[Federal Register Volume 71, Number 26 (Wednesday, February 8, 2006)]
[Rules and Regulations]
[Pages 6383-6396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1091]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU47


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Kootenai River population of the white 
sturgeon (Acipenser transmontanus) (Kootenai sturgeon) pursuant to the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately, 6.9 river miles (RM) (11.1 river kilometers (RKM)) of 
the Kootenai River fall within the boundaries of the critical habitat 
designation located in Boundary County, Idaho. This designation is in 
addition to the 11.2 miles (18 kilometers) of the Kootenai River 
already designated as critical habitat for the Kootenai sturgeon.

DATES: This rule becomes effective March 10, 2006. We will accept 
comments from all interested parties until April 10, 2006. A public 
hearing will be held on March 16, 2006 (see ADDRESSES section below for 
location of hearing).

ADDRESSES: Comments: You may submit comments, identified by RIN 1018-
AU47, by any of the following methods:
    (1) Federal Rulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) E-mail: [email protected]. Include RIN 1018-
AU47 in the subject line.

[[Page 6384]]

    (3) Fax: 509-891-6748.
    (4) Mail: Susan Martin, Field Supervisor, U.S. Fish and Wildlife 
Service, Upper Columbia Fish and Wildlife Office, 11103 E Montgomery, 
Spokane, WA 99206.
    (5) Hand Delivery/Courier: You may hand-deliver written documents 
to our office, at the above address.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.
    Hearing: A public hearing will be at the Kootenai River Inn, 7169 
Plaza St, Bonners Ferry, Idaho, on March 16, 2006, from 7 p.m. until 
8:30 p.m. An informal informational meeting will precede the hearing 
from 5 p.m. until 6:30 p.m. Anyone wishing to make oral comments for 
the record at the public hearing is encouraged to provide a written 
copy of their statement and present it to us at the hearing. In the 
event there is a large attendance, the time allotted for oral 
statements may be limited. Oral and written statements receive equal 
consideration.

FOR FURTHER INFORMATION CONTACT: Susan Martin, Field Supervisor, Upper 
Columbia Fish and Wildlife Office at the above address (telephone: 509-
891-6839; facsimile: 509-891-6748).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    To ensure that this action is as accurate and as effective as 
possible, we hereby solicit comments or suggestions from the public, 
other concerned governmental agencies, the scientific community, 
industry, or any other interested party concerning this rule. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of Kootenai 
sturgeon habitat; whether areas included in the designation that are 
occupied and do not contain the features that are essential to the 
conservation of the species; or whether areas included as occupied are 
not occupied and why. Specific information is also sought on areas not 
occupied at the time of listing which are essential to the conservation 
of the species and why those areas should be considered essential to 
the conservation of the species;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on the critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the designation and, in particular, any impacts 
on small entities;
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (6) Any information on why the canyon reach (see Background section 
below) should or should not be designated as critical habitat; and,
    (7) In its May 25, 2005 order, discussed below, the court focused 
on the effect of substrate on ultimate breeding success, and this 
interim rule reflects the court's focus. The best available science, 
however, demonstrates that breeding success is dependent on a number of 
variables in addition to substrate. As discussed below, water 
temperature, depth, and velocity all appear to play a role in 
triggering spawning. Thus, a combination of appropriate substrates and 
water conditions appear necessary for significant breeding success.
     Do all of the areas designated contain all of the PCEs 
required for successful breeding and recruitment (i.e., both the 
triggering of spawning by the adults and the survival of eggs and 
larval sturgeon)?
     If so, do any of the habitat features in these areas 
require special management?
     In particular years, there has been, albeit inadequate, 
recruitment. Please provide comment on any perceived or known bases for 
that recruitment and how it might inform our designation of this 
critical habitat.
     What is the geographic origin of those recruited sturgeon?

Background and Previous Federal Actions

    For a description of Federal actions concerning Kootenai sturgeon 
that occurred prior to our September 6, 2001, designation of critical 
habitat, refer to that rule (66 FR 46548).
    On February 21, 2003, the Center for Biological Diversity filed a 
complaint against the Corps and the Service (CV 03-29-M-DWM) in Federal 
Court in the District of Montana, alleging among other things, that 
designated critical habitat for the Kootenai sturgeon failed to include 
areas which included rocky substrate and therefore would not allow the 
Kootenai sturgeon to recover. Plaintiffs alleged there are more 
appropriate cobble spawning areas outside of designated critical 
habitat that should have been included, and that it was arbitrary and 
capricious for the Service not to include these areas in critical 
habitat.
    On May 25, 2005, the District Court of Montana ruled in favor of 
plaintiffs, and remanded the critical habitat designation to the 
Service for reconsideration with a due date of December 1, 2005. The 
Service filed a motion to alter or amend the judgment, and the Court 
extended the deadline for releasing a new critical habitat designation 
to February 1, 2006. In the interim, the Court ruled that the 2001 
designation of critical habitat remains in effect. The Kootenai 
sturgeon is 1 of 18 land-locked populations of white sturgeon known to 
occur in western North America (U.S. Fish and Wildlife Service 1999). 
Kootenai sturgeon occur in Idaho, Montana, and British Columbia and are 
restricted to approximately 167.7 river miles (RM) (270 river 
kilometers (RKM)) of the Kootenai River extending from Kootenai Falls, 
Montana (31 RM (50 RKM) below Libby Dam) downstream to the outflow of 
Kootenay Lake, British Columbia at Corra Linn Dam. For more information 
on the Kootenai sturgeon, refer to the final listing rule published in 
the Federal Register on September 6, 1994 (59 FR 45989), the Recovery 
Plan for the Kootenai River Population of the White Sturgeon (U.S. Fish 
and Wildlife Service 1999), and our final rule designating critical 
habitat, published in the Federal Register on September 6, 2001 (66 FR 
46548).
    The sturgeon has been experiencing declining populations since the 
late 1970s when we first began monitoring. The declines are believed to 
be due to recruitment failure largely related to lack of appropriate 
spawning and rearing habitat. The Service has been consulting with the 
U.S. Army Corps of Engineers on the operation of Libby Dam to determine 
what measures can be used to prevent jeopardizing the continued 
existence of the species. As a result of this consultation, the Corps 
has undertaken a number of conservation actions designed to address the 
spawning and rearing habitat deficiencies in the river. Those actions 
are designed to address both the physical habitat in the river itself 
as well as changes to the operation of the dam which could improve 
spawning and rearing conditions.
    In order to successfully recruit new individuals into the sturgeon 
population, the sturgeon must spawn, the eggs must settle in an area 
that supports their viability, and the mobile

