Bartis et al. 2005, p. 48).

As we discussed in our January 19, 2006, proposed rule (71 FR 3158), Graham's beardtongue is closely associated with the richest oil shale-bearing strata in the Mahogany ledge, which makes the species highly vulnerable to extirpation from potential oil shale or tar sands mining (Shultz and Mutz 1979, p. 42; Neese and Smith 1982, p. 64; Service 2005, p. 5). This association is particularly true for the easternmost populations of Graham's beardtongue (populations 10-24, see Figure 1), where approximately 63 percent of all known Graham's beardtongue plants are directly associated with the Mahogany ledge where it outcrops or is less than 152 m (500 ft) below the surface (Service 2013, p. 5). White River beardtongue is also associated with the Mahogany ledge's oil shale-bearing strata. Approximately 69 percent of the known White River beardtongue plants are directly associated with the Mahogany ledge where it outcrops or is less than 152 m (500 ft) below the surface (Service 2013, p. 5). This shallow overburden (the soil and other material that lies over a geologic deposit) becomes important when evaluating the type of mining (e.g., surface or subsurface) that will be used to extract the oil shale resource. As discussed below, surface mining, in which all surface vegetation and soils are removed, is likely the preferred extraction method in these areas.

The feasibility of oil shale and tar sands development was uncertain when the original proposed listing rule was withdrawn in 2006 (71 FR 76024, December 19, 2006). Our January 19, 2006, proposed rule (71 FR 3158) concluded that Graham's beardtongue was at risk due to the increased potential of energy development, both traditional and oil shale and tar sands. Our December 19, 2006, withdrawal of the proposed rule (71 FR 76024) concluded that oil shale and tar sands development was likely to occur first in the Piceance Basin in Colorado or in other areas that do not overlap with the range of Graham's beardtongue, and to use underground mining technologies that reduce surface disturbance. We further concluded that development of oil shale and tar sands resources in Graham's beardtongue habitat was not likely to occur, if at all, until at least 20 years into the future, and was uncertain due to technological and economic uncertainty. But as discussed below, it is now highly likely that oil shale and tar sands mining will occur across the ranges of both of these species in the near future.

In 2012, the BLM issued an Oil Shale and Tar Sands (OSTS) Final Programmatic Environmental Impact Statement (PEIS) analyzing the impacts of designating public lands as available for commercial leasing for oil shale and tar sands development in Colorado, Utah, and Wyoming. The PEIS opens approximately 144,473 ha (357,000 ac) in Utah and 10,522 ha (26,000 ac) in Colorado for oil shale leasing, and approximately 52,609 ha (130,000 ac) in Utah for tar sands leasing (BLM 2012b, p. ES-10). Although leasing has not yet occurred, it is highly likely to happen in the near future.

In Utah, 40 and 56 percent, respectively, of Graham's and White River beardtongues' total populations overlap the designated oil shale and tar sands leasing areas on BLM lands (Service 2013, p. 6). Existing regulatory mechanisms only provide limited protection to the beardtongues on Federal lands (see X. Inadequacy of Existing Regulatory Mechanisms, below). We know of 18,678 Graham's beardtongue plants on BLM lands, and 12,831 of these (or 69 percent) overlap designated oil shale and tar sands leasing areas. Our data also show that of 7,054 White River beardtongue plants known to occur on BLM lands, 6,389 (or 91 percent) overlap with designated oil shale and tar sands leasing areas. Designated oil shale leasing areas in Colorado do not overlap any known populations for either Graham's beardtongue or White River beardtongue—in fact, designated oil shale areas in Colorado are at least 32 km (20 mi) away from the closest known populations (Service 2013, p. 7).

Oil shale and tar sands development on Federal lands is likely to indirectly impact Graham's and White River beardtongues by increasing habitat fragmentation, fugitive dust, and weed encroachment. A majority of all known Graham's beardtongue and White River beardtongue plants on BLM land occurs where the overburden over the richest oil-shale-bearing geologic stratum is shallow—either outcropping or less than 152 m (500 ft) subsurface (Service 2013, p. 5). Surface strip mining in these areas is likely to be the preferred extraction method (BLM 2012b, p. A-22), which would result in the complete loss of all surface vegetation. Although direct impacts to Graham's and White River beardtongues on Federal lands will be minimized because existing conservation measures protect plants by 91 m (300 ft), the existing conservation measures are inadequate to minimize impacts from the indirect effects listed above or to protect from accidental loss that may occur (see X. Inadequacy of Existing Regulatory Mechanisms, below). These indirect effects are likely to impact 40 and 56 percent of all known plants of Graham's and White River beardtongues, respectively. Neither species is likely to be able to sustain this amount of impact and still be able to persist into the future. Protection of Graham's and White River beardtongues will need to happen on a landscape level to be effective at protecting these species from indirect and cumulative impacts (see XI. Cumulative Effects from All Factors, below) of oil shale and tar sands development, and this type of protection is not currently afforded to either species.

Furthermore, about 41 percent and 38 percent, respectively, of Graham's and White River beardtongues occur on State and private lands where they are afforded no protection. Oil shale and tar sands development here is highly likely to directly remove all individuals of these two species, in particular where these species overlap with the oil-rich Mahogany layer. We estimate that most known Graham's and White River beardtongues on State and private lands occur where the Mahogany layer outcrops or is less than 152 m (500 ft) below the surface (or approximately 26 and 28 percent of the total known populations of Graham's and White River beardtongues, respectively), making these areas more likely to be surface mined. As a result, these areas are the most vulnerable to direct loss if oil shale and tar sands development expands across the region. The remainder of all known plants on State and private lands is likely to be impacted by increased disturbance from oil shale and tar sands development, but at worst may be lost as well. In addition, land ownership throughout the Uinta Basin is a checkerboard of private, State, and Federal ownership. Total losses of Graham's and White River beardtongues on private and State lands will have additional, indirect impacts through habitat fragmentation on those individuals occurring on Federal lands.

In the past, we concluded that oil shale and tar sands development was economically uncertain due to the highly volatile energy market (71 FR 76024, December 19, 2006). Indeed, oil shale and tar sands are more expensive to produce than conventional oil (BLM 2011, entire). In addition, the amount of water required to process these oil sources was considered a technological limitation (BLM 2011, entire). Despite these difficulties, three oil shale projects or explorations are planned on private, State, and BLM lands in Uintah County, Utah. The first project is proposed by Enefit American Oil, which is wholly owned by the Estonian government. In 2011, Enefit acquired all of the assets owned by Oil Shale Exploration Company (BLM 2012b, p. A-76). This includes an oil shale research, development, and demonstration (RD&D) lease property on BLM land in the Uinta Basin, Utah. Enefit's planned operations include completing the RD&D project and expanding operations to the surrounding lands that they privately own. Enefit expects to begin construction of an industrial development complex in 2017, with commercial production online by 2020 (Bernard and Hughes 2012, p. 18; Bernard 2013, p. A-11).

The Enefit project will develop oil shale operations on up to 10,117 ha (25,800 ac) of private and State property using surface and subsurface mining techniques (Enefit 2012, p. 6). Surface mining will occur where the oil shale formation is outcropped or covered by a minimal amount of overburden (Enefit 2012, p. 6), resulting in the removal of all soils and vegetation in the area. The project area overlaps 19 percent of all known Graham's beardtongue plants and 26 percent of all known White River beardtongue plants (Service 2013, p. 9). At worst, all of the Graham's and White River beardtongues plants growing in this project area will be lost. At best, the Enefit project will fragment habitat and reduce connectivity for both species. Populations 19 and 20 of Graham's beardtongue will be impacted, reducing gene flow between the Utah and Colorado populations of Graham's beardtongue. The Enefit project occurs in the heart of White River beardtongue's distribution, and all Utah populations (excluding the Colorado population, 7, see Figure 2) will become more highly fragmented with more isolated populations that are vulnerable to extinction.

A second project will be conducted by Red Leaf Resources on Utah School and Institutional Trust Lands Administration (SITLA) land, within population 13 (see Figure 1) and overlapping 627 known Graham's beardtongue plants (about 2 percent of all known plants). Oil shale will be surface mined at the site, removing all soils and vegetation in the area. This project was initially planned to begin in 2013 (Bernard and Hughes 2012, entire), but is postponed awaiting the results of preliminary water monitoring (Loomis 2012, entire; Baker 2013, entire). The third project is an application by Ambre Energy to drill oil shale test wells on BLM land in the Vernal Field Office area, planned to begin in 2013. The applicant for this project proposes to drill 6 test wells, 3 of which occur in known Graham's beardtongue habitat, although individual plants will be avoided by 91 m (300 ft). Neither of these projects overlaps with White River beardtongue.

Tar sands lease areas overlap 24 and 3 percent of the total known populations of Graham's and White River beardtongues, respectively. The impacts of tar sands mining will be similar to those from oil shale mining. However, we are aware of only one approved proposed tar sands project in the State of Utah (Loomis 2012, p. 1), and the project does not overlap with any known populations of Graham's beardtongue or White River beardtongue.

In summary, the total impact of the currently planned oil shale development projects alone (Enefit, Red Leaf) is substantial. The likely loss of up to 21 percent (19 percent from Enefit and 2 percent from Red Leaf) of Graham's beardtongue and 26 percent (all from the Enefit project) of White River beardtongue will decrease the viability of both species by reducing total numbers and increasing habitat fragmentation, which will lead to smaller and more isolated populations that are prone to extinction (see VIII. Small Population Size, below). Moreover, the initiation of these projects (including the drilling of test wells on BLM lands) and the recent BLM leasing decisions indicate the renewed interest in oil shale and tar sands mining and the increased likelihood of development across the ranges of these two species. As described above, we estimate that 26 and 28 percent of all known Graham's and White River beardtongues occur on non-federal lands where the Mahogany layer outcrops or is less than 152 m (500 ft) below the surface (the number of Graham's beardtongue on non-federal lands will increase by 1 percent within the next year through a land exchange; see X. Inadequacy of Existing Regulatory Mechanisms, below) and are vulnerable to total loss if oil shale and tar sands development proceeds, which appears likely.

On BLM lands, 40 and 56 percent of all known Graham's and White River beardtongues are located within potential oil shale and tar sands lease areas. Most also occur on Mahogany oil-shale ledge outcroppings or where the overburden is shallow, meaning that surface mining would be the preferable extraction methodology, with the resulting loss of all surface vegetation. By adding the number of plants likely to be impacted by oil shale and tar sands development across all landowners (Table 3), we estimate that as much as 82 and 94 percent of the total known populations of Graham's and White River beardtongues will be vulnerable to both direct loss and indirect negative impacts such as habitat fragmentation from oil shale and tar sands development. These levels of impact are likely to lead to severe declines in both species across their ranges.

Table 3. Total percent of populations likely to be impacted by oil shale and tar sands development.

Historically, impacts to both beardtongue species from traditional oil and gas development were largely avoided because development within the species' habitat was minimal. However, the previously described Energy Policy Act of 2005 enables leasing of oil and gas and tar sands separately, even when the two are found in the same area. Previously, the law required a combined tar sands/oil and gas lease, effectively delaying leasing and extraction of oil and gas in tar sand areas because of concerns about conflicts between tar sands and traditional oil and gas development. Overall, the Energy Policy Act of 2005 effectively opened the entire range of both species to leasing for oil and gas development and made that leasing more efficient and effective.

The impacts of traditional oil and gas development on Graham's and White River beardtongues are expected to be high (BLM 2008b, p. 457). Although a high level of development within these species' habitats is not yet realized, we expect it to increase in the future. Most of the ranges of Graham's and White River beardtongues are underlain with deposits of traditional hydrocarbon resources, primarily natural gas (Service 2013, p. 8). In the past two decades, oil and gas production in Uintah County, Utah, has increased substantially. For example, oil production in Uintah County increased about 60 percent from 2002 to 2012, and gas production increased about 25 percent over this same time period (Utah Division of Oil 2012, entire). Drilling activities in Uintah County continue to increase: The number of new wells drilled in Uintah County was 316 in 2009, and 631 in 2012 (Utah Division of Oil 2012, entire).

To quantify how much drilling has occurred within Graham's and White River beardtongues' habitat, we used the following methods to identify an analysis area for impacts to the species based upon the currently known plant locations and adjacent essential pollinator habitat. For Graham's beardtongue, we created an analysis area using known locations plus a distance of 700 m (2,297 ft) for pollinators. For White River beardtongue, we created an analysis area using known locations plus a distance of 500 m (1,640 ft) for pollinators. These distances (700 m and 500 m) were based on pollinator travel distance for important pollinators for each species (see Species Information, “Biology” for each plant, above). We then calculated the number of wells currently drilled within these areas.

Within the Graham's beardtongue analysis area, well drilling has occurred at a comparatively slow pace thus far: As of January 2013, 45 well pads were developed or approved within the analysis area for Graham's beardtongue, and 35 of these are in Utah (Service 2013, p. 8). We do not know actual surface disturbance associated with each well, so we estimate 5 acres of surface disturbance per well pad (based on assumptions made in the Vernal BLM Resource Management Plan (RMP) (BLM 2008b, p. 4-3)), including disturbance from associated roads and pipelines. Accordingly, we estimate that 103 ha (255 ac) of Graham's beardtongue habitat are disturbed from energy development, which is less than 1 percent of the total area included within the analysis area across the Graham's beardtongue's range.

Development within the White River beardtongue analysis area is similar; as of January 2013, 13 well pads were developed or approved in the White River beardtongue analysis area, 8 of which are in Utah (Service 2013, p. 8). Using the methods described above, less than 1 percent (26 ha (65 ac)) of the total area included within the White River beardtongue analysis area is likely disturbed by existing oil and gas activities.

Approximately 33 percent of the analysis areas for Graham's beardtongue and 20 percent for White River beardtongue, respectively, on State and Federal land are leased for traditional oil and gas development (Service 2013, p. 11). At the time of this analysis, one planned seismic exploration project overlaps with habitat for both beardtongue species. The initiation of this project indicates that traditional oil and gas development will very likely increase in the habitat of both of these species. Our estimate of impacts is likely an underestimate because we do not have information about how much private land is planned for development.

Although some oil and gas drilling to date has certainly impacted individuals of Graham's and White River beardtongues, development has not been at a high enough level to negatively impact the whole species. Additionally, neither Graham's beardtongue nor White River beardtongue currently appears to suffer from pollinator limitation (Lewinsohn and Tepedino 2007, entire; Dodge and Yates 2009, p. 12). Furthermore, populations monitored for 9 years are stable (Dodge and Yates 2011, entire). However, substantial numbers of Graham's and White River beardtongue individuals (and their habitat) occur in areas that are leased for oil and gas development (Table 4), and thus it is reasonable to conclude that the impacts of oil and gas activity will increase in the future as additional areas are developed.

Table 4. Graham's and White River beardtongue known plants (rangewide) within leased oil and gas areas on both BLM and State lands (Service 2013, p. 11). These were calculated based on oil and gas leases alone and may include overlap with oil shale and tar sands. Percentages may not add due to rounding.

Several new oil shale projects are planned for the future (by 2020) within Graham's and White River beardtongue habitat. For the two projects occurring on private or State lands (Enefit and Redleaf) for which we have enough information to estimate impacts, substantial impacts are likely to occur for both species: Approximately 21 and 26 percent of the total known populations of Graham's and White River beardtongues in the center of their ranges are vulnerable to direct loss and the effects of increased disturbance. These direct impacts will reduce the redundancy and representation of both species. Although the market for oil shale and tar sands may still be uncertain, the commencement of these projects indicates progress toward imminent future development of oil shale and tar sands resources within the range of these species.

On BLM lands, approximately 40 and 56 percent of all known Graham's and White River beardtongue plants fall within areas that are open for oil shale and tar sands leasing, although these areas have not yet been leased. Twenty-seven and 22 percent of all known Graham's and White River beardtongue plants, respectively, fall within areas that are leased by the BLM and the State of Utah for traditional oil and gas development. Many, but not all, of these lease areas overlap with each other so that combined, we estimate that 50 and 66 percent of Graham's beardtongue and White River beardtongue, respectively, are on BLM lands within areas that are either leased for oil and gas development or open to leasing for oil shale and tar sands (Table 5).

Table 5. Areas identified for energy development for Graham's beardtongue and White River beardtongue across all landowner types. Numbers are not additive because many of these areas overlap.

Even though individuals of these species on BLM lands will be mostly protected from direct loss through the 91-m (300-ft) setback conservation measure, a majority of both species will still be susceptible to the indirect effects of energy development (with an additional 1 percent of Graham's beardtongue likely to experience direct impacts when the land exchange is finalized; see X. Inadequacy of Existing Regulatory Mechanisms, below). In total, we estimate that 91 and 100 percent of Graham's and White River beardtongues are vulnerable to the impacts of all types of energy development across all landowners (Table 5). The indirect impacts from oil and gas development, such as habitat fragmentation and loss, are likely to reduce the resiliency of both species so that they cannot recover from most stressors. In conclusion, we consider energy exploration and development a future threat that will have a significant impact on both species.

Invertebrates, wildlife, and livestock all graze directly on individuals of Graham's and White River beardtongues (Sibul and Yates 2006, p. 9; Dodge and Yates 2010, p. 9; 2011, pp. 9, 12; UNHP 2012, entire). Grazers feed on all parts of the plant, including the seeds, damaging or destroying individual plants and effectively reducing their reproductive success.

It is likely that livestock are not the primary grazers of Graham's or White River beardtongues. High rates of herbivory on both beardtongue species was reported in every year of a 9-year monitoring study (Dodge and Yates 2011, pp. 7, 9). The impact of this herbivory was to reduce fruit and seed production (Dodge and Yates 2011, pp. 7, 9). The herbivory was attributed to rabbits, cattle, large mammals, deer, and invertebrates (Dodge and Yates 2011). In particular, tiger moth caterpillars (possibly Arctia caja utahensis, although this identification has not been positively confirmed) were noted on Graham's beardtongue plants at one site in 2009 and 2010 (Dodge and Yates 2011; Tepedino 2012). In these years, herbivory rates (measured by the number of plants browsed) were as high as 59 and 68 percent, respectively (Dodge and Yates 2011, p. 4). The grazing pressure fluctuates, however, as lower herbivory (28.6 percent) was noted in 2011, and plants at this site rebounded in size and reproduction to match other sites that experienced little to no grazing (Dodge and Yates 2011, p. 4).

The level of herbivory within all of the long-term monitoring plots for both beardtongue species fluctuated greatly over the course of the study. For Graham's beardtongue, across all monitoring sites and years, herbivory ranged from 4.7 to 84 percent; for White River beardtongue, herbivory ranged from 1.3 to 91 percent (Dodge and Yates 2011, entire). Herbivory appeared to decrease at times due to delayed plant development from the cool, wet springs of 2010 and 2011 (Dodge and Yates 2011, pp. 10-11). Despite high levels of herbivory, the populations were mostly stable over 9 years of monitoring (McCaffery 2013a, p. 4). Presumably, beardtongues would be adapted to herbivory by native grazers, which may explain why populations continue to remain stable despite high levels of herbivory.

Everywhere Graham's and White River beardtongues grow on BLM lands, they fall within a grazing allotment. This accounts for approximately 59 percent of all known Graham's beardtongue plants and 62 percent of all White River beardtongue plants. Most Graham's beardtongue plants occur within approximately 19 allotments with both sheep and cattle use. Seasons of use vary considerably, with most allotments grazed over the winter (from November or December to April), although some allotments are grazed in the spring and summer (BLM 2008c, pp. J1-4). Most White River beardtongue plants occur within six allotments: four sheep allotments with a season of use from October to May, one sheep allotment (Raven Ridge in Colorado) grazed from November to February, and one cattle allotment with season of use from April to June and October to February (BLM 2008c, pp. J1-4). Grazing in the spring and summer are more likely to directly impact beardtongue individuals than grazing in the winter. In addition, sheep are more likely to graze on forbs than cattle (Cutler 2011, entire); thus beardtongue individuals within sheep allotments are more likely to be grazed than those in cattle allotments. On the other hand, grazing pressure may have less of an impact on the beardtongues than it has in the past—in the past decade, BLM has reduced the number of grazing sheep by half on many of the allotments (Cutler 2011, entire). Grazing also likely occurs across other landowners, although we do not have data on these other lands.

Besides impacts from grazing, which we do not believe is negatively impacting Graham's or White River beardtongue at the species level, domestic livestock can impact rare and native plants by trampling them. As discussed in our 2006 proposed rule for Graham's beardtongue (71 FR 3158, January 19, 2006), trampling from domestic livestock may have localized effects on this species. We believe one population of Graham's beardtongue was eradicated by livestock trampling (Neese and Smith 1982, p. 66). Winter sheep grazing is the principal use across the range of White River beardtongue habitat, where sheep trailing (walking) likely results in damage or loss of plants (Franklin 1995, p. 6; UNHP 2012, entire). It is likely that some individuals of both beardtongue species, and particularly White River beardtongue as it tends to grow on slightly steeper slopes (see Species Information, “Habitat” for both beardtongues above), are afforded some protection from trampling by cattle where they grow on steep slopes, as cattle generally avoid steep slopes and primarily graze on gentle slopes. However, this would not prevent trampling by sheep, which are not deterred by steep slopes.

Livestock grazing can negatively impact native plants indirectly through habitat degradation or by influencing plant community composition. Across the Colorado Plateau, livestock trampling and trailing breaks and damages biological soil crusts (Belnap and Gillette 1997, entire); alters plant community composition (Cole et al. 1997, entire); spreads and encourages weed seed establishment (Davies and Sheley 2007, p. 179); increases dust emissions (Neff et al. 2008, entire); and compacts soils, affecting water infiltration, soil porosity, and root development (Castellano and Valone 2007, entire). Crusts are not known to be a major component of the soils that Graham's and White River beardtongues inhabit, but livestock likely have altered the physical features of the plants' habitats. Although we do not have data indicating how livestock grazing has indirectly impacted Graham's beardtongue or White River beardtongue habitat, the invasive species cheatgrass, purple mustard, halogeton, and prickly Russian thistle have been documented growing with both beardtongues (see VII. Invasive Weeds, below) (Fitts and Fitts 2009, p. 23; CNHP 2012, entire; Service 2012a, entire; UNHP 2012, entire). We assume that grazing has caused ecological changes, including nonnative weed invasion and other physical changes, within beardtongue habitats. We make this assumption because of landscape-level ecological changes—such as annual weed invasion, plant community changes, and loss of biological soil crusts—known to have occurred across the Colorado Plateau due to introduced grazers such as cattle, horses, and sheep (Mack and Thompson 1982, entire; Cole et al. 1997, entire). We do not know the extent and severity of these changes.

In summary, herbivory and trampling from grazing on some locations of Graham's and White River beardtongues appear to be severe during some years, and it is likely that similar impacts occur across the ranges of the species. The documented effects of herbivory and trampling on Graham's and White River beardtongues to date are limited to a reduction in reproductive output in some years at specific sites and the possible loss of a historical population, rather than widespread impacts on habitat or population-level impacts on the species. Despite high levels of herbivory, populations appear to be stable. At present, we find that both species have sufficient resiliency, redundancy, and representation to recover from existing grazing and trampling impacts. Thus, we do not consider grazing to be a threat to these species. This factor should continue to be monitored, as the cumulative effects of livestock grazing, particularly habitat alteration, coupled with other disturbances may have a more severe negative effect on beardtongue species (see section XI. Cumulative Effects from All Factors, below, for more details). In particular, changing climate patterns may change the effects associated with herbivory from native grazers (see IX. Climate Change, below).

In our 2006 proposed rule (71 FR 3158, January 19, 2006), we determined that unauthorized collection of Graham's beardtongue may occur, but we never explicitly stated whether we believed it posed a threat to the species. Indeed, Graham's beardtongue is a unique and charismatic species that is prized by collectors and, at least at one point in time, was available commercially online (71 FR 3158, January 19, 2006). We know of no recent attempts to collect this species without proper authorizations. We are not aware of any instances where White River beardtongue was collected without proper authorizations that ensure species conservation. Although unauthorized collection may destroy some individuals, it is not likely to extirpate entire populations or lead to species-level impacts. Therefore, we do not consider unauthorized collection a threat to either beardtongue species.

The use of off-highway or off-road vehicles (OHVs) may result in direct loss or damage to plants and their habitat through soil compaction, increased erosion, invasion of noxious weeds, and disturbance to pollinators and their habitat (Eckert et al. 1979, entire; Lovich and Bainbridge 1999, p. 316; Ouren et al. 2007, entire; BLM 2008b, pp. 4-94; Wilson et al. 2009, p. 1). To date, little OHV use has occurred within the ranges of Graham's beardtongue and White River beardtongue. For example, unauthorized OHV use was observed at four locations within White River beardtongue occupied habitat 10 to 20 years ago (UNHP 2012, entire). Federal and industry personnel were increasingly using OHVs in oil and gas field surveys and site location developments prior to 2008. However, since 2008, the revised Vernal Field Office Resource Management Plan (RMP) limits all vehicles to designated routes (BLM 2008c, p. 46). This protective measure provides conservation benefits within the habitat of Graham's and White River beardtongues. Given the low levels of documented unauthorized OHV use and the protections provided by the BLM Vernal RMP, we do not consider OHV use a threat to either beardtongue species.

