[Federal Register Volume 69, Number 247 (Monday, December 27, 2004)]
[Proposed Rules]
[Pages 77152-77158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28162]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Kern Brook Lamprey as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Kern brook lamprey (Lampetra 
hubbsi) under the Endangered Species Act of 1973, as amended. We find 
the petition and other information available did not present 
substantial scientific or commercial information indicating that 
listing the Kern brook lamprey may be warranted. Therefore, we will not 
be initiating a further status review in response to this petition. We 
ask the public to submit to us any new information that becomes 
available concerning the status of or threats to the species. This 
information will help us monitor and encourage the conservation of the 
species.
    The Pacific lamprey (Lampetra tridentata), river lamprey (Lampetra 
ayresi), and western brook lamprey (Lampetra richardsoni) were also 
identified in the petition. However, these species are addressed in a 
separate finding, prepared by the Portland Fish and Wildlife Office in 
Oregon, and are not addressed in this notice.

DATES: The finding announced in this document was made December 27, 
2004. Submit any new information concerning this species for our 
consideration at any time.

ADDRESSES: Comments, material, information, or questions concerning 
this petition and 90-day finding should be sent to the Field 
Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825-1846. The 
petition and supporting information are available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Wayne White, Field Supervisor, 
Sacramento Fish and Wildlife Office (see ADDRESSES above) (telephone 
916/414-6600; facsimile 916/414-6712).

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (16 U.S.C. 1531 et seq.) (Act), requires that we make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on all 
information available to us at the time we make the finding. To the 
maximum extent practicable, we are to make this finding within 90 days 
of our receipt of the petition, and publish our notice of this finding 
promptly in the Federal Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial information was presented, we 
are required to promptly commence a review of the status of the 
species, if one has not already been initiated, under our internal 
candidate assessment process.
    In making this finding, we relied on information provided by the 
petitioners and evaluated that information in accordance with 50 CFR 
424.14(b). This finding summarizes information included in the petition 
and information available to us at the time of the petition review. Our 
process of coming to a 90-day finding under section 4(b)(3)(A) of the 
Act and section 424.14(b) of our regulations is limited to a 
determination of whether the information in the

[[Page 77153]]

petition meets the ``substantial information'' threshold.
    We do not conduct additional research at this point, nor do we 
subject the petition to rigorous critical review. Rather, as the Act 
and regulations contemplate, in coming to a 90-day finding, we accept 
the petitioner's sources and characterizations of the information 
unless we have specific information to the contrary.
    Our finding considers whether the petition states a reasonable case 
for listing on its face. Thus, our finding expresses no view as to the 
ultimate issue of whether the species should be listed. We reach a 
conclusion on that issue only after a more thorough review of the 
species' status. In that review, which will take approximately 9 more 
months, we will perform a rigorous, critical analysis of the best 
available scientific and commercial information, not just the 
information in the petition. We will ensure that the data used to make 
our determination as to the status of the species is consistent with 
the Act and Information Quality Act.
    On January 27, 2003, we received a petition, dated January 23, 
2003, from the Siskiyou Regional Education Project and 10 other 
organizations, requesting we list the Pacific lamprey, western brook 
lamprey, river lamprey, and Kern brook lamprey in Oregon, Washington, 
Idaho, and California. Further, the petitioners requested designation 
of critical habitat for the range of the species or for distinct 
population segments comprised of one or more major river basins. The 
petition clearly identified itself as such and contained the names, 
addresses, and signatures of the petitioning organizations' 
representatives. The petition included the following information for 
each lamprey species: life history information; population status and 
local distribution; destruction, modification, or curtailment of 
habitat or range; other natural or manmade factors affecting the 
species' continued existence; predation; overutilization for commercial 
or recreational purposes; inadequacy of existing mechanisms; and a 
conclusion for each lamprey species.
    In response to the petitioners' requests to list these species, we 
sent a letter to the petitioners dated March 12, 2003, explaining that 
we would not be able to address their petition until fiscal year 2004. 
The reason for this delay was that existing court orders and settlement 
agreements for other listing actions required nearly all of our listing 
funding for fiscal year 2004. In March 2004, we received a 60-day 
notice of intent to sue, and on May 26, 2004, received a complaint 
regarding our failure to carry out the 90-day and 12-month findings on 
the status of the four species of lamprey. On November 23, 2004, we 
reached an agreement with the plaintiffs to complete the 90-day finding 
by December 20, 2004, and to complete if applicable, the 12-month 
finding by November 15, 2005.

