[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Proposed Rules]
[Pages 80698-80708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32466]



[[Page 80697]]

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Part VI





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 65, No. 246 / Thursday, December 21, 2000 / 
Proposed Rules  

[[Page 80698]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH06


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of supplementary information.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose designation of 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended, for the Kootenai River population of the white sturgeon 
(Acipenser transmontanus). We are proposing as critical habitat a total 
of 18 river kilometers (11.2 river miles) of the Kootenai River in 
Idaho. If this proposed action is finalized, Federal agencies proposing 
actions that may affect the area designated as critical habitat must 
consult with us on the effects of the proposed actions on critical 
habitat, pursuant to section 7(a)(2)of the Act.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on the economic and other impacts of the 
proposed designation. We may revise this proposal to incorporate or 
address new information received during the comment period.

DATES: We will consider all comments on the proposed rule received from 
interested parties by February 20, 2001. We will hold a public hearing 
in Bonners Ferry, Idaho, on Thursday, January 18, 2001, from 6:00 p.m. 
until 8:00 p.m.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, Upper Columbia Fish and 
Wildlife Office, 11103 East Montgomery, Spokane, Washington 99206.
    You may send comments by electronic mail (e-mail) to: 
[email protected]. See the Public Comments Solicited 
section below for file format and other information about electronic 
filing.
    You may hand-deliver written comments to our Upper Columbia Fish 
and Wildlife Office, 11103 East Montgomery, Spokane, Washington.
    You may provide comments at the public hearing on January 18, 2001, 
at the Bonners Ferry Kootenai River Inn, 7160 Plaza Street, Bonners 
Ferry, Idaho.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at our Upper Columbia Fish and Wildlife Office. The draft 
economic analysis will be available during the public comment period. 
We will provide notice of its availability in local newspapers as well 
as the Federal Register.

FOR FURTHER INFORMATION CONTACT: Bob Hallock, Upper Columbia River Fish 
and Wildlife Office, at the above address; telephone 509-891-6839, 
facsimile 509-891-6748.

SUPPLEMENTARY INFORMATION:   

Background

    The Kootenai River population of the white sturgeon (Acipenser 
transmontanus) is 1 of 18 land-locked populations of white sturgeon 
known to occur in western North America. The Kootenai River originates 
in Kootenay National Park in British Columbia, Canada, then flows south 
into Montana, northwest into Idaho, then north through the Kootenai 
Valley back into British Columbia, where it flows through Kootenay Lake 
and joins the Columbia River at Castlegar, British Columbia. Kootenai 
River white sturgeon occur in Idaho, Montana, and British Columbia, and 
are restricted to approximately 270 river kilometers (km) (168 river 
miles (mi)) of the Kootenai River extending from Kootenai Falls, 
Montana, located 50 river km (31 mi) below Libby Dam, Montana, 
downstream through Kootenay Lake to Corra Lynn Dam at the outflow from 
Kootenay Lake in British Columbia.
    Bonnington Falls, a natural barrier downstream of Kootenay Lake, 
has isolated the Kootenai River population of white sturgeon since the 
last glacial advance roughly 10,000 years ago (Apperson 1992). 
Approximately 45 percent of the species' range, based on river 
kilometers, is located within British Columbia. Apperson and Anders 
(1991) found that at least 36 percent of the sturgeon tracked during 
1989 over-wintered in Kootenay Lake. They further believe that sturgeon 
do not commonly occur upstream of Bonners Ferry, Idaho, which includes 
most of the Kootenai River watershed in the United States.
    The Kootenai River population of white sturgeon is threatened by 
factors including hydropower operations, flood control operations, poor 
recruitment, loss of habitat, and, possibly, contaminants (water 
quality impacts). For more detailed discussions of the ecology of the 
Kootenai River population of white sturgeon, see the September 6, 1994, 
Federal Register notice listing this population as endangered (59 FR 
45989), and the September 30, 1999, ``Recovery Plan for the White 
Sturgeon (Acipenser transmontanus): Kootenai River Population'' (USFWS 
1999). The final rule and the recovery plan incorporate the best 
available biological information on Kootenai River white sturgeon.
    In the September 6, 1994, final rule listing the Kootenai River 
population of white sturgeon as endangered, we, the U.S. Fish and 
Wildlife Service (Service), stated that the designation of critical 
habitat was not determinable. We believed there was insufficient 
biological information to accurately delineate the habitat essential to 
the species, and, in the absence of this delineation, the required 
analysis of impacts could not be completed accurately.

In the final listing rule we stated the following:

    ``* * * the Service identified the lack of natural flows in the 
Kootenai River below Libby Dam as the primary threat to this white 
sturgeon population. Other than a need for basic understanding of 
stream flow conditions necessary for providing spawning and early 
rearing habitat during the normal May through July sturgeon spawning 
season, the life history requirements for other life stages of white 
sturgeon are not sufficiently well known to permit identification of 
an area in the Kootenai River basin as designated critical habitat. 
Additionally, many Kootenai River white sturgeon migrate freely 
throughout the Kootenai River system and spend part of their life in 
Kootenay Lake in British Columbia, Canada. Critical habitat 
designation is not allowed outside the United States since only 
Federal agencies are under the jurisdiction of section 7 of the 
Endangered Species Act (Act).
    ``The Service is still gathering and reviewing information on 
the life history needs of the Kootenai River population of the white 
sturgeon and the potential economic consequences of designation of 
critical habitat. Additional biological information that may be 
useful in designating critical habitat for Kootenai River white 
sturgeon may include identification of specific river areas 
necessary for spawning, reproduction, and rearing of offspring; and 
water quality, temperature, and velocity in the Kootenai River 
required to meet some life history need (e.g., spawning and early 
rearing).''