Roads that cross through rare plant habitat can destroy habitat and populations, increase road dust, and disturb pollinators (Trombulak and Frissell 2000, entire). We consider this issue separately from roads created for oil and gas development, discussed above (see I. Energy Exploration and Development, above), although the effects are the same.

Many unpaved county roads cross through Graham's and White River beardtongue habitat, and most of these roads have existed for decades. Plants located near unpaved roads are prone to the effects of dust, fragmentation, and pollinator disturbance (see I. Energy Exploration and Development, above, for a thorough discussion of road effects). Conflicts can also arise from new paved roads or road upgrades, as described below.

In 2012, Seep Ridge Road, a formerly unpaved county road crossing through occupied Graham's beardtongue habitat, was re-aligned and paved. At least 322 individuals were within 300 feet of the proposed right-of-way. This project resulted in direct impacts to at least 31 Graham's beardtongue individuals that were transplanted out of the widened road right-of-way. The transplants will be revisited in 2013, but we do not expect any of them to have survived due to the drought conditions during the transplant (Dodge 2013, entire). The paving of Seep Ridge Road reduces the impacts of fugitive dust on the population of Graham's beardtongue bisected by the road. However, the widened road corridor directly decreased the number of plants on the east side of the road and may impede pollinator movement, leading to this population of Graham's beardtongue becoming more isolated. This patch may be more susceptible to extinction, although further study of this population and its genetic diversity should be undertaken.

Two of the long-term monitoring plots for Graham's and White River beardtongues are immediately adjacent to unpaved roads, and these populations were stable over the 9 years of the study (Dodge and Yates 2011, pp. 9, 12; McCaffery 2013a, p. 4). However, one monitoring plot of White River beardtongue produces fewer flowers and fruits than other sites of White River beardtongue, potentially because of increased disturbance due to the nearby road (Dodge and Yates 2011, p. 12).

In summary, road maintenance and construction can destroy habitat and fragment populations, but this impact is site-specific and does not occur across the entire range of the species. Besides the Seep Ridge Road project, these types of projects occur infrequently, and we are not aware of other road construction or maintenance projects that have occurred, or are proposed to occur, in areas where they would impact Graham's beardtongue or White River beardtongue. Therefore, we do not consider road maintenance and construction to be a threat to either beardtongue species.

In 2012, the Wolf Den Fire, believed to be started by dry lightning, burned 8,112 ha (20,046 ac) in Uintah County, including 394 ha (974 ac), approximately 1.5 percent, of the area within 700 m (2,297 ft) of known points of Graham's beardtongue and approximately 563 known plants (1.8 percent of the total known number of plants). No individuals of White River beardtongue were affected by this fire. Fires do not occur frequently in Graham's beardtongue or White River beardtongue habitat, but fire frequency and intensity is likely to increase with increased invasive weeds and climate change (see sections VII. Invasive Weeds, IX. Climate Change, and XI. Cumulative Effects from All Factors, below, for more information). At present, we do not expect wildfires at a large enough scale to pose a threat to either species. In addition, we do not yet know how these species respond to fire. It is likely that with patchy, low-intensity burns they would be able to re-sprout from their roots, which we have documented in the field for Graham's beardtongue (Brunson 2012, entire). We do not consider wildfire alone a threat to either species.

We noted the presence of the invasive, nonnative weeds cheatgrass and halogeton in Graham's beardtongue habitat in our 2006 proposed rule (71 FR 3158, January 19, 2006). Prickly Russian thistle and purple mustard also occur in Graham's and White River beardtongue habitat (Service 2012c, entire). The weeds have not been noted as highly prevalent in the barren oil shale soils where the beardtongue species grow, although this has never been directly studied. However, these invasive weeds are numerous in the habitat and plant communities immediately adjacent to beardtongue species habitat, most notably along disturbances (for example, roads and well pads) (Service 2012c, entire).

The spread of nonnative, invasive species is considered the second largest threat to imperiled plants in the United States (Wilcove et al. 1998, p. 2). Invasive plants—specifically exotic annuals—negatively affect native vegetation, including rare plants. One of the most substantial effects is the change in vegetation fuel properties that, in turn, alters fire frequency, intensity, extent, type, and seasonality (Menakis et al. 2003, p. 282; Brooks et al. 2004, entire; McKenzie et al. 2004, entire). Shortened fire return intervals make it difficult for native plants to reestablish or compete with invasive plants (D'Antonio and Vitousek 1992, pp. 68-77). Invasive weeds can exclude native plants and alter pollinator behaviors (D'Antonio and Vitousek 1992, pp. 68-77; DiTomaso 2000, p. 257; Mooney and Cleland 2001, pp. 74-75; Traveset and Richardson 2006, pp. 211-213). For example, cheatgrass outcompetes native species for soil, nutrients, and water (Melgoza et al. 1990, pp. 9-10; Aguirre and Johnson 1991, pp. 352-353).

Cheatgrass is a particularly problematic nonnative, invasive annual grass in the Intermountain West and, as discussed above, has been documented in Graham's and White River beardtongue habitat. If already present in the vegetative community, cheatgrass increases in abundance after a wildfire, increasing the chance for more frequent fires (D'Antonio and Vitousek 1992, pp. 74-75). In addition, cheatgrass invades areas in response to surface disturbances (Hobbs 1989, pp. 389-398; Rejmanek 1989, pp. 381-383; Hobbs and Huenneke 1992, pp. 324-330; Evans et al. 2001, p. 1,308). Cheatgrass is likely to increase due to climate change because invasive annuals increase biomass and seed production at elevated levels of carbon dioxide (Mayeaux et al. 1994, p. 98; Smith et al. 2000, pp. 80-81; Ziska et al. 2005, p. 1,328).

We have limited information on how much invasive weeds have impacted Graham's and White River beardtongues across their ranges, although it is likely that this is a factor that will increase in the future due to increased disturbance from oil and gas development, grazing (see II. Grazing and Trampling, above), and climate change. We do not currently consider invasive weeds alone to be a threat to either beardtongue species. However, with the amount of energy development that is likely to occur across the ranges of both species in the future (see I. Energy Exploration and Development, above), and given the likelihood that invasive species will increase with climate change (see XI. Cumulative Effects from All Factors, below), we conclude that invasive weeds are a future threat to these species.

We lack complete information on the population genetics of Graham's and White River beardtongues. Preliminary genetic analysis shows that both beardtongues have less diversity than more common beardtongue species that have overlapping ranges (Arft unpublished report 2002). As previously described (see Background, “Biology” for both plants, above), both species have mixed mating systems and are thus capable of producing seed through self-fertilization or cross-pollination. However, the highest number of seeds and fruits are produced when flowers are cross-pollinated (Lewinsohn and Tepedino 2007, pp. 233-234). Increased disturbance and habitat fragmentation resulting in smaller population sizes could negatively impact both species because there would be fewer plants available for cross-pollination.

Small populations and species with limited distributions are vulnerable to relatively minor environmental disturbances (Given 1994, pp. 66-67). Small populations also are at an increased risk of extinction due to the potential for inbreeding depression, loss of genetic diversity, and lower sexual reproduction rates (Ellstrand and Elam 1993, entire; Wilcock and Neiland 2002, p. 275). Lower genetic diversity may, in turn, lead to even smaller populations by decreasing the species' ability to adapt, thereby increasing the probability of population extinction (S.C.H. and Kohn 1991, pp. 4, 28; Newman and Pilson 1997, p. 360).

Populations of either species with fewer than 150 individuals are more prone to extinction from stochastic events (McCaffery 2013b, p. 1). Overall, it appears that Graham's beardtongue has many small populations scattered across its range, although the largest population (population 19, which will be impacted should the Enefit project continue as planned) contains more than 10,000 plants. Of the 24 populations of Graham's beardtongue, approximately 15 contain fewer than 150 known plants. That means more than half the known populations are more prone to extinction from stochastic events due to small population size. However, these populations account for 1 percent of the total known number of plants of Graham's beardtongue. Additionally, the numbers in our files do not necessarily represent complete population counts; some populations likely contain more plants and some fewer. On the other hand, its scattered distribution may contribute to Graham's beardtongue's overall viability and potential resilience. For example, small-scale stochastic events, such as the erosion of a hillside during a flood event, will likely impact only a single population or a portion of that population. Even larger, landscape-level events such as wildfires are not likely to impact the species as a whole (see section VI. Wildfire, above). We do not find that small population size is currently a species-level concern for Graham's beardtongue, although this is likely to change after oil shale development occurs (see XI. Cumulative Effects from All Factors, below).

White River beardtongue has only seven populations, and two of these have fewer than 150 individual plants. These two smaller populations account for less than 1 percent of the total species' population. As with Graham's beardtongue, these counts are based on incomplete surveys and are not necessarily representative of actual conditions on the ground. In addition, large areas of suitable habitat remain unsurveyed, so this species may be more widely distributed and populations are likely to have different numbers of plants than presented here. However, this species' range is much smaller than that of Graham's beardtongue, and thus we conclude that White River beardtongue may be more prone to extinction from landscape-level events.

In the absence of information identifying threats to the species and linking those threats to the rarity of the species, we do not consider small population size alone to be a threat. A species that has always been rare, yet continues to survive, could be well equipped to continue to exist into the future. This may be particularly true for Graham's and White River beardtongues. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist, despite their small population sizes. Consequently, the fact that a species is rare does not necessarily indicate that it may be in danger of extinction in the future.

Based on Graham's and White River beardtongues' current population numbers and preliminary demographic analyses showing populations are, for the most part, stable, we conclude that small population size is not currently a threat to these species. However, this may change in the future as energy development in these species' habitat increases and the populations become smaller and more fragmented (see section XI. Cumulative Effects from All Factors, below).

Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

Climate change is potentially impacting Graham's and White River beardtongues now, and could continue to impact these species into the future. Over the last 50 years, average temperatures have increased in the Northern Hemisphere and extreme weather events have changed in frequency or intensity, including fewer cold days and nights, fewer frosts, more heat waves, and more hot days and nights (IPCC 2007, p. 30). In the southwestern United States, average temperatures increased approximately 1.5 degrees Fahrenheit (°F) compared to a 1960 to 1979 baseline (Karl 2009, p. 129). Climate modeling is not currently to the level of detail at which we can predict the amount of temperature and precipitation change precisely within the limited ranges of these two beardtongue species. Therefore, we generally address what could happen under current climate projections based upon what we know about the biology of these two species.

Climate changes will continue as hot extremes, heat waves, and heavy precipitation will increase in frequency, with the Southwest experiencing the greatest temperature increase in the continental United States (Karl 2009, p. 129). Annual mean precipitation levels are expected to decrease in western North America and especially the southwestern States by mid-century (IPCC 2007, p. 8; Seager et al. 2007, p. 1,181), with a predicted 10- to 30-percent decrease in precipitation in mid-latitude western North America by the year 2050 (Milly et al. 2005, p. 1). These changes are likely to increase drought in the areas where Graham's and White River beardtongues grow.

We do not have a clear understanding of how Graham's and White River beardtongues respond to precipitation, although generally plant numbers decrease during drought years and recover in subsequent seasons that are less dry. Graham's beardtongue may not respond as quickly as White River beardtongue to increased winter and spring moisture immediately preceding the growing season (Lewinsohn and Tepedino 2007, pp. 12-13). In addition, Graham's beardtongue flowering is sporadic and may be responding to environmental factors that we have not been able to measure in the field, such as precipitation. Graham's beardtongue may need more than one year of normal precipitation to recover from prolonged drought (Lewinsohn 2005, p. 13), although this hypothesis has not been tested. Conversely, current analyses indicate that there is no association between regional precipitation patterns and population demographics (McCaffery 2013a, p. 4), although regional weather stations used in the analysis are not likely to pick up site-specific precipitation that is more likely to influence these species' vital rates.

That these beardtongues are adapted to living on such hot and dry patches of soils (even more so than other native species in the same area) may mean they are better adapted to withstand stochastic events such as drought. However, increased intensity and frequency of droughts may offer Graham's and White River beardtongues populations fewer chances to recover and may lead to a decline in both species. Some estimate that approximately 20 to 30 percent of plant and animal species are at increased risk of extinction if increases in global average temperature exceed 2.7 to 4.5 °F (1.5 to 2.5 °C) (IPCC 2007, p. 48). By the end of this century, temperatures are expected to exceed this range by warming a total of 4 to 10 °F (2 to 5 °C) in the Southwest (Karl 2009, p. 129).

Accelerating rates of climate change of the past 2 or 3 decades indicate that the extension of species' geographic range boundaries toward the poles or to higher elevations by progressive establishment of new local populations will become increasingly apparent in the relatively short term (Hughes 2005, p. 60). The limited range of oil shale substrate that Graham's and White River beardtongues inhabit could limit the ability of these species to adapt to changes in climactic conditions by progressive establishment of new populations. However, some experts believe that it may be possible for these species to move to other aspects within their habitat in order to adapt to a changing climate (Service 2012c, entire). For example, Graham's beardtongue is typically observed on west or southwest-facing slopes (see Species Information, “Habitat” for Graham's beardtongue, above). White River beardtongue exhibits a similar characteristic, although this species is more evenly distributed on different slope aspects (see Species Information, “Habitat” for White River beardtongue, above). It may be possible for these species to gradually move to cooler and wetter slope aspects (for example, north-facing hillsides) within oil shale soils in response to a hotter drier climate (Service 2012c, entire), but only if these types of habitat are within reasonable seed-dispersal distances and only if these habitats remain intact with increasing oil and gas development.

In summary, climate change is affecting and will affect temperature and precipitation events in the future. We expect that Graham's and White River beardtongues, like other narrow endemics, may be negatively affected by climate change-related drought. Current data are not reliable enough at the local level for us to draw conclusions regarding the impacts of climate change threats to Graham's and White River beardtongues . It is likely that the impacts of climate change will be more severe if oil and gas development destroy and fragment the habitat both species will need for refuge from an increasingly dry, hot climate, thus decreasing both species' resiliency, redundancy, and representation (see XI. Cumulative Effects from All Factors, below).

Within Colorado, the Raven Ridge Area of Critical Environmental Concern (ACEC) was established, in part, to protect listed and candidate species, including Graham's and White River beardtongues (BLM 1986, p. 2, BLM 1997, p. 2-17). The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701 et seq. ) directs BLM, as part of the land use planning process, to give priority to the designation and protection of ACECs. FLPMA defines ACECs as “areas within the public lands where special management attention is required . . . to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards” (Sec. 103(a)). Designation as an ACEC recognizes an area as possessing relevant and important values that would be at risk without special management attention (BLM 2008b, p. 4-426).

Following an evaluation of the relevance and importance of the values found in potential ACECs, the BLM determines whether special management is required to protect those values and, if so, to specify what management prescriptions would provide that special management (BLM 2008b, p. 4-426—4-436). To protect listed and candidate species including the beardtongues, the Raven Ridge ACEC restricts motorized travel to existing roads and trails and includes a no surface occupancy (NSO) stipulation for new oil and gas leases within the ACEC (BLM 1997, p. 2-19, 2-44). The NSO designation prohibits long-term use or occupancy of the land surface for fluid mineral exploration or development to protect special resource values (BLM 2008c, p. 38). However, NSO stipulations do not apply to valid existing rights (BLM 1997, pp. 2-31), which account for 14 and 11 percent of the total known populations for Graham's and White River beardtongues, respectively. For example, an area that was leased for mineral development before the ACEC was established would not be subject to the NSO stipulation and could potentially develop well pads and associated infrastructure within an ACEC.

Eighty-seven percent (33 of 38) of all known Graham's beardtongue plants in Colorado occur within the Raven Ridge ACEC. About 2 percent (28 of 1,187) of the known White River beardtongue plants in Colorado also occur within the Raven Ridge ACEC. We expect the NSO stipulation will continue to provide sufficient protection to the plants in the ACEC. Twenty-one percent of the Raven Ridge ACEC is currently leased, and the NSO stipulations are in effect for this entire area. An additional 30 percent of the Raven Ridge ACEC was proposed for leasing in 2013, but the lease sale is now deferred for further analysis (BLM 2013, entire). To date, no wells have been drilled or approved within the Raven Ridge ACEC (Service 2013, p. 12). There are no ACECs established for either Graham's beardtongue or White River beardtongue in Utah.

Both species are listed as BLM sensitive plants in Colorado and Utah, which affords them limited policy-level protection through the Special Status Species Management Policy Manual #6840, which forms the basis for special status species management on BLM lands (BLM 2008a, entire). The BLM currently gives candidate species the same protection as listed species, and for both beardtongue species, conservation measures incorporated by the Vernal Field Office include a 91-m (300-ft) setback from surface-disturbing activities (BLM 2008c, p. L-16).

If these species were not candidates or listed under the Act, Graham's and White River beardtongues would likely remain BLM-sensitive plant species. The BLM currently requires 46 m (150 ft) between surface disturbance and BLM-sensitive plant species (Roe 2011, pers. comm.). If kept in place, these conservation measures will provide some level of protection to these species. However, we do not consider this distance sufficient to effectively prevent negative impacts associated with surface-disturbing activities or to protect unoccupied habitat to serve as a refuge for either species with climate change (see, I. Energy Exploration and Development for a discussion of fugitive dust travel distances). Additionally, the 46-m (150-ft) buffer for sensitive plant species is not official policy for the Vernal Field Office and could potentially change with new management or under specific project scenarios.

In 2007, a voluntary 5-year conservation agreement for Graham's beardtongue was signed by the Service, the BLM, and the Utah Department of Natural Resources (DNR). The agreement intended to create a program of conservation measures to address potential threats to Graham's beardtongue at the Federal, State, and local levels. The agreement includes the following conservation measures:

• Identify all occupied habitat of Graham's beardtongue.

• Census all occurrences of the species.

• Identify at least six permanent population monitoring sites throughout the species' range and conduct population monitoring studies for Graham's beardtongue in each of those sites.

• Maintain Federal ownership of all occupied habitat.

• Avoid or minimize impacts to the species and its habitat from permitted surface disturbances, subject to valid existing lease rights and other valid existing rights.

Since the conservation agreement was signed, the BLM has funded surveys for both species, adding 4,000 new Graham's beardtongue points and 400 new White River beardtongue points to our files. In addition, a monitoring program on several populations of both species was initiated in 2004, and was funded partially with BLM money, through 2012.

However, BLM will not be able to retain Federal ownership of all occupied habitat, as recommended in the conservation agreement. The Utah Recreational Land Exchange Act of 2009 (Public Law 111-53, signed August 19, 2009) directed the exchange of lands within Grand, San Juan, and Uintah Counties, Utah, between the BLM and SITLA. The Act directs the Secretary of the Interior to convey to the State of Utah all rights, title, and interests to the Federal lands identified on the associated Grand County and Uintah County maps. Several of the parcels that will be transferred to SITLA include 346 known individual Graham's beardtongue plants within populations 13 and 16. We expect that more plants occur in these parcels than have been counted to date, so actual losses are likely to be higher. SITLA has not expressed an interest in protecting Graham's beardtongue on lands they manage (see discussion under “State” below) so any Graham's beardtongue individuals on parcels transferred to the State will be unprotected from energy development. These new SITLA lands occur in areas of high potential energy development (see I. Energy Exploration and Development, above). Although the land exchange is not yet final, we expect it to move forward as planned.

FLPMA requires the BLM to develop and revise land-use plans when appropriate (43 U.S.C. 1712(a)). The BLM developed a new resource management plan (RMP) for the Vernal Field Office to consolidate existing land-use plans and balance use and protection of resources (BLM 2008c, pp. 1-2). Through the Vernal Field Office RMP, the BLM commits to conserve and recover all special status species, including candidate species (BLM 2008c, p. 129). However, the RMP special status species goals and objectives do not legally ensure that all Federal actions avoid impacts to Graham's beardtongue or White River beardtongue. Conservation measures implemented by the BLM have not fully prevented impacts (for example, well pad development or road maintenance and construction in occupied habitat as discussed previously in I. Energy Exploration and Development, and V. Road Maintenance and Construction) to Graham's beardtongue or White River beardtongue. Therefore, we conclude that increased energy development in Graham's and White River beardtongue habitat will increase the direct loss of habitat and decrease the long-term ability to implement more effective conservation measures (see I. Energy Exploration and Development, above).

During oil and gas development activities that have occurred to date, the BLM minimized some impacts to Graham's beardtongue and its habitat through incorporation of conservation measures through section 7 consultation under the Act. Under the Act, Federal agencies are required to conference on species that are proposed for listing, including Graham's beardtongue, if their actions are likely to jeopardize the species. In practice, the BLM has conferenced on Graham's beardtongue for any proposed projects within its habitat. Conservation measures include moving well pad and pipeline locations to avoid direct impacts to the species. These measures minimize direct impacts to the species, particularly at the current low rates of development that have occurred in the habitat.

At current minimal levels of energy development (at the time of this analysis, 45 wells in Graham's beardtongue analysis area and 13 wells in White River beardtongue analysis area), we conclude that existing conservation measures, such as a 91-m (300-ft) setback are sufficient to protect these species. However, additional energy development is very likely to occur across the ranges of these two species at a high level. Existing conservation measures are not sufficient to protect these species from the increased indirect effects, such as habitat fragmentation and pollinator disturbance, that will result from more energy development.

No State laws or regulations protect rare plant species in either Utah or Colorado. Approximately 15 and 11 percent of all known plants of Graham's and White River beardtongues, respectively, occur on State land. After the land exchange, about 16 percent of all known Graham's beardtongue plants will be located on State lands.

The 2007 Graham's beardtongue conservation agreement was signed by the Utah DNR, the Service, and the BLM (see the section above, “Federal,” for a more thorough description of the conservation agreement). However, the agreement was not signed by local-level officials with Uintah County, or by SITLA, which manages most of the State lands where Graham's beardtongue is found. To date, SITLA has not required project proponents to protect Graham's beardtongue, White River beardtongue, or other rare or listed plant species on SITLA-managed lands in the Uinta Basin where oil and gas development (traditional or oil shale and tar sands) exists.

As stated above, approximately 26 and 27 percent of all known plants of Graham's and White River beardtongues, respectively, occur on private lands. We are not aware of any city or county ordinances or zoning that provide for protection or conservation of Graham's and White River beardtongues and their habitats.

In summary, we find that existing conservation measures instituted by the BLM do not sufficiently address the identified threats to Graham's and White River beardtongues. Both species are afforded some protection on BLM lands as candidate and proposed species; however, the minimal protection provided to date would be reduced if we find that Graham's and White River beardtongues do not meet the definition of an endangered or threatened species. For example, if both species were removed from the candidate species list, the BLM would likely reduce the 91-m (300-ft) distance between disturbance and known plant locations to 46 m (150 feet), which we do not believe would sufficiently protect the plants or their pollinators. Additionally, as a species without listing status, the BLM would not conference with the Service on projects impacting Graham's beardtongue or White River beardtongue. At current low levels of energy development, a 91-m (300-ft) setback is sufficient to protect these species from negative impacts, but at full field development (one wellpad every 40 acres) or complete removal of vegetation and top soil (as would occur with oil shale or tar sands development), a 91-m (300-ft) setback distance is not sufficient to protect against landscape-level habitat fragmentation, loss of pollinator habitat and population connectivity, increased dust, and invasive weeds.

There are no existing regulations at the State or local levels to protect either species from the identified threat of energy development. Neither Graham's nor White River beardtongues has regulatory protection for approximately 41 and 38 percent, respectively, of the total number of known plants, where they occur on State or private lands. As such, the plants will receive no regulatory protection from the future threat of energy development (and this will increase by 1 percent for Graham's beardtongue after the land exchange takes place) on State or private lands.

Because of these issues, existing regulatory mechanisms are inadequate to protect the species from the threats we anticipate in the future, specifically energy development.

The stressors discussed above pertain to the 5 listing factors described in the Act:

A. The present or threatened destruction, modification, or curtailment of habitat or range (energy exploration and development, off-highway vehicle use, grazing, road maintenance and construction, wildfire, invasive weeds);

B. Overutilization for commercial, recreational, scientific, or educational purposes (unauthorized collection);

C. Disease or predation (grazing and trampling);

D. The inadequacy of existing regulatory mechanisms; and

E. Other natural or manmade factors affecting the species' continued existence (climate change, small population size).

The combination of many of the factors described above is likely to increase the vulnerability of these species.