Species Information

    The Kern brook lamprey adult has gray-brown sides and dorsal 
region, a white ventral area, unpigmented dorsal fins, and some black 
pigmentation restricted to the area around the notochord (the 
cartilaginous rod that runs along the back) in the caudal fin (Vladykov 
and Kott 1976). The Kern brook lamprey has poorly developed plates 
(teeth) on its oral disc (mouth). In adults, the supraoral lamina plate 
(the thin plates above the oral opening) typically has two cusps 
(projections on the teeth) (Moyle et al. 1995) with three or four 
(usually four) lateral plates on each side of the oral disc (Moyle 
2002). In addition, this species has 9 to 12 posterial teeth (average 
10.3) (Vladykov and Kott 1976). The Kern brook lamprey has only three 
velar tentacles, which prevent undesirable objects from entering the 
digestive cavity and are present in the junction of the pharynx and 
esophagus. In other lamprey species the number of velar tentacles 
varies from 5 to 18 (Vladykov and Kott 1976). The Kern brook lamprey 
has 51 to 57 trunk myomeres (Moyle 2002), which are the ``blocks'' of 
muscle mass along the body (Moyle et al. 1995). Males have a longer 
urogenital papilla, a small conical tube through which gametes are 
expelled, located just ahead of the anal fin and usually visible only 
during, or shortly before, spawning (Vlaydykov and Kott 1984). Only the 
females develop an anal finlike fold close to spawning time, and can be 
distinguished from the males based on this morphological characteristic 
(Vladykov and Kott 1984).
    Identification of the Kern brook lamprey can be problematic. While 
definitive identifications of the Kern brook lamprey can be made 
through genetic analysis (Docker et al. 1999), identifications are more 
commonly made by analyzing adult morphological characteristics, such as 
tooth patterns on the oral disc (Vladykov and Kott 1976). When 
utilizing morphological characteristics to determine a lamprey species, 
adults must be analyzed because the juveniles, or ammocoetes, of the 
different lamprey species are not readily distinguishable from each 
other (Kostow 2002). For example, the number of trunk myomeres is 
frequently counted to determine species. However, Kern brook lamprey 
ammocoetes have 51 to 57 trunk myomeres, while the western brook 
lamprey has 52 to 67 (52 to 58 in California populations), making these 
two species indistinguishable using this morphological characteristic 
(Moyle 2002). Identification of lamprey species is made more difficult 
because lamprey species are in the adult stage for a relatively short 
duration of their life. Based on the life history of other lamprey 
species, the Kern brook lamprey spends approximately the first five 
years of its life as an ammocoete, and approximately one year as an 
adult, which reduces the opportunity to make conclusive identifications 
during the adult stage. In addition, misidentifications may also occur 
between parasitic and brook lamprey species at early stages of 
metamorphosis because they both have eyes and the development of the 
oral discs are still incomplete, making these characteristics 
unreliable until further development (Kostow 2002; Brian Beale, 
California Department of Fish and Game (CDFG), pers. comm. 2004).

Range and Distribution

    The Kern brook lamprey is endemic to the east side of the San 
Joaquin Valley and found only in the San Joaquin River drainage in 
California (Vladykov and Kott 1976). This species has been reported in 
the Friant-Kern Canal and Merced, San Joaquin, Kings, and Kaweah Rivers 
(Moyle 2002). Brown and Moyle (1993) made a considerable effort to find 
Kern brook lamprey in the Kern, Tule, Tuolumne, and Stanislaus Rivers, 
which are tributaries in the same geographic region as those with Kern 
brook lamprey, but were unsuccessful in capturing the species.
    This species was first discovered by Vladykov and Kott in February 
1972 in the Friant-Kern Canal, east of Delano, Kern County (Vladykov 
and Kott 1976). The Friant-Kern Canal is connected to Millerton 
Reservoir and the upper San Joaquin River through an extensive 
irrigation system (Wang 1986). This canal also connects the Kern River 
with the San Joaquin River, which led Vladykov and Kott (1976) to 
believe that this species originated in the Kern River system. The 
canal is not considered typical habitat for the Kern brook lamprey 
because it is concrete lined and flows are greater than the rivers 
where this species is found (Vladykov and Kott 1976). In 1988, 
ammocoetes and adults were collected by CDFG from the siphons of the 
Friant-Kern Canal when they were poisoned with rotenone as part of an 
effort to eradicate white bass (Morone chrysops) from the system (Brown 
and Moyle 1993; Moyle et al.