[[Page 6385]]

embryos that emerge from the eggs must have appropriate habitat in 
which to grow.
    The trigger for Kootenai sturgeon spawning appears to be unrelated 
to successful incubation and mobile embryo survival. As a result, 
Kootenai sturgeon currently spawn in areas unsuitable for incubation 
and mobile embryo success. This has resulted in sturgeon spawning in 
areas with substrates that are unsuitable for egg and mobile embryo 
viability in the 14 years we have been monitoring sturgeon spawning. It 
is unclear what precisely is triggering spawning in areas unsuited to 
egg and embryo viability. However, to date, data indicate that Kootenai 
Sturgeon successful recruitment to the juvenile stage occurs when mean 
water column velocity is 3.3 ft/s (1.0 m/s) or greater.
    Although rocky substrates do not appear to be essential for 
spawning site selection, they appear to be essential to the viability 
of eggs and the survival of free embryos. Rocky substrates provide 
surfaces for sturgeon eggs to attach. In addition the rocky substrate 
provides inter-gravel spaces for free embryo development. In areas with 
no such substrate or where sand and gravel occur, eggs have been found 
with sand and silt adhering to them and this is believed to prevent 
proper incubation and hatching. The linear downstream extent of rocky 
substrate from spawning sites is also important because eggs and free 
embryos are dispersed downstream by the current. For similar white 
sturgeon populations this distance appears to be at least 5 mi (8 km) 
of continuous rocky substrate.
    For these reasons, we believe that all 3 characteristics, water 
depths of at least 5 meters, flows with a minimum mean water column 
velocity of at least 3.3 fps, stable, temperatures of roughly 50 
degrees F in May through July with no sudden drops in temperature 
exceeding 3.6 degrees F, and rocky substrate for at least 5 miles are 
necessary for successful spawning that leads to recruitment into the 
adult population. Because the behavior of sturgeon results in spawning 
in areas that are not able to support egg incubation and embryo 
survival all three physical and biological components need to be 
present in the same place at the same time for successful spawning and 
recruitment.
    We agree with the court that rocky substrate is necessary for 
successful sturgeon recruitment. Appropriate depths, timing, 
temperature and flow velocities are also essential for successful 
spawning. Finally, that these physical characteristics occur 
simultaneously and in the same location is also essential. The current 
plight of the Kootenai sturgeon appears to be caused by current 
separation (in time or location) of one or more of these physical 
characteristics of successful spawning and recruitment habitat from the 
others. A prerequisite for sturgeon conservation may be ending this 
separation and conservation actions currently underway for the sturgeon 
may be able to remedy this disconnect.
    However, the ultimate means for conservation of a species are only 
tangentially related to the legal question of what areas qualify as 
critical habitat under the statutory definition in ESA Sec.  3(5). 
Under that definition, specific areas within the geographical area 
occupied by the species at the time of listing are critical habitat if 
(1) they contain physical or biological features essential to the 
conservation of the species and (2) which may require special 
management. The courts in other challenges to critical habitat 
designations have been uniform in holding that any occupied area must 
contain the essential features--speculation that those features may be 
present in the future has been explicitly rejected as a sufficient 
basis for designation.
    The court has required that we designate this area, however we 
believe it may not meet the statutory definition as there may not be 
sufficient PCEs to provide for essential life functions, in this case 
successful spawning. The information the Service has to date indicates 
that not all of the PCEs required for successful spawning may exist in 
any of the designated areas at the same time. We have designated 
critical habitat as the court directed and we are seeking public 
comment as to whether there is other data demonstrating that these 
elements actually exist in the designated areas.
    We have specifically requested public comment on these difficult 
issues. After public comment, we may revise the designation to delete 
any areas that we determine, based on the best available science, do 
not meet the statutory definition of ``critical habitat.'' Below we 
present relevant information regarding the basis of the statements and 
findings in this rule.