We conclude that the future development of oil shale (and to a lesser extent, tar sands) alone is a threat to both Graham's and White River beardtongues. The impacts of this development include a reduction in population numbers, increased fragmentation, and habitat loss, impacting as much as 82 and 94 percent of the total known populations of Graham's and White River beardtongues, respectively. If we include potential impacts from traditional oil and gas development, then 91 and 100 percent of Graham's and White River beardtongues, respectively, will be impacted by all types of energy development.

Both species will experience a reduction in total population sizes, and may lose entire populations from oil shale development. Smaller populations, as discussed above (see VIII. Small Population Size) are more prone to extinction, and these smaller populations will also experience more severe effects of other factors. For example, incremental increases in habitat alteration and fragmentation from increased energy development (including oil shale, tar sands, and traditional oil and gas) will increase weed invasion and fugitive dust, as well as increase the severity of impacts from other factors such as grazing, as grazers become more concentrated into undisturbed areas, and road maintenance, as more roads are constructed.

Climate change is likely to augment the ability of invasive, nonnative species to out-compete native plant species and also reduce the ability of native plant species to recover in response to perturbations. Climate change may also change the effects of grazing events from native grazers to the extent that reproduction of either beardtongue species is hindered so that populations are no longer resilient. This underscores the need to protect not only the associated plant communities within Graham's and White River beardtongue habitat, but those immediately adjacent to beardtongue habitat (Service 2012c, entire).

Without cohesive, landscape-level regulatory mechanisms in place to protect Graham's and White River beardtongues from development on public lands, as development increases, habitat fragmentation and negative effects associated with it are likely to increase, despite site-specific conservation measures to protect these species. In conclusion, we find that energy development alone, especially oil shale and tar sands development, is a threat to these species. Additionally, the synergistic effects of increased energy development, livestock grazing, invasive weeds, small population sizes, and climate change are threats to these species.

Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(b)(1)(a), the Secretary is to make endangered or threatened determinations required by section 4(a)(1) solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the species and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is endangered or threatened are provided in section 3 of the Act. An endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” A threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Per section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definition of endangered or threatened, we determine whether any species is an endangered species or a threatened species because of any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.

After a review of the best available scientific information as it relates to the status of the species and the five listing factors described above, we have determined that Graham's and White River beardtongues meet the definition of threatened species (i.e., are likely to become endangered throughout all or a significant portion of their ranges within the foreseeable future).

Graham's and White River beardtongues are currently stable species with relatively restricted ranges limited to a specific soil type. The existing numbers of individuals and populations are sufficient for these species to remain viable into the future. Population viability analyses show that monitored populations of both species are, for the most part, currently stable. However, we conclude that habitat loss and fragmentation from energy development, particularly oil shale and tar sands, are a future threat to Graham's and White River beardtongues (Factor A). Oil shale and tar sands overlap most of the known habitat of these species. As oil shale and tar sands projects proceed across the ranges of both species, up to 82 and 94 percent of the total known populations of Graham's and White River beardtongues could be impacted. Two proposed oil shale projects on State and private lands are likely to result in the direct loss of 21 and 26 percent of the total known populations of Graham's and White River beardtongues, and this development is likely to begin within the next few years. These projects will increase habitat fragmentation and isolate populations of both species. The combined impacts of traditional oil and gas and oil shale and tar sands development is likely to be high because approximately 91 and 100 percent of the total known populations for Graham's and White River beardtongues, respectively, overlap with all planned or potential energy development. In addition, there are no existing regulatory mechanisms that protect these species on State or private lands (Factor D), and the existing conservation measures on public lands will not afford sufficient protection from the indirect impacts of energy development. Cumulative impacts, such as increased development resulting in smaller, more fragmented populations that are more prone to extinction and increased invasion by nonnative weeds, are likely to be exacerbated by climate change (Factor E). As a result of these future threats, the viability of these species is likely to be severely diminished.

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We have carefully assessed the best scientific and commercial information available regarding the present and future threats to these species, and have determined that Graham's and White River beardtongues meet the definition of threatened species under the Act. Substantial threats are not currently occurring. However, threats are likely to occur in the future, within the next 20 years, at a high intensity and across both species' entire ranges. Because these threats place these species in danger of extinction at some point in the future and they are not in immediate danger of extinction, we find these species meet the definition of threatened species, not endangered species. Therefore, on the basis of the best available scientific and commercial information, we propose listing Graham's and White River beardtongues as threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

In determining whether a species is threatened or endangered in a significant portion of its range, we first identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be both (1) significant and (2) threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be significant, and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that are not significant, such portions will not warrant further consideration.

If we identify portions that warrant further consideration, we then determine whether the species is threatened or endangered in these portions of its range. Depending on the biology of the species, its range, and the threats it faces, the Service may address either the significance question or the status question first. Thus, if the Service considers significance first and determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there. Likewise, if the Service considers status first and determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant. However, if the Service determines that both a portion of the range of a species is significant and the species is threatened or endangered there, the Service will specify that portion of the range as threatened or endangered under section 4(c)(1) of the Act.

We evaluated the current range of Graham's and White River beardtongues to determine if there is any apparent geographic concentration of potential threats for either species. Both species are highly restricted in their ranges and the threats occur throughout their ranges. Having determined that both species are threatened throughout their entire ranges, we must next consider whether there are any significant portions of the ranges where the Graham's and White River beardtongues are in danger of extinction or likely to become endangered in the foreseeable future.

We found no portion of the Graham's and White River beardtongues' range where potential threats are significantly concentrated or substantially greater than in other portions of their range. Therefore, we find that factors affecting these species are essentially uniform throughout their range, indicating no portion of the range of either species warrants further consideration of possible endangered or threatened status under the Act. Therefore, we find there is no significant portion of the Graham's and White River beardtongues' range that may warrant a different status.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprised of species experts, Federal and State agencies, nongovernment organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site ( http://www.fws.gov/endangered ), or from our U.S. Fish and Wildlife Service, Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Utah and Colorado would be eligible for Federal funds to implement management actions that promote the protection or recovery of Graham's and White River beardtongues. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants .

Although Graham's and White River beardtongues are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action is likely to adversely affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.

Federal agency actions within the species habitat that may require conference or consultation or both as described in the preceding paragraph include: Oil and gas leasing, exploration, and permitting; oil shale research; authorization of transmission towers, pipelines, and power lines; reclamation actions; travel management; and authorization of road maintenance by the BLM. Other types of actions that may require consultation include construction and management of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission or provision of Federal funds to State and private entities through Federal programs, such as the Service's Landowner Incentive Program, State Wildlife Grant Program, and Federal Aid in Wildlife Restoration program.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered and threatened plants. All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 and 50 CFR 17.71, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction. In addition, for plants listed as endangered, the Act prohibits the malicious damage or destruction on areas under Federal jurisdiction and the removal, cutting, digging up, damaging, or destroying of such plants in knowing violation of any State law or regulation, including State criminal trespass law. Certain exceptions to the prohibitions apply to agents of the Service and State conservation agencies. Utah does not have any law protecting listed species, and Colorado's Endangered Species law does not currently cover plants. Therefore, listing under the Act will offer additional protection to these species.

The Act, 50 CFR 17.62, and 50 CFR 17.72 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered and threatened plants under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. We anticipate that the only permits that would be sought or issued for Graham's beardtongue or White River beardtongue would be in association with research and recovery efforts. Requests for copies of the regulations regarding listed species and inquiries about prohibitions and permits may be addressed to U.S. Fish and Wildlife Service, Ecological Services, P.O. Box 25486—DFC, Denver, CO 80225-0486 (telephone 303-236-4256; facsimile 303-236-0027).

In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek 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 listing determinations for these species are based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment during the public comment period.

We will consider all comments and information we receive during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.

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 proposal in the Federal Register . Such requests must be sent to the address shown in the FOR FURTHER INFORMATION CONTACT section. We will schedule public hearing 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.

Persons needing reasonable accommodations to attend and participate in a public hearing should contact the Utah Ecological Service Field Office at (801) 975-3330 as soon as possible. To allow sufficient time to process requests, please call no later than one week before the hearing date. Information regarding this proposed rule is available in alternative formats upon request.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the emergency rule? What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. You also may email the comments to this address: Exsec@ios.goi.gov.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with listing a species as an endangered or threatened species under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0081 or upon request from Larry Crist, Field Supervisor, U.S. Fish and Wildlife Service, Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section).

The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service, Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

Why we need to publish a rule. Under the Endangered Species Act (Act), any species that is determined to be endangered or threatened requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. Elsewhere in today's Federal Register , we propose to list the sharpnose shiner and smalleye shiner as endangered species under the Act.

This rule consists of a proposed rule to designate critical habitat for the sharpnose shiner and smalleye shiner. The sharpnose shiner and smalleye shiner are proposed for listing under the Act. This rule proposes designation of critical habitat necessary for the conservation of the species.

The basis for our action. Under the Endangered Species Act, any species that is determined to be an endangered or threatened species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Endangered Species 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. The species are proposed for listing as endangered, and we also propose to designate approximately 1,002 river kilometers (km) (623 miles (mi)) of the upper Brazos River basin and the upland areas extending beyond the bankfull river channel by 30 meters (m) (98 feet (ft)) on each side as critical habitat in the following Texas counties: Baylor, Crosby, Fisher, Garza, Haskell, Kent, King, Knox, Stonewall, Throckmorton, and Young.

We are preparing an economic analysis of the proposed designations of critical habitat. In order to consider economic impacts, we are preparing a new analysis of the economic impacts of the proposed critical habitat designations and related factors. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek additional public review and comment.

We will seek peer review. We are seeking comments from knowledgeable individuals with scientific expertise to review our analysis of the best available science and application of that science and to provide any additional scientific information to improve this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal.

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 other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties 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 threats 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 the sharpnose shiner and smalleye shiner and their habitat;

(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain 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 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 are essential for the conservation of the species and why.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts of these activities on these species and proposed critical habitat.

(4) Information on the projected and reasonably likely impacts of climate change on the sharpnose shiner and smalleye shiner and proposed critical habitat.

(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.

(6) 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.

(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.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

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 at Docket No. FWS-R2-ES-2013-0008, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. We will hold a public hearing on Wednesday, September 4, 2013. The public information session will begin at 5:00 p.m., and the public hearing will begin at 6:30 p.m. and end at 8:00 p.m. Central Time. The public informational session and hearing will be held in the Upstairs Conference Room at the Abilene Civic Center, 1100 North 6th Street, Abilene, Texas. People needing reasonable accommodation in order to attend and participate in the public hearing should contact Erik Orsak, Field Supervisor, Arlington, Texas, Ecological Services Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT ).

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek 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 designations are based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment during this public comment period.

We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.

All previous Federal actions are described in the proposal to list the sharpnose shiner and smalleye shiner as endangered species under the Act, which is published elsewhere in today's Federal Register .

It is our intent to discuss below only those topics directly relevant to the proposed designation of critical habitat for the sharpnose shiner and smalleye shiner. For a thorough assessment of the species' biology and natural history, including limiting factors and species resource needs, please refer to the June 2013 version of the Status Assessment Report for the Sharpnose Shiner and Smalleye Shiner (SSA Report; Service 2013, entire, available online at www.regulations.gov under Docket No. FWS-R2-ES-2013-0008).

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 ensure, 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 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) of the Act 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.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, 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. For example, an area currently occupied by the species, but that was not occupied at the time of listing, may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographic area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific 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. For the sharpnose and smalleye shiners, we rely on the June 2013 SSA Report (Service 2013, entire) and the proposed rule to list the species as endangered, which appears elsewhere in today's Federal Register . Additional information sources may include articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. 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 needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will 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 ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may result in jeopardy findings in some cases. These protections and conservation tools will 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.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or

(2) Such designation of critical habitat would not be beneficial to the species.

There is currently no imminent threat of take attributed to noncommercial collection or vandalism for either of these species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of a finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species. Therefore, because we have determined that the designation of critical habitat would not likely increase the degree of threat to the species, and may provide some measure of benefit, we find that designation of critical habitat is prudent for the sharpnose shiner and smalleye shiner.

Having determined that designation is prudent, under section 4(a)(3) of the Act, we must find whether critical habitat for the sharpnose shiner and smalleye shiner is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(1) Information sufficient to perform required analyses of the impacts of the designation is lacking, or

(2) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

When critical habitat is not determinable, the Act provides for an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the sharpnose shiner and smalleye shiner.

In accordance with section 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 or biological features that are essential to the conservation of the species and 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 historical, geographic, and ecological distributions of a species.

We derive the specific physical or biological features required for the sharpnose shiner from studies of this species' habitat, ecology, and life history as described below. We have used the best available information, as described in the June 2013 SSA Report (Service 2013, Chapter 2). To identify the physical and biological needs of the sharpnose shiner, we have relied on conditions at currently occupied locations where the shiner has been observed during surveys and the best information available on the species. Below, we summarize the physical and biological features needed by foraging and breeding sharpnose shiners. For a complete review of the physical and biological features required by the sharpnose shiner, see Chapter 2 of the June 2013 SSA Report (Service 2013, Chapter 2). We have determined that the following physical or biological features are essential to the sharpnose shiner.

Sharpnose shiners occur in fairly shallow, flowing water, often less than 0.5 meters (m) deep with sandy substrates. They broadcast spawn semi-buoyant eggs and larvae that may remain suspended in the water column for several days before they are capable of independent swimming, indicating there is a minimum river segment length necessary to support successful reproduction. A comparison of minimum estimated reach length requirements for similar species and current modeling efforts for this species indicate an unobstructed reach length of greater than 275 kilometers (km) (171 miles (mi)) is likely required to complete the species' life history. Lengths greater than 275 km (171 mi) would also provide migratory pathways to refugia in which sharpnose shiners may survive drought conditions.

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify flowing water of sufficient unobstructed length (275 km (171 mi)) to be a physical or biological feature essential to the conservation of the sharpnose shiner.

Sharpnose shiners are generalist feeders consuming aquatic and terrestrial invertebrates (mostly insects), plant material, and detritus. The presence of terrestrial insects in its diet suggests native riparian vegetation along the stream banks where the sharpnose shiners occur is important in providing food availability. The prevalence of sand-silt in the gut contents of sharpnose shiners indicate they likely forage among the sediments when food availability is low, suggesting river segments containing sandy substrates may be preferred by this species.

Flowing water of sufficient quality (minimal pollution, lacking golden alga toxicity, and within physiological tolerances) is required for the survival of these species. Sharpnose shiners can tolerate temperatures of 39.2 °C (102.6 °F) only briefly and generally require oxygen concentrations above 2.66 milligrams per liter (mg/L). Sharpnose shiners experience significant mortality at salinities greater than 15 parts per thousand (ppt) (25 millisiemens per centimeter (mS/cm)). The susceptibility of sharpnose shiners to environmental pollutants is not well understood; however, it has been observed that petroleum contamination, and possibly other pollutants, are capable of killing this species. Although the effects of golden alga on sharpnose shiners have not been documented, toxic blooms in occupied habitat are certain to cause mortality.

Native riparian vegetation adjacent to the river channel where the sharpnose shiner occurs is important as a source of food (terrestrial insects) and to maintain physical habitat conditions in the stream channel. Riparian areas are essential for energy and nutrient cycling, filtering runoff, absorbing and gradually releasing floodwaters, recharging groundwater, and maintaining stream flows. Healthy riparian corridors help ensure aquatic resources maintain the ecological integrity essential to stream fishes, including the sharpnose shiner. A riparian width of 30 m (98 ft) is generally sufficient to protect the water quality of adjacent streams and is expected to provide the necessary prey base for sharpnose shiners (Service 2013, Chapter 6).

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify river segments containing flowing water of sufficient quality (i.e., within physiological tolerances, low in toxic pollutants, and lacking toxic golden alga blooms) with sandy substrates, and their associated native riparian vegetation, to be physical or biological features essential to the conservation of the sharpnose shiner.

Specific cover or sheltering requirements for sharpnose shiners within the aquatic ecosystem have not been identified and may not be pertinent to their conservation because these fish mostly occur in open water. Therefore, we have not identified any specific cover or shelter habitat requirements to be physical or biological features essential to the conservation of the sharpnose shiner.

Successful reproduction by sharpnose shiners requires minimum levels of flowing water through the summer breeding season. Cyprinid eggs spawned into the pelagic zone (open water not near the river bottom) become semi-buoyant within 10 to 30 minutes, allowing them to drift through the water column for approximately 1 or 2 days prior to hatching. Larval stages may drift in the water column for an additional 2 to 3 days post-hatching.

Spawning occurs asynchronously (fish not spawning at the same time) from April through September during periods of no and low flow, and synchronously (many fish spawning at the same time) during elevated streamflow events. Successful recruitment (survival to the juvenile fish stage) does not occur during periods completely lacking flow. This is because in no-flow conditions, the floating eggs, zygotes, and larval fish of broadcast spawners sink and suffocate in the anoxic sediments and are more susceptible to predation. Modeling studies have estimated minimum mean summer discharge of 2.61 cubic meters per second (m 3 s −1 ) (92 cubic feet per second (cfs)) is necessary to sustain a population of sharpnose shiners.

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify river segments with a minimum mean summer discharge of approximately 2.61 m 3 s −1 (92 cfs) to be physical or biological features essential to the conservation of the sharpnose shiner.

Sharpnose shiner habitat is subject to dynamic changes resulting from flooding and drying of occupied water ways. Consequently, fluctuating water levels create circumstances in which the extent of the sharpnose shiner's range vary over time, and may be periodically contracted or expanded depending on water availability. Worsening drought conditions are increasing the intensity and duration of river drying in the upper Brazos River basin. As a result of these dynamic changes, particularly during intense droughts, sharpnose shiners require unobstructed river segments through which they can migrate to find refuge from river drying. These fish can later emigrate from these refugia and recolonize normally occupied areas when suitable conditions return.

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify unobstructed river segments of at least 275 km (171 mi) to be a physical or biological feature essential to the conservation of the sharpnose shiner.

We derive the specific physical or biological features required for the smalleye shiner from studies of this species' habitat, ecology, and life history as described below. We have used the best available information, as described in the June 2013 SSA Report (Service 2013, Chapter 2). To identify the physical and biological needs of the smalleye shiner, we have relied on conditions at currently occupied locations where the shiner has been observed during surveys and the best information available on the species. Below, we summarize the physical and biological features needed by foraging and breeding smalleye shiners. For a complete review of the physical and biological features required by the smalleye shiner, see Chapter 2 of the June 2013 SSA Report (Service 2013, Chapter 2). We have determined that the following physical or biological features are essential to the smalleye shiner.

Smalleye shiners occur in fairly shallow, flowing water, often less than 0.5 m deep with sandy substrates. They broadcast spawn semi-buoyant eggs and larvae that may remain suspended in the water column for several days before larval fish are capable of independent swimming, indicating there is a minimum stream reach length necessary to support successful reproduction. A comparison of minimum estimated reach length requirements for similar species and current modeling efforts for this species indicate that an unobstructed reach length of greater than 275 km (171 mi) is likely required to complete the species' life history. Lengths greater than 275 km (171 mi) would also provide migratory pathways to refugia in which smalleye shiners may survive drought conditions.

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify flowing water of sufficient unobstructed length (275 km (171 mi)) to be a physical or biological feature essential to the conservation of the smalleye shiner.

Smalleye shiners are generalist feeders consuming aquatic and terrestrial invertebrates (mostly insects), plant material, and detritus. The presence of terrestrial insects in the smalleye shiner's diet suggests native riparian vegetation along the banks of inhabited rivers is important in providing food availability, as well as the general health of the aquatic riverine ecosystem. The prevalence of sand-silt in the gut contents of smalleye shiners indicate they likely forage among the sediments when food availability is low, suggesting river segments containing sandy substrates may be preferred by this species.

Water of sufficient quality (minimal pollution, lacking golden alga toxicity, and within physiological tolerances) is required for the survival of these species. Smalleye shiners can tolerate temperatures of 40.6 °C (105.1 °F) only briefly and generally require oxygen concentrations above 2.11 mg/L. Smalleye shiners experience significant mortality at salinities greater than 18 ppt (30 mS/cm). The susceptibility of smalleye shiners to environmental pollutants is not well understood; however, it has been observed that petroleum contamination, and possibly other pollutants, are capable of killing this species. Although the effects of golden alga on smalleye shiners have not been documented, blooms in occupied habitat are certain to cause mortality in this species.

Native riparian vegetation adjacent to the river channel where the smalleye shiner occurs is important as a source of food (terrestrial insects) and to maintain physical habitat conditions in the stream channel. Riparian areas are essential for energy and nutrient cycling, filtering runoff, absorbing and gradually releasing floodwaters, recharging groundwater, and maintaining stream flows. Healthy riparian corridors help ensure aquatic resources maintain the ecological integrity essential to stream fishes, including the smalleye shiner. A riparian width of 30 m (98 ft) is generally sufficient to protect the water quality of adjacent streams and is expected to provide the necessary prey base for smalleye shiners (Service 2013, Chapter 6).

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify sandy-bottomed river segments containing flowing water of sufficient quality (i.e., within physiological tolerance, low in toxic pollutants, and lacking toxic golden algal blooms), and their associated native riparian vegetation, to be physical or biological features essential to the conservation of the smalleye shiner.

Specific cover or sheltering requirements for smalleye shiners within the aquatic ecosystem have not been identified and may not be pertinent to their conservation because these fish mostly occur in open water. Therefore, we have not identified any specific cover or shelter habitat requirements to be physical or biological features essential to the conservation of the smalleye shiner.

Successful reproduction by smalleye shiners requires minimum levels of flowing water through the summer breeding season. Cyprinid eggs spawned into the pelagic zone (open water not near the river bottom) become semi-buoyant within 10 to 30 minutes, allowing them to drift through the water column for approximately 1 or 2 days prior to hatching. Larval stages may drift in the water column for an additional 2 to 3 days post-hatching.

Spawning occurs asynchronously from April through September during periods of no and low flow, and synchronously during elevated streamflow events. Successful recruitment (survival to the juvenile fish stage) does not occur during periods completely lacking flow. This is because in no-flow conditions, the floating eggs, zygotes, and larval fish of broadcast spawners sink and suffocate in the anoxic sediments and are more susceptible to predation. Modeling studies have estimated minimum mean summer discharge of 6.43 m 3 s −1 (227 cfs) is necessary to sustain a population of the smalleye shiner.

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify river segments with a minimum mean summer discharge of approximately 6.43 m 3 s −1 (227 cfs) to be physical or biological features essential to the conservation of the smalleye shiner.

Smalleye shiner habitat is subject to dynamic changes resulting from flooding and drying of occupied water ways. Consequently, fluctuating water levels create circumstances in which the extent of the sharpnose and smalleye shiner's range vary over time, and may be periodically contracted or expanded depending on water availability. Worsening drought conditions are increasing the intensity and duration of river drying in the upper Brazos River basin. As a result of these dynamic changes, particularly during intense droughts, smalleye shiners require unobstructed river segments through which they can migrate to find refuge from river drying. These fish can later emigrate from these refugia and recolonize normally occupied areas when suitable conditions return.

Therefore, based on the information above and additional analysis in the June 2013 SSA Report (Service 2013, Chapter 2), we identify unobstructed river segments of at least 275 km (171 mi) to be a physical or biological feature essential to the conservation of the sharpnose shiner.

In summary, the sharpnose shiner and smalleye shiner need specific vital resources for survival and completion of their life histories. One of the most important aspects of their life histories is that their broadcast-spawn eggs and developing larvae require flowing water of sufficient length within which they develop into free-swimming juvenile fish. In addition, sharpnose shiners and smalleye shiners typically live for no more than two breeding seasons. As a result, if resources are not available in a single spawning season, their populations would be greatly impacted, and if resources are not available through two consecutive breeding seasons the impacts would be catastrophic.

The sharpnose shiner and smalleye shiner have exceptionally specialized habitat requirements to support these life-history needs and maintain adequate population sizes. Habitat requirements are characterized by river segments of greater than 275 km (171 mi) with estimated average spawning season flows greater than 2.61 m 3 s −1 (92 cfs) for the sharpnose shiner and of 6.43 m 3 s −1 (227 cfs) for the smalleye shiner. River segment lengths of 275 km (171 mi) or greater also aid in providing sharpnose and smalleye shiners refugia from river drying during severe drought. In addition, individual shiners also need sandy substrates to support foraging, water quality within their physiological and toxicological tolerances, and intact upland vegetation capable of supporting their prey base. Intact upland vegetation is also important in providing adequate filtration of surface water runoff to maintain a healthy aquatic ecosystem.

Populations of sharpnose shiners and smalleye shiners with a high likelihood of long-term viability require contiguous river segments containing the physical and biological features that are essential to the conservation of these species. This contiguous suitable habitat is necessary to retain the reproductive success of these species in the face of natural and manmade seasonal fluctuations of water availability. Sharpnose shiner and smalleye shiner habitat is subject to dynamic changes resulting from flooding and drying of occupied water ways. Consequently, fluctuating water levels create circumstances in which the extent of the sharpnose and smalleye shiner's range vary over time, and may be periodically contracted or expanded depending on water availability.