Previous Federal Action

    Federal action on the Kootenai River population of white sturgeon 
began on

[[Page 80699]]

November 21, 1991, when we included this population as a candidate 
species in the Animal Notice of Review (56 FR 58804), based on field 
studies conducted by the Idaho Department of Fish and Game. Candidate 
species are taxa for which the Service has on file enough substantial 
information on biological vulnerability and threats to propose them for 
endangered or threatened status. On June 11, 1992, the Service received 
a petition from the Idaho Conservation League, North Idaho Audubon, and 
the Boundary Backpackers to list the Kootenai River population of white 
sturgeon as threatened or endangered under the Act. The petition cited 
the lack of natural flows affecting juvenile recruitment as the primary 
threat to the continued existence of the wild sturgeon population. 
Pursuant to section 4(b)(A) of the Act, the Service determined that the 
petition presented substantial information indicating that the 
requested action may be warranted, and published this finding in the 
Federal Register on April 14, 1993 (58 FR 19401). A proposed rule to 
list the Kootenai River population of white sturgeon as endangered was 
published on July 7, 1993 (58 FR 36379), with a final rule following on 
September 6, 1994 (59 FR 45989).
    Section 4(a)(3) of the Act and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
the Secretary designate critical habitat at the time the species is 
determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)) state that designation of critical habitat is not 
determinable if information sufficient to perform required analysis of 
the impacts of designation are not sufficiently well known to permit 
identification of an area as critical habitat. Our regulations (50 CFR 
424.12(a)(1)) also state that designation of critical habitat is not 
prudent when one or both of the following situations exist: (1) the 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    At the time of listing, we found critical habitat not determinable 
because the necessary information to perform the required impacts 
analyses of such a designation was lacking. In addition, specific areas 
of critical habitat could not be identified without additional 
information on the life history and habitat requirements of the 
sturgeon. Biological information needs then identified by the Service 
included information concerning specific river reaches or areas 
necessary for spawning, reproduction, and rearing of offspring; and 
water quality, temperature, and velocity required to meet the needs of 
various life history stages (e.g., spawning, early rearing, and 
juvenile migration).
    We published a final recovery plan on September 30, 1999 (USFWS 
1999). The recovery strategy identified in this recovery plan 
emphasized the importance of reestablishing successful, natural 
spawning of Kootenai River white sturgeon, minimizing the loss of 
genetic variability, and successfully mitigating the biological and 
physical habitat changes caused by human development within the 
Kootenai River basin.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as ``(i) 
the specific areas within the geographic area occupied by the species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon 
determination that such areas are essential for conservation of the 
species''. The term ``conservation'' as defined in section 3(3) of the 
Act means ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary'' (i.e., the species is recovered and removed from the list 
of endangered and threatened species). Section 3 of the Act further 
states that, except where determined by the Secretary of the Interior, 
critical habitat shall not include the entire geographic area which can 
be occupied by threatened or endangered species. In addition, critical 
habitat shall not be designated in foreign countries (50 CFR 424.12 
(h)).
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ''* * * the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional protections under the Act against such activities.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short, court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what we know, at the time of designation, to be essential to the 
conservation of the species.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), that provide essential life cycle needs of the species.

[[Page 80700]]