Geomorphic Reaches

    The Kootenai River, from Kootenai Falls to the Canadian border is 
comprised of three geomorphic reaches (Snyder and Minshall 1994; Barton 
et al. 2004; Berenbrock 2005a): (1) The canyon reach, which extends 
from Kootenai Falls at to below the confluence with the Moyie River; 
(2) the braided reach, which begins at the end of the canyon reach and 
extends downstream to Bonners Ferry. The meander reach, extends from RM 
151.8 (RKM 244.5) to the confluence with Kootenay Lake in British 
Columbia. The uppermost portion of meander reach, from the lower end of 
the braided reach to Shorty's Island, was designated as critical 
habitat in 2001 (66 FR 46548).
    The canyon reach, beginning at Kootenai Falls, is characterized by 
rocky substrates and a relatively high water surface gradient. 
Downstream from the canyon reach the valley broadens and the river 
forms a low-gradient braided reach as it flows through multiple shallow 
channels over gravel and cobbles (Barton et al. 2005). The meander 
reach (including the currently designated unit) is characterized by 
sandy substrate, a low water-surface gradient and a series of deep 
holes. The meander reach includes the 11.2 mi (18 km) of currently 
designated critical habitat from RM 152.6 (RKM 246) downstream to RM 
141.4 (RKM 228). The uppermost segment of the meander reach is 
relatively shallow under the current hydrologic regime. A deep hole 
(49.9 feet (ft) (15.2 meters (m))) exists near Ambush Rock at 
approximately RM 151.9 (RKM 244.6) (Barton et al. 2005), and this hole 
is frequented by sturgeon in spawning condition.

Spawning Site Selection

    We have no documentation regarding Kootenai sturgeon spawning 
locations prior to systematic surveying efforts initiated in 1991. 
Since 1991, sturgeon eggs have been recovered in the Kootenai River 
from below Shorty's Island (Paramagian et al. 1995) to the canyon reach 
at RM 162.6 (RKM 261.6) (Paragamian et al. 2001; Rust and Wakkinen 
2004). Despite intensive sampling for the past 14 years, the only 
documentation of sturgeon eggs above the transition zone is in 2003 
when five sturgeon eggs were found on sampling mats at RM 162.6 (RKM 
261.6), during a year when sturgeon were experimentally moved to this 
reach to see if they would spawn there (Rust and Wakkinen 2004). These 
eggs were collected too early in development to determine if 
fertilization had occurred. Successful recruitment to the juvenile 
stage is rare within the designated critical habitat. When successful 
recruitment occurs, it appears to be correlated with years of high 
flows.
    The rest of the eggs have also been documented in the lower 5 mi (8 
km) of the designated critical habitat. There is evidence from movement 
of radio and/or sonic tagged individuals that approximately one-third 
of the sturgeon in spawning condition migrate to the

[[Page 6386]]

transition zone, but few have remained to spawn there. Most (the other 
two-thirds) of the sturgeon in spawning condition simply remain in the 
meander reach.
    Research on Kootenai sturgeon suggests that water depth and 
velocity are the primary factors influencing spawning location and that 
temperature influences spawning timing. Substrate does not appear to be 
a factor in current spawning site selection, as the sturgeon readily 
spawns over substrates that are not conducive to survival for early 
life-stages (i.e., areas without rocky substrate). These factors, and 
what we know about them, are discussed in more detail below.

Water Depth

    Of 209 radio contacts with tagged Kootenai sturgeon in spawning 
condition, 75 percent were within the lower one-third of the water 
column, and they tended to be found even closer to the bottom during 
the actual spawning period (Paragamian and Duehr 2005). Egg capture 
locations between 1991 and 1998 indicate that all but three spawning 
events occurred over sand substrate between RM 141.6 (RKM 228) and an 
undefined point upstream of RM 149.4 (RKM 240.5), in waters usually 
greater than 16.5 ft (5 m) in depth (Paragamian et al. 2001, Barton et 
al. 2005).
    As the spawning season progresses the sturgeon tend to spawn 
further upstream in the meander reach (Paragamian et al. 2001), river 
depth also increases there due to cumulative flows and backwater 
influence from Kootenay Lake (Hoffman 2005a). McDonald (2005b) 
determined that it was not the average velocity, but depth that was 
most closely related to spawning location among Kootenai sturgeon.

Water Velocity

    Paragamian et al. (2001) observed mean water column velocities 
between RM 141.6 and 149.4 (RKM 228 and 240.5) during spawning events 
and in 2002, Paragamian et al. (2002) hypothesized that spawning 
sturgeon may select sites further upstream with greater water 
velocities as depth increases due to the backwater from Kootenai Lake. 
Parsley and Beckman (1994) suggested, based on information from four 
lower Columbia River sites where white sturgeon successfully reproduce, 
that optimal spawning habitat may occur when mean water column velocity 
is 3.3 ft/s (1.0 m/s) or greater. Based on these studies it appears 
that white sturgeon use velocity as a cue for spawning.
    The hydraulic energy and turbulent flow fields often associated 
with high water velocity are necessary to maintain exposed rocky 
substrate essential for maintaining clean interstitial space within the 
substrate (shelter). Under higher water velocities free embryos may 
seek shelter by initiating the hiding phase up to two days earlier 
(Brannon et al. 1985), and thus avoid being transported by the current 
to sites without rocky substrate for shelter. In the absence of 
suitable water velocities Kootenai sturgeon remain vulnerable to 
predation and survival is predictably low (Parsley and Beckman 1991, 
Miller and Beckman 1996).

Water Temperature

    The water temperatures during white sturgeon spawning are fairly 
narrow and well known. White sturgeon spawning in the Kootenai River 
occurs most commonly when water temperatures are around 50 degrees 
Fahrenheit ([deg]F) (10.0 degrees Celsius ([deg]C)) (Paragamian and 
Wakkinen 2002). Sudden drops of temperatures greater than 3.6 [deg]F 
(2.0 [deg]C) negatively affect egg fertilization (Lewandowski 2004).