According to 50 CFR 424.12(b), we are required to identify the physical or biological features essential to the conservation of the sharpnose shiner and smalleye shiner within the geographic area occupied by the species at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for a species' life-history processes and 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 (Service 2013, Chapter 2), we determine that the primary constituent element (PCE) specific to the sharpnose shiner consists of a riverine system with habitat to support all life stages of sharpnose shiners, which includes:

(1) Unobstructed, sandy-bottomed river segments greater than 275 km (171 mi) in length.

(2) Flowing water of greater than approximately 2.61 m 3 s −1 (92 cfs) averaged over the shiner spawning season (April through September).

(3) Water of sufficient quality to support survival and reproduction, characterized by:

a. Temperatures generally less than 39.2 °C (102.6 °F);

b. Dissolved oxygen concentrations generally greater than 2.66 mg/L;

c. Salinities generally less than 15 ppt (25 mS/cm); and

d. Sufficiently low petroleum and other pollutant concentrations such that mortality does not occur.

(4) Native riparian vegetation capable of maintaining river water quality, providing a terrestrial prey base, and maintaining a healthy riparian ecosystem.

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes (Service 2013, Chapter 2), we determine that the primary constituent element (PCEs) specific to the smalleye shiner consists of a riverine system with habitat to support all life history stages of smalleye shiners, which includes:

(1) Unobstructed, sandy-bottomed river segments greater than 275 km (171 mi) in length.

(2) Flowing water of greater than approximately 6.43 m 3 s −1 (227 cfs) averaged over the shiner spawning season (April through September).

(3) Water of sufficient quality to support survival and reproduction, characterized by:

a. Temperatures generally less than 40.6 °C (105.1 °F);

b. Dissolved oxygen concentrations generally greater than 2.11 mg/L;

c. Salinities less than 18 ppt (30 mS/cm); and

d. Sufficiently low petroleum and other pollutant concentrations such that mortality does not occur.

(4) Native riparian vegetation capable of maintaining river water quality, providing a terrestrial prey base, and maintaining a healthy riparian ecosystem.

When designating critical habitat, we assess whether the specific areas within the geographic area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of these species may require special management considerations or protection to reduce the following threats: Habitat loss and modification from fragmentation of river segments; alteration to natural flow regimes by impoundment, groundwater withdrawal, and drought; water quality degradation; and invasive saltcedar encroachment.

River fragmentation decreases the unobstructed river length required for successful reproduction in these species. Impoundments, groundwater withdrawal, saltcedar encroachment, and drought have the potential to reduce river flow below the minimum requirement to keep the eggs and larvae of these species afloat and ultimately for sustainment of sharpnose and smalleye shiner populations. Water quality degradation resulting from pollution sources; lack of flows maintaining adequate temperatures, oxygen concentrations, and salinities; and the destruction of adjacent riparian vegetation's run-off filtering abilities may result in water quality parameters beyond which sharpnose and smalleye shiners are capable of surviving. As such, the features essential to the conservation of these species require special management from these threats.

For sharpnose shiners and smalleye shiners, special management considerations or protection are needed to address threats. Management activities that could ameliorate threats include, but are not limited to: (1) Removing or modifying existing minor fish barriers to allow fish passage; (2) managing existing reservoirs to allow sufficient river flow to support shiner reproduction and population growth; (3) protecting groundwater, surface water, and spring flow quantity; (4) protecting water quality by implementing comprehensive programs to control and reduce point sources and non-point sources of pollution; and (5) protecting and managing native riparian vegetation. A more complete discussion of the threats to the sharpnose shiner and smalleye shiner and their habitats can be found in the June 2013 SSA Report (Service 2013, Chapter 3).

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. For this proposed rule, we rely heavily on the analysis of biological information reviewed in the June 2013 SSA Report (Service 2013). In accordance with section 3(5)(A) of the Act and its implementing regulation at 50 CFR 424.12(e), we first determined what specific areas, within the geographical area occupied by the species at the time they are listed, contain the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protections. Next, we considered whether designating any additional areas—outside those currently occupied at the time of listing—are necessary to ensure the conservation of the species. We are not currently proposing to designate any areas outside the geographical area occupied by the species because no areas were determined to be essential for the conservation of either species. Finally, we described how we determined the lateral extent and mapping processes used in developing the proposed critical habitat units.

For the purpose of designating critical habitat for the sharpnose and smalleye shiners, we defined occupancy based on several criteria. First, survey results since 2008 confirm that both species persist within the Brazos River basin of Texas upstream of Possum Kingdom Lake in the Brazos River main stem, Salt Fork of the Brazos River, Double Mountain Fork of the Brazos River, and North Fork Double Mountain Fork of the Brazos River (Service 2013, Chapter 4). We chose to use survey results from the last 5 years because these data are relatively consistent from year to year and represent the best available information for what areas should be considered occupied at the time of listing. Second, a lack of sufficient fish sampling exists for some tributaries once known to be historically occupied by one or both species. The sharpnose and smalleye shiner are similar in their biology, and they are both capable of colonizing river segments when conditions are favorable. Therefore, we considered tributary streams occupied at the time of listing if they were previously occupied by either species and are contiguous (i.e., lacking fish migration barriers) with areas in the upper Brazos River confirmed to be occupied by both species. Third, tributaries for which we had no information that either species recently or historically occurred were not considered occupied, even if they were contiguous with areas that are currently occupied.

Segments considered to be occupied at the time of listing were then assessed to determine if they contained the physical or biological features for the species and whether they required special management or protection. River segments not exceeding 275 km (171 mi) upstream of the lentic waters of Possum Kingdom Lake were not included because they lack the necessary physical or biological features for successful reproduction. Segments that do not typically maintain suitable water quality conditions (i.e., within physiological tolerances, minimal pollution, lacking regular golden alga blooms) were not included because they would not likely support a viable population of shiners. Segments not likely to maintain minimum mean spawning season flows capable of sustaining populations of either species, even during favorable climatic conditions, were also not included because they would not support successful reproduction.

The lower Brazos River, where shiners were released in 2012, is considered unoccupied for the purposes of determining critical habitat because prior to their 2012 release, both species had become extirpated or were functionally extirpated from this area as no fish had been collected since 2006. The release effort in 2012 was likely insufficient to restart a population of these species in the lower Brazos River. Therefore, given the old age and small number of fish released in 2012, it is likely they are extirpated from this reach of the Brazos River (Service 2013, Chapter 4).

To determine if any areas not considered occupied at the time of listing are essential for the conservation of the species we considered: (1) Whether the area was historically occupied; (2) the potential contribution of the area to the conservation of each species based on our June 2013 SSA Report (Service 2013, Chapter 2); (3) whether the area could be restored to contain the habitat conditions needed to support the species; and (4) whether a viable population of the species could be reestablished at the site. We recognize that both species likely need additional areas beyond those currently occupied in order to have sufficient redundancy and resiliency for long-term viability. However, our review of the areas within the historical range found that none of them have all four of these necessary characteristics to be considered essential for the conservation of either species.

We considered four areas that were historically occupied by one or both species as possible critical habitat: The Colorado River, Wichita River, middle Brazos River (between Possum Kingdom Lake and the low water crossing near the City of Marlin, Falls County, Texas) and lower Brazos River (downstream of Marlin to the Gulf of Mexico). The smalleye shiner is not known to have naturally occurred outside of the Brazos River basin, so neither the Colorado nor Wichita Rivers were considered essential for the conservation of that species. For the sharpnose shiner, our review found that neither the Colorado nor Wichita Rivers were considered necessary to maintain viability of either species because of the limited abundance and distribution of this shiner historically. In addition, both of these rivers have extensive impoundments such that the unfragmented stream length needed for reproduction by these species is lacking. These impoundments are expected to continue to exist into the future with no apparent potential for their removal, thereby eliminating the ability of the Colorado or Wichita Rivers to contain the necessary habitat conditions to support either species. Therefore, the Colorado and Wichita Rivers were not proposed as critical habitat for either species because of limited importance to the conservation of the species and the inability to restore the necessary habitat conditions for the species.

The middle Brazos River also lacks the necessary unimpounded river length required to support sharpnose and smalleye shiner reproduction (Service 2013, Chapter 4). These impoundments are expected to exist into the future with no apparent potential for their removal. As a result, there is no ability for these areas to be restored to contain the necessary habitat conditions to support the species. Therefore, since this area of the middle Brazos River cannot be restored to appropriate habitat conditions we find it is not essential for the conservation of either species, and we did not propose it as critical habitat.

The lower Brazos River was also found to likely have limited importance to the overall viability for both species (Service 2013, Chapter 2). The lower Brazos River does contain an unimpounded stream length long enough to support reproduction of sharpnose and smalleye shiners; however, their populations in this segment have already declined to the point that we presume they are extirpated from this reach. We expect the extirpation was the result of poor habitat conditions. Both the flow regime and river channel morphology of the lower Brazos River are considerably different (higher flow and deeper, wider channel) than the upper Brazos River, so this segment may never have supported populations of either species independent of the upper Brazos River populations. As a result, it is unlikely that sharpnose and smalleye shiners are capable of sustaining populations in the lower Brazos River without constant emigration (downstream dispersal) from the upstream source population in the upper Brazos River, which is now isolated by impoundments in the middle Brazos River. Therefore, with limited importance and the inability to support populations, we find the lower Brazos River is not essential for the conservation of either species, and we did not propose this area for critical habitat.

In conclusion, based on the best available information we conclude that the areas within the historical range of one or both species, but not occupied by either species at the time of listing, are not essential for the conservation of either species. The Colorado and Wichita Rivers do not contribute substantially to the conservation of the sharpnose shiner. The middle Brazos River cannot be restored to contain the necessary habitat conditions to support either species. The lower Brazos River may not be important for the conservation of either species and is not likely able to support a viable population of either species. Therefore, we have not proposed any areas as critical habitat beyond what is occupied at the time of listing.

In determining the lateral extent (overbank areas adjacent to the river channel) of critical habitat along proposed riverine segments, we considered the definition of critical habitat under the Act. Under the Act, critical habitat must contain the physical or biological features essential to a species' conservation and which may require special management considerations or protection. Conservation of the river channel alone is not sufficient to conserve sharpnose and smalleye shiners because the nearby native riparian vegetation areas adjacent to the river channel where the shiners occur are important components of the critical habitat for the shiners as a source of food (terrestrial insects) and to maintain physical habitat conditions in the stream channel. Riparian areas are essential for energy and nutrient cycling, filtering runoff, absorbing and gradually releasing floodwaters, recharging groundwater, and maintaining stream flows. Healthy riparian corridors help ensure aquatic resources maintain the ecological integrity essential to stream fishes, including the sharpnose shiner and smalleye shiner.

A riparian width of 5 to 30 m (16 to 98 ft) is generally sufficient to protect the water quality of adjacent streams. The ability of riparian buffers to filter surface runoff is largely dependent on vegetation density, type, and slope, with dense, grassy vegetation and gentle slopes facilitating filtration. A riparian buffer width of 30 to 500 m (98 to 1,640 ft) should be sufficient to provide wildlife habitat; however, the riparian zone of the upper Brazos River may never have been extensive due to the aridity of the area, and the terrestrial insect prey base of the shiners would likely persist at even the thinnest recommended width. A riparian width of 30 m (98 ft) beyond the bankfull width of the river should be sufficient to maintain proper runoff filtration and provide the water quality and food base required by sharpnose and smalleye shiners (Service 2013, Chapter 6). As such, the proposed critical habitat includes the stream and river segments identified below and an area extending 30 meters (98 ft) perpendicularly to the stream channel beyond bankfull width. The bankfull width is the width of the stream or river at bankfull discharge and often corresponds to the edge of the riparian vegetation. Bankfull discharge is significant because it is the flow at which water begins to leave the active channel and move into the floodplain and serves to identify the point at which the active channel ceases and the floodplain begins.

For each species, we are proposing one critical habitat unit, divided into six subunits. These subunits are derived from the most recent USGS high-resolution National Hydrological Flowline Dataset. Although river channels migrate naturally, it is assumed the segment lengths and locations will remain reasonably accurate over an extended period of time. All mapping was performed using ArcMap version 10 (Environmental Systems Research Institute, Inc.), a computer Geographic Information System (GIS) program.

We set the limits of each critical habitat subunit by identifying landmarks (reservoirs and dams) that clearly act as barriers to fish migration. Partial barriers to fish migration that impede fish movement only during low river flow are not used to identify segment endpoints because it is presumed fish may occasionally be capable of traversing these impediments. Stream confluences are also used to delineate the boundaries of subunits contiguous with other critical habitat subunits because they are logical and recognizable termini.

When determining proposed critical habitat boundaries, we also made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for the sharpnose shiner and smalleye shiner. 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 or biological features in the adjacent critical habitat.

In summary, we are proposing for designation as critical habitat geographic areas that we have determined are occupied by the sharpnose shiner and smalleye shiner at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential to the conservation of the species and that may require special management considerations or protection. We are not proposing to designate any unoccupied areas as critical habitat.

The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0008, at http://www.fws.gov/southwest/es/ArlingtonTexas/, and at the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT above).

We are proposing to designate a single critical habitat unit divided into six subunits in Texas of approximately 1,002 river km (623 mi) of the upper Brazos River basin and the upland areas extending beyond the bankfull river channel by 30 meters on each side. The six subunits proposed as critical habitat make up the contiguous, unobstructed section of the upper Brazos River system consisting of portions of the Brazos River main stem, Salt Fork of the Brazos River, White River, Double Mountain Fork of the Brazos River, North Fork Double Mountain Fork of the Brazos River, and South Fork Double Mountain Fork of the Brazos River. The critical habitat areas we describe below constitute our current best assessment of areas that contain the essential physical or biological features for both species (although the needs of both species differ slightly) and meet the definition of critical habitat for both shiner species. The subunits we propose as critical habitat are shown in Table 1.

The critical habitat areas include the river channels within the identified stream segments. The stream beds of navigable waters (stream beds maintaining an average width of at least 30 ft wide from the mouth up) in Texas are generally owned by the State, in trust for the public, while the lands alongside the streams can be privately owned. Therefore, for all stream segments included in the proposed critical habitat; the stream beds, including the small, seasonally dry portion of the stream beds between the bankfull width, where vegetation occurs; and the wetted channel, are owned by the State for the purposes of this proposed rule. To the best of our knowledge, all adjacent riparian areas are privately owned.

We determined the proposed unit of the upper Brazos River basin and its subunits are occupied by both species at the time of listing (Service 2013, Chapter 4). The upper Brazos River critical habitat unit, when considered in its entirety, exhibits all four of the primary constituent elements of critical habitat for both species. Some individual subunits may not contain all of the physical or biological features of critical habitat under all climatic conditions. For example, the elements of physical and biological features supporting the life-history processes of sharpnose and smalleye shiners are highly dependent on the naturally variable climatic conditions and river flow characteristics of the upper Brazos River basin and may not be present in all critical habitat subunits at all times (i.e., during severe droughts). However, each subunit likely contains suitable habitat during wet climatic conditions and will exhibit one or more of the essential physical or biological features that may require special management considerations or protection and are therefore included in the proposed designation under section 3(5)(A)(i) of the Act.

Subunits are designated based on sufficient elements of physical or biological features being present to support life-history processes of the sharpnose and smalleye shiners. Some subunits contain all of the identified elements of physical or biological features and support multiple life-history processes, while other subunits contain only some elements of the physical or biological features necessary to support each species' particular use of that habitat. The following subunit descriptions briefly describe each of the proposed critical habitat subunits and the reasons why they meet the definition of critical habitat for the sharpnose shiner and smalleye shiner. The subunits are generally numbered from downstream to upstream.

Subunit 1 is 326.8 km (203.1 mi) long in Young, Throckmorton, Baylor, Knox, King, and Stonewall Counties. The downstream extent of the Upper Brazos River Main Stem Subunit is approximately 15 river km (9.3 miles) upstream of the eastern border of Young County where it intersects the upper portion of Possum Kingdom Lake. The upstream extent of this subunit is at the confluence of the Double Mountain Fork of the Brazos River and the Salt Fork of the Brazos River where they form the Brazos River main stem.

Subunit 1 provides an adequate length of unobstructed, sandy bottomed river (PCE 1) often with sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose and smalleye shiner survival and reproduction. However, during periods of severe drought, sufficient flow may not be maintained. Many upland areas adjacent to this subunit are encroached by saltcedar, although it generally contains the native riparian vegetation capable of maintaining river water quality and an adequate prey base for both shiner species (PCE 4).

Habitat features in this subunit are primarily threatened by groundwater withdrawal, saltcedar invasion, water quality degradation, drought, and impoundment. The South Bend Reservoir, identified as a feasible water management strategy by the Brazos G Regional Water Planning Group, would occur on this subunit if constructed, while the Throckmorton Reservoir and Millers Creek Reservoir Augmentation would occur on tributaries that discharge into this subunit (Service 2013, Chapter 3). The physical or biological features in this subunit may require special management considerations or protection to minimize impacts from these threats.

Subunit 2 is 275.1 km (171 mi) long in Stonewall, Kent, and Garza Counties. The downstream extent of the Salt Fork of the Brazos River Subunit is at the confluence of the Double Mountain Fork of the Brazos River and the Salt Fork of the Brazos River where they form the Brazos River main stem. The upstream extent of this subunit is on the Salt Fork of the Brazos River at the McDonald Road crossing in Garza County, which acts as a barrier to fish passage.

Subunit 2 provides an adequate length of unobstructed, sandy bottomed river (PCE 1) often with sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose and smalleye shiner survival and reproduction. However, during periods of severe drought, sufficient flow may not be maintained and naturally occurring salt plumes may occasionally result in inadequate water quality. Many upland areas adjacent to this subunit are encroached by saltcedar, although it generally contains the native riparian vegetation capable of maintaining river water quality and an adequate prey base for both shiner species (PCE 4).

Habitat features in this subunit are primarily threatened by groundwater withdrawal, saltcedar invasion, desalination projects, water quality degradation, and drought. Several of these threats have the potential to decrease surface water volume available for fish use. The threat of reservoir impoundment is minimized because the highly saline water of this subunit is generally of little use for industrial, agricultural, and municipal needs. The physical or biological features in this subunit may require special management considerations or protection to minimize impacts from these threats.

Subunit 3 is 40.3 km (25.1 mi) long in Kent, Garza, and Crosby Counties. The downstream extent of the White River Subunit is at the confluence of the White River with the Salt Fork of the Brazos River. The upstream extent is immediately downstream of the White River Lake impoundment on the White River.

Given the lack of adequate sampling from this area, records of the smalleye shiner from the White River are old and rare, and sharpnose shiners have never been recorded from this subunit (Service 2013, Chapter 2). However, records of both species have been documented within the last 5 years from the Salt Fork of the Brazos River less than 1 km (0.6 mi) downstream of the confluence of this subunit. Therefore, the White River Subunit is contiguous with areas currently occupied by both species, and there are no fish barriers to prevent them from migrating into this area. Therefore, given the information above and the biological similarity between these species, we consider this subunit within the geographic range occupied by both species. Furthermore, the White River provides surface water flow of relatively low salinity into the Salt Fork of the Brazos River, which may be important in maintaining the water quality of this downstream subunit.

Subunit 3 provides an adequate length of unobstructed, sandy bottomed river (PCE 1) when considered as part of the contiguous critical habitat unit as a whole. This subunit likely contains only sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose and smalleye shiner survival and reproduction under wet climatic conditions or when water is being released from upstream impoundments. During periods of severe drought, sufficient flow may not be maintained. Upland areas adjacent to this subunit are likely encroached by saltcedar, although it generally contains the native riparian vegetation capable of maintaining river water quality and an adequate prey base for both shiner species (PCE 4).

Habitat features in this subunit are primarily threatened by groundwater withdrawal, saltcedar invasion, water quality degradation, drought, and impoundment. Flow is normally available in this subunit only as a result of water release from White River Lake upstream of this subunit. Therefore, the physical or biological features in this subunit may require special management considerations or protection to minimize impacts from these threats.

Subunit 4 is 239.8 km (149 mi) long in Stonewall, Haskell, Fisher, and Kent Counties. The downstream extent of the Double Mountain Fork of the Brazos River Subunit is at the confluence of the Double Mountain Fork of the Brazos River and the Salt Fork of the Brazos River where they form the Brazos River main stem. The upstream extent of this subunit is at the confluence of the South Fork Double Mountain Fork of the Brazos River and the North Fork Double Mountain Fork of the Brazos River where they form the Double Mountain Fork of the Brazos River.

Subunit 4 provides an adequate length of unobstructed, sandy bottomed river (PCE 1) when considered as part of the contiguous critical habitat unit as a whole. This subunit likely contains sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose and smalleye shiner survival and reproduction most of the time although during periods of severe drought, sufficient flow may not be maintained. Upland areas adjacent to this subunit are likely encroached by saltcedar, but it generally contains the native riparian vegetation capable of maintaining river water quality and an adequate prey base for both shiner species (PCE 4).

Habitat features in this subunit are primarily threatened by groundwater withdrawal, saltcedar invasion, water quality degradation, drought, and impoundment. The Double Mountain Fork East and West Reservoirs, identified as feasible water management strategies by the Brazos G Regional Water Planning Group, would occur in this subunit if constructed (Service 2013, Chapter 3). Therefore, the physical or biological features in this subunit may require special management considerations or protection to minimize impacts from these threats.

Subunit 5 is 108.6 km (67.5 mi) long in Kent, Garza, and Crosby Counties. The downstream extent of the North Fork Double Mountain Fork Subunit is at the confluence of the South Fork Double Mountain Fork of the Brazos River and the North Fork Double Mountain Fork of the Brazos River where they form the Double Mountain Fork of the Brazos River. The upstream extent of this subunit is the earthen impoundment near Janes-Prentice Lake in Crosby County, Texas.

Subunit 5 provides an adequate length of unobstructed, sandy bottomed river (PCE 1) when considered as part of the contiguous critical habitat unit as a whole. This subunit likely contains sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose and smalleye shiner survival and reproduction much of the time, but during periods of severe drought, sufficient flow may not be maintained. Upland areas adjacent to this subunit are likely encroached by saltcedar, although it generally contains the native riparian vegetation capable of maintaining river water quality and an adequate prey base for both shiner species (PCE 4).

Habitat features in this subunit are primarily threatened by groundwater withdrawal, saltcedar invasion, water quality degradation, drought, and impoundment. Post Reservoir and the North Fork Diversion Reservoir, identified as feasible water management strategies by the Brazos G Regional Water Planning Group, would occur in this subunit if constructed (Service 2013, Chapter 3). Therefore, the physical or biological features in this subunit may require special management considerations or protection to minimize impacts from these threats.

Subunit 6 is 11.1 km (6.9 mi) long in Kent and Garza Counties. The downstream extent of the South Fork Double Mountain Fork Subunit is at the confluence of the South Fork Double Mountain Fork of the Brazos River and the North Fork Double Mountain Fork of the Brazos River where they form the Double Mountain Fork of the Brazos River. The upstream extent of this subunit is immediately downstream of the John T. Montford Dam of Lake Alan Henry. Although there is a lack of recent records (smalleye shiner last observed in 1992) in this subunit, it is contiguous with areas currently occupied by both species, and there are no known fish barriers to prevent them from migrating into this area. The subunit does not have public access, and there are few opportunities to survey for fish in this river segment. However, given the information above and the biological similarity between these species, we consider this subunit within the geographic range occupied by both sharpnose and smalleye shiners.

Subunit 6 provides an adequate length of unobstructed, sandy bottomed river (PCE 1) when considered as part of the contiguous critical habitat unit as a whole. This subunit likely contains only sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose and smalleye shiner survival and reproduction under wet climatic conditions or when water is being actively released from upstream impoundments. During periods of severe drought, sufficient flow may not be maintained. Upland areas adjacent to this subunit may be encroached by saltcedar, although it generally contains the native riparian vegetation capable of maintaining river water quality and an adequate prey base for both shiner species (PCE 4).

Habitat features in this subunit are primarily threatened by drought and impoundment. Flow is normally present in this subunit only as a result of water released from Lake Alan Henry. Flow from this subunit directly affects surface water volume in the Double Mountain Fork of the Brazos River Subunit available for fish use. Therefore, the physical or biological features in this subunit may require special management considerations or protection to minimize impacts from these threats.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any 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 addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that 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 section 7 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, or 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 and/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 and/or destruction or adverse modification of critical habitat. 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 sometimes may 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.