    Our regulations state that the ``Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation outside of occupied areas, we will not 
designate critical habitat in areas outside the geographic area 
occupied by the species.
    The Service's Policy on Information Standards Under the Act, 
published in the Federal Register on July 1, 1994 (Vol. 59, p. 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that decisions made by the Service represent the best scientific 
and commercial data available. It requires Service biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, a primary 
source of information should be the listing package for the species. 
Additional information may be obtained from a recovery plan, articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, and biological 
assessments or other unpublished materials (i.e., ``gray literature'').
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition. We specifically anticipate 
that federally funded or assisted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best information available at the 
time of the designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.
    As part of a court decision of August 30, 2000, in Center for 
Biological Diversity v. Bruce Babbitt, Secretary of the Department of 
the Interior, and the United States Fish and Wildlife Service, C99-3202 
SC, we have entered into a court approved settlement agreement to 
submit a proposed rule for designation of critical habitat for the 
Kootenai River population of white sturgeon to the Federal Register by 
December 15, 2000.
    Although the Service, in cooperation with other agencies, has 
gained important life history information during the 6 years since 
listing the species, considerable uncertainty remains in accurately 
delineating critical habitat for the Kootenai River population of white 
sturgeon. However, we rely on the best currently available information, 
including our 1999 recovery plan for the species, to designate critical 
habitat; we will now summarize the recent findings and remaining areas 
of uncertainty. Information being gathered now and in the future may 
require substantially amending this rule, the associated analyses of 
impacts, and any recommendations under section 7 of the Act.
    In 1997, Paragamian et al. (1997) estimated that there may be 1,468 
adult sturgeon remaining in the Kootenai River population, with a male-
to-female ratio of 1.7:1, or about 539 females. With 7 percent of these 
females reproductively active in a given year (Apperson 1992), and an 
assumed average of 100,000 eggs per female, there may be as many as 3.8 
million eggs released on average annually. To increase the probability 
of survival of fertilized eggs, the U.S. Army Corps of Engineers has 
provided various augmentation flows from Libby Dam. However, during the 
last 10 years of intensive monitoring, only one hatching fry has been 
found, and no free swimming larvae or young-of-the-year have been 
captured. To date, only 17 juvenile sturgeon have been captured that 
can be associated with the experimental augmentation flows between 1991 
and 1997. Because of sampling gear limitations, the success of sturgeon 
recruitment during the 1998 and 1999 augmentation flows cannot be 
assessed at this time. Considering the extent of occupied habitat in 
the United States and Canada, we believe that we have not yet accounted 
for other naturally recruited sturgeon from these same year classes 
that are present in the system. However, because of the high incidence 
of recapture of marked juvenile sturgeon in this system, the number of 
additional juvenile sturgeon is believed to be small.
    There is evidence that very high levels of mortality of sturgeon 
eggs and sac fry are occurring annually. While we anticipate high 
levels of mortality at early life stages of a highly fecund species 
such as the Kootenai River white sturgeon, during 10 years of intensive 
monitoring we have never captured a free swimming larvae or young-of-
the-year sturgeon, and have captured a total of only 17 juveniles. 
Thus, exceptionally high levels of mortality are likely occurring at 
the sites now being used for spawning, egg incubation, and yolk sac fry 
development.
    White sturgeon are broadcast spawners that release adhesive eggs 
which then sink to the river bottom (Stockley 1981, Brannon et al. 
1984). In the lower Columbia River, most sturgeon eggs are sheltered by 
attaching themselves and incubating on rocky substrate near the 
spawning site (Parsley et al. 1993). Rocky substrates also provide 
cover for yolk sac larvae before they become free swimming. However, in 
the Kootenai River, most of the current sturgeon spawning sites are 
over sandy substrate, and most eggs are found drifting along the river 
bottom covered with fine sand particles (Paragamian et al. in press).
    When significant sturgeon recruitment last occurred in 1974, the 
Kootenai River recorded the preferred spawning temperatures, near 10 
degrees Celsius (50 degrees Fahrenheit); base flows of 40,000 cubic 
feet per second (cfs) (1,120 cubic meters per second (cms)); peak flows 
of 55,000 cfs (1,540 cms); and a water surface elevation at Bonners 
Ferry of 1,765.5 feet (538.5 meters) above sea level. We do not know 
the locations or the substrate composition of the spawning sites 
selected by adults under these 1974 conditions. The more extreme flow 
events common in the unregulated Kootenai River prior to impoundment 
may have caused gravel to be exposed within the spawning area. Rocky 
substrates are needed for attachment, and provide shelter for 
incubating eggs and cover for yolk sac larvae in inter-gravel spaces. 
For example, the flood of record at Bonners Ferry, Idaho, was estimated 
to have been 157,000 (4,396 cubic meters per second), and peak flows in 
the range of 70,000 cubic feet per second (1,960 cubic meters per 
second) were not unusual prior to construction of Libby Dam, which

[[Page 80701]]

became fully operational in 1975. These flow, water surface elevation, 
and temperature conditions have not all been replicated at one time 
since 1974.
    In the Kootenai River, spawning has not resulted in significant 
levels of recruitment, and it is unclear whether this is due to: 1) the 
current spawning site selection is a behavioral response to changed 
river velocities and depths from the operations of Libby Dam, which may 
be causing the sturgeon to spawn primarily at new sites below Bonners 
Ferry with unsuitable sandy riverbed substrates; or 2) spawning sites 
have remained unchanged, but the operations of Libby Dam have reduced 
peak flood flows and associated stream energy, which may be causing 
rocky substrate, otherwise suitable for egg incubation and sac fry 
development, to be covered with sand.
    Suitable water and sediment quality are necessary for viability of 
early life stages of Kootenai River white sturgeon, including both 
incubating eggs and yolk sac larvae, and normal breeding behavior. In 
1992, Apperson documented elevated levels of copper in both Kootenai 
River sediments and sturgeon oocytes and found low levels of the PCB 
Arochlor 1260 in river water. Because offspring of wild sturgeon 
captured and spawned in the hatchery appeared to survive and develop 
normally on filtered hatchery water, the question regarding quality of 
the river habitat remains. Subsequent studies of biota and survival 
(egg and larvae) has continued the concern as to the role water and 
sediment quality is playing in the lack of recruitment to the KRWS 
population. Although most sturgeon eggs released in the Kootenai River 
are not believed to live long enough to begin feeding, various 
constituents nutrients trapped in Lake Koocanusa, above Libby Dam, 
including nutrients, nitrogen and phosphorus, may affect the food base 
of those larvae that do hatch. The operations of Libby Dam can effect 
water temperatures in the spawning reach, especially during 
intermediate and low water years. Water temperature may effect spawning 
behavior. Optimum spawning temperature is near 10 degrees Celsius, and 
sudden drops of 2 to 3 degrees Celsius cause males to become 
reproductively inactive. Water and sediment quality and the effects of 
contaminants on sturgeon recruitment remain an area of concern and 
uncertainty.
    Researchers with the U.S. Geological Survey (USGS) are beginning a 
study of possible changes in riverbed substrate and water depths in the 
Kootenai River from Kootenay Lake, British Columbia, to above Bonners 
Ferry, Idaho, which may have resulted from the last 26 years of 
operations at Libby Dam. Further, there is an ongoing study involving 
the releases of large numbers (over 100,000) of four-day-old, hatchery-
reared, yolk sac larvae over both sandy and rocky substrates in the 
Kootenai River, which is also intended to address uncertainties 
involving the sturgeon population's riverbed substrate needs.