[[Page 77154]]

1995). The Kern brook lamprey still occurs in the Friant-Kern Canal, 
but spawning habitat is not available within the canal, so ammocoetes 
that enter the canal do not reproduce in the canal itself (Moyle 2002).
    Between February and March 1977, ammocoetes and adult Kern brook 
lamprey were collected from the Merced River, below McClure Reservoir, 
near Merced Falls (Vladykov and Kott 1984). Brown and Moyle (1993) also 
collected Kern brook lamprey ammocoetes from the Merced River during 
surveys from 1985 through 1987. Recently, Kern brook lamprey ammocoetes 
have been incidentally reported in the Merced River during rotary screw 
trap salmonid surveys (Tim Heyne, CDFG, pers. comm. 2004; Dave Vogel, 
Natural Resource Scientists, pers. comm. 2004).
    Wang (1986) collected ammocoetes between July and September of 1979 
in the upper San Joaquin River downstream of Kerckoff Dam to the 
junction with Millerton Lake. The trunk myomeres count (53 to 58) of 
those specimens fit the description for ammocoetes of either the 
western brook lamprey or Kern brook lamprey. No adult specimens of 
either species were captured, but these ammocoetes were likely Kern 
brook lamprey, based on their low number of trunk myomeres (Brown and 
Moyle 1993; Moyle et al. 1995; Moyle 2002). Brown and Moyle (1993) also 
collected Kern brook lamprey ammocoetes from the San Joaquin River 
below Friant Dam during surveys from 1985 through 1987. We are not 
aware of recent surveys for this species on the San Joaquin River.
    Brown and Moyle (1993) collected Kern brook lamprey during surveys 
on the Kings River above and below Pine Flat Dam. The Kings River is 
still known to support Kern brook lamprey. The Kings River Conservation 
District has performed surveys for trout species from 1990 to the 
present and has found Kern brook lamprey adults and ammocoetes both 
above and below Pine Flat Reservoir during all years surveyed (Jeff 
Halstead, Kings River Conservation District, pers. comm. 2004).
    Brown and Moyle (1993) surveyed fish fauna in the lower Kaweah 
River, downstream of the Kaweah Reservoir, and collected Kern brook 
lamprey ammocoetes from 1985 through 1986. We are not aware of recent 
surveys on the Kaweah River for this species.

Habitat

    The Kern brook lamprey is known to occur in four of the San Joaquin 
River tributaries emerging from the west side of the Sierra Nevada 
mountains and has been observed at elevations of 100 to 1,000 feet (30 
to 305 meters) (Moyle et al. 1995; Moyle 2002). This species commonly 
occupies sand, gravel, and rubble substrates (Moyle et al. 1995). It 
has been reported at stream depths of 12 to 43 inches (in) (30 to 110 
centimeters (cm)) (Moyle 2002). Adults seek riffles with gravel for 
spawning and rubble for cover, while ammocoetes are typically found in 
sandy-bottomed backwaters, shallow river edges, and shallow pools, and 
along edges of runs where there are low stream velocities, where they 
remain buried with their heads protruding above the substrate for 
feeding (Moyle et al. 1995).

Reproduction and Growth

    Little information regarding the life history of the Kern brook 
lamprey is available, but it is presumably similar to the western brook 
lamprey (Moyle 2002). Adults are non-predatory, and feeding is confined 
to the ammocoete stage (Moyle 2002). Because recently transformed Kern 
brook lamprey adults have been collected in the spring, it is likely 
that Kern brook lamprey undergo metamorphosis in the fall (Moyle et al. 
1995; Moyle 2002). During metamorphosis, the Kern brook lamprey 
develops eyes and more distinctive fins, and the oral disc enlarges 
(Kostow 2002). As with other lamprey species, the adults do not eat and 
they shrink in size following metamorphosis (Vladykov and Kott 1976). 
Adults are 3 to 5.5 in (8 to 14 cm) and ammocoetes are 4 to 6 in (10 to 
15 cm) in length (Moyle 2002).
    Based on the life history of western brook lamprey, it is likely 
that the Kern brook lamprey ammocoetes overwinter in burrows while they 
undergo metamorphosis in mud and sand substrates, emerge in the spring 
as sexually mature adults after completing metamorphosis, and then 
migrate to spawning areas (Moyle 2002). Adults build nests in the 
gravel-bottomed substrate, spawn, and then die (Moyle 2002). The eggs 
are sticky and dense, and they are deposited in nests prepared by 
spawning adults. The eggs are then buried by the adults beneath sand 
and gravel. Based on the life history of the western brook lamprey 
(Kostow 2002), the newly hatched larva of the Kern brook lamprey likely 
spend another week to a month in the nest. The ammocoetes then emerge 
and are carried downstream to mud and sand-bottomed backwaters where 
they burrow into stream sediments (Moyle 2002). If life history is 
comparable to other brook lamprey, Kern brook lamprey live for 4 to 5 
years as ammocoetes (Moyle et al. 1995) and would therefore live up to 
6 years or more after completing metamorphosis and spawning as adults. 
When encountered, the ammocoetes are usually locally abundant (Brown 
and Moyle 1993) and can be found in sand and mud substrates, where they 
remain buried with their heads protruding above the substrate and 
feeding by filtering diatoms and other micro-organisms from the water 
(Moyle 1995).