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 or biological features to an extent that appreciably reduces the conservation value of critical habitat for the sharpnose shiner or smalleye shiner. 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 sharpnose shiner or smalleye shiner. These activities include, but are not limited to:

(1) Activities physically disturbing the riverine habitat upon which these shiner species depend, particularly by decreasing surface water flows or altering channel morphology. Such activities could include, but are not limited to, impoundment, in-stream mining, channelization, and dewatering. These activities could result in the physical destruction of habitat or the modification of habitat such that it no longer supports the reproduction of these species.

(2) Activities increasing the concentration of pollutants in surface water within areas designated as critical habitat. Such activities could include, but are not limited to, increases in impervious cover in the surface watershed, destruction of the adjacent upland areas by land uses incompatible with maintaining a healthy riverine system, and release of pollutants into the surface water or connected groundwater. These activities could alter water conditions to levels that are beyond the tolerances of the shiner species and result in direct or cumulative adverse effects to these individuals and their life cycles.

(3) Activities depleting the underlying groundwater or otherwise diverting water to an extent that decreases or stops the flow of surface waters within areas designated as critical habitat. Such activities could include, but are not limited to, excessive water withdrawals from aquifers and diversion of natural discharge features. These activities could dewater habitat or reduce water quality to levels that are beyond the tolerances of the sharpnose and smalleye shiner, and result in direct or cumulative adverse effects to these individuals and their life cycles.

(4) Activities leading to the introduction, expansion, or increased density of an exotic plant or animal species that is detrimental to the sharpnose shiner or smalleye shiner or their habitat.

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 management plan (INRMP) by November 17, 2001.

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 geographic 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 for the sharpnose shiner or smalleye shiner; therefore we are not exempting any areas under section 4(a)(3)(B)(i) 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 identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate 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.

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. Potential land use sectors that may be affected by a sharpnose shiner and smalleye shiner critical habitat designation include sectors associated with construction or improvement of roads, bridges, pipelines, or bank stabilization; residential or commercial development; the control of surface waters or removal of groundwater; and irrigation water use and management.

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.

Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. There are no Department of Defense lands within the proposed critical habitat designation for the sharpnose shiner or smalleye shiner; therefore, currently, there are no areas proposed for exclusion based on impacts on national security.

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 Tribal management in recognition of their capability to appropriately manage their own resources, 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.

When we evaluate the existence of a conservation plan when considering the benefits of exclusion, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

In preparing this proposal, we have determined that there are currently no HCPs for the sharpnose shiner or smalleye shiner. 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, we are not currently considering excluding any areas from the critical habitat designation based on other relevant impacts.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

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 the 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.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the proposed critical habitat designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify.

Under the RFA, as amended, and following recent court decisions, Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and not the potential impacts to indirectly affected entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is our position that only Federal action agencies will be directly regulated by this designation. Therefore, because Federal agencies are not small entities, the Service may certify that the proposed critical habitat rule will not have a significant economic impact on a substantial number of small entities.

We acknowledge, however, that in some cases, third-party proponents of the action subject to permitting or funding may participate in a section 7 consultation, and thus may be indirectly affected. We believe it is good policy to assess these impacts if we have sufficient data before us to complete the necessary analysis, whether or not this analysis is strictly required by the RFA. While this regulation does not directly regulate these entities, in our draft economic analysis we will conduct a brief evaluation of the potential number of third parties participating in consultations on an annual basis in order to ensure a more complete examination of the incremental effects of this proposed rule in the context of the RFA.

In conclusion, we believe that, based on our interpretation of directly regulated entities under the RFA and relevant case law, this designation of critical habitat will only directly regulate Federal agencies which are not by definition small business entities. As such, we certify that, if promulgated, this designation of critical habitat would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. However, though not necessarily required by the RFA, in our draft economic analysis for this proposal we will consider and evaluate the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action.

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 the designation of this proposed critical habitat to significantly affect energy supplies, distribution, or use. Oil and gas pipelines crossing the proposed critical habitat can be buried under the river channel and the contours of the channel bed returned to their natural state. Also, the minimal and unpredictable flows of the upper Brazos River are not well suited for hydroelectric power generation. 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.

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. The lands adjacent to the river channel being proposed for critical habitat designation are primarily owned by private landowners, which do not fit the definition of “small governmental jurisdiction.” 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 as warranted.

In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we are analyzing the potential takings implications of designating critical habitat for the sharpnose shiner and smalleye shiner in a takings implications assessment. The best information currently available indicates that this designation of critical habitat for the sharpnose shiner and smalleye shiner does not pose significant takings implications. However, we will further evaluate this issue as we conduct our economic analysis, and complete a takings implications assessment before issuing a final determination.

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. The designation of critical habitat in geographic areas currently occupied by the sharpnose shiner and smalleye shiner imposes no additional restrictions to those in place as a result of the listing of the species 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 or 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.

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. To assist the public in understanding the habitat needs of the species, the proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The areas of proposed critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.

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.

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 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)).

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 there are no tribal lands that meet our criteria for critical habitat. Therefore, we are not proposing to designate critical habitat for sharpnose or smalleye shiners on tribal lands.

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.

A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2013-0008 in the June 2013 version of the Status Assessment Report for the Sharpnose Shiner and Smalleye Shiner (Service 2013), and upon request from the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are the staff members of the Arlington, Texas, Ecological Services Field Office.

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

Background

On April 28, 2010, we listed the Puget Sound/Georgia Basin Distinct Population Segments (DPSs) of yelloweye rockfish and canary rockfish as threatened under the Endangered Species Act (ESA), and bocaccio as endangered (75 FR 22276). We are responsible for determining whether species, subspecies, or distinct population segments (DPSs) are threatened or endangered and designating their critical habitat under the ESA (16 U.S.C. 1531 et seq. ). In our proposal to list yelloweye rockfish, canary rockfish, and bocaccio (74 FR 18516, April 23, 2009), we requested information on the identification of specific areas that meet the definition of critical habitat. We also solicited biological and economic information relevant to making a critical habitat designation for each species. We reviewed the comments provided and the best available scientific information, and at the time of listing we concluded that critical habitat was not determinable for each species because sufficient information was not available to: (1) Identify the physical and biological features essential to conservation, and (2) assess the impacts of a designation. In addition to the data gaps identified at the time of listing, sufficient information was not available to fully determine the geographical area occupied by each species. Following promulgation of the final rule to list each species, we continued compiling the best available information necessary to consider a critical habitat designation and additional information is now available for these three DPSs to better inform the designation process.

We considered various alternatives to the proposed critical habitat designation for yelloweye rockfish, canary rockfish, and bocaccio of the Puget Sound/Georgia Basin. The alternative of not designating critical habitat for each species would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was considered and rejected because it does not meet the legal requirements of the ESA and would not provide for the conservation of each species. The alternative of designating all potential critical habitat areas (i.e., no areas excluded) also was considered and rejected because for some areas the benefits of exclusion outweighed the benefits of inclusion. An alternative to designating all potential critical habitat areas is the designation of critical habitat within a subset of these areas. Under section 4(b)(2) of the ESA, we must consider the economic impacts, impacts on national security, and other relevant impacts of designating any particular area as critical habitat. The Secretary of Commerce (Secretary) has the discretion to exclude an area from designation as critical habitat if the benefits of exclusion (i.e., the impacts that would be avoided if an area were excluded from the designation) outweigh the benefits of designation (i.e., the conservation benefits to these species if an area were designated) so long as exclusion of the area will not result in extinction of the species. We prepared an analysis describing our exercise of discretion, which is contained in our final Section4(b)(2) Report (NMFS, 2013c). Under this alternative we propose to exclude Indian lands as well as several areas under the control of the Department of Defense (DOD). We selected this alternative because it results in a critical habitat designation that provides for the conservation of listed rockfish while avoiding impacts to Indian lands and impacts to national security. This alternative also meets the requirements under the ESA and our joint NMFS-U.S. Fish and Wildlife Service (USFWS) regulations concerning critical habitat.

Our draft Biological Report (NMFS, 2013a) describes the life histories of yelloweye rockfish, canary rockfish and bocaccio in detail, which are summarized here. Their life histories include pelagic larval and juvenile stages followed by a juvenile stage in shallower waters, and a sub-adult/adult stage. Much of the life history of these three species is similar, with differences noted below.

Rockfish are iteroparous (i.e., have multiple reproductive cycles during their lifetime) and are typically long-lived (Love et al., 2002). Yelloweye rockfish are one of the longest lived of the rockfishes, reaching more than 100 years of age. Yelloweye rockfish reach 50 percent maturity at sizes of 16 to 20 inches (40 to 50 centimeters) and ages of 15 to 20 years (Rosenthal et al., 1982; Yamanaka and Kronlund, 1997). The maximum age of canary rockfish is at least 84 years (Love et al. 2002), although 60 to 75 years is more common (Caillet et al., 2000). Canary rockfish reach 50 percent maturity at sizes around 16 inches (40 centimeters) and ages of 7 to 9 years. The maximum age of bocaccio is unknown, but may exceed 50 years. Bocaccio are reproductively mature near age 6 (FishBase, 2010). Mature females of each species produce from several thousand to over a million eggs annually (Love et al., 2002). Being long-lived allows each species to persist through many years of poor reproduction until a good recruitment year occurs.

Rockfish fertilize their eggs internally and the young are extruded as larvae. Upon parturition (birth), larval rockfish can occupy the full water column but generally occur in the upper 80 m (262 feet) (Love et al., 2002; Weis, 2004). Larval rockfish have been documented in Puget Sound (Greene and Godersky, 2012), yet most studies have not identified individual fish to species. There is little information regarding the habitat requirements of rockfish larvae, though other marine fish larvae biologically similar to rockfish larvae are vulnerable to low dissolved oxygen levels and elevated suspended sediment levels that can alter feeding rates and cause abrasion to gills (Boehlert, 1984; Boehlert and Morgan, 1985; Morgan and Levings, 1989). Larvae have also been observed immediately under free-floating algae, seagrass, and detached kelp (Shaffer et al., 1995; Love et al., 2002). Oceanographic conditions within many areas of Puget Sound likely result in the larvae staying within the basin where they are born rather than being more broadly dispersed by tidal action or currents (Drake et al., 2010).

Pelagic juveniles occur throughout the water column (Love et al., 2002; Weis, 2004). When bocaccio and canary rockfish reach sizes of 1 to 3.5 inches (3 to 9 centimeters) or 3 to 6 months old, they settle into shallow, intertidal, nearshore waters in rocky, cobble and sand substrates with or without kelp (Love et al., 1991; Love et al., 2002). This habitat feature offers a beneficial mix of warmer temperatures, food, and refuge from predators (Love et al., 1991). Areas with floating and submerged kelp species support the highest densities of juvenile bocaccio and canary rockfish, as well as many other rockfish species (Carr, 1983; Halderson and Richards, 1987; Matthews, 1989; Love et al., 2002). Unlike bocaccio and canary rockfish, juvenile yelloweye rockfish are not typically found in intertidal waters (Love et al. 1991; Studebaker et al. 2009), but are most frequently observed in waters deeper than 98 feet (30 meters) near the upper depth range of adults (Yamanaka et al., 2006).

Depth is generally the most important determinant in the distribution of many rockfish species of the Pacific coast (Chen, 1971; Williams and Ralston, 2002; Anderson and Yoklavich, 2007;Young et al., 2010). Adult yelloweye rockfish, canary rockfish, and bocaccio generally occupy habitats from approximately 30 to 425 m (90 ft to 1,394 ft) (Orr et al., 2000; Love et al., 2002), and in Federal waters off the Pacific coast each species is considered part of the “shelf rockfish” assemblage under the authorities of the Magnuson-Stevens Fishery Conservation and Management Act because of their generally similar habitat usages (50 CFR Part 660, Subparts C-G).

Adult yelloweye rockfish, canary rockfish, and bocaccio most readily use habitats within and adjacent to areas that are highly rugose (rough). These are benthic habitats with moderate to extreme steepness; complex bathymetry; and/or substrates consisting of fractured bedrock, rock, and boulder-cobble complexes (Yoklavich et al., 2000; Love et al., 2002; Wang, 2005; Anderson and Yoklavich, 2007). Most of the benthic habitats in Puget Sound consist of unconsolidated materials such as mud, sand, clays, cobbles and boulders, and despite the relative lack of rock, some of these benthic habitats are moderately to highly rugose. More complex marine habitats are generally used by higher numbers of fish species relative to less complex areas (Anderson and Yoklavich, 2007; Young et al., 2010), thus supporting food sources for sub-adult and adult yelloweye rockfish, canary rockfish, and bocaccio. More complex marine habitats also provide refuge from predators and their structure may provide shelter from currents, thus leading to energy conservation (Young et al., 2010).

Though areas near rocky habitats or other complex structure are most readily used by adults of each species, non-rocky benthic habitats are also occupied. In Puget Sound, adult yelloweye rockfish, canary rockfish, and bocaccio have been documented in areas with non-rocky substrates such as sand, mud, and other unconsolidated sediments (Haw and Buckley, 1971; Washington, 1977; Miller and Borton, 1980; Reum, 2006).

Food sources for yelloweye rockfish, canary rockfish, and bocaccio occur throughout Puget Sound. However, each of the basins has unique biomass and species compositions of fishes and invertebrates, which vary temporally and spatially (Rice, 2007; Rice et al., 2012). Absolute and relative abundance and species richness of most fish species in the Puget Sound/Georgia Basin increase with latitude (Rice, 2007; Rice et al., 2012). Despite these differences, each basin hosts common food sources for yelloweye rockfish, canary rockfish, and bocaccio as described below.

Larval and juvenile rockfish feed on very small organisms such as zooplankton, copepods and phytoplankton, small crustaceans, invertebrate eggs, krill, and other invertebrates (Moser and Boehlert, 1991; Love et al., 1991; Love et al., 2002). Larger juveniles also feed upon small fish (Love et al., 1991). Adult yelloweye rockfish, canary rockfish, and bocaccio have diverse diets that include many species of fishes and invertebrates including but not limited to crabs, various rockfish ( Sebastes spp. ), flatfish ( Pleuronectidae spp. ), juvenile salmon ( Oncorhynchus spp. ), walleye pollock, ( Theragra chalcogramma ), Pacific hake ( Merluccius productus ), Pacific cod ( Gadus macrocephalus ), green sea urchin ( Stongylocentrotus droebachiensis ), lingcod ( Ophiodon elongates ) eggs, various shrimp species ( Pandalus spp. ), and perch ( Rhacochilus spp. ). Common forage fish that are part of their diets include Pacific herring ( Clupea harengus pallasi ), surf smelt ( Hypomesus pretiosus ), and Pacific sand lance ( Ammodytes hexapterus ) (Washington et al., 1978; Lea et al., 1999; Love et al., 2002; Yamanaka et al., 2006).

The ESA defines critical habitat under section 3(5)(A) as: “(i) The specific areas within the geographical area occupied by the species, at the time it is listed . . . , on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary [of Commerce] that such areas are essential for the conservation of the species.”

Section 4(a) of the ESA precludes military land from designation, where that land is covered by an Integrated Natural Resource Management Plan that the Secretary has found in writing will benefit the listed species.

Section 4(b)(2) of the ESA requires us to designate critical habitat for threatened and endangered species “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” It grants the Secretary of Commerce (Secretary) discretion to exclude any area from critical habitat if he determines “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” In adopting this provision, Congress explained that, “[t]he consideration and weight given to any particular impact is completely within the Secretary's discretion.” H.R. No. 95-1625, at 16-17 (1978). The Secretary's discretion to exclude is limited, as he may not exclude areas that “will result in the extinction of the species.”

Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure they do not fund, authorize, or carry out any actions that will destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure their actions do not jeopardize the continued existence of listed species.

In the following sections, we describe the relevant definitions and requirements in the ESA and our implementing regulations and the key methods and criteria used to prepare this proposed critical habitat designation. Discussion of the specific implementation of each item occurs within the species-specific sections. In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), this proposed designation is based on the best scientific information available concerning the species' present and historical range, habitat, and biology, as well as threats to their habitat. In preparing this proposed designation, we reviewed and summarized current information on these species, including recent biological surveys and reports, peer-reviewed literature, NMFS status reviews, and the proposed and final rules to list these species. All of the information gathered to create this proposed rule has been collated and analyzed in three supporting documents: A Draft Biological Report (NMFS, 2013a); a Draft Economic Analysis (NMFS, 2013b); and a Draft Section 4(b)(2) Report (NMFS, 2013c). We used these reports to inform the identification of specific areas as critical habitat. We followed a five-step process in order to identify these specific areas: (1) Determine the geographical area occupied by the species at the time of listing, (2) identify physical or biological habitat features essential to the conservation of the species, (3) delineate specific areas within the geographical area occupied by the species on which are found the physical or biological features, (4) determine whether the features in a specific area may require special management considerations or protections, and (5) determine whether any unoccupied areas are essential for conservation. As described later, we did not identify any unoccupied areas that are essential for conservation. Once we have identified specific areas, we then considered the economic impact, impact on national security, and any other relevant impacts. The Secretary has the discretion to exclude an area from designation if he determines the benefits of exclusion (that is, avoiding the impact that would result from designation), outweigh the benefits of designation based on the best available scientific and commercial information. Our evaluation and determinations are described in detail in the following sections, in addition to our consideration of military lands.

In the status review and final ESA listing for each species, we identified a Puget Sound/Georgia Basin DPS for yelloweye rockfish, canary rockfish, and bocaccio (Drake et al. 2010; 75 FR 22276, April 28, 2010). Our review of the best available data confirmed that yelloweye rockfish, canary rockfish, and bocaccio occupy each of the major biogeographic basins of the Puget Sound/Georgia Basin (NMFS, 2013a). The range of the DPS includes portions of Canada; however, we cannot designate areas outside U.S. jurisdiction as critical habitat (50 CFR 424.12(h)). Puget Sound and Georgia Basin make up the southern arm of an inland sea located on the Pacific Coast of North America and connected to the Pacific Ocean by the Strait of Juan de Fuca. The term “Puget Sound proper” refers to the waters east of and including Admiralty Inlet. Puget Sound is a fjord-like estuary covering 2,331.8 sq mi (6,039.3 sq km) and has 14 major river systems and its benthic areas consist of a series of interconnected basins separated by relatively shallow sills, which are bathymetric shallow areas.

Agency regulations at 50 CFR 424.12(b) interpret the statutory phrase “physical or biological features essential to the conservation of the species.” The regulations state that these features include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species. These regulations go on to emphasize that the agency shall focus on “primary constituent elements” within the specific areas considered for designation. The regulations state:

Based on the best available scientific information regarding natural history and habitat needs, we developed a list of physical and biological features essential to the conservation of adult and juvenile yelloweye rockfish, canary rockfish, and bocaccio and relevant to determining whether proposed specific areas are consistent with the above regulations and the ESA section (3)(5)(A) definition of “critical habitat.” We do not currently have sufficient information regarding the habitat requirements of larval yelloweye rockfish, canary rockfish, and bocaccio to determine which features are essential for conservation, and thus are not proposing to designate critical habitat specifically for this life-stage. However, we will continue to investigate this issue and seek comment on it as part of this proposed rule. The physical or biological features essential to the conservation of yelloweye rockfish, canary rockfish, and bocaccio fall into major categories reflecting key life history phases:

Benthic habitats or sites deeper than 30m (98ft) that possess or are adjacent to areas of complex bathymetry consisting of rock and or highly rugose habitat are essential to conservation because these features support growth, survival, reproduction, and feeding opportunities by providing the structure for rockfish to avoid predation, seek food and persist for decades. Several attributes of these sites determine the quality of the habitat and are useful in considering the conservation value of the associated feature, and whether the feature may require special management considerations or protection. These attributes are also relevant in the evaluation of the effects of a proposed action in a section 7 consultation if the specific area containing the site is designated as critical habitat. These attributes include: (1) Quantity, quality, and availability of prey species to support individual growth, survival, reproduction, and feeding opportunities, (2) water quality and sufficient levels of dissolved oxygen to support growth, survival, reproduction, and feeding opportunities, and (3) the type and amount of structure and rugosity that supports feeding opportunities and predator avoidance.

Juvenile settlement habitats located in the nearshore with substrates such as sand, rock and/or cobble compositions that also support kelp (families Chordaceae, Alariaceae, Lessoniacea, Costariaceae, and Laminaricea) are essential for conservation because these features enable forage opportunities and refuge from predators and enable behavioral and physiological changes needed for juveniles to occupy deeper adult habitats. Several attributes of these sites determine the quality of the area and are useful in considering the conservation value of the associated feature and, in determining whether the feature may require special management considerations or protection. These features also are relevant to evaluating the effects of a proposed action in a section 7 consultation if the specific area containing the site is designated as critical habitat. These attributes include: (1) Quantity, quality, and availability of prey species to support individual growth, survival, reproduction, and feeding opportunities; and (2) water quality and sufficient levels of dissolved oxygen to support growth, survival, reproduction, and feeding opportunities.

After determining the geographical area of the Puget Sound/Georgia Basin occupied by adult and juvenile yelloweye rockfish, canary rockfish, and bocaccio, and the physical and biological features essential to their conservation, we next identified the specific areas within the geographical area occupied by the species that contain the essential features. The U.S. portion of Puget Sound/Georgia Basin that is occupied by yelloweye, canary, and bocaccio can be divided into five biogeographic basins or areas based on the presence and distribution of adult and juvenile rockfish, geographic conditions, and habitat features (Figure 1). These five interconnected areas are: (1) The San Juan/Strait of Juan de Fuca Basin, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and (5) Hood Canal (Drake et al., 2010, NMFS 2013a). These interconnected basins are separated by relatively shallow sills. The configuration of sills and deep basins results in the partial recirculation of water masses in the Puget Sound and the retention of contaminants, sediment, and biota (Strickland, 1983). The sills largely define the boundaries between the basins and contribute to the generation of relatively fast water currents during portions of the tidal cycle. The sills, in combination with bathymetry, freshwater input, and tidal exchange, influence environmental conditions such as the movement and exchange of biota from one region to the next, water temperatures and water quality, and they also restrict water exchange (Ebbesmeyer et al., 1984; Burns, 1985; Rice, 2007). In addition, each basin differs in biological condition; depth profiles and contours; sub-tidal benthic, intertidal habitats; and shoreline composition and condition (Downing, 1983; Ebbesmeyer et al., 1984; Burns, 1985; Rice, 2007; Drake et al., 2010). These areas also meet the definition of specific areas under ESA section (3)(5)(A) because each one contains the essential physical and biological features for juvenile rearing and/or adult reproduction, sheltering, or feeding for yelloweye rockfish, canary rockfish, and bocaccio. We do not currently have sufficient information regarding the habitat requirements of larval yelloweye rockfish, canary rockfish, and bocaccio to allow us to determine essential features specific to the larval life stage.

We considered the distribution of the essential features within these areas. We used available geographic data to delineate and map the essential features within each of the specific areas.

To determine the distribution of essential features of benthic habitats deeper than 30 m (98 ft) with complex bathymetry, we relied on benthic habitat characterizations of each of the five basins of Puget Sound. We used the Benthic Terrain Model (BTM) developed by the NMFS Northwest Fisheries Science Center, which classifies terrain in all five basins (Davies, 2009). We also assessed recent benthic maps in the San Juan Basin (Greene and Barrie, 2011; Greene, 2012). We used these information sources to assess the presence of complex bathymetry in waters deeper than 30 m (98 ft).

The BTM is a collection of ArcGIS-based terrain visualization tools that can be used to examine the deepwater benthic environment using input bathymetric data sets. High resolution bathymetric data, most often obtained through acoustic means such as multibeam sonar mapping instruments, creates a digital representation of seafloor topography. The spatial analysis functions of a geographic information system (GIS) allow for the extraction of several derived products from bathymetric data, such as slope, bathymetric position, and rugosity. The BTM can also be used to classify data based on a combination of slope (a first-order derivative of bathymetry), and broad- and fine-scaled bathymetric position indices (Bathymetric Position Index, second-order derivatives of bathymetry) describing the depth of a specific point relative to the surrounding bathymetry, and produces grid layers of terrain-based zones and structures. The BTM classifies benthic terrain at a 30 m (98 ft) grid scale in several categories that include flats, depressions, crests, shelves, and slopes, but does not delineate benthic substrate type. The BTM also provides a “rugosity” value, which is a measurement of variations or amplitude in the height of a surface—in this case, the seafloor (Kvitek et al., 2003; Dunn and Halpin, 2009). Rugosity values range from 0 (i.e., flat habitat) to 5.7 (very complex habitat). We refer to benthic areas with rugosity values of 1.005 or higher as “high rugosity.” We selected a rugosity value of 1.005 and higher as representing the presence of this essential feature because the spatial area mapped as proposed critical habitat at that level of rugosity encompassed the vast majority of the documented occurrences with precise spatial data of yelloweye rockfish (90%), canary rockfish (86%), and bocaccio (92%) within the DPSs (NMFS, 2013a). Rugosity values can be used as a surrogate for reef fish diversity when other data on habitats are lacking (Pittman et al. 2007). Similarly, areas of high rugosity have been used as an indicator of hard-bottomed habitat (Dunn and Halpin 2009).