Primary Constituent Elements

    Regulations in 50 CFR 424.12 provide that in identifying areas as 
critical habitat within the geographic area occupied by the species, we 
consider those physical and biological features which are essential to 
conservation of the species, and that may require special management 
considerations or protection. These physical and biological features, 
as outlined in 50 CFR 424.12, include but are not limited to the 
following:

    --Space for individual and population growth, and for normal 
behavior;
    --Food, water, or other nutritional or physiological requirements;
    --Cover or shelter;
    --Sites for breeding, reproduction, or rearing of offspring; and
    --Habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.

    The important habitat features that provide for breeding and 
rearing of offspring through the free-swimming larvae stage include: 
water temperatures, depths, and flows sufficient to trigger sturgeon 
breeding, and water volumes and substrates sufficient to cover and 
shelter incubating eggs and yolk sac larvae.
    We have determined the primary constituent elements of critical 
habitat for the Kootenai River population of white sturgeon from 
studies of their habitats, life history, and population biology 
described and referenced above. As noted, Kootenai River flows may 
affect the sturgeon in two ways and, based on the best available 
information, we recognize each for identification of the primary 
constituent elements. Flows may affect normal breeding behavior, 
including site selection, and/or alter the riverbed substrate, which 
may affect survival of eggs and cover for yolk sac larvae. Flows may 
also affect the efficiency of predators to locate eggs and sac fry 
larvae. The four primary constituent elements of Kootenai River 
sturgeon critical habitat are:
    1. A flow regime that creates a hydrologic profile characterized by 
flow magnitude, timing, and velocity, and water depth and quality 
(including temperatures) necessary for normal behavior involving 
breeding site selection, breeding and fertilization, and cover for egg 
incubation and yolk sac fry development.
    2. A flow regime that creates a hydrologic profile characterized by 
water of sufficient duration and magnitude to restore or maintain 
riverbed substrate necessary for attachment and shelter of incubating 
eggs and cover for yolk sac fry in inter-gravel spaces.
    3. A flow regime that creates a hydrologic profile characterized by 
flow magnitude, time, velocity, depth, and duration necessary for the 
normal behavior of adult and juvenile sturgeon.
    4. Water and sediment quality necessary for normal behavior, 
including breeding behavior, and viability of all life stages of the 
Kootenai River white sturgeon, including incubating eggs and yolk sac 
larvae.
    The area we are proposing for designation as critical habitat for 
the Kootenai River population of white sturgeon provides the above 
constituent elements and requires special management considerations or 
protection to ensure their contribution to the species' conservation.

Criteria Used to Identify Critical Habitat

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat.
    In an effort to map areas essential to the conservation of the 
species, we used data on known Kootenai River sturgeon spawning and 
early life stage rearing areas. In the lower Columbia River, where 
white sturgeon continue to spawn successfully, egg incubation sites and 
yolk sac fry development sites are at or slightly downstream of 
spawning sites (Parsley et al. 1993). In the Kootenai River, eggs at 
all stages of development and one hatching yolk sac fry have been found 
at or downstream of the spawning sites. Since 1991, sturgeon eggs have 
been recovered in the Kootenai River between river kilometer 228 (river 
mile 141.4), below Shorty's Island (Paramagian et al. 1995), and river 
kilometer 246 (river mile 152.6), above the Highway 95 bridge at 
Bonner's Ferry, Idaho (Paragamian et al. in press). Although many of 
the eggs

[[Page 80702]]

found were unattached and drifting along the river bottom, Paragamian 
et al. (in press) support the assumption that the Kootenai River 
sturgeon egg collection sites are in the vicinity of the spawning 
sites. Further, since no other spawning sites have been identified in 
10 years of monitoring, we believe these are the same sites where at 
least some successful egg incubation and yolk sac fry development has 
occurred, as evidenced by the 17 wild juveniles captured and aged to 
year classes within this same 10 year study period.
    Existing structures within the proposed critical habitat 
boundaries, such as highway and railroad bridges, do not contain one or 
more of the primary constituent elements, and therefore are not 
included in this critical habitat designation.

Proposed Critical Habitat Designation

    We propose the following as critical habitat for the Kootenai River 
population of white sturgeon: that portion of the Kootenai River within 
Boundary County, Idaho, from river kilometer 228 (river mile 141.4) to 
river kilometer 246 (river mile 152.6). The lateral extent of proposed 
critical habitat is up to the ordinary high water line (as defined by 
the Corps in 33 CFR Part 329.11) on each bank of the Kootenai River 
within the 18 kilometer (11.2 mile) reach.