Discussion of Listing Factors

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal list of 
endangered and threatened species. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act. In the following discussion, 
we respond to each of the major assertions made in the petition, as 
well as our analysis of other information in our files, organized by 
the Act's listing factors. The five listing factors include: (1) The 
present threatened destruction, modification, or curtailment of its 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease and predation; (4) the 
inadequacy of existing regulatory mechanisms; and (5) other natural or 
manmade factors affecting its continued existence. The petition 
provided specific information regarding the Kern brook lamprey in its 
discussion of poisoning, water diversions, and channelization, under 
Factor A. We have determined that the threat of poisoning would be more 
appropriately addressed under Factor E, as a natural or manmade factor 
affecting the continued existence of the species. The petition also 
specifically addressed the Kern brook lamprey in its discussion of the 
inadequacy of regulatory mechanisms to manage dam operations within the 
Kern brook lamprey's range, under Factor D. These are the only threats 
for which the petition specifically addresses the Kern brook lamprey, 
as the petition primarily focuses on the Pacific lamprey. This 90-day 
finding is not a status assessment and does constitute a status review 
under the Act.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    The petition discusses the following threats under Factor A: (1) 
Artificial barriers; (2) road culverts; (3) water diversions; (4) 
poisoning; (5) dredging; (6) streambed scouring and degradation; (7) 
channelization; and (8) ocean conditions. The petition provided

[[Page 77155]]

specific information regarding the Kern brook lamprey in its 
discussions of poisoning, water diversions, and channelization. For the 
threats described under Factor A, the petition states that all of the 
factors affecting the Pacific lamprey would also affect the Kern brook 
lamprey, so we have analyzed all of the factors listed under Factor A, 
except for ocean conditions, which does not apply to the Kern brook 
lamprey because it is not an anadromous (migrates to the ocean and 
spawns in freshwater tributaries) species and the threat of poisoning 
which was addressed under Factor E.
Artificial Barriers and Road Culverts
    Information provided in the petition: The petition lists dams, 
culverts, or other artificial barriers as a threat to the Pacific 
lamprey. The petition did not provide information regarding the effects 
that dams, culverts, or other artificial barriers may have on the Kern 
brook lamprey, including the extent to which artificial barriers may 
threaten population numbers or distribution of the Kern brook lamprey.
    Analysis of the information provided in the petition and 
information in our files: Artificial barriers may prevent upstream 
dispersal for adults because lampreys are not strong swimmers, are 
unable to jump, and their movement is determined by flow velocity 
(Kostow 2002). It is likely that if artificial barriers are present 
within the range of the Kern brook lamprey, and if encountered, the 
Kern brook lamprey would not likely be able to negotiate upstream 
passage around the barriers. However, we are not aware of information 
describing the number, distribution, or location of dams or artificial 
barriers, and therefore, the overall extent to which these artificial 
structures may affect Kern brook lamprey movement. Therefore, we are 
unable to determine if dams, culverts, or other artificial barriers 
have caused a reduction in the range or population size of the species.
Water Diversions
    Information provided in the petition: The petition stated that 
water diversions pose a threat to the Kern brook lamprey. The petition 
supports this assertion by stating that the siphons of the Friant-Kern 
Canal mimic habitat preferred by Kern brook lamprey ammocoetes, and the 
species is not able to successfully reproduce in the canal due to a 
lack of spawning habitat.
    Analysis of information provided in the petition and information in 
our files: We are unaware of the extent or number of Kern brook lamprey 
which may be lost as a result of ammocoetes entering into the Friant-
Kern Canal system through the siphons. Therefore, we are unable to 
determine if ammocoetes entering the siphons has caused a substantial 
reduction in Kern brook lamprey population numbers.
    Information in our files does indicate that the loss of habitat 
through water diversions for irrigation may have an effect on Kern 
brook lamprey population numbers. Most of the water that once flowed 
into the San Joaquin River has been diverted for irrigation. The 
limited remaining water is being used for human population growth in 
the region, especially in the vicinity of the cities of Modesto, 
Fresno, and Bakersfield (Brown and Moyle 1993). This reduction in 
stream flow may result in a loss in both the range and numbers of this 
species. However, we are unaware of information quantifying the loss of 
habitat that has occurred within the range of the Kern brook lamprey, 
or to what degree this threat has reduced the range or population size 
of this species. In addition, we are not aware of information 
describing how future population growth in those cities will threaten 
the population size and range of the Kern brook lamprey.
Dredging
    Information provided in the petition: The petition provided 
information on threats from dredging to lamprey species in general, and 
cited specific examples from Oregon. Kern brook lamprey are not 
addressed in this discussion. The petition indicates that most lamprey 
die after passing through dredges (Kostow 2002).
    Analysis of information provided in the petition and information in 
our files: We are not aware of information detailing the extent that 
dredging activities occur in streams within the range of the Kern brook 
lamprey, or specific information regarding the threats that these 
factors pose to the continued survival of the Kern brook lamprey. 
Therefore, it is unknown at this time if dredging activities have 
significantly affected the population status or distribution of the 
Kern brook lamprey, or are likely to do so in the future.
Streambed Scouring and Degradation
    Information provided in the petition: The petition's discussion of 
streamed scouring did not specifically address the Kern brook lamprey, 
but discussed logging practices that scour streams to bedrock, and the 
effects that these practices have on lamprey species in general. The 
petition focused on logging practices in Oregon, and cited examples on 
the central coast of Oregon and in the Umpqua River basin.
    Analysis of information provided in the petition and information in 
our files: We are not aware of information regarding the extent to 
which logging practices that result in streambed scouring occur in 
streams within the range of the Kern brook lamprey, or if these 
activities occur at all. In addition, there is a lack of information 
determining whether these activities, if they occur, have caused a 
substantial reduction in population size or range for the species. 
Therefore, it is unknown at this time if logging practices that result 
in streambed scouring have threatened or have the potential to threaten 
in the future the population status or distribution of the Kern brook 
lamprey.
Stream Channelization and Destruction of Riparian Vegetation
    Information provided by the petition: Similar to the petition's 
discussion of streambed scouring, the petition's discussion of stream 
channelization and destruction of riparian habitat did not specifically 
address the Kern brook lamprey, but discussed the effects that many 
activities, including stream channelization, floodplain filling, and 
destruction of riparian habitat, have on lamprey species in general. 
According to the petition, these activities are widespread in low 
gradient stream areas favored by lamprey species. The petition 
indicated that these activities result in water temperatures that are 
too warm for lamprey species, a loss in depositional areas favored by 
larval lamprey, and a loss in wetlands, side channels, back eddies, and 
beaver ponds. The petition did not provide information specific to the 
Kern brook lamprey regarding these threats, or information describing 
to what extent these activities have occurred or are likely to occur 
within the range of the Kern brook lamprey.
    Analysis of information provided in the petition and information in 
our files: Development along the west side of the Sierra Nevada 
foothills, where the Kern brook lamprey occurs, has accelerated 
greatly, which has resulted in changes in land and water use (Moyle and 
Nichols 1973, 1974). There is a lack of information determining to what 
extent these activities have reduced the population size or range of 
the species, and if activities that cause stream channelization and 
riparian degradation have significantly affected the population status 
or distribution of the Kern brook lamprey, or is likely to do so in the 
future. Without this information we are unable to determine that stream 
channelization and

[[Page 77156]]

degradation of riparian habitat threaten to substantially reduce the 
population or range of the species.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    We concur with the petitioner's opinion that the Kern brook lamprey 
is not known to be harvested for commercial or recreational purposes. 
The Service did not locate information regarding the importance of the 
Kern brook lamprey to Tribes in the range of this species, and this 
information was not provided in the petition.

C. Disease and Predation

    Information provided in the petition: The petitioners stated that 
the Pacific lamprey, river lamprey, western brook lamprey, and Kern 
brook lamprey are all vulnerable to predation by non-native fish 
species, especially in California, where conditions are favorable for 
predator fish from eastern states. The petition did not provide any 
information regarding the threats of disease to the Kern brook lamprey.
    Analysis of information provided in the petition and information in 
our files: Healthy populations of native fishes are in decline 
throughout California, in large part because of an increase in non-
native predators (Moyle and Nichols 1973, 1974). Human activities in 
the lower elevation foothills of the San Joaquin drainage tributaries 
have led to an increase in stream habitat alteration. These alterations 
have mostly been in the form of water impoundment, reduced stream 
flows, and siltation, which creates habitat that is ideal for predatory 
non-native fish (Moyle and Nichols 1973, 1974; Brown and Moyle 1993). 
However, we are unaware of information describing the extent to which 
non-native fish species have affected Kern brook lamprey population 
size or their range, and this information was not provided in the 
petition. It is unknown at this time if non-native fish species have 
caused a substantial reduction in population size or range of the 
species or are likely to do so in the future.
    The petition did not provide information regarding the threat that 
disease may pose to the Kern brook lamprey, and we are not aware of any 
diseases at this time that threaten this species.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition stated that State and Federal agencies have not 
adequately regulated dam building, logging, mining, water withdrawals, 
road building, and construction activities, all of which have led to a 
decline in population numbers and range in lamprey species. The 
petition divided its discussion of regulatory mechanisms into the 
following categories: water law and flow regulations, passage at dams 
and culverts, harvest and escapement goals, private and Federal 
logging, and mining and dredging activities. The only category for 
which the petition specifically addresses the Kern brook lamprey is 
water law and stream flow regulation.
Water Law and Stream Flow Regulation
    Information in the petition: The petition described various threats 
posed by dams, water irrigation, and fish screens, and stated that 
State agencies have not been able to ensure that aquatic species such 
as lamprey have adequate flows for migration and long freshwater 
rearing periods. According to the petition, flows and habitats of lower 
reaches of rivers of the San Joaquin River drainage are not managed for 
the needs of Kern brook lamprey.
    Analysis of information provided in the petition and information in 
our files: There are dams on all of the primary tributaries of the San 
Joaquin River drainage. All collections of Kern brook lamprey have been 
below the lowermost major dams, with the exception of the Kings River 
population, which is found above Pine Flat Reservoir. These dams may 
cause fluctuations or sudden reductions in stream flows, which may 
isolate or kill ammocoetes (Moyle 2002). According to Moyle (2002), if 
the Kern brook lamprey is going to persist, flows and habitats of lower 
reaches of rivers of the San Joaquin drainage should be managed with 
the consideration of the species' biological requirements. However, at 
this time we are not aware of how the operations of the four major dams 
are affecting the Kern brook lamprey, and if the operations of these 
dams could substantially reduce or extirpate the species. In addition, 
we do not have information at this time regarding the specific spatial 
distribution of the Kern brook lamprey, and how changes in stream flows 
affect this species. Without this information, it is speculative to 
state that a single action, such as a rapid drawdown in stream flows, 
could cause a significant reduction in the range or population of the 
species. While it is possible that Kern brook lamprey populations have 
been reduced by the management of stream flows from these dams, the 
petition provides no evidence that the operation of these dams has led 
to a significant decline in either population sizes or range of the 
species, or is likely to do so in the future.
    Through diverting nearly all of the San Joaquin River's flow, 
Friant Dam's stream flow management on the San Joaquin River has likely 
led to a reduction in native fishes (Natural Resource Defense Council, 
et al. v. Kirk Rodgers (Case No. CIV-S-88-1658 LKK/GGH)). In this case, 
the court found that this absence of water in the San Joaquin River has 
led to a reduction in many native fish, including the Pacific lamprey 
and western brook lamprey. While the court did not specifically list 
the Kern brook lamprey as a native fish affected by the dam, it is 
likely to be affected in the same manner as the other lamprey species. 
Therefore, Friant Dam may have caused a reduction in the range and 
distribution of the Kern brook lamprey because of a lack of stream 
flows, but there is no information available to us or provided in the 
petition that quantifies a reduction in the range and distribution of 
this species, if any.
Passage at Dams and Culverts
    Information in the petition: The petition provided information 
regarding lamprey species in general, and did not specifically address 
the Kern brook lamprey. The petition stated that current laws and 
regulations do not require fish ladders, fish screens, and road 
culverts to effectively pass adult lamprey species upstream or provide 
for safe passage of ammocoetes and young adults downstream.
    Analysis of information provided in the petition and information in 
our files: The petition reiterates the threats discussed in its earlier 
discussion of artificial barriers under Factor A. Please refer to the 
discussion of Artificial Barriers, under Factor A described above. We 
are not aware of, and the petition did not provide information that 
indicates that a lack of regulatory mechanisms on fish passage has 
significantly reduced Kern brook lamprey population numbers and 
distribution. Because of this lack of information, we are unable to 
determine that the current regulatory mechanisms have led to a 
significant reduction in the range and population size of the species.
Harvest, Escapement Goals
    Information in the petition: The petition focused on the harvest 
and escapement goals for the Pacific lamprey, and did not provide 
information that specifically addressed the Kern brook lamprey. The 
petition stated that the current laws and regulations pertaining to 
harvest and escapement goals are not adequate to

[[Page 77157]]

protect lamprey species. The petition also stated that the Kern brook 
lamprey is not known to be harvested for commercial or recreational 
purposes in its discussion under Factor B.
    Analysis of information provided in the petition and information in 
our files: We concur with the petitioner's opinion that the Kern brook 
lamprey is not known to be harvested for commercial or recreational 
purposes.
Logging Activities
    Information in the petition: The petition did not provide 
information that specifically addressed the Kern brook lamprey, and 
focuses on Pacific lamprey in Oregon. The petition discusses the 
Northwest Forest Plan and the Oregon Forest Protection Act, and cites 
examples from rivers in Oregon, including the Smith River, Illinois 
River, and Umpqua River. The petition indicated that the current laws 
and regulations do not adequately protect lamprey species from logging 
activities.
    Analysis of information provided in the petition and informatin in 
our files: We are not aware of information that indicates that a lack 
of regulatory mechanisms on logging activities has substantially 
reduced Kern brook lamprey population numbers and distribution. We also 
do not have information regarding the extent that logging activities 
affect the Kern brook lamprey, both within its range and upstream of 
areas where it is known to occur. Because of this lack of information, 
we are unable to determine that the current regulatory mechanisms on 
logging activities have led to a reduction in the range and population 
size of the species, or that a reduction in the range and population of 
this species is likely to occur in the future.
Mining and Dredging Activities
    Information in the petition: The petition reiterated the threats 
described in its discussion of dredging under Factor A, and indicated 
that the current regulatory mechanisms do not adequately protect 
lamprey species from mining and dredging activities. The petition did 
not provide any information specific to the Kern brook lamprey, and 
focuses on lamprey species in general.
    Analysis of information provided in the petition and information in 
our files: We are not aware of information that indicates that a lack 
of regulatory mechanisms on mining and dredging activities has 
significantly reduced Kern brook lamprey population numbers and 
distribution. We also do not have information regarding the extent that 
mining and dredging activities occur within the range of the Kern brook 
lamprey. Because of this lack of information, we are unable to 
determine that the current regulatory mechanisms on mining and dredging 
activities have led to a reduction in the range and population size of 
the species, or that significant reductions in the range and 
distribution of Kern brook lamprey is likely to occur in the future.

E. Other Natural or Manmade Factors Affecting Continued Existence

    According to the petitioners, a lack of monitoring data, lack of 
taxonomic determinations between lamprey species, and vulnerability to 
high density lamprey concentration areas are other threats to the Kern 
brook lamprey. We have also addressed the threat of poisoning under 
Factor E.
Lack of Monitoring Data and Lack of Taxonomic Determinations
    Information provided in the petition: The petition indicated that 
data gathering by State and Federal agencies is inadequate to determine 
population trends and identify necessary conservation measures, and 
that most monitoring is done in conjunction with salmonid monitoring. 
During the petition's discussion of the need for more monitoring data 
and taxonomic determinations, the petition did not address the Kern 
brook lamprey specifically, and focuses on lamprey species in Oregon.
    Analysis of information provided in the petition and information in 
our files: There is a need for taxonomic clarity for all lamprey 
species, as well as a need for more complete monitoring data (Kostow 
2002; P. Moyle, pers. comm. 2004); the same could be said for thousands 
of other species. However, lack of monitoring data and taxonomic 
clarifications, in themselves, do not pose a threat to the continued 
existence of the Kern brook lamprey.
Vulnerability of High Density Areas
    Information provided in the petition: The Kern brook lamprey is not 
specifically addressed in this discussion. The petition describes the 
tendency of lamprey species to be locally dense in certain areas. 
According to the petition, a local habitat disturbance, such as a 
chemical spill or dredging operation, in an area that is densely 
populated by lamprey species, could cause a major reduction in 
population numbers.
    Analysis of information provided in the petition and information in 
our files: According to Moyle (2002), Kern brook lamprey ammocoetes are 
locally abundant when found. Because of this species' propensity to 
congregate in high densities in particular locations, they may be 
vulnerable to localized habitat disturbances (Kostow 2002). 
Furthermore, if a local population of Kern brook lamprey is extirpated 
and the species is unable to recolonize the area, the range and 
distribution of the species would be reduced (Brown and Moyle 1993). If 
enough local extirpations occur, this could lead to the eventual 
extinction of the species (Vladykov and Kott 1976, 1984). However, we 
do not have enough information at this time to conclude that the Kern 
brook lamprey is at risk of substantial reductions in population or 
range because of it's propensity to congregate in high densities. Based 
on the information available to us, it is speculative at this time to 
state that a single event, such as a chemical spill or dredging 
operation, could cause the extirpation of the species from an entire 
river system, or significantly reduce the population or range of the 
species.
    The petition did not provide, and we are not aware of information 
on the precise locations inhabited by Kern brook lamprey ammocoetes. We 
also do not have information regarding the locations of activities such 
as dredging, or activities that could cause a poisoning event, in 
relation to the areas where Kern brook lamprey are known to congregate. 
In addition, we do not have information detailing how the operations of 
the four major dams are affecting the Kern brook lamprey, and if the 
operations of these dams could substantially reduce or extirpate the 
species (see Factor A above), and if the operations of these dams could 
substantially reduce or extirpate the species. Without this 
information, it is speculative to state that a single action, such as a 
chemical spill, rapid drawdown in stream flows, or a dredging 
operation, could cause the extirpation of the species from an entire 
river system or significantly reduce the Kern brook lamprey's 
population size or range.
Poisoning
    Information provided in the petition: Poisoning is described in the 
petition as a major threat to the Kern brook lamprey. The petition 
cites the only known occurrence of poisoning that resulted in the 
deaths of Kern brook lamprey, when ammocoetes and adults were collected 
by CDFG from the siphons of the Friant-Kern Canal when they were 
poisoned with rotenone as part of an effort to eradicate white bass 
from the canal system in 1988 (Brown and Moyle 1993; Moyle et al. 
1995).

[[Page 77158]]

    Analysis of information provided in the petition and information in 
our files: The use of rotenone in the Friant-Kern Canal has not 
occurred since 1988, and there are no future plans for this practice to 
occur again (Peter Moyle, University of California-Davis, pers. comm. 
2004). Other than this one-time poisoning event, the petition did not 
provide any information regarding the use of chemicals or poisons 
within close proximity to known occurrences of the Kern brook lamprey. 
Because of a lack of information regarding activities that could cause 
a poisoning event within the range of the Kern brook lamprey, as well 
as a lack of information on the spatial distribution patterns of the 
species, it is speculative to state that a single event, such as a 
chemical spill, could cause the extirpation of the species from an 
entire river system, or significantly reduce the population or range of 
the species.

Summary

    The petition to list the four lamprey species primarily provides 
information about the Pacific lamprey, and information specific to the 
Kern brook lamprey is lacking. The petition did not present substantial 
information that indicates rangewide declines, a reduction in 
population numbers, or threats to existing Kern brook lamprey 
populations that place them in danger of extinction now or in the 
foreseeable future.
    According to the petition, many of the threats to the Pacific 
lamprey would also apply to the Kern brook lamprey. Threats to the 
Pacific lamprey, as described by the petition, included dams and 
artificial barriers, passage at road culverts, dredging, streambed 
scouring and degradation from logging activities, poisoning, water 
diversions, channelization, and ocean conditions. Of these reported 
threats, there are only four for which the petition specifically 
addresses the Kern brook lamprey (poisoning, water diversions, 
channelization, and lack of regulatory mechanisms regarding water law 
and stream flow regulation). While these threats may affect populations 
of this species, the information provided in the petition was 
speculative in nature and not substantiated. The petition did not 
provide specific information to document the degree that the species 
has been affected by these threats, or if these threats have led to a 
significant decline in the range or distribution of the species or are 
likely to do so in the future.
    There is a lack of survey information supporting reliable 
population and distribution estimates for this recently described 
species. The petition did not provide historical or current data to 
compare abundance of the Kern brook lamprey in any of the rivers where 
it is known to occur. We are not aware of quantitative documentation 
from surveys that shows declines in Kern brook lamprey populations or a 
reduction in range. In addition, the surveys that we are aware of which 
have recorded Kern brook lamprey, did not use a consistent level of 
effort in collecting Kern brook lamprey, occurred over periods of time 
that were too short in duration to establish trends, or used data that 
may be based on ammocoete counts where the surveyed species, whether 
the Kern brook lamprey, western brook lamprey, or Pacific lamprey were 
misidentified. Therefore, population and distribution trends at this 
time are not known.
    All of the known occurrences of Kern brook lamprey, with the 
exception of the population above Pine Flat Reservoir on the Kings 
River, are below major dams. The petition stated that these dams are 
not managed to meet the biological needs of the Kern brook lamprey. 
However, the petition did not provide information on how stream flows 
below the four dams are managed and how these management practices 
affect the population status and distribution of the Kern brook 
lamprey. The petition provides no evidence that the operation of these 
dams has led to a significant decline in either population sizes or 
range of the species, or is likely to do so in the future.

Finding

    We have reviewed the petition and supporting literature, as well as 
other literature and information available in our files. The petition 
and other information available did not present substantial information 
that indicates rangewide declines, a substantial reduction in 
population numbers, or substantiated threats to existing populations 
that rise to the level that indicate the Kern brook lamprey is either 
in imminent danger of extinction, or likely to become so in the 
foreseeable future.
    We will continue to monitor available information on the species, 
and maintain the option of initiating listing procedures in the future 
should such an action become necessary. We ask the public to submit to 
us any new information that becomes available concerning the status of 
this species. If you wish to provide materials concerning this finding, 
submit them to the Field Supervisor, Sacramento Fish and Wildlife 
Office (see ADDRESSES section above).

Literature Cited

    A complete list of all references cited herein is available, upon 
request, from the Sacramento Fish and Wildlife Office (see ADDRESSES 
section above).

Author

    The primary author of this notice is the Sacramento Fish and 
Wildlife Office, U.S. Fish and Wildlife Service (see ADDRESSES section 
above).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 20, 2004.
Marshall P. Jones, Jr.,
Deputy Director, Fish and Wildlife Service.
[FR Doc. 04-28162 Filed 12-23-04; 8:45 am]
BILLING CODE 4310-55-P