In addition to the BTM, we used available benthic maps to assess rockfish habitat in the San Juan Basin. Unlike the rest of the basins of the Puget Sound, comprehensive seafloor characterization and mapping has occurred in most of the San Juan Archipelago and southern Georgia Strait (Greene and Barrie, 2011; Greene, 2012). This mapping was generated by multibeam and backscatter sonar surveys. These habitat maps provide information on the benthic terrain for most of the San Juan area, including specific benthic terrain types (i.e., “fractured bedrock” and “hummocky unconsolidated sediments”), which can be used to identify complex bathymetry.

We analyzed whether the BTM encompassed the rocky habitats of the San Juan Islands mapped by Green and Barrie (2011) and found just over 1 sq mi (1.6 sq km) was composed of rock but not identified as having rugosity values equal to or greater than 1.005 by the BTM. This is just 2 percent of the overall amount of rocky areas mapped by Green and Barrie (2011). This assessment served as verification that the BTM's rugosity values of equal to or greater than 1.005 encompass most rocky terrain in the San Juan Basin. In addition to the areas identified as high rugosity by the BTM, we concluded that the 2 percent of rocky areas in the San Juan Basin not characterized as high rugosity contain the essential features of rockfish critical habitat and were added to the final distribution map for this essential feature (NMFS, 2013a).

In delineating juvenile settlement sites in Puget Sound, we focused on the area contiguous with the shoreline from extreme high water out to a depth no greater than 30 meters relative to mean lower low water because this area coincides with the maximum depth of the photic zone in Puget Sound and thus, with appropriate substrates that can support the growth of kelp and rearing canary rockfish and bocaccio. To determine the distribution of essential features of nearshore habitats for juvenile canary rockfish and bocaccio, we used the Washington State Department of Natural Resources' (DNR) shorezone inventory (Berry, 2001) in combination with the benthic habitat classifications of the BTM related to the locations where moderate and large rivers enter Puget Sound (NMFS, 2013a).

The DNR shorezone habitat classifications are available for all of the shoreline within the ranges of the DPSs. We used the habitat characteristics described in the shorezone inventory to assist in determining if essential features for juvenile canary rockfish and bocaccio occur along particular nearshore areas. The shorezone inventory was conducted by aerial visual surveys between 1994 and 2000 along all of Washington State's shorelines (Berry et al., 2001). The DNR subdivided beaches into units that are sections of beach with similar geomorphic characteristics. Within each unit, the DNR documented the presence of eelgrass or kelp, among other biological parameters. There are 6,856 shoreline segments in the range of the rockfish DPSs, ranging from 0.02 to 14 kilometers (0.01 to 8.7 mi) in length. The DNR delineated 15 different geomorphic shoreline types. The DNR's mapping of aquatic vegetation had limitations, because shoreline segments were observed by aerial surveys during different years and months. Aquatic vegetation growth, including kelp, is variable from month to month and year to year. Some kelp species are annuals, thus surveys that took place during non-growing seasons may have not mapped kelp beds where they actually occur. Non-floating kelp species in particular may have also been underestimated by the DNR survey methods because they were more difficult to document than floating kelp. In particular, all kelp species mapped were usually not visible to their lower depth limit because of poor visibility through the water column. While beds of vegetation may have been visible underwater, often it was not possible to determine what particular type of vegetation was present because of a lack of color characteristics. In addition, because floating kelp occurs in shallow waters, off-shore of the area visible from the aircraft, it was not mapped in many cases. For these reasons, the mapped kelp within the shorezone database represents an underestimation of the total amount of kelp along Puget Sound shorelines.

To determine which shorelines contained the essential features for juvenile canary rockfish and bocaccio, we reviewed their geomorphic classifications to see if they possessed “substrates such as sand, rock and/or cobble compositions.” In addition, we assessed the relative overlap of mapped kelp in these shoreline types. All but the “Estuary Wetland” and “Mud Flat” type shoreline segments had at least 20 percent of the segment with “continuous” or “sporadic” kelp mapped by DNR. The Estuary Wetland and Mud Flat type segments had very small portions of kelp (1.5 and 2.6 percent, respectively). We found that the Estuary Wetland and Mud Flat type shoreline segments longer than one-half lineal mile in length lack essential features for canary rockfish and bocaccio.

To assess nearshore estuaries and deltas of moderate and large rivers that enter Puget Sound, we used information from Burns (1983) and Teizeen (2012) to determine the location and annual flows of these rivers. These rivers input various volumes of sediment and fresh water into Puget Sound (Downing, 1983; Burns, 1985; Czuba et al., 2011) and profoundly influence local benthic habitat characteristics, salinity levels, and local biota. The nearshore areas adjacent to moderate-to-large river deltas are characterized by the input of fresh water and fine sediments that create relatively flat habitats (termed “shelves” by the BTM) that do not support the growth of kelp (NMFS, 2013a). In addition, the net outward flow of these deltas may prevent post-settlement juvenile canary rockfish or bocaccio from readily using these habitats. For these reasons we found that these nearshore areas do not contain the essential features of rearing sites for canary rockfish or bocaccio (juvenile yelloweye rockfish most commonly occupy waters deeper than the nearshore).

The DNR shorezone survey did not delineate the geomorphic extent of shoreline segments associated with estuaries and deltas. Thus we determined the geographical extent of these estuaries and shelves from the BTM “shelf” seafloor designation associated with the particular river because it indicates the geomorphic extension of the tidal and sub-tidal delta where fresh water enters Puget Sound. Not all of the shorelines associated with estuaries and deltas were labeled as “estuary wetland” and “mud flat” by DNR, thus we delineated juvenile settlement sites located in the nearshore at the border of these deltas at either the geomorphic terminus of the delta at the 30 m (98 ft) contour, and/or at the shoreline segment mapped with kelp by the DNR. By doing this, we eliminated some of the other shorezone geomorphic shoreline types from proposed critical habitat designation because available information did not support the presence of essential features at some specific areas adjacent to moderate to large rivers (see NMFS, 2013a).

An occupied area cannot be designated as critical habitat unless it contains physical or biological features that “may require special management considerations or protection.” Agency regulations at 50 CFR 424.02(j) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” Many forms of human activities have the potential to affect the essential features of listed rockfish species: (1) Nearshore development and in-water construction (e.g., beach armoring, pier construction, jetty or harbor construction, pile driving construction, residential and commercial construction); (2) dredging and disposal of dredged material; (3) pollution and runoff; (4) underwater construction and operation of alternative energy hydrokinetic projects (tidal or wave energy projects) and cable laying; (5) kelp harvest; (6) fisheries; (7) non-indigenous species introduction and management; (8) artificial habitats; (9) research activities; and (10) aquaculture. All of these activities may have an effect on one or more physical or biological features via their potential alteration of one or more of the following: adult habitats, food resources, juvenile settlement habitat, and water quality. Further detail regarding the biological and ecological effect of these species management considerations is found in the draft Biological Report (NMFS, 2013a).

We describe the five basins (the specific areas) of the Puget Sound below in terms of their biological condition and attributes, and full details are found in the biological report supporting this proposed designation (NMFS, 2013a). Each basin has different levels of human impacts related to the sensitivity of the local environment, and degree and type of human-derived impacts. We have also included examples of some of the activities that occur within these basins that affect the essential features such that they may require special management considerations or protection.

The San Juan/Strait of Juan de Fuca Basin —This basin is the northwestern boundary of the U.S. portion of the DPSs. The basin is delimited to the north by the Canadian border and includes Bellingham Bay, to the west by the entrance to the Strait of Juan de Fuca, to the south by the Olympic Peninsula and Admiralty Inlet, and to the east by Whidbey Island and the mainland between Anacortes and Blaine, Washington. The predominant feature of this basin is the Strait of Juan de Fuca, which is 99.4 mi (160 km) long and varies from 13.7 mi (22 km) wide at its western end to over 24.9 mi (40 km) wide at its eastern end (Thomson, 1994). Drake et al. (2010) considered the western boundary of the DPSs as the Victoria Sill because it is hypothesized to control larval dispersal for rockfish (and other biota) of the region. Water temperatures are lower and more similar to coastal marine waters than to Puget Sound proper, and circulation in the strait consists of a seaward surface flow of diluted seawater (<30.0 practical salinity units [psu]) in the upper layer and an inshore flow of saline oceanic water (>33.0 psu) at depth (Drake et al., 2010). Water exchange in this basin has not been determined because, unlike the rest of the basins of the DPSs, it is more oceanic in character and water circulation is not nearly as constrained by geography and sills as it is in the other basins.

The San Juan/Strait of Juan de Fuca Basin has the most rocky shoreline and benthic habitats of the U.S. portion of the DPSs. Most of the basin's numerous islands have rocky shorelines with extensive, submerged aquatic vegetation and floating kelp beds necessary for juvenile canary rockfish and bocaccio settlement sites.

This basin also contains abundant sites deeper than 30 meters that possess or are adjacent to areas of complex bathymetry. Approximately 93 percent of the rocky benthic habitats of the U.S. portion of the range of all three DPSs are in this basin (Palsson et al., 2009). Plate tectonic processes and glacial scouring/deposition have produced a complex of fjords, grooved and polished bedrock outcrops, and erratic boulders and moraines along the seafloor of the San Juan Archipelago (Greene, 2012). Banks of till and glacial advance outwash deposits have also formed and contribute to the variety of relief and habitat within the basin. These processes have contributed to the development of benthic areas with complex bathymetry.

Yelloweye rockfish, canary rockfish, and bocaccio have been documented in the San Juan Archipelago, in addition to the southern portion of this basin along the Strait of Juan de Fuca (Washington, 1977; Moulton and Miller, 1987; Pacunski, 2013). The southern portion of this basin has several pinnacles that include Hein, Eastern, Middle, MacArthur, Partridge, and Coyote Banks. Yelloweye rockfish were once commonly caught by anglers along these areas, particularly Middle Bank (Olander, 1991).

As described in more detail in the biological report (NMFS, 2013a), there are several activities that occur in this basin that affect the essential features such that they may require special management considerations. Commercial and recreational fisheries occur here, as well as scientific research. The highest concentration of derelict fishing nets in the DPSs remain here, including over 100 nets in waters deeper than 100 ft (30.5 m) (NRC, 2010), and an estimated 705 nets in waters shallower than 100 ft (30.5 m) (Northwest Straits Initiative, 2011). Because this basin has the most kelp in the DPSs, commercial harvest of kelp could be proposed for the San Juan Islands area. The Ports of Bellingham and Anacortes are located in this basin, and numerous dredging and dredge disposal projects and nearshore development, such as new docks, piers, and bulkheads occur in this basin. These development actions have the potential to alter juvenile settlement sites of canary rockfish and bocaccio. Two open-water dredge disposal sites are located in the basin, one in Rosario Strait and the other northwest of Port Townsend. These are termed dispersive sites because they have higher current velocities; thus, dredged material does not accumulate at the disposal site and settles on benthic environments over a broad area (Army Corps of Engineers, 2010). Sediment disposal activities in this specific area may temporarily alter water quality (dissolved oxygen levels) and feeding opportunities (the ability of juvenile rockfish to seek out prey). There are several areas with contaminated sediments along the eastern portion of this basin, particularly in Bellingham Bay and Guemes Channel near Anacortes.

Whidbey Basin —The Whidbey Basin includes the marine waters east of Whidbey Island and is delimited to the south by a line between Possession Point on Whidbey Island and Meadowdale, south of Mukilteo. The northern boundary is Deception Pass at the northern tip of Whidbey Island. The Skagit, Snohomish, and Stillaguamish Rivers flow into this basin and contribute the largest influx of freshwater inflow to Puget Sound (Burns, 1985). Water retention is approximately 5.4 months due to the geography and sills at Deception Pass (Ebbesmeyer et al., 1984).

Most of the nearshore of the Whidbey Basin consists of bluff-backed beaches with unconsolidated materials ranging from mud and sand to mixes or gravels and cobbles (McBride 2006). Some of these nearshore areas support the growth of kelp. Some of the northern part of this basin is relatively shallow with moderately flat bathymetry near the Skagit, Stillaguamish and Snohomish River deltas and does not support kelp growth because it lacks suitable areas for holdfast attachment, such as rock and cobble.

Benthic areas in this basin contain sites deeper than 30 meters that possess or are adjacent to areas of complex bathymetry. The southern portion of the basin has more complex bathymetry compared to the north, with deeper waters adjacent to Whidbey Island, southern Camano Island, and near the City of Mukilteo.

Yelloweye rockfish, canary rockfish, and bocaccio have been documented in the Whidbey basin, with most occurrences within the southern portion near south Camano Island, Hat (Gedney) Island, and offshore of the City of Mukilteo. It is not known if the southern portion of the Whidbey basin has more attractive rockfish habitat compared to the northern portion, or if most documented occurrences are a reflection of uneven sampling effort over the years.

As described in more detail in the biological report, there are several activities that occur in this basin that affect the essential features such that they may require special management considerations. Activities include commercial and recreational fisheries, scientific research, dredging projects and dredge disposal operations, nearshore development projects, aquaculture and tidal energy projects. An estimated 18 derelict nets remain in waters shallower than 100 ft (30.5 m) in this basin (Northwest Straits Initiative, 2011). A potential tidal energy site is located within the Deception Pass area, at the northern tip of Whidbey Island. Pollution and runoff are also concerns in this basin, mostly near the Port Gardner area. There are several areas with contaminated sediments along the eastern portion of this basin, particularly near the Cities of Mukilteo and Everett.

Main Basin —The 62.1 mi (100 km) long Main Basin is delimited to the north by a line between Point Wilson near Port Townsend and Partridge Point on Whidbey Island, to the south by Tacoma Narrows, and to the east by a line between Possession Point on Whidbey Island and Meadow Point. The sill at the border of Admiralty Inlet and the eastern Straits of Juan de Fuca regulates water exchange of Puget Sound (Burns, 1985). The Main Basin is the largest basin, holding 60 percent of the water in Puget Sound proper. Water retention is estimated to be one month due to the sills at Admiralty Inlet and Deception Pass (Ebbesmeyer et al., 1984).

Approximately 33 percent (439.3 mi (707 km)) of Puget Sound's shoreline occurs within this basin and nearshore habitats consist of bluff-backed beaches with unconsolidated materials ranging from mud and sand to mixes or gravels and cobbles (Drake et al., 2010). Some of these nearshore areas support the growth of kelp. Subtidal surface sediments in Admiralty Inlet tend to consist largely of sand and gravel, whereas sediments just south of the inlet and southwest of Whidbey Island are primarily sand. Areas deeper than 30 meters in the Main Basin have varying amounts of sites that possess or are adjacent to areas of complex bathymetry. Sediments in the deeper areas of the central portion of the Main Basin generally consist of mud or sandy mud (Bailey et al., 1998) and are generally not complex. Possession Point is centrally located within this basin at the southern end of Whidbey Island, and has relatively steep eastern, southern, and western edges and also has some rocky substrates (Squire and Smith, 1977). There are benthic areas deeper than 98 ft (30 m) along Possession Point, Admiralty Inlet and the rims of Puget Sound beyond the nearshore that feature complex bathymetry, with slopes and areas of high rugosity.

Yelloweye rockfish, canary rockfish, and bocaccio have been documented at Possession Point, near the port of Kingston and Apple Cove, and along much of the eastern shoreline of this basin (Washington, 1977; Moulton and Miller, 1987).

As described in more detail in the biological report, there are several activities that occur in this basin that affect the essential features such that they may require special management considerations. Activities include commercial and recreational fisheries, scientific research, dredging projects and dredge disposal operations, nearshore development projects, aquaculture and tidal energy projects. An estimated 75 derelict nets in waters shallower than 100 ft (30.5 m) remain in this basin (Northwest Straits Initiative, 2011). A planned tidal energy site is located within the Admiralty Inlet area off Whidbey Island. Pollution and runoff are also concerns in this basin because of extensive amounts of impervious surface located on its eastern side. Two open-water dredge disposal sites are located in the basin, one located in Elliot Bay and the other in Commencement Bay. These are non-dispersive disposal sites, which are areas where currents are slow enough that dredged material is deposited on the disposal target area rather than dispersing broadly with prevailing currents (Army Corps of Engineers, 2010). An estimated 36 percent of the shoreline in this area has been modified by human activities (Drake et al., 2010) and bulkhead/pier repair projects and new docks/piers are proposed regularly in this basin. There are several areas with contaminated sediments in this basin, particularly in Elliot Bay, Sinclair Inlet, and Commencement Bay.

South Puget Sound —This basin includes all waterways south of Tacoma Narrows, and is characterized by numerous islands and shallow (generally <65 ft (20 m)) inlets with extensive shoreline areas. The sill at Tacoma Narrows restricts water exchange between the South Puget Sound and the Main Basin and water retention is an estimated 1.9 months (Ebbesmeyer et al., 1984). This restricted water exchange influences environmental characteristics of the South Puget Sound such as nutrient levels and dissolved oxygen, and perhaps its biotic communities (Ebbesmeyer et al., 1984; Rice, 2007).

Wide assortments of sediments are found in the nearshore and intertidal areas of this basin (Bailey et al., 1998). The most common sediments and the percent of the intertidal area they cover (with 95 percent confidence limits) are: Mud, 38.3 ± 29.3 percent; sand, 21.7 ± 23.9 percent; mixed fine, 22.9 ± 16.1 percent; and gravel, 11.1 ± 4.9 percent. Subtidal areas have a similar diversity of surface sediments, with shallower areas consisting of mixtures of mud and sand and deeper areas consisting of mud (Puget Sound Water Quality Authority, 1987). The southern inlets of this basin include Oakland Bay, Totten Inlet, Bud Inlet and Eld Inlet, in addition to the Nisqually River delta. These inlets have relatively muddy habitats that do not support essential nearshore features such as holdfasts for kelp, and rock and cobble areas for rearing juvenile canary rockfish and bocaccio. Despite the prevalence of muddy and sandy substrate in the southern portion of this basin, some of these nearshore areas support the growth of kelp and therefore contain juvenile settlement sites.

With a mean depth of 121 ft (37 m), this basin is the shallowest of the five basins (Burns 1985). Benthic areas deeper than 98 ft (30 m) occur in portions of the Tacoma Narrows and Dana Passage and around the rims of the basin. Sediments in Tacoma Narrows and Dana Passage consist primarily of gravel and sand. The rims of South Puget Sound beyond the nearshore feature complex bathymetry, with slopes and areas of high rugosity.

Yelloweye rockfish, canary rockfish, and bocaccio have been documented within the South Puget Sound (NMFS, 2013a). Canary rockfish may have been historically most abundant in the South Sound (Drake et al., 2010).

As described in more detail in the biological report, there are several activities that occur in this basin that affect the essential features such that they may require special management considerations. Activities include commercial and recreational fisheries, scientific research, dredging and dredge disposal, nearshore development, pollution and runoff, aquaculture operations, and potential tidal energy projects. An estimated 4 derelict nets in waters shallower than 100 ft (30.5 m) remain in this basin (Northwest Straits Initiative, 2011). A non-dispersive dredge disposal site is located off Anderson/Ketron Island (Army Corps of Engineers, 2010). A potential tidal energy site is located in the Tacoma Narrows area. Important point sources of waste include sewage treatment facilities, and about 5 percent of the nutrients (as inorganic nitrogen) entering greater Puget Sound enter this basin through nonpoint sources (Embrey and Inkpen, 1998). An estimated 34 percent of the shoreline in this area has been modified by human activities (Drake et al., 2010), and bulkhead/pier repair projects and new docks/piers are proposed regularly in this basin. The major urban areas, and thus more pollution and runoff into the South Puget Sound, are found in the western portions of Pierce County. Other urban centers in Southern Puget Sound include Olympia and Shelton. There are several areas with contaminated sediments in this basin in Carr Inlet and near Olympia.

Hood Canal —Hood Canal branches off the northwest part of the Main Basin near Admiralty Inlet and is the smallest of the greater Puget Sound basins, being 55.9 mi (90 km) long and 0.6 to 1.2 mi (1 to 2 km) wide (Drake et al., 2010). Water retention is estimated at 9.3 months; exchange in Hood Canal is regulated by a 164-foot (50-meter) deep sill near its entrance that limits the transport of deep marine waters in and out of Hood Canal (Ebbesmeyer et al., 1984; Burns, 1985). The major components of this basin consist of the Hood Canal entrance, Dabob Bay, the central basin, and the Great Bend at the southern end. A combination of relatively little freshwater inflow, the sill at Admiralty Inlet, and bathymetry lead to relatively slow currents; thus, water residence time within Hood Canal is the longest of the biogeographic basins, with net surface flow generally northward (Ebbesmeyer et al., 1984).

The intertidal and nearshore zone consists mostly of mud (53.4 ± 89.3 percent of the intertidal area), with similar amounts of mixed fine sediment and sand (18.0 ± 18.5 percent and 16.7 ± 13.7 percent, respectively) (Bailey et al., 1998). Some of the nearshore areas of Hood Canal have cobble and gravel substrates intermixed with sand that support the growth of kelp. Surface sediments in the subtidal areas also consist primarily of mud and cobbles (Puget Sound Water Quality Authority, 1987). The shallow areas of the Great Bend, Dabob Bay, and the Hamma Hamma, Quilcene, Duckabusch, Dosewallips, Tahuya and Skokomish River deltas feature relatively muddy habitats that lack holdfasts for kelp, such as rock and cobble areas, and thus do not support kelp growth. Such areas thus lack the essential feature of juvenile settlement sites for juvenile canary rockfish and bocaccio.

Benthic areas deeper than 98 ft (30 m) occur along the rim of nearly all of Hood Canal, and these areas feature complex bathymetry, with slopes and areas of high rugosity.

Bocaccio have been documented in Hood Canal (NMFS, 2013a). Yelloweye and canary rockfish have also been documented at several locations and have been caught in relatively low numbers for the past several years (WDFW, 2011).

As described in more detail in the biological report, there are several activities that occur in this basin that affect the essential features such that they may require special management considerations. Activities in Hood Canal include commercial and recreational fisheries, scientific research, nearshore development, non-indigenous species management, aquaculture, and pollution and runoff. An estimated 81 derelict nets in waters shallower than 100 ft (30.5 m) remain in this basin (Northwest Straits Initiative, 2011). The unique bathymetry and low water exchange have led to episodic periods of low dissolved oxygen (Newton et al., 2007), though the relative role of nutrient input from humans in exacerbating these periods of hypoxia is in doubt (Cope and Roberts, 2012). Dissolved oxygen levels have decreased to levels that cause behavioral changes and kill some rockfish (i.e., below 1.0 mg/L (1 ppm)) (Palsson et al., 2008). An estimated 34 percent of the shoreline in this area has been modified by human activities (Drake et al., 2010), and bulkhead/pier repairs and new docks/piers are regularly proposed in this basin. The non-indigenous tunicate ( Ciona savignyi ) has been document at 86 percent of sites surveyed in Hood Canal (Drake et al., 2010), and may impact benthic habitat function that include rearing and settlement habitat for rockfish.

As previously described, we first used available geographic data to identify the locations of benthic sites with or adjacent to complex bathymetry and shoreline sites with sand, rock and/or cobble compositions that also support kelp, as described in more detail in the draft Biological Report (NMFS, 2013a). Once we identified these sites, we aggregated sites located in close proximity through Geographic Information Systems methods described in NMFS (2013a), consistent with the regulatory guidance regarding designation of an inclusive area for habitats in close proximity (50 CFR 424.12(d)).

The specific areas we identified are large and we relied on recent agency rulemaking to refine the designation and provide a critical habitat map that clearly delineates where the essential features are found within the specific areas. The agency recently amended its critical habitat regulations to state that instead of designating critical habitat using lines on a map, we will show critical habitat on a map, with additional information discussed in the preamble of the rulemaking and in agency records (50 CFR 424.12(c)), rather than requiring long textual description in the Code of Federal Regulations (CFR). In adopting this amendment to our regulations, we stated in response to comments:

The maps we developed for the present designation conform to this new regulation. In addition, in agency records, and available on our Web site, we provide the GIS plot points used to create these maps, so interested persons may determine whether any place of interest is within critical habitat boundaries ( http://www.nwr.noaa.gov ).

Section 3(5)(A)(ii) of the ESA authorizes the designation of “specific areas outside the geographical area occupied at the time [the species] is listed” if these areas are essential for the conservation of the species. Regulations at 50 CFR 424.12(e) emphasize that the agency “shall 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.” We conducted a review of the documented occurrences of each listed rockfish in the five biogeographic basins of Puget Sound (NMFS, 2013a). We found that each of the basins is currently occupied by listed rockfish and our biological review did not identify any unoccupied areas that are essential to conservation and thus have not identified any unoccupied areas as candidates for critical habitat designation (NMFS, 2013a). However, we will continue to investigate this issue and seek comment on this issue as part of this proposed rule.