Rocky Substrate

    Although rocky substrates do not appear to be essential for 
spawning site selection, they appear to be essential to the viability 
of eggs and the survival of free embryos. Rocky substrates provide 
fixed surfaces for demersal (sinking, heavier than water), adhesive 
sturgeon eggs (Stockley 1981) to attach and maintain location during 
egg incubation, and inter-gravel spaces for the free embryo hiding 
phase (Brannon et al. 1985; Parsley et al. 2002; Coutant 2004). The 
linear downstream extent of rocky substrate from spawning sites is 
important for the species because these rocky substrates provide both 
attachment surfaces for eggs and hiding cover for free embryos that are 
redistributed, by the current, downstream. For white sturgeon 
populations below Bonneville and Ice Harbor Dams on the Columbia River, 
where white sturgeon spawn and successfully recruit, this distance 
appears to be at least 5 mi (8 km) of continuous rocky substrate. Based 
on this, we conclude that rocky substrate distributed continuously 
along a sufficient length of the Kootenai River is essential for 
successful Kootenai sturgeon recruitment.
    The meander reach has a relatively low stream gradient, and 
substrates are composed primarily of sand and other fine materials 
overlying lacustrine (of, relating to, or formed in a lake) clay 
(Barton 2003, unpublished data; Barton et al. 2004). Exposed, naturally 
deposited gravel is confined to a few small sites along the banks and 
streambed believed to be associated with old tributary outflows 
(McDonald 2005), and localized areas where steep river banks have been 
artificially armored with cobbles and boulders to control erosion 
(Bettin in litt. 2005). Spawning Kootenai sturgeon do not appear to 
exhibit consistent spawning site fidelity to these few sites in the 
meander reach with rocky substrates (Barton 2004a; Hoffman in litt. 
2005b).
    A significant reach of river bank armor (cobble) currently exists 
along the right bank of the Kootenai River in the vicinity of RM 142.8 
(RKM 230) (Bettin in litt. 2005). Spawning has been documented near 
this armored river bank and upstream in areas where conditions meet the 
sturgeon's spawning requirements of flows, depth, and temperature but 
rocky substrates are lacking (Paragamian et al. 2002; Hoffman 2005a).
    Our original critical habitat designation in 2001 assumed that a 
``buried gravel/cobble geomorphic reach'' existed throughout the river 
bed within the meander reach from approximately RM 151.8 (RKM 244.5) at 
Bonner's Ferry downstream to the mouth of Deep Creek, a distance of 2.8 
mi (4.5 km) (Barton 2004a). However, a more extensive sediment analysis 
during the summer of 2004 revealed that gravel/cobble in this area was 
relatively scarce with the exception of a 0.25 mi (0.4 km) reach of 
buried gravel within the meander reach below the mouth of Myrtle Creek 
(Barton 2004a).
    Exposed gravel/cobble does exist within the transition zone between 
the braided reach and the lower meander reach from approximately RM 
151.8 (RKM 244.5) upstream to RM 152.7 (RKM 246). On three occasions 
eggs have been collected in this transition zone (Paragamian et al. 
2001), meaning that spawning occurred there, or directly upstream and 
eggs were redistributed by the current to this area. Due to the 
difficulty of tracking individuals during early life stages, it is 
unclear if any eggs deposited in the transition zone or upstream have 
survived to become juveniles. Other populations of sturgeon that are 
known to have successful recruitment (e.g., the outflows at Bonneville 
and Ice Harbor Dams on the Columbia River) have at least 5 mi (8 km) of 
suitable rocky substrate before transitioning into sandy substrate. 
This 0.6 mi (1 km) reach of exposed gravel/cobble, currently designated 
as critical habitat in the Kootenai River, is insufficient for 
dispersing free embryos and young fish

[[Page 6387]]

in the hiding phase. This critical habitat designation adds 6.9 river 
miles (RM) (11.1 river kilometers (RKM)) of the Kootenai River, known 
as the braided reach which contains rocky substrate, however, not all 
the requirements for successful spawning and/or adequate recruitment 
may currently exist in this reach.

U.S. Army Corps of Engineers Conservation Actions

    To promote fertilized egg survivorship and successful recruitment, 
the Corps has provided various augmentation releases from Libby Dam 
since 1991. These releases seem to have provided the habitat features 
that supported limited successful spawning and recruitment, especially 
in 1991 when the augmentation releases lasted more than 40 days (the 
longest augmentation flows of any year) and natural runoff was high. 
Based on capturing juveniles in gill nets and aging them by counting 
growth patterns in fin-ray sections, 14 sturgeons were recruited in 
1991. These 14 sturgeons are out of a total of 26 sturgeons (54 
percent) that were recruited between 1991 to 1997 (Beamesderfer 2005). 
Thus, the duration and timing of augmentation flows are likely 
correlated to increased recruitment success in the Kootenai River. The 
mechanism for this relationship is that higher flows provide protection 
to sturgeon eggs from predators that can not forage on a sustained 
basis in such high velocity waters (Faler et al. 1988; Miller and 
Beckman 1996).
    The Corps has proposed physical modifications to the meander reach 
that are intended to provide suitable hard substrate where sturgeon now 
spawn. These sites will continue to be monitored to assess the 
effectiveness of these conservation efforts.