Land Ownership

    The reach of the Kootenai River proposed as critical habitat lies 
within the ordinary high water lines as defined for regulatory purposes 
(33 CFR part 329.11). Upon statehood in 1890, the State of Idaho 
claimed ownership of the bed of the Kootenai River up to ordinary high 
water lines. Numerous private-, public-, and tribally-owned parcels 
abut this State-owned riverbed, including lands managed by the Service 
at the Kootenai National Wildlife Refuge and trust lands managed by the 
Kootenai Tribe of Idaho.
    Based upon early U.S. Forest Service (USFS) maps from 1916, USGS 
maps from 1928, and the confining effects of the Corps' levees 
constructed in 1961, it appears that within this reach of the Kootenai 
River the ordinary high water lines originally delineating State lands 
are essentially unchanged. Because of the scales of the available maps, 
it is possible that minor river channel changes have occurred since 
statehood, and that some small portions of private lands now occur 
within the ordinary high water lines. However, we understand that most 
of the lands where these changes may have occurred lie within the 
flowage and seepage easements purchased by the Federal government under 
Public Law 93-251, Section 56, passed in 1974. In addition, when the 
river meanders, the ``government lot'' or parcel owners abutting State-
owned riverbed may request parcel boundary adjustments to the new 
ordinary high water line, and corresponding adjustments in taxable 
acreage. Although the elevations of ordinary high water have been 
lowered by the operations of Libby Dam since 1974, the lateral extent 
of the State-owned riverbed along the steep levees may be closely 
approximated today through the Corps' definition of ordinary high water 
line cited above. Thus, we believe the lands proposed here as critical 
habitat are within lands owned by the State of Idaho.

Effect of Critical Habitat Designation

    Section 7(a) of the Act requires Federal agencies to ensure that 
actions they fund, authorize, or carry out do not destroy or adversely 
modify critical habitat to the extent that the action appreciably 
diminishes the value of the critical habitat for both the survival and 
recovery of the species. Individuals, organizations, State, Tribal, and 
local governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding. Thus, activities on Federal lands that may 
affect the Kootenai River white sturgeon or its critical habitat, if 
designated, will require section 7 consultation. Actions on private or 
State lands receiving funding or requiring a permit from a Federal 
agency also will be subject to the section 7 consultation process if 
the action may affect the species or its critical habitat, if 
designated. Federal actions not affecting the species or its critical 
habitat, as well as actions on non-Federal lands that are not federally 
funded or permitted, will not require section 7 consultation.
    Federal agencies are required to evaluate their actions with 
respect to any species that is proposed or listed as endangered or 
threatened, and with respect to its proposed or designated critical 
habitat. Regulations implementing these interagency cooperation 
provisions of the Act are codified at 50 CFR part 402. Section 7(a)(4) 
of the Act and regulations at 50 CFR 402.10 require Federal agencies to 
confer with us on any action that is likely to jeopardize the continued 
existence of a proposed species, or to result in destruction or adverse 
modification of proposed critical habitat. A section 7 conference on 
proposed critical habitat results in a report that may provide 
conservation recommendations to assist the action agency in eliminating 
or minimizing adverse effects to the proposed critical habitat that may 
be caused by the proposed agency action. The conservation 
recommendations in a conference report are advisory. We may issue a 
formal conference report, if requested by a Federal agency. Formal 
conference reports on proposed critical habitat contain a conference 
opinion as to whether the proposed action is likely to destroy or 
adversely modify proposed critical habitat. This conference opinion is 
prepared as if critical habitat were designated as final, in accordance 
with 50 CFR 402.13.
    If we finalize this proposed critical habitat designation, section 
7(a)(1) will require Federal agencies to enter into consultation with 
us on agency actions that may affect critical habitat. Consultations on 
agency actions that will likely adversely affect critical habitat will 
result in issuance of a biological opinion. We may adopt a formal 
conference report as the biological opinion if no significant new 
information or changes in the action alter the content or the opinion 
(see 50 CFR 402.10(d)).
    If we find a proposed agency action is likely to destroy or 
adversely modify the critical habitat, our biological opinion may 
include reasonable and prudent alternatives to the action that are 
designed to avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives are defined at 50 CFR 
402.02 as alternative actions that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that we believe would avoid destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative vary accordingly.
    Regulations at 50 CFR 402.16 also require Federal agencies to 
reinitiate consultation in instances where we have already reviewed an 
action for its effects on listed species if critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of

[[Page 80703]]

conferencing with us on actions likely to destroy or adversely modify 
proposed critical habitat, or consultation if their actions may affect 
designated critical habitat.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of the Kootenai River population of white sturgeon is appreciably 
reduced. We note that such activities may also jeopardize the continued 
existence of the species. A wide range of Federal activities may 
include land and water management actions of Federal agencies (e.g., 
U.S. Army Corps of Engineers (COE), Bonneville Power Administration, 
Natural Resources Conservation Service, U.S. Forest Service, U.S. 
Environmental Protection Agency (EPA), Bureau of Indian Affairs, and 
U.S. Fish and Wildlife Service), and related or similar actions of 
other federally regulated projects (e.g., road and bridge construction 
or maintenance activities by the Federal Highway Administration; dredge 
and fill projects, sand and gravel mining, bank stabilization 
activities conducted by the COE; and National Pollutant Discharge 
Elimination System permits authorized by the EPA). These activities may 
destroy or adversely modify critical habitat if they alter the primary 
constituent elements (defined above) to an extent that the value of 
critical habitat for both the survival and recovery of the Kootenai 
River population of white sturgeon is appreciably reduced. Activities 
that, when carried out, funded, or authorized by a Federal agency, may 
destroy or adversely modify critical habitat include, but are not 
limited to:
    (1) Altering the flow regime within the proposed critical habitat 
in ways that prevent the necessary conditions for breeding and 
fertilization. For example, flood control and hydroelectric operations 
and water release configuration limitations of Libby Dam may destroy or 
adversely modify proposed critical habitat by altering habitat for 
normal breeding behavior, shelter for incubating eggs, and cover for 
yolk sac larvae.
    (2) Altering the flow regime within the proposed critical habitat 
in ways that prevent the necessary conditions for incubating eggs and 
developing yolk sac larvae. Flood control and hydroelectric operations 
combined with the water release configuration limitations of Libby Dam 
may destroy or adversely modify proposed critical habitat necessary for 
incubation of eggs and development of yolk sac larvae by altering 
riverbed substrate composition, through reduced bed load transport 
energy and unnatural distribution of stream bed sand and silt. Land 
management activities accelerating sediment releases from watersheds 
entering the Kootenai River below Libby Dam, and above or within 
proposed critical habitat, may also destroy or adversely modify this 
proposed critical habitat through increased deposition of sand and silt 
in the stream bed. Other actions, including channelization, levee 
reconstruction, stream bank stabilization, gravel removal, and road and 
bridge construction, could also have this result.
    (3) Altering water chemistry. Possible actions include the release 
of chemicals or biological pollutants into the waters passing through 
the proposed critical habitat from point sources or by dispersed 
releases (non-point sources).
    These examples indicate the types of activities that will require 
consultation in the future and, therefore, that may be affected by 
critical habitat designation. These kinds of activities would also 
generally require consultation when they affect a listed species, 
irrespective of impacts to critical habitat. As discussed above, the 
standards for ``jeopardy'' and ``adverse modification'' are essentially 
identical. As a result, we do not expect that designation of critical 
habitat in this area, occupied by the Kootenai River population of 
white sturgeon, will result in a regulatory burden substantially above 
that already in place, due to the presence of the already-listed 
species.
    Federal actions that are found likely to destroy or adversely 
modify critical habitat (or to jeopardize the continued existence of 
the species) may often be modified, through development of reasonable 
and prudent alternatives, in ways that will remove the likelihood of 
destruction or adverse modification of critical habitat (or jeopardy). 
Project modifications may include, but are not limited to, adjustment 
in timing of projects to avoid sensitive periods for the species and 
its habitat; minimization of work and vehicle use in the wetted 
channel; avoidance of pollution; use of alternative material sources; 
sediment barriers; and use of best land management and construction 
practices.
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor, Upper Columbia River Fish and 
Wildlife Office (see ADDRESSES section). Requests for copies of the 
regulations on listed wildlife, and inquiries about prohibitions and 
permits may be addressed to the Division of Endangered Species, U.S. 
Fish and Wildlife Service, 911 NE 11th Avenue, Portland, Oregon 97232-
4181 (telephone 503-231-6158; facsimile 503-231-6243).

Economic Analysis

    Section 4(b)(2)of the Act requires we designate critical habitat on 
the basis of the best available scientific and commercial information 
available and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. The economic 
impacts to be considered in critical habitat designation are the 
incremental effects of the designation over and above the economic 
impacts attributable to listing of the species.
    We may exclude areas from critical habitat upon a determination 
that the benefits of such exclusions outweigh the benefits of 
specifying those areas as critical habitat; however, we cannot exclude 
areas from critical habitat when the exclusion will result in 
extinction of the species. A draft economic analysis will be made 
available for public review and comment (see ADDRESSES section). The 
availability of the draft economic analysis will be announced in the 
Federal Register and in local newspapers. We will utilize the economic 
analysis, and take into consideration all comments and information 
submitted during the public hearing and comment period, to determine 
whether areas should be excluded from final critical habitat 
designation.
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we understand that federally 
recognized Tribes must be related to on a government-to-government 
basis. We support tribal measures that preclude the need for 
conservation regulations, and we provide technical assistance to tribes 
who wish assistance in developing and expanding tribal programs for the 
management of healthy ecosystems so that Federal conservation 
regulations, such as designation of critical habitat, on tribal lands 
are unnecessary.

[[Page 80704]]

    The Presidential Memorandum of April 29, 1994, also requires us to 
consult with the tribes on matters that affect them, and section 
4(b)(2) of the Act requires us to gather information regarding the 
designation of critical habitat and the effects thereof from all 
relevant sources, including the tribes. Recognizing a government-to-
government relationship with tribes and our Federal trust 
responsibilities, we consulted representatives of the Kootenai Tribe of 
Idaho with regard to trust resources, tribal lands, or tribal rights 
that might be affected by the designation of critical habitat.
    In our deliberations over this critical habitat proposal, we 
identified possible effects to the Kootenai Tribe of Idaho or tribal 
resources. These include: (1) effects of designation of critical 
habitat on State lands adjacent to tribal lands; and (2) the effects on 
tribal resources, such as water deliveries and aquatic resources such 
as the Kootenai River white sturgeon. The Kootenai Tribe of Idaho is 
directly involved in the conservation of the Kootenai River white 
sturgeon, and conducts a conservation aquaculture program. To do this, 
the Tribe diverts a small amount of water directly from the Kootenai 
River within the area of proposed critical habitat. We do not 
anticipate any indirect adverse effects to Tribal lands through 
management actions intended to enhance or maintain proposed critical 
habitat on adjacent State of Idaho lands. However, we do anticipate 
beneficial effects to Tribal resources, including water quality and the 
sturgeon, from the designation of critical habitat on adjacent non-
tribal lands.
    In complying with our tribal trust responsibilities, we must 
communicate with all tribes potentially affected by the designation. 
Therefore, we are soliciting information during the comment period on 
potential effects to tribes or tribal resources that may result from 
critical habitat designation.

Public Comments Solicited

    We intend for any final action resulting from this proposal to be 
as accurate and as effective as possible. Therefore, we are soliciting 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of excluding areas will outweigh the benefits of 
including areas as critical habitat;
    (2) Specific information on any habitat changes which may have 
occurred in the Kootenai River since 1961;
    (3) Areas that are essential to the conservation of the species and 
that may require special management considerations or protections;
    (4) Land or water use practices and current or planned activities 
in the subject areas and their possible impacts on proposed critical 
habitat;
    (5) Any foreseeable economic or other impacts resulting from 
proposed critical habitat; and
    (6) Economic and other values associated with designating critical 
habitat for the Kootenai River white sturgeon, such as those derived 
from non-consumptive uses (e.g., enhanced watershed protection, 
``existence values'', increased soil retention, water quality, and 
reductions in administrative costs).
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods.
    (1) You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, Upper Columbia Fish and 
Wildlife Office, 11103 East Montgomery, Spokane, Washington 99206.
    (2) You may send comments by electronic mail (e-mail) to 
[email protected]. If you submit comments by e-mail, 
please submit comments as an ASCII file format and avoid the use of 
special characters and encryption. Please include ``Attn: [1018-AH06]'' 
and your name and return address in your e-mail message. If you do not 
receive a confirmation from the system that we have received your e-
mail message, contact us directly by calling our Upper Columbia Fish 
and Wildlife Office at phone number 509-891-6839. Please note that this 
e-mail address will be closed out at the termination of the public 
comment period.
    (3) You may hand-deliver written comments to our Upper Columbia 
Fish and Wildlife Office, 11103 East Montgomery, Spokane, Washington.
    (4) You may provide comments at the public hearing on January 18, 
2001, at the Bonners Ferry Kootenai River Inn, 7160 Plaza Street, 
Bonners Ferry, Idaho.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold their home 
address, which we will honor to the extent allowable by law. There also 
may be circumstances in which we would withhold a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this request prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, we will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek expert opinions of at least three appropriate 
independent specialists regarding this proposed rule. The purpose of 
such review is to ensure listing decisions are based on scientifically 
sound data, assumptions, and analysis. We will send copies of this 
proposed rule immediately following publication in the Federal Register 
to these peer reviewers. We will invite these peer reviewers to 
comment, during the public comment period, on the specific assumptions 
and conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during the preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    In anticipation of public interest in this issue, a public hearing 
has been scheduled for Thursday, January 18, 2001, from 6:00 p.m. until 
8:00 p.m. at the Kootenai River Inn, 7160 Plaza Street, Bonners Ferry, 
Idaho.
    Written comments submitted during the comment period receive equal 
consideration with those comments presented at a public hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand including answers to questions 
such as the following: (1) Are the requirements in the document clearly 
stated? (2) Does the proposed rule contain technical language or jargon 
that interferes with

[[Page 80705]]

clarity? (3) Does the format of the proposed rule (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce 
clarity? (4) Is the description of the proposed rule in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the document? (5) What else could we do to make the 
proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget (OMB). We will prepare a draft economic 
analysis of this proposed action to determine the economic consequences 
of designating the specific area of critical habitat. The draft 
economic analysis will be available for public review and comment.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. A cost-benefit 
analysis is not required for the purposes of executive Order 12866. The 
Kootenai River Population of white sturgeon was listed as endangered in 
1994. We are currently conducting one formal section 7 consultation 
with the Corps, Bonneville Power Administration, and the Bureau of 
Reclamation on operations of the Federal Columbia River Power System, 
in part, to ensure that their actions would not jeopardize the 
continued existence of the Kootenai River population of white sturgeon. 
Based on the proposed action, we have issued a draft non-jeopardy 
biological opinion on the sturgeon. We plan to finalize this biological 
opinion by December 2000.
    Under the Act, critical habitat may not be destroyed or adversely 
modified by a Federal agency action; it does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 1 below). Section 7 requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species. Based upon our experience with the species and its needs, we 
conclude that any Federal action or authorized action that could 
potentially cause adverse modification of designated critical habitat 
would currently be considered as ``jeopardy'' under the Act. 
Accordingly, the designation of areas within the geographic range 
occupied by the Kootenai River population of white sturgeon does not 
have any incremental impacts on what actions may or may not be 
conducted by Federal agencies or non-Federal persons that receive 
Federal authorization or funding. Non-Federal persons that do not have 
a Federal ``sponsorship'' of their actions are not restricted by the 
designation of critical habitat although they continue to be bound by 
the provisions of the Act concerning ``take'' of the species.
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the Kootenai River 
white sturgeon since its listing in 1994. The prohibition against 
adverse modification of critical habitat is not expected to impose any 
additional restrictions to those that currently exist in occupied areas 
of proposed critical habitat. Because of the potential for impacts on 
other Federal agency activities, we will continue to review this 
proposed action for any inconsistencies with other Federal agency 
actions.
    (c) This proposed rule, if made final, will not significantly 
impact entitlements, grants, user fees, loan programs, or the rights 
and obligations of recipients. Federal agencies are currently required 
to ensure that their activities do not jeopardize the continued 
existence of the species, and, as discussed above, we do not anticipate 
that the adverse modification prohibition (resulting from critical 
habitat designation) will have any incremental effects in areas of 
occupied habitat.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Endangered Species Act.

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


[[Page 80706]]

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the draft economic analysis, we will determine if designation of 
critical habitat will have a significant effect on a substantial number 
of small entities. As discussed under Regulatory Planning and Review 
above, this rule is not expected to result in any restrictions in 
addition to those currently in existence for areas of occupied critical 
habitat.

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

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

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

    In accordance with the Unfunded Mandates Reform Act:
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan will not be required. Small 
governments will be affected only to the extent that any programs 
involving Federal funds, permits, or other authorized activities must 
ensure that their actions will not destroy or adversely modify critical 
habitat. However, as discussed above, these actions are currently 
subject to equivalent restrictions through the listing protections of 
the species, and no further restrictions are anticipated in areas of 
occupied proposed critical habitat.
    (b) This rule will not produce a Federal mandate on State, Tribal, 
or local governments or the private sector of $100 million or greater 
in any year, i.e., it is not a ``significant regulatory action'' under 
the Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no obligations on State, Tribal, or local governments.

Takings

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

Federalism

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

Civil Justice Reform

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

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

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

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
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 116 S. Ct. 698 (1996)).

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and the Department of the Interior's 
requirement at 512 DM 2, we understand that recognized Federal Tribes 
must be related to on a Government-to-Government basis.

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend Sec. 17.11 (h), by revising the entry for ``sturgeon, 
white'' under ``FISHES'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 80707]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Sturgeon, white..................  Acipenser             U.S.A. (ID, MT),     U.S.A. (ID, MT),     E                       549     17.95(e)           NA
                                    trasnmontanus.        Canada (B.C.).       Canada (B.C.),
                                                                               (Kootenai R.
                                                                               system).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Kootenai River population of white sturgeon (Acipenser 
transmontanus).
    1. Critical habitat is depicted for Boundary County, Idaho on the 
map and as described below.
    2. Critical habitat includes the Kootenai River from river 
kilometer 228 (river mile 141.4) to river kilometer 246 (river mile 
152.6), as indicated on the map below, from ordinary high water line to 
opposite ordinary high water line as defined by the U.S. Army Corps of 
Engineers (33 CFR 329.11).
    3. Within these areas, the primary constituent elements include, 
but are not limited to, those that are essential for the primary 
biological needs of normal behavior, water requirements, cover, 
shelter, breeding, and rearing of offspring. These elements include the 
following: (1) A flow and hydrologic regime characterized by water 
magnitude, timing, depth and velocity; and water quality, including 
temperatures necessary for normal behavior involving breeding site 
selection, breeding and fertilization, and cover for egg incubation and 
yolk sac fry development; (2) a flow and hydrologic regime 
characterized by water of sufficient duration and magnitude to restore 
or maintain riverbed substrate necessary for cover and shelter for both 
incubating eggs and yolk sac larvae; (3) a flow and hydrologic regime 
characterized by flow magnitude, time, velocity, depth, and duration 
necessary for the normal behavior of adult and juvenile sturgeon; and 
(4) water and sediment quality necessary for normal behavior, including 
breeding behavior, and the viability of all life stages, including 
incubating eggs and yolk sac larvae.
    4. Within this area, existing structures, such as buildings and 
roads, are not included in the critical habitat designation.
    5. Idaho (Boise Meridian (BM)): Areas of land and water as follows: 
Physical features were identified using USGS 7.5' quadrangle maps for 
the downstream margin, and the Bonners Ferry Gage location information 
from USGS data (USGS 1997) for the upstream margin; river reach 
distances were initially provided in kilometers by Idaho Department of 
Fish and Game and converted to river miles with reference points found 
on USGS 7.5' quadrangles.
    Proposed critical habitat in the Kootenai River within Boundary 
County, Idaho from river kilometer 228 (river mile 141.4) (SW\1/4\, 
Sec. 25, T.63N., R.1W., BM), below ``Shorty's Island'', upstream to 
river kilometer 246 (river mile 152.6) (NE\1/4\, Sec. 27, T.62N., 
R.1E., BM), above the Highway 95 bridge at Bonners Ferry.

BILLING CODE 4310-55-P

[[Page 80708]]

[GRAPHIC] [TIFF OMITTED] TP21DE00.008


    Dated: December 15, 2000.
Kenneth L. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-32466 Filed 12-20-00; 8:45 am]
BILLING CODE 4310-55-C