Section 3(5)(C) of the ESA provides that “[e]xcept in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.” In this case we are proposing to designate all the specific areas that possess essential features that can be mapped (such as complex bathymetry in waters deeper than 30 meters, and nearshore areas such as sand, rock and/or cobble compositions that also support kelp) and as described above, we are only designating those portions of the specific areas that actually contain the essential features. We acknowledge that some listed rockfish have been documented to occur outside of the mapped areas that we propose to designate as critical habitat (NMFS, 2013a) and that larval listed rockfish could occur throughout the specific areas. Therefore, although each specific area contains habitat proposed for designation, we conclude that the proposed designation does not constitute “the entire geographical area which can be occupied” by the listed rockfish species.

Section 4(a)(3) of the ESA precludes the Secretary from designating military lands as critical habitat if those lands are subject to an Integrated Natural Resource Management Plan (INRMP) under the Sikes Act that the Secretary certifies in writing benefits the listed species. We consulted with the DOD and determined that there are several installations with INRMPs which overlap with marine habitats occupied by listed rockfish: (1) Joint base Lewis-McCord: (2) Manchester Fuel Department, (3) Naval Air Station Whidbey Island, (4) Naval Station Everett, and (5) Naval Station Kitsap.

We found that Naval Station Everett does not overlap with essential features for listed rockfish in the nearshore and thus the area covered by the INRMP is not proposed for critical habitat designation. We identified habitat meeting the statutory definition of critical habitat at all of the other installations and reviewed the INRMPs, as well as other information available, regarding the management of these military lands. Our preliminary review indicates that each of these INRMPs addresses listed rockfish habitat, and all contain measures that provide benefits to the listed rockfish DPSs. Examples of the types of benefits include actions that improve shoreline conditions, control erosion and water quality, prevention of and prompt response to chemical and oil spills, and monitoring of listed species and their habitats. As a result, we conclude that the areas identified with INRMPs are not eligible for critical habitat designation (see appendix c of NMFS, 2013c).

We have determined that approximately 643.7 sq mi (1,665.5 sq km) of nearshore habitat for juvenile canary rockfish and bocaccio, and 610.1 sq mi (1,580.95 sq km) of deepwater habitat for yelloweye rockfish, canary rockfish, and bocaccio meet the definition of proposed critical habitat (Table 1).

Management Considerations Codes: (1) Nearshore development and in-water construction (e.g., beach armoring, pier construction, jetty or harbor construction, pile driving construction, residential and commercial construction); (2) dredging and disposal of dredged material; (3) pollution and runoff; (4) underwater construction and operation of alternative energy hydrokinetic projects (tidal or wave energy projects) and cable laying; (5) kelp harvest; (6) fisheries; (7) non-indigenous species introduction and management; (8) artificial habitats; (9) research; and (10) aquaculture. Commercial kelp harvest does not occur presently, but would probably be concentrated in the San Juan/Georgia Basin. Artificial habitats could be proposed to be placed in each of the basins. Non-indigenous species introduction and management could occur in each basin.

The foregoing discussion describes those areas that are eligible for designation as critical habitat—the specific areas that fall within the ESA section 3(5)(A) definition of critical habitat, not including lands owned or controlled by the DOD, or designated for its use, that are covered by an INRMP that the Secretary has determined in writing provides a benefit to the species. Specific areas eligible for designation are not automatically designated as critical habitat. As described above, Section 4(b)(2) of the ESA requires that the Secretary first consider the economic impact, impact on national security, and any other relevant impact. The Secretary has the discretion to exclude an area from designation if he determines the benefits of exclusion (that is, avoiding the impact that would result from designation), outweigh the benefits of designation based on the best available scientific and commercial information. The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. Because the authority to exclude is wholly discretionary, exclusion is not required for any areas.

The first step in conducting an ESA section 4(b)(2) analysis is to identify the “particular areas” to be analyzed. Section 3(5)(A) of the ESA defines critical habitat as “specific areas,” while section 4(b)(2) of the ESA requires the agency to consider certain factors before designating any “particular area.” Depending on the biology of the species, the characteristics of its habitat, and the nature of the impacts of designation, “specific” areas might be different from, or the same as, “particular” areas. For this designation, we identified the “specific” areas as (1) The San Juan/Strait of Juan de Fuca Basin, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and (5) Hood Canal. For our economic impact analysis we defined the “particular” areas as equivalent to the “specific” areas. This approach allowed us to most effectively consider the conservation value of the different areas when balancing conservation benefits of designation against economic benefits of exclusion. However, to assess impacts of designation on national security and Indian lands, we instead used a delineation of “particular” areas based on ownership or control of the area. These “particular” areas consisted of marine areas that overlap with designated military areas and Indian lands. This approach allowed us to consider impacts and benefits associated with management by the military or land ownership and management by Indian tribes.

Section 4(b)(2) of the ESA provides that the Secretary shall consider “the economic impact, impact on national security, and any other relevant impact of specifying any particular area as critical habitat.” The primary impact of a critical habitat designation stems from the requirement under section 7(a)(2) of the ESA that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining this impact is complicated by the fact that section 7(a)(2) contains the overlapping requirement that Federal agencies must ensure their actions are not likely to jeopardize the species' continued existence. The true impact of designation is the extent to which Federal agencies modify their actions to ensure their actions are not likely to destroy or adversely modify the critical habitat of the species, beyond any modifications they would make because of listing and the jeopardy requirement for the species. Additional impacts of designation include state and local protections that may be triggered as a result of the designation.

In determining the impacts of designation, we assessed the incremental change in Federal agency actions as a result of critical habitat designation and the adverse modification prohibition, beyond the changes predicted to occur as a result of listing and the jeopardy provision. In August 2012 the USFWS and NOAA published a proposed rule to amend our joint regulations at 50 CFR 424.19 to make clear that in considering impacts of designation as required by Section 4(b)(2) we would consider the incremental impacts (77 FR 51503, August 24, 2012). This approach is in contrast to our 2005 critical habitat designations for salmon and steelhead (70 FR 52630, September 2, 2005) where we considered the “coextensive” impact of designation. The consideration of co-extensive impacts was in accordance with a Tenth Circuit Court decision ( New Mexico Cattle Growers Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)). More recently, several courts (including the 9th Circuit Court of Appeals) have approved an approach that considers the incremental impact of designation. The Federal Register notice (77 FR 5103, August 24, 2012) announcing the proposed policy on considering impacts of designation describes and discusses these court cases: Arizona Cattlegrowers' Ass'n v. Salazar, 606 F3.d 1160, 1172-74 (9th Cir. 2010), cert. denied, 131 S. Ct. 1471, 179 L. Ed. 2d 300 (2011); Homebuilders Ass'n v. FWS, 616 F3d 983, 991093j (9th Cir. 2010) cert. denied, 131 S. Ct. 1475, 179 L. Ed. 2d 301 (2011). The notice also discusses a Department of Interior Solicitor's memo (M-3706 The Secretary's Authority to Exclude Areas from Critical Habitat Designation Under 4(b)(2) of the Endangered Species Act (Oct. 3, 2008) (DOI 2008)). In more recent critical habitat designations, both NMFS and the USFWS have considered the incremental impact of critical habitat designation (for example, NMFS' designation of critical habitat for the Southern DPS of green sturgeon (74 FR 52300, October 9, 2009) and the Southern DPS of Pacific eulachon (76 FR 65324, October 20, 2011), and the U.S. Fish and Wildlife's designation of critical habitat for the Oregon chub (75 FR 11031, March 10, 2010)).

Consistent with our proposed regulatory amendments (77 FR 51503, August 24, 2012), the more recent court cases, and more recent agency practice, we estimated the incremental impacts of designation, beyond the impacts that would result from the listing and jeopardy provision. In addition, because these proposed designations almost completely overlap our previous salmonid, killer whale and green sturgeon critical habitat designations in Puget Sound, and the essential features defined for those species in previous designations are similar to those for listed rockfish (NMFS, 2013a), we estimated only the incremental impacts of designation beyond the impacts already imposed by those prior designations.

To determine the impact of designation, we examined what the state of the world would be with and without the designation of critical habitat for listed rockfish. The “without critical habitat” scenario represents the baseline for the analysis. It includes process requirements and habitat protections already afforded listed rockfish under their Federal listing or under other Federal, state, and local regulations. Such regulations include protections afforded listed rockfish habitat from other co-occurring ESA listings and critical habitat designations, such as those for Pacific salmon and steelhead (70 FR 52630, September 2, 2005), North American green sturgeon (74 FR 52300, October 9, 2009), Southern Resident Killer Whales (71 FR 69054, November 29, 2006), and bull trout (75 FR 63898, October 18, 2010) (see the Final Economic Analysis for listed rockfish (NMFS, 2013a) for examples of protections for other species that would benefit listed rockfish). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for listed rockfish. The primary impacts of critical habitat designation we found were: (1) The economic costs associated with additional administrative effort of including a critical habitat analysis in section 7 consultations for these three DPSs, (2) impacts to national security, and (3) the possible harm to our working relationship with Indian tribes and landowners and entities with conservation plans.

Our economic analysis sought to determine the impacts on land uses and other activities from the proposed designation of critical habitat, above and beyond—or incremental to—those “baseline” impacts due to existing or planned conservation efforts being undertaken due to other Federal, state, and local regulations or guidelines (NMFS, 2013b). Other Federal agencies, as well as state and local governments, may also seek to protect the natural resources under their jurisdiction. If compliance with the Clean Water Act or state environmental quality laws, for example, protects habitat for the species, such protective efforts are considered to be baseline protections and costs associated with these efforts are not quantified as impacts of critical habitat designation.

When critical habitat is designated, section 7 requires Federal agencies to ensure that their actions will not result in the destruction or adverse modification of critical habitat, in addition to ensuring that the actions are not likely to jeopardize the continued existence of the species. The added administrative costs of considering critical habitat in section 7 consultations and the additional impacts of implementing project modifications to protect critical habitat are the direct result of the designation of critical habitat. These costs are not in the baseline, and are considered incremental impacts of the rulemaking.

Incremental economic impacts may include the direct costs associated with additional effort for future consultations, reinitiated consultations, new consultations occurring specifically because of the designation, and additional project modifications that would not have been required to avoid jeopardizing the continued existence of the species. Additionally, incremental economic impacts may include indirect impacts resulting from reaction to the potential designation of critical habitat (e.g., developing habitat conservation plans in an effort to avoid designation of critical habitat), triggering of additional requirements under State or local laws intended to protect sensitive habitat, and uncertainty and perceptional effects on markets.

To evaluate the potential administrative and project modification costs of designating critical habitat we examined our ESA section 7 consultation record for rockfish for the years 2010 and 2011. As further explained in the supporting economic report (NMFS, 2013b), to quantify the economic impact of designation, we employed the following three steps:

(1) Define the geographic study area for the analysis, and identify the units of analysis (the “particular areas”). In this case, we defined the five biogeographic basins of the Puget Sound/Georgia Basin that encompass occupied marine areas as the particular areas.

(2) Identify potentially affected economic activities and determine how management may increase due to the designation of listed rockfish critical habitat, both in terms of project administration and potential project modification.

(3) Estimate the economic impacts associated with both potential administrative costs and costs from project modifications. In this proposed critical habitat designation we did not identify potential systematic project modification costs (NMFS, 2013b).

We estimated that the additional effort to address adverse modification of critical habitat in a section 7 consultation is equivalent to one third of the effort already devoted to the consultation to consider the species. This is based on estimates of additional U.S. Fish and Wildlife Service effort for bull trout consultations in the Northwest, and which was considered relevant to the current critical habitat designation (NMFS, 2013b). That is, for every three hours spent considering a jeopardy analysis for rockfish, an additional hour would be needed to consider rockfish critical habitat. Based on that assumption, we estimated a total annualized incremental administrative cost of approximately $123,000 (discounted at 7 percent) for designating the five specific areas as listed rockfish critical habitat. The greatest costs are associated with nearshore work, transportation, water quality, and utilities (see NMFS, 2013b for more details). The estimated annual incremental costs across the five biogeographic basins range from $32,100 in the San Juan/Strait of Juan de Fuca Basin to $10,200 in Hood Canal (NMFS, 2013b).

For the second category of impacts, we consider it unlikely there will be incremental costs for project modifications specific to rockfish critical habitat for most individual project types. This is because of the existing high level of protection afforded by previous salmonid, green sturgeon and killer whale critical habitat designations that have generally similar biological features, and the protections already afforded listed rockfish through the separate jeopardy analysis (see NMFS, 2013b for more details). The results of our economic analysis are discussed in greater detail in a separate report that is available for public review and comment (NMFS, 2013b).

During preparations for the proposed designation we sent a letter to the DOD seeking information to better understand their activities taking place in areas owned or controlled by them and the potential impact of designating critical habitat in these areas. We received two letters from the DOD in response to our initial inquiry. A single letter from the U.S. Air Force and U.S. Army stated that these services did not foresee any adverse impacts to their national security or training missions from proposed rockfish critical habitat designations. The second letter, from the U.S. Navy, identified 14 Restricted Areas, Operating Areas and Danger Zones within the range of listed rockfish in each of the five basins of the Puget Sound. The Navy confirmed that it uses all of these areas, and assessed the potential for critical habitat designation to adversely affect operations, testing, training, and other essential military activities. Of the 14 areas identified by the Navy, only one area is already designated as critical habitat for other ESA-listed species (southern resident killer whales). The Navy letter identified several aspects of potential impacts to national security from critical habitat designation and requested that areas owned or controlled by the Navy be excluded from designation. We had several conversations with the Navy subsequent to their letter to further understand their uses of the areas, concerns identified in their response letter, and any related habitat protections resulting from Navy policies and initiatives (NMFS, 2013c).

During preparations for the proposed designation we sent a letter to Puget Sound Indian tribes, notifying them of our intent to propose critical habitat for listed rockfish. We identified several areas under consideration for critical habitat designation that overlap with Indian lands in each of the specific areas (Figures 2 and 3). The federally recognized tribes with lands potentially affected are the Lummi, Swinomish, Tulalip, Puyallup, Squaxin Island, Skokomish, Port Gamble, and Port Madison. In addition to the economic impacts described above, designating these tribes' Indian lands would have an impact on Federal policies promoting tribal sovereignty and self-governance. The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, secretarial orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the U.S. Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the U.S. toward Indian tribes with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to these authorities, lands have been retained by Indian tribes or have been set aside for tribal use. These lands are managed by Indian tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws.

Tribal governments have a unique status with respect to salmon, steelhead, and other marine resources in the Pacific Northwest, where they are co-managers of these resources throughout the region. The co-manager relationship crosses tribal, federal, and state boundaries, and addresses all aspects of the species' life cycle. The positive working relationship between the federal government and tribes can be seen in federal-tribal participation within the U.S. v. Oregon and U.S. v. Washington framework and the participation of tribes on interstate (Pacific Fisheries Management Council) and international (Pacific Salmon Commission) management bodies. Additionally, there are innumerable local and regional forums and planning efforts in which the tribes are engaged with the federal government, including ESA section 6 species recovery grants to the tribes. While many of these activities currently concentrate on recovery of listed salmon and steelhead in Puget Sound, they nonetheless result in several benefits to habitats used by listed rockfish through the conservation of habitats and prey sources of rockfish (NMFS, 2013c).

Section 10(a)(1)(B) of the ESA authorizes us to issue to non-Federal entities a permit for the incidental take of endangered and threatened species. This permit allows a non-Federal landowner/entity to proceed with an activity that is legal in all other respects, but that results in the incidental taking of a listed species (i.e., take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). The ESA specifies that an application for an incidental take permit (ITP) must be accompanied by a conservation plan, and specifies the content of such a plan. The purpose of such conservation plans is to describe and ensure that the effects of the permitted action on covered species are adequately minimized and mitigated, and that the action does not appreciably reduce the likelihood of the survival and recovery of the species. Conservation plans that cover habitat actions are common for terrestrial and freshwater species and can benefit species threatened by land use activities. Conservation plans that cover fisheries are less common and can benefit species and habitats threatened by fishing activities.

Conservation agreements with non-Federal landowners and other entities enhance species conservation by extending species' protections beyond those available through section 7 consultations. We have encouraged non-Federal landowners to enter into conservation agreements, based on a view that we can achieve greater species' conservation on non-Federal land through such partnerships than we can through coercive methods (61 FR 63854, December 2, 1996). In past critical habitat designations we have found there is a benefit to excluding some areas covered by conservation agreements when there was affirmative evidence that the conservation partner considered exclusion beneficial to our relationship and beneficial to implementation of the conservation agreement (e.g., for Pacific salmon 70 FR 52630, September 2, 2005). We considered the benefit of exclusion to be a conservation benefit to the affected species because of the enhanced implementation of the agreement and the incentive for others to enter into conservation agreements with us to further protect the species.

In the case of the listed rockfish species, there are two conservation agreements that partially or wholly overlap with proposed critical habitat. The first is with the Washington Department of Natural Resources (WDNR) and covers geoduck harvest on lands managed by the department. The second is with the Washington Department of Fish and Wildlife (WDFW) and covers fisheries and research in Puget Sound that incidentally takes the listed rockfish and other listed species and may also affect rockfish habitat.

Benefits of critical habitat designation are those conservation benefits to the species, while benefits of exclusion result from avoiding the impacts of designation identified above. For the present designation, we decided to balance benefits of designation against benefits of exclusion because some impacts of designation implicate competing Federal values, such as national security and tribal sovereignty and self-governance (see NMFS, 2013c).

The principal benefit of designating critical habitat is that ESA section 7 requires every Federal agency to ensure that any action it authorizes funds or carries out is not likely to result in the destruction or adverse modification of designated critical habitat. This complements the Section 7 provision that federal agencies ensure their actions are not likely to jeopardize the continued existence of a listed species. The requirement that agencies avoid adversely modifying critical habitat is in addition to the requirement that they avoid jeopardy to the species, thus the benefit of designating critical habitat is “incremental” to the benefit that comes with listing. Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area. Systematic analysis and delineation of important rockfish habitat has not been previously conducted in the Puget Sound, so designating critical habitat may focus and contribute to conservation efforts by clearly delineating areas that are important to species conservation.

Ideally the consideration and balancing of benefits would involve first translating all benefits into a common metric. Executive branch guidance from the Office of Management and Budget (OMB) suggests that benefits should first be monetized—converted into dollars. Benefits that cannot be monetized should be quantified (for example, numbers of fish saved). Where benefits can neither be monetized nor quantified, agencies are to describe the expected benefits (OMB, 2003).

It may be possible to monetize benefits of critical habitat designation for a threatened or endangered species in terms of willingness-to-pay (OMB, 2003). However, we are not aware of any available data at the scale of our designation (the five basins of Puget Sound Sound) that would support such an analysis for listed rockfish. In addition, section 4(b)(2) requires analysis of impacts other than economic impacts that are equally difficult to monetize, such as benefits to national security of excluding areas from critical habitat. In the case of rockfish designations, impacts to Northwest Indian tribes or to our program to promote voluntary conservation agreements are “other relevant” impacts that also may be difficult to monetize.

Because we could not monetize or quantify the conservation benefit of designating the particular areas, we qualitatively describe their conservation value to the listed species. The rockfish critical habitat we have identified consists of only five areas. Each area is a biogeographic basin that represents a unique ecological setting with unique habitats and biological communities. This diversity of habitats is important to maintaining long-term viability of the DPSs. Four of the five areas are also relatively spatially isolated in terms of water circulation and exchange of some biota. Although we lack detailed genetic information to confirm that this isolation has led to reproductive isolation among basins, it is likely that there is some degree of reproductive isolation and that the unique habitat conditions in each basin have therefore resulted in important adaptations. The diversity this creates in the population, like the diversity in habitats, is important to long-term viability. These factors suggest that all of the populations and basins are important in maintaining the diversity and spatial structure of each DPS. Though we have not yet developed a recovery plan for these DPSs, it is likely that all five areas are important to recovery of the listed DPSs and therefore have high conservation value (NMFS, 2013a).

In our 2005 final and 2013 proposed critical habitat designations for salmon and steelhead, we balanced conservation benefits of designation against economic benefits of exclusion and excluded particular areas for many of the affected species. Our approach was informed by both biology and policy (78 FR 2725, January 14, 2013; 70 FR 52630, September 2, 2005). In deciding to balance benefits, we noted that salmon and steelhead are widely distributed and their range includes areas that have both high and low conservation value; thus, it may be possible to construct different scenarios for achieving conservation. We also noted Administration policy regarding regulations, as expressed in Executive Order 12866, which directs agencies to select regulatory approaches that “maximize net benefits,” and to “design regulations in the most cost-effective manner to achieve the regulatory objective.”

For the salmon and steelhead designations, we used a cost effectiveness approach in which we identified areas to consider for economic exclusion by balancing relative conservation value against relative economic impact. Where the relative conservation value of an area was lower than the relative economic impact, we considered the area eligible for exclusion. Relying on policies that promote conservation of threatened and endangered species in general and salmon in particular, we did not consider areas for exclusion if exclusion would significantly impede conservation. We concluded that exclusion of high conservation value areas would significantly impede conservation and therefore we did not consider any high conservation value areas for exclusion for salmon and steelhead.

In considering economic exclusions for listed rockfish, we considered the following factors: (1) Section 2 of the ESA provides that a purpose of the act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”; (2) in listing the three listed rockfish DPSs under the ESA, we concluded that degradation of rocky habitat, loss of eelgrass and kelp, introduction of non-native habitat-modifying species, and degraded water quality were all threats to the species. We also noted that rocky habitats are rare in Puget Sound and have been affected by or are threatened by derelict fishing gear, development, and construction and dredging activities; (3) as described above, there are only five habitat areas and all are of high conservation value; and (4) the economic impacts of designating any particular area are small (the largest impact is $32,100 in the San Juan/Strait of Juan de Fuca Basin), as is the economic impact of designating the entire area ($123,000).

For these reasons, we conclude that the economic benefit of excluding any of these particular areas does not outweigh the conservation benefit of designation. Therefore, none of the areas were eligible for exclusion based on economic impacts.

We balanced the conservation benefits to rockfish of designation against the benefits of exclusion for Indian lands in light of the unique Federal tribal relationship, the unique status of Indian lands, and the Federal policies promoting tribal sovereignty and self-determination, among others. Indian lands potentially affected by a critical habitat designation occur within the range of the listed rockfish and are specific to nearshore juvenile rearing sites for canary rockfish and bocaccio. We are not proposing any nearshore areas of Puget Sound as critical habitat for yelloweye rockfish (NMFS, 2013a). There are eight tribes with Indian lands that overlap the proposed critical habitat in all five basins. Approximately 55.1 lineal miles of shoreline within reservation boundaries overlap with the nearshore component of proposed critical habitat.

The principal benefit of designating critical habitat is section 7's requirement that Federal agencies ensure their actions are not likely to result in adverse modification of that habitat. To understand the benefit of designating critical habitat on Indian lands, we considered the number of miles of shoreline affected, and the types of activities occurring there that would be likely to undergo a section 7 consultation along this relatively small amount of shoreline area. The types of activities occurring in these areas that would be likely to undergo a section 7 consultation include activities associated with: Nearshore development, utilities, dredging, water quality projects, transportation, and other project types.

The benefit of excluding these areas is that Federal agencies acting on behalf of, funding, or issuing permits to the tribes would not need to reinitiate consultation on ongoing activities for which consultation has been completed. Reinitiation of consultation would likely require some commitment of resources on the part of the affected tribe. Moreover, in a reinitiated consultation, or in any future consultation, it is possible that tribes may be required to modify some of their activities to ensure the activities would not be likely to adversely modify the critical habitat (though given the small proportion of shoreline length with essential features, and tribal shoreline management this is unlikely). The benefits of excluding Indian lands from designation include: (1) The furtherance of established national policies, our Federal trust obligations, and our deference to the tribes in management of natural resources on their lands; (2) the maintenance of effective long-term working relationships to promote the conservation of rockfish; (3) the allowance for continued meaningful collaboration and cooperation in scientific work to learn more about the conservation needs of the species; and (4) continued respect for tribal sovereignty over management of natural resources on Indian lands through established tribal natural resource programs. We also considered the degree to which the tribes believe designation will affect their participation in regional management forums and their ability to manage their lands.

Based on our consideration, and given the following factors, we concluded that the benefits to conservation of listed rockfish from full tribal participation in Puget Sound recovery efforts mitigates the potential loss of conservation benefits that could result from designation of tribal lands. With this mitigating conservation benefit in mind, we further concluded that the benefits to tribal governments, with whom the Federal government has a unique trust relationship, particularly with regard to land held by the Federal government in trust for the tribes, outweigh the conservation benefits of designation for listed rockfish (NMFS, 2013c).