Interim Rule

    We are promulgating this interim rule to meet the court-ordered 
deadline for issuing a new designation of critical habitat for the 
Kootenai sturgeon by February 1, 2006. On June 9, 2005, we filed a 
motion to alter or amend the court's May 25, 2005, judgment. In the 
declaration, which accompanied our motion, we explained that the 
timeline given by the court to issue a new final rule was insufficient 
to complete a legally proper and well-justified revision of critical 
habitat. In our declaration, we described in detail the 20-month 
schedule needed to perform the complex analysis and review involved in 
preparing a new proposed revision of critical habitat, preparation and 
finalization of a new economic analysis, compliance with the 
implementing regulations of the ESA requirement for a 60 day comment 
period on the proposed rule, and the additional steps required to 
finalize the new revision. In an order issued July 15, 2005, the court 
rejected our proposed schedule and ordered us to promulgate and submit 
a final critical habitat designation to the Federal Register for 
immediate publication by February 1, 2006. The court in its July 15, 
2005, order specifically stated it was leaving it to the Service to 
determine the most efficient procedure for legal promulgation of a new 
critical habitat designation.
    Under these circumstances, we have determined under 5 U.S.C. 
553(b)(3)(B) that we have good cause to issue this rule without prior 
opportunity for public comment because prior notice and public 
procedure would be impracticable (which is also a reason listed under 
553(b)(3)(B) of the APA). From the time required to research this rule, 
we did not have sufficient time to issue a proposed rule, open a 
reasonable comment period, and subsequently issue a final rule prior to 
the court-imposed deadline. Therefore, without issuance of an interim 
rule, we would be in violation of the court order.
    Although this interim final rule does constitute a final rule, and 
therefore has regulatory effect, it also opens a comment period on the 
substance of the rule. Following public comment, we will consider all 
comments received and issue a new final rule that will replace this 
interim final rule. That new final rule may vary from this interim 
final rule, to the extent consistent with APA and ESA, and will address 
the comments received. Thus, in effect, this interim final rule will 
serve as the proposed rule for the later final rule, and the Service 
will treat this interim final rule as the proposed rule for the purpose 
of complying with ESA Sec.  4(b)(5).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a 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 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    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 requires consultation on 
Federal actions that may affect critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow government or public access to private 
lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are 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)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features exist and may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but which was not 
known to be occupied at the time of listing will likely be essential to 
the conservation of the species and, therefore, included in the 
critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific and commercial data

[[Page 6388]]

available. They require 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 is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge. All information is used in 
accordance with the provisions of Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    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, critical habitat designations do not signal 
that habitat outside the designation is unimportant or may not be 
required for recovery. Areas that support populations, but are outside 
the critical habitat designation, will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted 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 available 
information at the time of 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.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial information available in determining habitats 
that contain the features that are essential to the conservation of the 
Kootenai sturgeon. We relied upon information in our prior rulemaking, 
our recovery plan, and more recent information on the biological needs 
of the species summarized in the Background section above. We are 
designating critical habitat only in areas presently occupied by the 
species at the time of listing.
    We have also reviewed available information that pertains to 
habitat requirements of this species. The materials included data and 
analysis in section 7 consultations and gathered by biologists holding 
section 10(a)(1)(A) recovery permits; research published in peer-
reviewed articles and presented in academic theses, and agency reports, 
original data sets, and data analyses and accounts of involved 
scientists and resource managers.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the species, and that may 
require special management considerations and protection. These 
include, but are not limited to: Space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.

Specific Primary Constituent Elements for the Kootenai Sturgeon

    We have identified the primary constituent elements of Kootenai 
sturgeon critical habitat based on our knowledge of life history, 
biology, and ecology of the Kootenai sturgeon and the habitat 
requirements necessary to sustain the essential life history functions 
of the species. We are changing the PCEs to better fit with our current 
understanding of the features needed to support the sturgeon's life 
history functions,
    As noted earlier, this designation focuses on spawning and rearing 
habitats which are limiting factors to sturgeon conservation. All of 
the following primary constituent elements must be present in order for 
successful spawning, incubation and survival to occur. These primary 
constituent elements are:
    (1) During the spawning season of May into July, a flow regime that 
periodically (not necessarily annually) produces flood flows capable of 
producing intermittent depths of at least 5 meters (Paragamian and 
Duehr 2005, Barton et al. 2005), and mean water column velocities of at 
least 3.3 ft/s (1.0 m/s) (Anders et al. 2002, Schafter 1997, Berenbrock 
2005) throughout, but not uniformly within the braided reach.
    (2) Stable, temperatures of roughly 50 degrees F in May into July 
with no sudden drops in temperature exceeding 3.6 degrees F at Bonners 
Ferry during the spawning season and water temperatures suitable for 
natural rates of development of embryos.
    (3) Presence of approximately 5 miles of continuous submerged rocky 
substrates for normal free embryo redistribution behavior and 
downstream movement (Brannon et al. 1985).
    (4) A flow regime that limits sediment deposition and maintains 
appropriate rocky substrate for sturgeon egg adhesion, incubation, 
escape cover, and free embryo development (Stockley 1981, Parsley et 
al. 1993, Parsley and Beckman 1994).
    The presence of PCE components related to flow, temperature, and 
depth is dependent in large part to the amount and timing of 
precipitation in any given year. These parameters vary during and 
between years and, at times, some or all of the parameters are not 
present in the area designated as critical habitat. In addition, in 
general, all PCEs are not necessary to provide for all biological 
processes. As noted earlier for spawning and rearing habitat, all the 
identified PCEs must be present at the same time and in the same place. 
However, because even in the critical habitat the specific conditions 
in riparian systems are variable due to a number of factors such as 
weather, this designation does not require that these parameters must 
be available year-round. Rather, the designation means that sufficient 
PCE components to support successful spawning must be present and 
protected during May into July, the time of the year when the PCE 
components are needed to fulfill the requirements to ensure successful 
spawning, which are the particular conservation need for which the 
reach was designated.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the primary 
constituent elements which may require special management 
considerations or protections. Threats to the braided reach include 
shallow water depths, low water velocities, and sudden changes in water 
temperature in ways that that

[[Page 6389]]

adversely affect breeding behavior (see U.S. Fish and Wildlife Service 
1994 final listing rule for the sturgeon).
    Each of the areas designated contain PCEs that provide for one or 
more of the life history functions of the sturgeon. In some cases, the 
PCEs may exist as a result of ongoing Federal actions. However, the 
Service does not foresee that continued operations of Libby Dam in a 
manner consistent with past management would result in destruction or 
adverse modification of critical habitat. These conditions are part of 
the current baseline conditions.

Critical Habitat Designation

    We are revising our 2001 final critical habitat designation by 
adding the braided reach to existing Kootenai sturgeon critical 
habitat. The braided reach is 6.9 mi (11.1 km) long and is entirely 
within Boundary County, Idaho. This designation is in addition to the 
11.2 RM (18 RKM) of the meander reach currently designated as critical 
habitat. The critical habitat areas described below constitute our best 
assessment of additional areas determined to be occupied at the time of 
listing, that may contain the primary constituent elements essential to 
the conservation of the Kootenai sturgeon, and that may require special 
management or protections.

Land Ownership

    Upon statehood in 1890, the State of Idaho claimed ownership of the 
bed of the Kootenai River and its banks up to ordinary high-water 
lines. Based upon early U.S. Forest Service (USFS) maps from 1916, U.S. 
Geological Survey maps from 1928, and the confining effects of the 
private levees completed by the Corps in 1961, it appears that the 
ordinary high-water lines originally delineating State lands on the 
Kootenai River in the upper meander reach and braided reach are 
essentially unchanged. Because of the scale 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 (Ziminske 1999). In 
addition, when the river meanders, the ``government lot'' or parcel 
owners abutting State-owned riverbed/banks may request parcel boundary 
adjustments to the new ordinary high-water line, and corresponding 
adjustments in taxable acreage. The lateral extent of the State-owned 
riverbed/banks along the steep levees may be closely approximated today 
through the Corps definition of ordinary high-water line cited above. 
Thus, we believe the area we previously designated as critical habitat, 
and the areas we are now designating as critical habitat are within 
lands owned by the State of Idaho.

Unit Description

    We present a brief description of the designated unit, and reasons 
why it meets the definition of critical habitat for the Kootenai 
sturgeon, below.

Unit 1 (Braided Reach)

    This unit begins at RM 159.7 (RKM 257.0), below the confluence with 
the Moyie River, and extends downstream within the Kootenai River to RM 
152.7 (RKM 245.9), at Bonners Ferry. Within this unit the valley 
broadens, and the river forms an intermediate-gradient braided reach as 
it courses through multiple shallow channels over gravel and cobbles 
(Barton 2004a). This unit was occupied by the sturgeon at the time of 
listing, and is currently occupied by foraging and migrating sturgeon. 
Spawning has not been documented here. Gravel and cobble are exposed 
along the bottom of the Kootenai River in the braided reach and are 
exposed intermittently in the upstream part of the transition zone 
(Barton 2004a). The braided reach provides temperatures, depths, and 
velocities required to trigger spawning only intermittently, if at all, 
for three reasons. The construction of Libby Dam resulted in average 
peak flows at Bonner's Ferry declining from approximately 75,000 cfs to 
35,000 cfs, or by approximately 53 percent. In addition, the average 
elevation of Kootenay Lake and the backwater effect have been reduced 
in much of the braided reach by about 7.2 ft (2.2 m). Finally, a large 
portion of the braided reach has become wider and shallower due to loss 
of energy and bed load accumulation (the accumulation of large stream 
particles, such as gravel and cobble carried along the bottom of the 
stream) (Barton 2005a, unpublished data). The increase in bed load is a 
result of the broadening of the braids and velocity reductions. We have 
one area of concern regarding whether this reach contains critical 
habitat, and it is the subject of our request for comment. That is, are 
the velocities necessary to trigger spawning current produced by the 
operation of Libby Dam. Modeling done by the USGS indicates that the 
maximum mean water column velocity is 2.6 fps, which is approximately 
25% less than that required in our PCEs for sturgeon. We believe other 
than velocity, we have data demonstrating that the temperatures, depth, 
and substrate requirements are currently met by the operation of the 
Dam.

Effect of Critical Habitat Designation

Section 7 Consultation

    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes 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.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where 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 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Kootenai sturgeon or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal

[[Page 6390]]

agency, such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal and private lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.
    Each of the areas designated in this rule are believed to contain 
sufficient PCEs to provide for one or more of the life history 
functions of the Kootenai sturgeon.
    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 destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat also may jeopardize the continued existence of the Kootenai 
sturgeon. Federal activities that, when carried out, may adversely 
modify critical habitat for the Kootenai sturgeon include, but are not 
limited to:
    (1) Actions which would affect flows in ways that would reduce the 
value of the PCEs essential to the conservation of the species. For 
example, flood control and hydroelectric operations may destroy or 
adversely modify critical habitat by altering riverbed substrate 
composition, or by reducing flows, water velocity, cumulative backwater 
effects, and water depths essential for normal breeding behavior, 
migration, breeding site selection, shelter, dispersal, survival of 
incubating eggs and developing free embryos.
    (2) Actions which would significantly change water temperature in a 
manner that is not compatible with the conservation needs of the 
Kootenai sturgeon. For example, changes in existing flood control or 
hydroelectric operations may adversely modify water temperatures within 
critical habitat necessary for normal breeding behavior.
    (3) Actions that would significantly affect channel morphology or 
geometry in a manner that is not compatible with the conservation needs 
of the Kootenai sturgeon. Such activities could include, but are not 
limited to: Changes in land management activities accelerating sediment 
releases into the Kootenai River; channelization; levee reconstruction; 
stream bank stabilization; gravel removal; and road, railroad, bridge, 
pipeline, or utility construction.
    (4) Actions that are likely to significantly alter water chemistry 
in an adverse manner. Such activities could include the release of 
chemicals or biological pollutants into the waters in, or upstream of, 
critical habitat.

Exclusions Under Section 4(b)(2) of the Act

    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We determined that the lands 
within the designation of critical habitat for the Kootenai sturgeon 
are not owned or managed by the Department of Defense, there are 
currently no habitat conservation plans for the Kootenai sturgeon, and 
the designation does not include any Tribal lands or trust resources. 
We have conducted an economic analysis and will determine whether there 
are any areas suitable for exclusion as we consider its results and the 
public comments received on this interim rulemaking.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific 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. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    We conducted an economic analysis to estimate the potential 
economic effect of the designation. This analysis has been made 
available for public review on the date of the publication of this rule 
and we will accept comments on the draft analysis until the comment 
period closes.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Kootenai River white sturgeon. This information is 
intended to assist the Secretary in making decisions about whether the 
benefits of excluding particular areas from the designation outweigh 
the benefits of including those areas in the designation. This economic 
analysis considers the economic efficiency effects that may result from 
the designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The geographic area of analysis includes one new unit designated as 
critical habitat and a unit previously designated as critical habitat 
in 2001. Future costs (2006 through 2025) associated with conservation 
activities for the sturgeon is estimated to range from $370 million to 
$790 million on a present value basis and $690 million to $1.2 billion 
expressed in undiscounted dollars. Annualized impacts associated with 
the conservation related impacts range from $35 million to $74 million. 
The activity most potentially affected is the operations of Libby Dam. 
However, all but $20,000 to $30,000 in post-designation anticipated 
costs (undiscounted dollars) are joint costs; the sturgeon water flows 
and almost all of the resulting potential impacts will likely occur 
whether or not the new braided reach unit, or a portion thereof, is 
added to the existing designation.
    A copy of the economic analysis with supporting documents are 
included in our administrative record and may be available for 
downloading from the Internet at [email protected] or 
by contacting the Upper Columbia Fish and Wildlife Office directly (see 
ADDRESSES section above).
    For the purpose of this interim final rule, we have considered the 
economic and other relevant impacts of the designation based on 
currently available information, and are not excluding any areas from 
the designation at this time. We will reconsider the issue before 
promulgating the final rule that will replace this interim final rule.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we have sought the expert 
opinions of five

[[Page 6391]]

appropriate and independent specialists regarding this interim rule. 
The purpose of such review is to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We have sent peer reviewers copies of this rule. We have 
invited these peer reviewers to comment on the specific assumptions and 
conclusions regarding the designation of critical habitat.
    We have considered all comments and information received on this 
revision of the final rule during this peer review process. However, 
based on comments received during the public review process the final 
decision may differ from this interim rule.

Public Hearing

    The Act provides for a public hearing on this rule, if requested. 
Given the high likelihood of requests, we have scheduled a public 
hearing to be held on February 22, 2006, at the Kootenai River Inn, 
7169 Plaza St, Bonners Ferry, ID. Anyone wishing to make oral comments 
for the record at the public hearing is encouraged to provide a written 
copy of their statement and present it to us at the hearing. In the 
event there is a large attendance, the time allotted for oral 
statements may be limited. Oral and written statements receive equal 
consideration.
    Persons needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Patti Carroll at 503-
231-2080 as soon as possible. In order to allow sufficient time to 
process requests, please call no later than 1 week before the hearing 
date.

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 rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, and so forth) aid or reduce 
its clarity? (4) Is the description of the rule in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful? (5) What else could we do 
to make the rule easier to understand?
    Send a copy of any comments on how we could make this rule easier 
to understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may 
e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA also amended the RFA 
to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect Kootenai River white sturgeon. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate

[[Page 6392]]

consultation for ongoing Federal activities.
    Approximately 30 small agriculture operations could be impacted by 
conservation measures for the sturgeon. These operations represent 
approximately seven percent of the number of small farms operating 
within the county. The geographic area of analysis includes one new 
unit (Unit 1: Braided Reach) designated as critical habitat and the 
unit previously designated as critical habitat in 2001 (Unit 2: Meander 
Reach). However, the flow-related agriculture impacts are joint costs; 
the sturgeon flows and resulting impacts will occur whether or not the 
proposed unit (Unit 1), or a portion thereof, is added to the existing 
designation. Considering these conservation-related impacts are also 
co-extensive with the listing, there are unlikely to be burdens to 
small agricultural operations from the designation of Unit 1. We have 
therefore determined that this rule will not have a significant 
economic impact on a substantial number of small entities.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on Kootenai River white 
sturgeon and its habitat. First, if we conclude, in a biological 
opinion, that a proposed action is likely to jeopardize the continued 
existence of a species or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing the reasonable 
and prudent alternative. However, unless an exemption were obtained, 
the Federal agency or applicant would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
critical habitat, the types of Federal actions or authorized activities 
that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Regulation of timber harvest, grazing, mining, and recreation 
by the USFS and BLM;
    (4) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (5) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (6) Activities funded by the EPA, U.S. Department of Energy, or any 
other Federal agency.
    It is likely that a project proponent could modify a project or 
take measures to protect Kootenai River white sturgeon. The kinds of 
actions that may be included if future reasonable and prudent 
alternatives become necessary include conservation set-asides, 
restoration of degraded habitat, and regular monitoring. These are 
based on our understanding of the needs of the species and the threats 
it faces, as described in the final listing rule and critical habitat 
designation. These measures are not likely to result in a significant 
economic impact to project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area designated. A 
regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This final rule to 
designated critical habitat for the Kootenai River white sturgeon is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal

[[Page 6393]]

mandate is a provision in legislation, statute or regulation that would 
impose an enforceable duty upon State, local, tribal governments, or 
the private sector and includes both ``Federal intergovernmental 
mandates'' and ``Federal private sector mandates.'' These terms are 
defined in 2 U.S.C. 658(5)-(7). ``Federal intergovernmental mandate'' 
includes a regulation that ``would impose an enforceable duty upon 
State, local, or tribal governments'' with two exceptions. It excludes 
``a condition of Federal assistance.'' It also excludes ``a duty 
arising from participation in a voluntary Federal program,'' unless the 
regulation ``relates to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and tribal 
governments under entitlement authority,'' if the provision would 
``increase the stringency of conditions of assistance'' or ``place caps 
upon, or otherwise decrease, the Federal Government's responsibility to 
provide funding,'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. Four small local governments, Libby, Montana 
(population 2,626), Bonners Ferry, Idaho (population 2,515), Troy, 
Montana (population 957), and Moyie Springs, Idaho (population 656), 
are located either adjacent to, or in the vicinity of the existing and 
proposed critical habitat. All four of the local governments have 
populations that fall within the criteria (fewer than 50,000 residents) 
for ``small entity.'' There is one record of a section 7 consultation 
between Bonners Ferry and the Service since the sturgeon was listed in 
1994. This was an informal consultation on the installation of 
residential water meters. The proposed work will not occur within 
waterways or riparian areas and will not affect the sturgeon. As such, 
a Small Government Agency Plan is not required. We will, however, 
further evaluate this issue as we conduct our economic analysis and 
revise this assessment if appropriate.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
will request information from, and coordinate development of this rule 
with appropriate State resource agencies in Idaho. The designation of 
critical habitat in areas currently occupied by the Kootenai sturgeon 
imposes no additional restrictions to those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The designation may have some benefit to these 
governments in that the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the 
conservation of the species are specifically identified. While making 
this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has 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. We have revised the final rule designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. This rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the Kootenai sturgeon.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 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), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that no 
tribal lands were occupied by Kootenai sturgeon at the time of listing, 
and no tribal lands that are unoccupied are essential to the 
conservation of Kootenai sturgeon. Therefore, no tribal lands are 
involved with this rule. However, because of the significant 
involvement by the Kootenai Tribe of Idaho (KTOI) in the conservation 
aquaculture program and other aspects of Kootenai sturgeon recovery, we 
will consult on a government-to-government basis with

[[Page 6394]]

the KTOI during the public comment period.

References Cited

    A complete list of all references cited in this designation is 
available upon request from the Supervisor, Upper Columbia Fish and 
Wildlife Office (see ADDRESSES section above).

Author

    The primary author of this notice is Bob Hallock, Upper Columbia 
Fish and Wildlife Office (see ADDRESSES section above).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.11(h), revise the entry for ``Sturgeon, White'' under 
``FISHES'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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


0
3. In Sec.  17.95(e), revise the entry for ``KOOTENAI RIVER POPULATION 
OF WHITE STURGEON (Acipenser transmontanus)'' under ``FISHES'' to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
White Sturgeon (Acipenser transmontanus); Kootenai River Population
    (1) Critical habitat units are depicted for Boundary County, Idaho, 
on the map below.
    (2) The primary constituent elements of critical habitat for the 
Kootenai sturgeon are:
    (i) During the spawning season of May through July, a flow regime 
that periodically (not necessarily annually) produces flood flows 
capable of producing intermittent depths of at least 5 meters 
(Paragamian and Duehr 2005, Barton et al. 2005), and mean water column 
velocities of at least 3.3 ft/s (1.0 m/s) (Anders et al. 2002, Schafter 
1997, Berenbrock 2005) throughout, but not uniformly within the braided 
reach.
    (ii) Stable, temperatures of roughly 50 degrees F in May into July 
with no sudden drops in temperature exceeding 3.6 degrees F at Bonners 
Ferry during the spawning season and water temperatures suitable for 
natural rates of development of embryos.
    (iii) Presence of approximately 5 miles of continuous submerged 
rocky substrates for normal free embryo redistribution behavior and 
downstream movement (Brannon et al. 1985).
    (iv) A flow regime that limits sediment deposition and maintains 
appropriate rocky substrate for sturgeon egg adhesion, incubation, 
escape cover, and free embryo development (Stockley 1981, Parsley et 
al. 1993, Parsley and Beckman 1994).
    (3) Note: Map 1 follows:

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[GRAPHIC] [TIFF OMITTED] TR08FE06.000

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[[Page 6396]]

    (4) Unit 1: Braided Reach, Boundary County, Idaho
    Kootenai River from RM 159.7 (RKM 257) to RM 152.6 (RKM 245.9), 
from ordinary high water line to opposite bank ordinary high water mark 
as defined in 33 CFR 329.11.
    (5) Unit 2: Meander Reach, Boundary County, Idaho
    Kootenai River from RM 152.6 (RKM 245.9) to RM 141.4 (RKM 228), 
from ordinary high water line to opposite bank ordinary high water mark 
as defined in 33 CFR 329.11.
* * * * *

    Dated: February 1, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-1091 Filed 2-7-06; 8:45 am]
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