The Indian lands specifically proposed for exclusion are those defined in the Secretarial Order 3206, including: (1) Lands held in trust by the United States for the benefit of any Indian tribe; (2) land held in trust by the United States for any Indian tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and, (4) fee lands within the reservation boundaries owned by individual Indians. Our consideration of whether these exclusions would result in extinction of listed rockfish is described below.

Our consideration of the WDNR and the WDFW conservation plans is described in detail in NMFS (2013c). We balanced the conservation benefits to rockfish of proposed critical habitat against the benefits of exclusion (referring to the impacts of designation section above) of the areas covered in each conservation plan. Each plan covers several activities that may take listed species and harm habitats we propose as listed rockfish critical habitat in Puget Sound. Congress added section 10 to the ESA to encourage “creative partnerships between the private sector and local, state, and Federal agencies for the protection of endangered species and habitat conservation” ( H.R. Rep. No. 835, 97th Congress, 2nd Session 31; Reprinted in 1982 U.S. Code Congressional and Administrative News 2807, 2831 ). If excluding areas from critical habitat designation promotes such conservation partnerships, such exclusions may have conservation benefits that offset the loss of conservation benefit that would have resulted from designation.

The covered areas of the WDNR conservation plan overlap with approximately 30,000 acres of nearshore proposed critical habitat for canary rockfish and bocaccio. The covered areas of the WDFW conservation plan overlap with the entire proposed critical habitat for yelloweye rockfish, canary rockfish, and bocaccio. The WDNR covered activities are geoduck research and harvest management. The WDFW covered activities are the management of recreational bottom fish fishing and commercial shrimp trawls. The types of activities occurring in these areas that would be likely to undergo a section 7 consultation include nearshore development, dredging, aquaculture operations, fisheries management, alternative energy projects and cable laying, and others (NMFS, 2013a).

In general, the benefits of designating the covered areas of each conservation plan is, that once critical habitat is designated, section 7(a)(2) of the ESA provides that Federal agencies must ensure any actions they authorize, fund, or carry out are not likely to result in the destruction or adverse modification of designated critical habitat. An additional benefit of inclusion is that a systematic analysis and delineation of important rockfish habitat has not been previously conducted in the Puget Sound. Thus, for non-Federal activities occurring in the covered areas, designation may raise public awareness of habitats important to rockfish and encourage additional conservation measures and voluntary conservation agreements within the section 10 program. The benefits of designating areas covered by these two conservation plans may be less than what they would be on areas not covered by conservation plans because of the fact that the permit holder has put conservation measures in place through provisions of the plan. These measures provide protection when actions are allowed that could affect critical habitat (geoduck harvest and management by WDNR, and fisheries by WDFW). However, these conservation plans are unlike other land-based conservation plans in the Northwest (such as forestry conservation plans) because the WDNR and WDFW plans cover a small subset of potential actions that could be affected by future Federal actions in Puget Sound (i.e., Federal permits for nearshore development, fisheries that cause new derelict fishing nets, tidal energy or cable-laying, and others).

The benefits of excluding these covered areas from designation include the potential furtherance of our ongoing relationship with these entities; in particular, the potential that the exclusion of these areas may provide an incentive for other entities to seek conservation plans, and the general promotion of the section 10 conservation program. Conservation agreements on non-federally controlled areas of Puget Sound provide important benefits to listed species. Section 7 applies to only Federal agency actions. Its requirements protect listed fishes only when a Federal permit or funding is involved; thus, its reach is limited. Neither WDNR nor WDFW identified any potential impacts to our relationship or implementation of each conservation plan.

For each rockfish DPS we considered the areas each conservation plan covered and the types of Federal activities in those areas that would likely undergo section 7 consultation. We also considered the degree to which the WDNR and WDFW believe the designation would affect the ongoing relationship that is essential to the continued successful implementation of the conservation plan and the extent to which exclusion provides an incentive to other entities.

Based on our consideration, and given the following factors, we concluded that the benefits of excluding the areas covered by each conservation plan do not outweigh the benefits of designation. We considered the following factors in reaching this conclusion: (1) The WDNR and WDFW did not identify any impacts to our ongoing relationship; (2) the WDNR and WDFW did not identify any impacts to their implementation of the existing conservation plans; and (3) the WDNR and WDFW conservation plans only cover a subset of activities that could affect rockfish critical habitat conducted by other entities such as private landowners, municipalities, and Federal agencies in the covered areas. Thus, designation would not impact our relationship with WDNR and WDFW nor harm the implementation of their conservation plans. In general, designation would benefit rockfish conservation by enabling section 7 consultations for activities not covered by each conservation plan to ensure adverse modification is avoided by Federal activities.

Based on information provided by the three branches of the military on impacts to national security of potential critical habitat designations described above, we consulted with the DOD to better understand the potential impact of designating critical habitat at these sites. The DOD confirmed that all of the Areas are used by the Navy, and confirmed the potential for critical habitat designation to impact national security by adversely affect their ability to conduct operations, testing, training, and other essential military activities. The Navy letter identified several aspects of potential impacts from critical habitat designation that include the possible prevention, restriction, or delay of training or testing exercises and delayed response time for ship deployments. We had several conversations with the Navy subsequent to their letter to further understand their uses of the Areas, concerns identified in their response letter, and any related habitat protections derived by Navy policies and initiatives. We also had further discussions with the Navy regarding the extent of the proposed designation associated with these sites. The Navy agreed to refine the delineation of offshore areas in Puget Sound where the Navy has established security zones. Similar to the salmonid critical habitat designation (NMFS, 2005) the Navy agreed that the military zone could be delineated in terms of the mean lower low tide without raising national security concerns at all but one site at Dabob Bay. Because many of the activities affecting rockfish in the nearshore zone are land-based, this refinement allowed us to retain most of the conservation benefit of designating nearshore areas as critical habitat while still retaining the benefit to national security of excluding offshore military areas (NMFS, 2013c).

We balanced the conservation benefits of designation to rockfish against the benefits of exclusion for Naval Areas as ultimately defined by the Navy in the Puget Sound/Georgia Basin. The Navy requested that 14 areas be excluded from critical habitat designation, including four in the San Juan/Strait of Juan de Fuca Basin, three in Hood Canal, two in the Whidbey Basin, four in the Main Basin, and one in South Puget Sound based on the impacts to national security. The factors we consider relevant to assessing the impact to national security and the benefits of exclusion include: (1) The percent of the military area that would be designated; and (2) the importance of the area activity to national security and likelihood an activity would need to be changed to avoid adverse modification.

The factors we consider relevant to assessing the benefits of designation to rockfish conservation include: (1) The percent of the nearshore and deepwater critical habitat that would be designated in that basin; (2) uniqueness and conservation role of the habitat in particular DOD area; (3) the likelihood that Navy activities would destroy or adversely modify critical habitat; and (4) the likelihood habitat would be adversely modified by other Federal or non-Federal activities, considering Navy protections (this factor considers the type and frequency of Navy actions that occur in each site and their potential effect on rockfish habitat features, which informs the benefit to conservation that would occur by a section 7 consultation that considers rockfish critical habitat).

All but the quantitative factors were given a qualitative rating of high, medium, or low (NMFS, 2013c). Based on our analysis, we recommend excluding 13 of the 14 areas requested by the Navy. We do not propose to exclude Operating Area R-6713 (Navy 3). This area is a polygon off the western side of Naval Air Station Whidbey Island (appearing on NOAA Chart 18400) which is used in conjunction with the restricted area under 33 CFR 334.1180 for surface vessel training activities. The total proposed excluded areas total approximately 33.1 nearshore sq mi and 35.6 deepwater sq mi of potential critical habitat.

Critical habitat is proposed in a narrow nearshore zone (from the extreme high tide datum down to mean lower low water (MLLW)) within Navy security zone areas that are not subject to an approved INRMP or associated with Department of Defense easements or rights-of-way with the exception of NAS Whidbey Island, Crescent Harbor and a small area of the Hood Canal and Dabob Bay Naval Non-Explosive Torpedo Testing Area. The following Department of Defense areas are proposed for exclusion:

Section 4(b)(2) of the ESA limits our discretion to exclude areas from designation if exclusion will result in extinction of the species. We do not propose to exclude any habitat areas based on economic impacts or 10(a)(1)(B) permits (conservation plans). We do propose to exclude 55.1 lineal mi (88.7 km) of marine habitat adjacent to Indian lands and a total of approximately 68.7 sq mi of marine habitat area (33.1 sq mi of nearshore, 35.6 sq mi of deepwater) controlled by the Navy as described above. We conclude that excluding Indian lands—and thereby furthering the federal government's policy of promoting respect for tribal sovereignty and self-governance—in addition to several areas controlled by the Navy, will not result in extinction of listed rockfish. Listed rockfish habitat on Indian lands represents a small proportion of total area occupied by these DPSs, and the Tribes are actively engaged in fisheries management, habitat management and Puget Sound ecosystem recovery programs that benefit listed rockfish.

Listed rockfish habitat within areas controlled by the Navy represents approximately 5 percent of the nearshore area and approximately 5 percent of the deepwater area we determined to have essential features. In addition to the small size of these proposed exclusions, the Navy actively seeks to protect actions that would impact their mission and these protections provide ancillary protections to rockfish habitat by restricting actions that may harm the Navy mission and rockfish in the respective area (NMFS, 2013c). Thus the benefit of designating these areas as critical habitat would be reduced.

For the following reasons, we conclude that the exclusions described above, in combination, will not result in the extinction of the yelloweye rockfish, canary rockfish or bocaccio DPSs: (1) The proposed Indian land exclusions involve nearshore habitats that are already managed by the tribes for conservation; (2) The proposed Navy exclusions involve nearshore and deepwater habitats that are already afforded some protections by the Navy, and; (3) The extent of Indian lands exclusions and Navy exclusions are spread amongst each of the five biogeographic basins of Puget Sound, and cumulatively total a fraction of the overall habitats that have essential features for listed rockfish.

In total we propose to designate approximately 610.0 sq mi of nearshore habitat for canary rockfish and bocaccio, and 574.8 sq mi of deepwater habitat for yelloweye rockfish, canary rockfish and bocaccio within the geographical area of the DPSs occupied by each species (Figures 2 and 3). Aside from some deepwater areas proposed as critical habitat for rockfish in Hood Canal, all other proposed critical habitat overlaps with designated critical habitat for other species. Other co-occurring ESA-listed species with designated critical habitat that, collectively, almost completely overlap with proposed rockfish critical habitat include Pacific salmon (70 FR 52630, September 2, 2005), North American green sturgeon (74 FR 52300, October 9, 2009), Southern Resident Killer Whales (71 FR 69054, November 29, 2006), and bull trout (75 FR 63898, October 18, 2010). The areas proposed for designation are all within the geographical area occupied by the species and contain physical and biological features essential to the conservation of the species and that may require special management considerations or protection. No unoccupied areas were identified that are considered essential for the conservation of the species. All of the areas proposed for designation have high conservation value (NMFS, 2013a). As a result of the balancing process for some military areas and tribal lands described above, we are proposing to exclude from the designation small areas listed in Table 2 (see Figures 1 and 2 for locations of tribal lands). As a result of the balancing process for economic impacts described above, we conclude that the economic benefit of excluding any of these particular areas does not outweigh the conservation benefit of designation. Therefore none of the areas were eligible for exclusion based on economic impacts. As a result of the balancing process for areas covered by Conservation Plans we concluded that the benefits of excluding the areas covered by each conservation plan do not outweigh the benefits of designation (NMFS, 2013c). As a result of the balancing process for tribal areas we concluded that the benefits of excluding these areas outweigh the benefits of designation (NMFS, 2013c).

On May 1, 2012, NMFS and the USFWS revised the critical habitat implementing regulations to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and USFWS) critical habitat boundaries in the Regulation Promulgation section of the Federal Register for codification and printing in the CFR (77 FR 25611, May 1, 2012). The regulations instead provide that the map(s), as clarified or refined by any textual language within the preamble of the proposed or final rule, constitutes the definition of the boundaries of a critical habitat (50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a)). The revised regulations provide that the boundaries of critical habitat as mapped or otherwise described in the Regulation Promulgation section of a rulemaking published in the Federal Register will be the official delineation of the designation (50 CFR 424.12). In this proposed designation we include some latitude-longitude coordinates (to delineate certain Department of Defense controlled boundaries) to provide clarity on the location of DOD areas proposed for exclusion but also rely on the maps to depict critical habitat for yelloweye rockfish, canary rockfish and bocaccio. The Geographical Information System data that the maps have been generated from are included in the administrative record located on our Web site.

Section 3(5)(A)(ii) of the ESA authorizes the designation of “specific areas outside the geographical area occupied at the time [the species] is listed” if these areas are essential for the conservation of the species. Regulations at 50 CFR 424.12(e) emphasize that the agency “shall 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.” We conducted a review of the documented occurrences of each listed rockfish in the five biogeographic basins (NMFS, 2013a). We found that each of the basins is currently occupied by yelloweye rockfish, canary rockfish, and bocaccio. We have not identified any unoccupied areas as candidates for critical habitat designation.

Section 7(a)(2) of the ESA requires Federal agencies to ensure that any action authorized, funded, or carried out by the agency (agency action) does not jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies are also required to confer with us regarding any actions likely to jeopardize a species proposed for listing under the ESA, or likely to destroy or adversely modify proposed critical habitat, pursuant to section 7(a)(4). A conference involves informal discussions in which we may recommend conservation measures to minimize or avoid adverse effects. The discussions and conservation recommendations are to be documented in a conference report provided to the Federal agency. If requested by the Federal agency, a formal conference report may be issued (including a biological opinion prepared according to 50 CFR 402.14). A formal conference report may be adopted as the biological opinion when the species is listed or critical habitat designated, if no significant new information or changes to the action alter the content of the opinion.

When a species is listed or critical habitat is designated, Federal agencies must consult with NMFS on any agency actions to be conducted in an area where the species is present or that may affect the species or its critical habitat. During the consultation, we would evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a biological opinion or concurrence letter. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we would also recommend any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives (defined in 50 CFR 402.02) are alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid the destruction or adverse modification of critical habitat.

Regulations at 50 CFR 402.16 require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where: (1) Critical habitat is subsequently designated; or (2) new information or changes to the action may result in effects to critical habitat not previously considered in the biological opinion. Consequently, some Federal agencies may request reinitiation of a consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities subject to the ESA section 7 consultation process include activities on Federal lands and activities on private or state lands requiring a permit from a Federal agency (e.g., a Clean Water Act, Section 404 dredge or fill permit from U.S. Army Corps of Engineers) or some other Federal action, including funding (e.g., Federal Highway Administration funding for transportation projects). ESA section 7 consultation would not be required for Federal actions that do not affect listed species or critical habitat and for actions on non-Federal and private lands that are not Federally funded, authorized, or carried out.

ESA section 4(b)(8) requires in any proposed or final regulation to designate critical habitat an evaluation and brief description of those activities (whether public or private) that may adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect the proposed critical habitat and may be subject to the ESA section 7 consultation process when carried out, funded, or authorized by a Federal agency. These include water and land management actions of Federal agencies (e.g., the Department of Defense, U.S. Army Corps of Engineers (USACE), the Department of Defense, the Federal Energy Regulatory Commission, and the Environmental Protection Agency and related or similar federally regulated projects). Other actions of concern include dredging and filling, and bank stabilization activities authorized or conducted by the USACE, and approval of water quality standards and pesticide labeling and use restrictions administered by the EPA.

Private or non-Federal entities may also be affected by these proposed critical habitat designations if a Federal permit is required, if Federal funding is received or the entity is involved in or receives benefits from a Federal project. For example, private entities may need Federal permits to build or repair a bulkhead, or install an artificial reef. These activities will need to be evaluated with respect to their potential to destroy or adversely modify critical habitat for yelloweye rockfish, canary rockfish, or bocaccio of the Puget Sound/Georgia Basin.

Questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat should be directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

We solicit comments or suggestions from the public, other concerned governments and agencies, the scientific community, industry, non-governmental organizations, or any other interested party concerning the proposed designations and exclusions as well as the documents supporting this proposed rulemaking. We are particularly interested in comments and information in the following areas: (1) Information describing the abundance, distribution, and habitat use of yelloweye rockfish, canary rockfish, and bocaccio of the Puget Sound/Georgia Basin, including any unoccupied areas and habitats used by larval rockfish; (2) information on the identification, location, and the quality of physical or biological features that may be essential to the conservation of the species; (3) information regarding potential benefits of designating any particular area as critical habitat, including information on the types of Federal actions that may affect the area's physical and biological features; (4) information regarding potential impacts of designating any particular area, including the types of Federal actions that may trigger an ESA section 7 consultation and the possible modifications that may be required of those activities; (5) current or planned activities in the areas proposed as critical habitat and costs of potential modifications to those activities due to critical habitat designation; and (6) any foreseeable economic, national security, or other relevant impact resulting from the proposed designations.

You may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES ). Copies of the proposed rule and supporting documentation can be found on the NMFS Web site http://www.nwr.noaa.gov. In preparing the final rule, we will consider all comments pertaining to these designations received during the comment period; comments must be received by November 4, 2013. Accordingly, the final decision may differ from this proposed rule.

Agency regulations at 50 CFR 424.16(c)(3) require the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed rule to designate critical habitat. Public hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's involvement in such ESA matters. Requests for a public hearing(s) must be made in writing (see ADDRESSES ) by September 20, 2013.

The data and analyses supporting this proposed action have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In December 2004, OMB issued a Final Information Quality Bulletin for Peer Review pursuant to the IQA. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. Two documents supporting these critical habitat proposals are considered influential scientific information and subject to peer review. These documents are the draft Biological Report (NMFS, 2013a) and draft Economic Analysis (NMFS, 2013b). We distributed the draft Biological Report for pre-dissemination peer review pursuant to Section 515 of Public Law 106-554, and will distribute the Economic Analysis for peer review. The peer review report is available on our Web site at http://www.nwr.noaa.gov. We will distribute the economic report for independent peer review and will address comments received in developing the final drafts of the two reports. Both documents are available on our Web site at http://www.nwr.noaa.gov, on the Federal eRulemaking Web site at http://www.regulations.gov, www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105, or upon request (see ADDRESSES ). We will announce the availability of comments received from peer reviewers (for the economic report) and the public and make them available via our Web site as soon as practicable during the comment period and in advance of a final rule.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996), whenever an agency publishes a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis describing the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). We have prepared an initial regulatory flexibility analysis, which is part of the draft economic analysis (NMFS, 2013b). This document is available upon request (see ADDRESSES ), via our Web site at http://nwr.noaa.gov, or via the Federal eRulemaking Web site at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105. The results of the initial regulatory flexibility analysis are summarized below.

The impacts to small businesses were assessed for the following broad categories of activities: Utilities, nearshore work, transportation, water quality and other activities. Small entities were defined by the Small Business Administration size standards for each activity type. We did not forecast any costs to small entities related to utilities projects because the only consultation associated with utilities are pre-consultation/technical assistance and programmatic consultations, which do not include any cost to third parties; therefore, we do not expect any impacts to small entities related to utilities.

We estimated the annualized costs associated with ESA section 7 consultations incurred per small business under a scenario intended to provide a measure of uncertainty regarding the number of small entities that may be affected by the designations for each project category (NMFS, 2013c). It is uncertain whether small entities will be project proponents for these types of consultations, so the analysis conservatively assumes that all consultations will be undertaken by small entities, and that all such consultation will be formal. Under these assumptions, the costs to entities engaged in nearshore work are an estimated $27,000 annually, or $1,900 per entity. This cost represents less that 0.1 percent of annual revenues in this sector. The costs to entities engaged in transportation projects are an estimated $46,000 annually, or $7,700 for entities in this sector. This cost represents 0.29 percent of annual revenues. The costs to entities engaged in water quality projects is an estimated $23,000 annually, or $9,100 per entity. This cost represents 1.3 percent of annual revenues for entities in this sector. The costs for other entities, including fishing would be approximately $18,000 annually, or $2,600 per entity. This cost represents 1.1 percent of annual revenues for entities in this sector.

In accordance with the requirements of the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) this analysis considered various alternatives to the critical habitat designations for these DPSs. The alternative of not designating critical habitat for these DPSs was considered and rejected because such an approach does not meet the legal requirements of the ESA.

At the guidance of OMB and in compliance with Executive Order 12866, “Regulatory Planning and Review,” Federal agencies measure changes in economic efficiency in order to understand how society, as a whole, will be affected by a regulatory action. Our draft analysis of economic impacts can be found in NMFS (2013b), and this proposed rule has been determined to be not significant under Executive Order 12866.

On May 18, 2001, the President issued an executive order on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking any action that promulgates or is expected to lead to the promulgation of a final rule or regulation that (1) is a significant regulatory action under Executive Order 12866 and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy.

We have considered the potential impacts of this action on the supply, distribution, or use of energy and find the designation of critical habitat will not have impacts that exceed the thresholds identified above (NMFS, 2013b).

In accordance with the Unfunded Mandates Reform Act, NMFS makes the following findings:

(a) This proposed rule will 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, 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 ESA, 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 which receive Federal funding, assistance, permits or 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 to state governments.

(b) Due to the existing protection afforded to the proposed critical habitat from existing critical habitat for salmon (70 FR 52630, September 2, 2005), Southern DPS of green sturgeon (74 FR 52300, October 9, 2009), bull trout (70 FR 56212, September 26, 2005), and the southern resident killer whale (71 FR 69054, November 29, 2006), we do not anticipate that this proposed rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required

Under Executive Order 12630, Federal agencies must consider the effects of their actions on constitutionally protected private property rights and avoid unnecessary takings of property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. A takings implication assessment is not required. The designation of critical habitat affects only Federal agency actions. We do not expect the proposed critical habitat designations will impose additional burdens on land use or affect property values. Additionally, the proposed critical habitat designations do not preclude the development of Conservation Plans and issuance of incidental take permits for non-Federal actions. Owners of areas included within the proposed critical habitat designations would continue to have the opportunity to use their property in ways consistent with the survival of listed rockfish.

In accordance with Executive Order 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. In keeping with Department of Commerce policies, we request information from, and will coordinate development of these proposed critical habitat designations with, appropriate state resource agencies in Washington. The proposed designations may have some benefit to state and local resource agencies in that the areas essential to the conservation of the species are more clearly defined, and the essential features of the habitat necessary for the survival of the subject DPSs are specifically identified. It may also assist local governments in long-range planning (rather than waiting for case-by-case ESA section 7 consultations to occur).

Pursuant to Executive Order 13175 and Secretarial Order 3206, we contacted the affected Indian Tribes when considering the designation of critical habitat in an area that may impact tribal trust resources, tribally owned fee lands or the exercise of tribal rights. The responding tribes expressed concern about the intrusion into tribal sovereignty that critical habitat designation represents. These concerns are consistent with previous responses from tribes when we developed critical habitat designations for salmon and steelhead in 2005 (70 FR 52630, September 2, 2005). The Secretarial Order defines Indian lands as “any lands title to which is either: (1) Held in trust by the United States for the benefit of any Indian tribe or (2) held by an Indian Tribe or individual subject to restrictions by the United States against alienation.” Our conversations with the tribes indicate that they view the designation of Indian lands as an unwanted intrusion into tribal self-governance, compromising the government-to-government relationship that is essential to achieving our mutual goal of conserving threatened and endangered salmonids.

For the general reasons described in the Impacts to Tribal Sovereignty and Self-Governance section above, the draft ESA 4(b)(2) analysis has led us to propose the exclusion of all Indian lands in our proposed designations for yelloweye rockfish, canary rockfish, and bocaccio. Consistent with other proposed exclusions, any exclusion in the final rule will be made only after consideration of all comments received.

The Department of Commerce has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. We are proposing to designate critical habitat in accordance with the provisions of the ESA. This proposed rule uses standard property descriptions and identifies the essential features within the designated areas to assist the public in understanding the habitat needs of yelloweye rockfish, canary rockfish, and bocaccio of the Puget Sound/Georgia Basin.

This proposed rule does not contain new or revised information collection requirements for which OMB approval is required under the Paperwork Reduction Act (PRA). This proposed rule will not impose recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

We have determined that an environmental analysis as provided for under NEPA is not required for critical habitat designations made pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).

Section 307(c)(1) of the Federal Coastal Zone Management Act of 1972 (16 U.S.C. 1456) requires that all Federal activities that affect the land or water use or natural resource of the coastal zone be consistent with approved state coastal zone management programs to the maximum extent practicable. We have determined that these proposed designations of critical habitat are consistent to the maximum extent practicable with the enforceable policies of approved Coastal Zone Management Programs of Washington. The determination will be submitted for review by the responsible state agency.

A complete list of all references cited in this proposed rulemaking can be found on our Web site at http://www.nwr.noaa.gov/ and is available upon request from the NMFS office in Seattle, Washington (see ADDRESSES ).

For the reasons set out in the preamble, we propose to amend part 226, title 50 of the Code of Federal Regulations as set forth below: