[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Rules and Regulations]
[Pages 73740-73768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29332]



[[Page 73739]]

Vol. 77

Tuesday,

No. 238

December 11, 2012

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Lost River Sucker and Shortnose Sucker; Final Rule

  Federal Register / Vol. 77 , No. 238 / Tuesday, December 11, 2012 / 
Rules and Regulations  

[[Page 73740]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0097; 4500030114]
RIN 1018-AX41


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Lost River Sucker and Shortnose Sucker

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical 
habitat for the Lost River sucker and shortnose sucker under the 
Endangered Species Act. In total, approximately 146 miles (234 
kilometers) of streams and 117,848 acres (47,691 hectares) of lakes and 
reservoirs for Lost River sucker and approximately 136 miles (219 
kilometers) of streams and 123,590 acres (50,015 hectares) of lakes and 
reservoirs for shortnose sucker in Klamath and Lake Counties, Oregon, 
and Modoc County, California, fall within the boundaries of the 
critical habitat designation. The effect of this regulation is to 
conserve Lost River sucker's and shortnose sucker's habitat under the 
Endangered Species Act.

DATES: This rule becomes effective on January 10, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as 
supporting documentation used in preparing this final rule, are 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Klamath Falls Fish and 
Wildlife Office, 1936 California Avenue Klamath Falls, OR 97601; 
telephone 541-885-8481; facsimile 541-885-7837.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/klamathfallsfwo, at http://www.regulations.gov in Docket No. FWS-R8-ES-
2011-0097, and at the Klamath Falls Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the Fish and Wildlife Service Web site and 
Field Office set out above, and may also be included in the preamble 
and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Laurie R. Sada, Field Supervisor, U.S. 
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 
telephone 541-885-8481; facsimile 541-885-7837. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for the Lost River sucker and shortnose sucker. Under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act), any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Designations and revisions of critical 
habitat can only be completed by issuing a rule.
    We, the U.S. Fish and Wildlife Service (Service), listed these two 
species as endangered on July 18, 1988 (53 FR 27130). On December 1, 
1994, we published in the Federal Register a proposed critical habitat 
designation for Lost River sucker and shortnose sucker (59 FR 61744); 
that proposal was never finalized. On December 7, 2011, we published a 
revised proposed critical habitat designation in the Federal Register 
(76 FR 76337). Section 4(b)(2) of the Act states that the Secretary 
shall designate critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for Lost River sucker and shortnose 
sucker. We are designating:
     Approximately 146 miles (mi) (234 kilometers (km)) of 
streams and 117,848 acres (ac) (47,691 hectares (ha)) of lakes and 
reservoirs for Lost River sucker.
     Approximately 136 mi (219 km) of streams and 123,590 ac 
(50,015 ha) of lakes and reservoirs for shortnose sucker.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we have 
prepared an analysis of the economic impacts of the critical habitat 
designations and related factors. We announced the availability of the 
draft economic analysis (DEA) in the Federal Register on July 26, 2012 
(77 FR 43796), allowing the public to provide comments on our analysis. 
We have incorporated the comments and have completed the final economic 
analysis (FEA) concurrently with this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from two knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether or not we had used the best 
available information. These peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve this final rule. Information 
we received from peer review is incorporated in this final revised 
designation. We also considered all comments and information received 
from the public during the comment period.

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the development and designation of critical 
habitat for the Lost River sucker and shortnose sucker under the Act. 
For more information on the biology and ecology of the Lost River 
sucker and shortnose sucker, refer to the final listing rule published 
in the Federal Register on July 18, 1988 (53 FR 27130), and to the 
Draft Revised Recovery Plan for the Lost River Sucker and Shortnose 
Sucker (Service 2011), which is available from the Klamath Falls Fish 
and Wildlife Office (see ADDRESSES section). For information on Lost 
River sucker and shortnose sucker critical habitat, refer to the 
proposed rule to designate critical habitat for the Lost River sucker 
and shortnose sucker published in the Federal Register on December 7, 
2011 (76 FR 76337). Information on the associated draft economic 
analysis for the proposed rule to designate revised critical habitat 
was published in the Federal Register on July 26, 2012 (77 FR 43796).

Previous Federal Actions

    The Lost River sucker and shortnose sucker were listed as 
endangered on July 18, 1988 (53 FR 27130). A recovery plan for Lost 
River sucker and shortnose sucker was finalized on March 17, 1993 
(Service 1993). Five-year reviews for the Lost River sucker and 
shortnose sucker were completed on July 19, 2007 (73 FR 11945; March 5, 
2008). We have collected a considerable amount of

[[Page 73741]]

scientific information since we issued the 1993 recovery plan, and we 
issued an updated Draft Revised Recovery Plan for the Lost River Sucker 
and Shortnose Sucker in 2011 (Service 2011).
    On September 9, 1991, the Service received a 60-day notice of 
intent to sue from the Oregon Natural Resources Council (ONRC) for 
failure to prepare a recovery plan and to designate critical habitat 
for the Lost River sucker and shortnose sucker. On November 12, 1991, 
ONRC filed suit in Federal Court (Wendell Wood et al. v. Marvin 
Plenert, et al. (Case No. 91-06496-TC (D. Or.))). The Service entered 
into a settlement agreement and agreed to complete a final recovery 
plan by March 1, 1993, and a proposal to designate critical habitat on 
or before March 10, 1994, and publish a final critical habitat rule by 
November 29, 1994.
    On December 1, 1994, we published proposed critical habitat for 
Lost River sucker and shortnose sucker (59 FR 61744); that proposal was 
never finalized. The ONRC (now known as Oregon Wild) recently contacted 
the Department of Justice and requested that we issue a final critical 
habitat rule within a reasonable amount of time. On May 10, 2010, a 
settlement agreement was reached that stipulated the Service submit a 
final rule designating critical habitat for the Lost River sucker and 
the shortnose sucker to the Federal Register no later than November 30, 
2012 (Wood et al. v. Thorson et al., No. 91-cv-6496-TC (D. Or.)). As 
per the settlement agreement, a revised proposed critical habitat rule 
was published in the Federal Register on December 7, 2011 (76 FR 
76337). The notice of availability for the draft economic analysis 
accompanying this rule was published in the Federal Register on July 
26, 2012 (77 FR 43796).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Lost River sucker and shortnose 
sucker during two comment periods. The first comment period associated 
with the publication of the proposed rule (76 FR 76337) opened on 
December 7, 2011, and closed on February 6, 2012. We also requested 
comments on the proposed critical habitat designation and associated 
draft economic analysis during a comment period that opened July 26, 
2012, and closed on August 27, 2012 (77 FR 43796). We did not receive 
any requests for a public hearing. We also contacted appropriate 
Federal, State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule and 
draft economic analysis during these comment periods.
    During the first comment period, we received 15 comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received three comment letters addressing 
the proposed critical habitat designation or the draft economic 
analysis. All substantive information provided during comment periods 
has either been incorporated directly into this final determination or 
addressed below. Comments received were grouped into general issues 
specifically relating to the proposed critical habitat designation for 
Lost River sucker and shortnose sucker, and are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from three knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from two of the 
peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Lost River sucker and shortnose sucker. The peer reviewers 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve the 
final critical habitat rule. Peer reviewer comments are addressed in 
the following summary and incorporated into the final rule as 
appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer stated that the Service should 
consider riparian and wetland habitats along river corridors as cover 
for rearing in the Cover or Shelter section.
    Our Response: We agree with the peer review comment and have 
included these areas in the Cover or Shelter section of this rule.
    (2) Comment: One peer reviewer questioned our use of the term 
``small group'' and thought the term is subjective and does not provide 
an accurate description of the Lost River sucker population that spawns 
at Upper Klamath Lake shoreline areas. The peer reviewer stated that 
the subpopulation of Lost River suckers in the Upper Klamath Lake 
consists of at least several thousand individuals and could very well 
be greater in number than the entire number of adult Lost River suckers 
in the Lost River subbasin.
    Our Response: We agree with the peer reviewer comment and have not 
referred to this component of the Lost River sucker population as a 
``small group'' in this rule.
    (3) Comment: One peer reviewer stated that most Lost River sucker 
and shortnose sucker larvae spawned in the Williamson and Sprague River 
drift downstream very rapidly after swim-up and are in the lake by May, 
which they considered spring and not mid-summer as stated in the 
proposed rule.
    Our Response: We agree and have made this correction in this rule.
    (4) Comment: One peer reviewer stated that larval shortnose suckers 
appear to have a greater affinity for shoreline and marsh habitat than 
larval Lost River suckers though this differentiation is absent by the 
time they are juveniles.
    Our Response: The updated information provided by the peer reviewer 
has been noted, and we have changed the text in this rule accordingly.
    (5) Comment: One peer reviewer stated that the construction of the 
dams on the Klamath River and creation of Clear Lake Reservoir did 
create more habitat, but changed the type of habitat from lotic (river) 
to lentic (lake). The peer reviewer also stated uncertainty about the 
regulatory implications of what a critical habitat designation means 
for habitats that have been altered.
    Our Response: We agree with the peer reviewer that construction of 
dams did create more habitat, but changed the type of habitat from 
lotic (river) to lentic (lake). Though altered from historical 
conditions, these areas currently provide space for individual and 
population growth and for normal behavior of Lost River sucker and 
shortnose sucker (see Space for Individual and Population Growth and 
for Normal Behavior section) and contain the features essential to the 
conservation of these species. As such, areas designated as critical 
habitat are subject to regulations under the Act.
    (6) Comment: One peer reviewer stated that most (but probably not 
all) Lost River sucker and shortnose sucker larvae in the Sprague River 
rapidly outmigrate to Upper Klamath Lake. This same pattern of rapid 
outmigration has not been shown in the Clear Lake or Gerber Reservoir 
spawning tributaries.
    Our Response: We agree and have noted this pattern is known to 
occur in the Upper Klamath Lake system but not within the Clear Lake or 
Gerber

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spawning tributaries, and we have included this information in this 
final rule.
    (7) Comment: One peer reviewer noted that in the proposed rule we 
identified the maximum algal toxin concentration identified in Primary 
Constituent Element (PCE) 1 to be less than 1.0 microgram ([micro]g) 
per liter (L). The peer reviewer stated that this is the World Health 
Organization maximum concentration of microcysin in drinking water and 
is probably conservative for suckers. The peer reviewer also stated 
that the term ``algal toxin'' does not reflect the specific information 
available on the effects of toxins on fish and should be changed to 
``microcystin.''
    Our Response: The peer reviewer suggests 1.0 microgram per liter is 
probably a strict criterion for Lost River sucker and shortnose sucker 
exposure to microcystin through their environment. However, VanderKooi 
et al. (2010, p. 2) indicate the route of sucker exposure to 
microcystin is orally via the food chain (from chironomids that feed on 
Microcystis sp.) rather than via environmental exposure at the gills. 
During their investigation, water quality samples revealed microcystin 
levels as high as 17 and 6 micrograms per liter in 2007 and 2008, 
respectively. Because we are unaware at what levels microcystin has a 
negative effect on suckers, we have changed the PCE to reflect ``low 
levels'' of microcystin as opposed to a World Health Organization 
concentration threshold for human drinking water.
    (8) Comment: One peer reviewer pointed out that preliminary tag-
return data indicate that bird predation could substantially affect 
juvenile Lost River sucker and shortnose sucker survival, and that 
predation may affect other life stages as well. The peer reviewer 
suggested that management that reduces bird-fish interactions could 
improve Lost River sucker and shortnose sucker survival and may warrant 
a mention in the special management considerations.
    Our Response: We have included the updated information provided by 
the peer reviewer in this rule.
    (9) Comment: One peer reviewer stated that it did not appear, based 
on 2011 passive integrated transponder (PIT) tag detections at a remote 
station on Willow Creek and data collected from adult suckers fitted 
with radio transmitters, that the relatively low lake levels observed 
in 2011 adversely affected suckers' ability to access Willow Creek.
    Our Response: We have reviewed the information submitted by the 
peer reviewer and have modified the text to clarify the relationship 
between flows in Willow Creek, Clear Lake elevation, and access to 
sucker spawning areas.
    (10) Comment: One peer reviewer asked whether the most up-to-date 
lake bathymetry data indicate that access by Lost River sucker and 
shortnose sucker to Pelican Bay in Upper Klamath Lake could be affected 
at lower lake levels and if so, at what lake elevation would this 
occur?
    Our Response: We have in our files the most up-to-date bathymetry 
data acquired from the U.S. Bureau of Reclamation (USBOR 2012) and are 
in the process of validating the data to determine how lake level 
alterations may affect access to Pelican Bay. However, this validation 
process does not influence our decision to designate Pelican Bay in 
Upper Klamath Lake as critical habitat because that area provides the 
physical and biological features essential to the conservation of the 
Lost River sucker and shortnose sucker.
    (11) Comment: One peer reviewer stated that the pH does not rise as 
a result of algal decomposition. As a result of photosynthesis, pH is 
elevated in Upper Klamath Lake during the peak of the Aphanizomenon 
flos-aque bloom. When the bloom subsides and cells decompose pH 
decreases to around or just above neutral (pH 7).
    Our Response: We agree and have addressed the peer reviewer 
comments for this section.
    (12) Comment: One peer reviewer notified us that Larson and Brush 
(2010) have an updated estimate of the amount of wetland acreage 
converted to agriculture and may be a good updated source to cite.
    Our Response: The Larson and Brush (2010) reference provides 
consistent information on amount of wetland loss surrounding Upper 
Klamath Lake; they state 66 percent has been converted to agriculture, 
and the proposed rule states approximately 70 percent. However, the 
citation is more contemporary, and we agree that it is a good source to 
cite and have therefore done so.
    (13) Comment: One peer reviewer questioned our rationale for 
designating the Wood River as critical habitat for Lost River suckers 
but not shortnose suckers. The reviewer stated that almost all suckers 
captured at the mouth of the Wood River by the U.S. Geological Survey 
(USGS) in 2001 were either shortnose suckers or Klamath largescale 
suckers.
    Our Response: After careful review of the peer reviewer comment and 
data provided, as well as review of additional information from USBOR 
that was not in our files when we were developing the proposed rule, we 
have determined that portions of the Wood River and Crooked Creek 
contain the features essential to the conservation of the shortnose 
sucker, and we have designated those areas as critical habitat for the 
species. The approximate area identified includes 0.31 miles (mi) (0.50 
kilometers (km)) of Wood River and 7.26 mi (11.67 km) of Crooked Creek. 
Our determination to include this additional area as critical habitat 
for the shortnose sucker is based on information that the area contains 
the features essential for ensuring that multiple viable spawning 
populations are conserved throughout the species' range and the area 
provides spawning and rearing habitat for the species. The additional 
area we determined and have designated as critical habitat for the 
shortnose sucker coincides with the area we previously proposed and are 
now designating for the Lost River sucker. Information documenting 
shortnose sucker in the Wood River and Crooked Creek is on file and 
available upon request (see FOR FURTHER INFORMATION CONTACT section).
    (14) Comment: One peer reviewer questioned our rationale for 
designating the upper Sprague River as critical habitat for Lost River 
suckers but not shortnose suckers. The reviewer provided USGS tagging 
data to indicate that at least a small percentage of shortnose suckers 
ascend the Sprague River at least as far upstream as Braymill, and the 
peer reviewer stated that some likely go further.
    Our Response: The upper Sprague River (upstream of Braymill) was 
not designated as critical habitat for shortnose sucker because a very 
small percentage of the radio-tagged individuals have been documented 
in that reach. In fact, the vast majority of radio-tagged shortnose 
sucker were not observed migrating upstream beyond Braymill, suggesting 
that they spawn further downstream than Lost River sucker. Based on 
this information, we have determined that, although the area on the 
Sprague River upstream of Braymill contains physical and biological 
features used by the shortnose sucker, those features are not essential 
to the conservation of the species in this location. The area, 
therefore, does not meet the definition of critical habitat for 
shortnose suckers. However, this finding does not signal that habitat 
outside the designated area is unimportant or may not be needed for 
recovery of the species. As such, no change has been made to include 
shortnose sucker critical habitat on Sprague River above Braymill.
    (15) Comment: One peer reviewer commented on the Application of the 
``Adverse Modification'' Standard

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section of the proposed rule and stated that other activities that may 
affect critical habitat include groundwater use and wetland alteration 
and that these two activities should be specifically mentioned. Water 
quantity is covered under 1 and sedimentation is covered under 2, but 
other activities that may affect water quality should be mentioned in 
adverse modification.
    Our Response: We agree that groundwater use and wetland alteration 
are important factors that may affect habitat for Lost River sucker and 
shortnose sucker. We have included both of these activities in the 
Application of the ``Adverse Modification'' Standard section.
    (16) Comment: One peer reviewer stated that the rationale for all 
water quality limits should be stated and citations given.
    Our Response: The water quality limits for temperature, dissolved 
oxygen, and pH were based on stress thresholds developed by Loftus 
(2001). We have included this information in the Critical Habitat 
section below.
    (17) Comment: One peer reviewer and several commenters stressed 
that Tule Lake and segments of the Lost River are essential to the 
conservation and recovery of the species and should therefore be 
designated as critical habitat.
    Our Response: Outside of Upper Klamath Lake, Clear Lake Reservoir, 
and Gerber Reservoir, Tule Lake is the only known water body where 
significant Lost River sucker and shortnose sucker populations occur. 
Historically, Tule Lake was approximately 110,000 ac (44,516 ha) in 
size during high water times (NRC 2004, p. 96) and was connected to 
spawning habitat within the Lost River (a tributary of Tule Lake); fish 
movement occurred between Tule Lake and the upper Lost River basin. Due 
to habitat alterations from construction of the Klamath Reclamation 
Project (Project), Tule Lake currently has a maximum size of 
approximately 13,000 ac (5261 ha; NCR 2004, p. 96) during high water 
times and fish movement to the upper Lost River basin is no longer 
possible. Currently, Lost River sucker and shortnose sucker larvae can 
pass through the fish screen on the A-canal diversion on Upper Klamath 
Lake, upstream of Tule Lake, and are found throughout the canal system 
on the Project. We believe Lost River sucker and shortnose sucker in 
Tule Lake originate from Upper Klamath Lake and move through the canals 
on the Project to Tule Lake, which serves as a drainage sump for the 
Project for used agricultural runoff. Fish collected from fish salvage 
efforts from Project canals at the end of the irrigation season also 
provide Lost River sucker and shortnose sucker individuals to Tule 
Lake.
    The habitat of Tule Lake, although able to support Lost River 
sucker and shortnose sucker, does not provide spawning habitat or 
contain a viable self-sustaining population of Lost River suckers or 
shortnose suckers (see Criteria Used To Identify Critical Habitat item 
(4) below). Without the inadvertent influx of additional fish from 
Upper Klamath Lake, the population of Lost River sucker and shortnose 
sucker would most likely dissipate. In addition, as planned water 
conservation efforts are implemented in the water service area and on 
the Project, water within the drainage system would most likely be 
reduced. This reduction in water may limit future movement of Lost 
River sucker and shortnose sucker from Upper Klamath Lake to Tule Lake. 
With less water in the system, fish salvage efforts and the number of 
fish collected and provided to Tule Lake would be further reduced.
    In determining which areas to identify as critical habitat, we 
examined the geographic locations currently occupied by Lost River 
sucker and shortnose sucker, like Tule Lake, to see if the physical or 
biological features (PBFs) essential to the conservation of these 
species were present. Anderson-Rose Dam completely blocks access to 
suitable spawning habitat for Lost River sucker and shortnose sucker in 
Tule Lake. Habitat downstream of the dam does not appear to provide 
suitable spawning and rearing habitat, and no successful spawning or 
recruitment is known to occur in Tule Lake or its tributaries. 
Currently, Tule Lake functions only as a sink for Lost River sucker and 
shortnose sucker populations and does not meet the criteria used to 
identify critical habitat (see Criteria Used To Identify Critical 
Habitat). Therefore, we are not designating Tule Lake as critical 
habitat as this habitat does not provide the physical or biological 
features essential to the conservation of either species.
    Although the current habitat conditions in Tule Lake fail to meet 
the definition of critical habitat, the Lost River sucker and shortnose 
sucker populations in this water body remain important for recovery of 
the species. Areas that are important to the conservation of the 
species, both inside and outside the critical habitat designation, will 
continue to be subject to: (1) Conservation actions implemented under 
section 7(a)(1) of the Act, (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
insure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species, and (3) section 9 of 
the Act's prohibitions on taking any individual of the species, 
including taking caused by actions that affect habitat. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. These protections and conservation tools will continue 
to contribute to recovery of this species. The Tule Lake populations of 
Lost River sucker and shortnose sucker are important because they 
represent additional populations of suckers throughout the species' 
ranges and may provide source populations of suckers for potential 
augmentation or research opportunities. Furthermore, the Draft Revised 
Recovery Plan for the Lost River Sucker and Shortnose Sucker (Service 
2011) includes high-priority actions to improve conditions for these 
populations and restore access to sufficient suitable spawning habitat, 
and as a result, Tule Lake may be able to contribute even more 
substantially to recovery in the future.

Comments From State(s)

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State of Oregon regarding the proposal to 
designate critical habitat for the Lost River sucker and shortnose 
sucker are addressed below. We did not receive comments from the State 
of California.
    (18) Comment: The State suggested that the Wood River, Sycan River, 
Lost River, and Miller Creek should be designated as critical habitat 
since Lost River sucker and shortnose sucker are present.
    Our Response: We agree with the commenter and, as a result of the 
information that was not available to us at the time of writing the 
proposed critical habitat rule, as well as new information that has 
been gathered since the proposed rule was published, we have refined 
this final designation and included additional areas we have determined 
to meet the definition of critical habitat for the shortnose sucker in 
the Wood River. These areas coincide with areas we previously proposed 
as critical habitat for the Lost River sucker. However, we have 
determined that the areas identified within the Sycan River, Lost 
River, and Miller Creek do not meet the criteria we used to identify 
critical habitat for the shortnose or Lost River

[[Page 73744]]

sucker (see Criteria Used To Identify Critical Habitat). Therefore, we 
are not designating these areas as critical habitat as these areas do 
not provide the essential physical or biological features necessary for 
contribution to conservation of either species.

Public Comments

Expansion of Designation
    (19) Comment: Several commenters suggested that wetlands, including 
Agency Ranch and Barnes Ranch, surrounding Upper Klamath Lake and 
Agency Lake, should be designated as critical habitat to maximize Lost 
River sucker and shortnose sucker recovery potential.
    Our Response: Major wetland areas surrounding Upper Klamath Lake, 
including the Williamson River delta and the Upper Klamath National 
Wildlife Refuge, were proposed and are being included in the 
designation of critical habitat. However, some lands adjacent to these 
areas (i.e., Barnes Ranch, Agency Ranch) have not been included because 
they do not meet the definition of critical habitat. Although Lost 
River sucker and shortnose sucker are present occasionally on the 
ranches, they enter via an unscreened diversion. Once on the ranches, 
they are considered lost to the population. We will continue to work on 
restoration of these ranches and issues related to water diversion in 
the future for the benefit of sucker recovery.
    (20) Comment: A commenter suggested that the Service needs to 
designate the entire Clear Lake National Wildlife Refuge as critical 
habitat for the two species.
    Our Response: We have defined the lateral extent of critical 
habitat in Clear Lake Reservoir by the perimeter of the water body as 
mapped according to the USGS 2009 National Hydrography Dataset. 
Designating the surrounding Refuge uplands would be inconsistent with 
designating lateral extent of critical habitat in other waterbodies 
because the Refuge uplands do not contain the physical or biological 
features essential to the conservation of these species.
    (21) Comment: A commenter stated that Lower Klamath Lake should be 
included as critical habitat.
    Our Response: Please see the definition of critical habitat in the 
rule below. Although Lower Klamath Lake was occupied historically, it 
was not occupied at the time of listing. Lower Klamath Lake was 
historically connected to the Klamath River, but the construction of 
the railroad, dikes, and water management facilities has significantly 
altered this habitat. Lower Klamath Lake is no longer connected to the 
Klamath River and is dry in portions of the year. Because the habitat 
within Lower Klamath Lake is significantly altered and no longer 
connected to the Klamath River, we have determined that this area does 
not meet the definition of critical habitat under section 3(5)(A)(ii) 
of the Act.
    (22) Comment: One commenter was opposed to the designation and/or 
apparent expansion of critical habitat for the Lost River sucker and 
shortnose sucker.
    Our Response: Under section 4(b)(3)(A) of the Act, we are required 
to designate critical habitat to the maximum extent prudent and 
determinable for any endangered or threatened species. On December 1, 
1994, we published in the Federal Register proposed critical habitat 
for Lost River sucker and shortnose sucker (59 FR 61744); that proposal 
was never finalized. In a stipulated settlement agreement we agreed to 
submit to the Federal Register a final critical habitat designation for 
the Lost River sucker and the shortnose sucker no later than November 
30, 2012 (Wood et al. v. Thorson et al., No. 91-cv-6496-TC (D. Or.)). 
Due to advancement in our understanding of Lost River sucker and 
shortnose sucker ecology and habitat requirements, and technological 
advancements in mapping made available since preparing the 1994 
proposed rule, we published a revised proposed critical habitat rule in 
the Federal Register on December 7, 2011 (76 FR 76337). This final 
critical habitat rule does not represent an expansion of the 1994 
proposed rule. Rather, this rule represents approximately 73 percent 
less habitat than was proposed for designation in the 1994 rule.
    (23) Comment: One commenter stated the Service should consider 
expanding the lateral reach of critical habitat to include a riparian 
buffer zone that is fully adequate to ensure water quality is 
maintained within the designated waters.
    Our Response: We used bankfull conditions to determine the aquatic 
limits of critical habitat for the Lost River sucker and shortnose 
sucker. Bankfull width can be described as the flow that just fills the 
stream channel to the top of its nearest banks but below a point where 
the water begins to overflow onto a floodplain. Most aquatic systems, 
including those in the Klamath Basin, do not maintain water year-round 
at the bankfull limits even during years with high water availability. 
As a result, the actual aquatic limit (and by default the habitat 
available to the Lost River sucker and shortnose sucker) for the 
majority of time is well below the bankfull limit. Therefore, some 
riparian and wetland vegetation likely occurs in most of these areas 
and are by default part of the designation. These riparian and wetland 
vegetation areas below the bankfull limit assist in providing 
protection from erosion and help maintain water quality. However, we 
acknowledge that certain activities that occur outside of the lateral 
extent of critical habitat may impact critical habitat. For example, 
upland management practices such as road construction and maintenance 
or timber harvest may affect adjacent aquatic habitat if measures are 
not in place to alleviate any negative effects. We will implement this 
rule consistent with our analysis of these effects, and work closely 
and cooperatively with Federal agencies (or other entities where a 
Federal nexus exists), to ensure any such actions do not adversely 
modify designated critical habitat and that conservation measures are 
in place to protect the habitat and the two species.
Grazing and Agriculture
    (24) Comment: Several commenters stated grazing can be beneficial 
for watershed health and are opposed to citing grazing as a threat to 
Lost River sucker and shortnose sucker habitat. Additionally, one 
commenter stated that if there is no risk to Lost River sucker and 
shortnose sucker habitat from grazing then there is no valid reason to 
designate critical habitat.
    Our Response: The Lost River sucker and shortnose sucker listing 
rule (53 FR 27130) first identified livestock grazing (among other 
factors) as a threat to both species. We agree with the commenters that 
depending on how grazing is managed, there can be beneficial watershed 
effects from grazing. However, the purpose of this rule is to determine 
the areas that contain the physical and biological features essential 
to the conservation of the Lost River sucker and shortnose sucker and 
areas otherwise essential for the conservation of the species and not 
to discuss the factors leading to the species' decline.
    (25) Comment: One commenter stated that the designation of critical 
habitat will equate to maintaining elevated water levels in reservoirs 
thereby reducing water for agriculture.
    Our Response: In and of itself, critical habitat does not have 
implications for changes in lake level management or water delivery. 
Where a Federal nexus exists, consideration of any effects to the 
physical or biological features essential to the conservation of Lost 
River sucker and shortnose sucker from water

[[Page 73745]]

delivery and distribution operations, including water quantity and 
water quality, would be undertaken to assess the potential for adverse 
modification or destruction of habitat. We will continue to work 
cooperatively with land managers and water operators to implement Lost 
River sucker and shortnose sucker conservation measures in a manner 
consistent with the operators' needs to the maximum extent of the law.
Economic Analysis
    (26) Comment: One commenter stated that the economic analysis noted 
the Service would not anticipate any differences in the recommendation 
for avoiding jeopardy versus adverse modification. Thus, the additional 
application of the adverse modification standard (i.e., designation of 
critical habitat) would be inconsequential and essentially redundant.
    Our Response: Under section 4(b)(3)(A) of the Act, we are required 
to designate critical habitat to the maximum extent prudent and 
determinable for any endangered or threatened species. Although there 
may appear to be redundancy in a section 7 analysis on a proposed 
Federal action, the purposes of a jeopardy analysis and adverse 
modification determination are not the same. A jeopardy analysis 
determines if implementation of a proposed action is likely to cause an 
appreciable reduction in the likelihood of both the survival and 
recovery of a listed species in the wild. In contrast, an adverse 
modification analysis determines if the physical or biological features 
of critical habitat would remain functional to serve the intended 
recovery role for the species as a result of implementation of a 
proposed Federal action. Because all the areas being designated are 
occupied by the species during some period of its life history, our 
effects analysis also includes potential effects to the habitat not 
under just an extinction standard but also a conservation standard for 
the species. The analysis of effects of a proposed Federal action on 
critical habitat is both separate from and different from that of the 
effects of a proposed project on the species itself. The jeopardy 
analysis evaluates whether a proposed action would appreciably reduce 
the likelihood of both survival and recovery of a listed species, while 
the destruction or adverse modification analysis evaluates how the 
action could affect the conservation value of designated critical 
habitat to the listed species. Therefore, the difference in outcomes of 
these two analyses represents the regulatory benefit of critical 
habitat. The addition of this regulatory benefit for these species may, 
in many instances, lead to different results and give rise to different 
regulatory requirements, which may then apply to a proposed Federal 
action. However, as we stated in the economic analysis, in most cases 
for this designation the difference between the two standards would be 
minimal.
    (27) Comment: One commenter noted an area can be designated as 
critical habitat only if it includes both features essential to the 
conservation of the species and which may require special management 
considerations or protection. Appendix C of the draft economic analysis 
specifically demonstrates that the areas of interest to the Klamath 
Water Users Association (KWUA) do not require special management 
considerations or protection. Thus, the areas of interest to the KWUA 
do not qualify as critical habitat under the statutory definition.
    Our Response: Appendix C of the economic analysis, which is the 
``Incremental Effects Memorandum for the Economic Analysis of the 
Proposed Rule To Designate Critical Habitat for Lost River Sucker and 
Shortnose Sucker,'' was written to provide information to serve as a 
basis for conducting an economic analysis. The focus of the incremental 
analysis is to determine the impacts on land uses and activities from 
the designation of critical habitat that are above and beyond those 
impacts resulting from listing. The incremental analysis does not focus 
on special management considerations or protection. Additionally, under 
section 3(5)(A)(i) of the Act, the term critical habitat is defined as 
the specific areas within the geographic area occupied by the species 
at the time it is listed on which are found those physical or 
biological features that are (I) essential to the conservation of the 
species and (II) which may require special management considerations or 
protection. The definition does not state that an area must require 
special management consideration or protection for it to be designated 
as critical habitat. Special management considerations or protection 
are specifically discussed in the critical habitat rule (see Special 
Management Considerations or Protection section below). We designated 
the areas of interest to KWUA because we determined that they meet the 
definition of critical habitat.
    (28) Comment: One commenter noted the Act authorizes the Service to 
exclude otherwise eligible areas from designation if it is determined 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat. The proposed rule has not 
identified any benefit of specifying Project-related waters as part of 
critical habitat. The draft economic analysis has, however, identified 
benefits of exclusion, including administrative costs that would arise 
if critical habitat was designated. Thus, the areas of interest to the 
KWUA should not qualify as critical habitat as the costs of exclusion 
outweigh the benefits of designation.
    Our Response: As previously noted, under section 4(b)(3)(A) of the 
Act, we are required to designate critical habitat to the maximum 
extent prudent and determinable for any endangered or threatened 
species. In making this determination the Secretary shall designate 
areas based on the best scientific data available after taking into 
consideration the economic, national security, or any other impact of 
specifying any such area as critical habitat. Also under section 
4(b)(2) of the Act, the Secretary may exclude an area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of inclusion unless such a failure to designate the area 
would result in the extinction of the species concerned. We designated 
the identified areas as critical habitat because they contain the 
physical or biological features essential to the conservation of Lost 
River sucker and shortnose sucker. We also completed an economic 
analysis on the proposed designation and did not identify any areas or 
activities that may incur disproportionately higher incremental 
economic impacts as a result of the designation, and no changes in land 
or water management are expected to result from the critical habitat 
designation. We believe any administrative costs associated with 
consultation for adverse modification would be minimal as these areas 
are considered occupied and used by the two species, and consultation 
on actions with a Federal nexus would need to occur under section 7 of 
the Act regardless of whether the area is designated as critical 
habitat or not. As a result of these areas being designated as critical 
habitat, having no disproportionately higher incremental economic 
impacts, and additional consultation impacts being minimal, the 
Secretary is not exercising discretion to exclude the areas of interest 
to the KWUA under section 4(b)(2) of the Act.
    (29) Comment: One commenter was unable to discern from the draft 
economic analysis the estimated total non-Federal costs, or the split 
between Federal and non-Federal costs.

[[Page 73746]]

    Our Response: Although the draft economic analysis does not 
explicitly differentiate between Federal and non-Federal costs, 
Exhibits 2-2 and 4-2 provide a breakdown of the per-consultation costs 
to the Service, the consulting Federal agency, and third parties 
involved in the consultation. In addition, Exhibit A-1 of the draft 
economic analysis provides the projected annualized impacts to small 
entities anticipated to be third parties to future consultations. As 
the majority of consultations forecasted in the economic analysis 
involves only Federal agencies, the majority of costs are anticipated 
to be borne by Federal agencies.
    (30) Comment: One commenter notes that the draft economic analysis 
makes reference to the California Environmental Quality Act (CEQA). 
Assuming there might be a project in critical habitat that is subject 
to CEQA, the draft economic analysis states that the designation 
``may'' prevent certain types of projects from ``claiming a categorical 
exemption from CEQA.'' The commenter states that there is no analysis, 
explanation, or justification for this statement.
    Our Response: As noted on page ES-3 of the draft economic analysis, 
the designation for the suckers is not expected to result in indirect 
impacts resulting from CEQA or other regulations. GIS analysis 
indicates that areas proposed as critical habitat in Modoc County, 
California, are managed either as national wildlife refuge lands or as 
Federal grazing allotments. In addition, no projects on private lands 
in these areas were identified during the public comment period. 
Therefore, the analysis does not forecast any indirect impacts from 
CEQA in these areas. Language on pages ES-3, 4-10, and 4-11 of the 
Final Economic Analysis has been updated to clarify this finding.
General Comments
    (31) Comment: Designation of critical habitat amounts to Federal 
possession of private land.
    Our Response: Designation of critical habitat does not affect land 
ownership or establish a refuge or preserve, and has no impact on 
private landowners implementing actions on their land that do not 
require Federal funding or permits. In addition, in accordance with 
Executive Order 12630 (Government Actions and Interference with 
Constitutionally Protected Private Property Rights), we have analyzed 
the potential takings implications of designating critical habitat for 
Lost River sucker and shortnose sucker in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this designation of critical habitat for Lost River 
sucker and shortnose sucker does not pose significant takings 
implications for lands within or affected by the designation.
    (32) Comment: One commenter requested that lands covered under the 
draft habitat conservation plan being developed by PacifiCorp and the 
Service should be excluded from designated critical habitat.
    Our Response: We are in the process of developing a Habitat 
Conservation Plan (HCP) with PacifiCorp for the Lost River sucker and 
shortnose sucker. The goal of the HCP is to minimize impacts to covered 
species, and to permit incidental take resulting from the operation of 
their hydroelectric facilities on the Klamath River. Covered lands in 
the draft HCP include: (1) The Klamath River (also containing the Link 
River), between the outlet of Upper Klamath Lake (River Mile 255) and 
the Iron Gate Fish Hatchery below Iron Gate Dam (River Mile 189.3); (2) 
lands within 300 feet (ft) (91 meters (m)) of the ordinary high water 
line of the Klamath River and its reservoirs between these two 
locations; and (3) land areas owned by PacifiCorp adjacent to the 
Klamath River that are associated with the hydroelectric facilities.
    The PacifiCorp lands adjacent to the Klamath River (identified in 
(1) above) do not support the physical or biological features essential 
to the conservation of the Lost River sucker and shortnose sucker and 
have not been proposed as critical habitat.
    The portion of PacifiCorp lands covered by the draft HCP that meets 
the definition of critical habitat for the Lost River sucker and 
shortnose sucker is within 300 ft (91 m) of the ordinary high water 
line (analogous to bankfull width) of the Klamath River downstream to 
Keno Dam. However, PacifiCorp's operation of the hydroelectric 
facilities do not impact these lands. PacifiCorp has not proposed 
conservation activities for these areas. Therefore, the Secretary is 
not exercising discretion to exclude these areas under section 4(b)(2) 
of the Act.
    (33) Comment: One commenter suggested a more current reference 
(i.e., USFS 2010, p. 7) for our statement: ``A high density of forest 
roads remain in the upper Klamath River basin, and many of these are 
located near streams where they likely contribute sediment (USFS 1995, 
p. 7).''
    Our Response: We acknowledge the updated reference and have 
included it in the rule.
    (34) Comment: One commenter could find no definition for the 
acronym ``PBF.''
    Our Response: PBF is physical or biological feature. We neglected 
to parenthetically reference PBF after its first use but have corrected 
this oversight in this final rule.
    (35) Comment: One commenter stated that including the unnamed 
tributary to Dry Prairie Reservoir, which does not have consistent 
habitat available, seems to contradict the sixth criterion used to 
identify critical habitat (p. 76345).
    Our Response: Despite not having consistent flows each spring, when 
flows are present, shortnose suckers have been documented ascending 
this unnamed tributary to spawn. We have determined that this unnamed 
tributary provides the physical or biological features essential to the 
conservation of shortnose sucker and thus provides for the conservation 
of the species. As such, we have included this unnamed tributary in 
this designation.
    (36) Comment: One commenter urged the Service to consider modifying 
its special management provisions for exotic predatory fish to include 
exotics from other Orders, such as bullfrogs (Lithobates catesbeianus), 
that are potential predators on sucker fry.
    Our Response: We are unaware of any studies, and the commenter did 
not provide studies, documenting bullfrog predation on Lost River 
sucker or shortnose sucker. Thus, we have not included bullfrog in the 
list of predators.
    (37) Comment: Several commenters stated it is premature to issue 
the proposed rule absent an economic analysis of the designation.
    Our Response: Under our current regulations at 50 CFR 424.19, the 
Secretary shall identify any significant activities that would either 
affect an area considered for designation as critical habitat or be 
likely to be affected by the designation, and shall, after proposing 
designation of such an area, consider the probable economic and other 
impacts of the designation upon proposed or ongoing activities (77 FR 
51503; August 24, 2012). We interpret ``after proposing'' to mean after 
publication of the proposed rule. As a result, we issued a draft 
economic analysis along with our revised critical habitat proposal in 
the Federal Register on July 26, 2012 (77 FR 43796), and

[[Page 73747]]

solicited public comment on both documents.
    (38) Comment: One commenter stated that recreational fishing should 
be included as one of the factors leading to the decline of suckers.
    Our Response: We agree with the reviewer's comment and note that, 
although recreational angling for these species is presently 
prohibited, historic recreational angling was a reason for decline of 
Lost River sucker and shortnose sucker (53 FR 27132). However, the 
purpose of this rule is to determine the areas that meet the definition 
of critical habitat for the Lost River sucker and shortnose sucker and 
identify these areas for designation, not to discuss the factors 
leading to the species decline.
    (39) Comment: One commenter stated that the natural eutrophication 
process of Upper Klamath Lake should be addressed in greater detail, 
including a discussion of pre- and post-1900 water quality.
    Our Response: This rulemaking is for designating critical habitat. 
As a result, we do not think an extended discussion of this topic in a 
critical habitat rule is an appropriate venue for dissemination of such 
information. We point to several references within the Special 
Management Considerations or Protection section below related to a 
changing algal community and the hypereutrophic nature of Upper Klamath 
Lake, which are available upon request (see FOR FURTHER INFORMATION 
CONTACT section).
    (40) Comment: One commenter requested that the term ``bankfull'' 
should be defined.
    Our Response: Bankfull width can be described as the flow that just 
fills the stream channel to the top of its nearest banks but below a 
point where the water begins to overflow onto a floodplain. In lakes or 
reservoirs, the lateral extent of bankfull conditions and boundaries 
are defined according to the USGS 2009 National Hydrography Dataset. We 
used bankfull conditions to determine the aquatic limits of critical 
habitat for the Lost River sucker and shortnose sucker. We have defined 
the term ``bankfull'' in our Criteria Used To Identify Critical Habitat 
section.
    (41) Comment: One commenter stated that in the ``Exclusions Based 
on Other Relevant Impacts'' section of the proposed rule, we indicated 
that there are no other management plans for these species. However, 
the Klamath Basin Restoration Agreement (KBRA) is one such example.
    Our Response: While the KBRA holds much promise for enhancing 
survival and recovery of Lost River sucker and shortnose sucker, it was 
not included in this section because the agreement has yet to be 
authorized and funded by Congress.

Summary of Changes From Proposed Rule

    In preparing this final critical habitat designation, we reviewed 
and considered comments from peer reviewers and the public on the 
revised proposed critical habitat rule. We also made a draft economic 
analysis available and solicited comment from the public on both the 
revised proposed designation and the draft economic analysis (77 FR 
43796; July 26, 2012). As a result of the peer review and public 
comments received, we made slight changes to this final rule as 
described in the Summary of Comments and Recommendations section above.
    During finalization of our critical habitat designation, we 
discovered errors in the calculation of some of the totals for the 
proposed units in Table 1 and Table 3 in the revised proposed 
designation (76 FR 76337; December 7, 2011). The ownership totals for 
Table 1 and Table 3 were incorrect; however, the individual ownership 
totals for each unit were correctly identified. We have corrected these 
errors, and the correct totals can be found in Table 1 and Table 3 of 
this final rule.
    In addition, based on a peer review comment we received regarding 
the absence of critical habitat for shortnose sucker in the Wood River, 
we have reevaluated whether we should include the Wood River as 
critical habitat for shortnose sucker. In our revised proposed rule, we 
identified this area as critical habitat for the Lost River sucker but 
not for the shortnose sucker. As a result of the information that was 
not available to us at the time of writing the proposed critical 
habitat rule, as well as new information that has been gathered since 
the rule was published, we have refined this final designation and 
included additional areas for shortnose sucker in the Wood River as 
critical habitat to coincide with areas also identified as critical 
habitat for the Lost River sucker. This information documents shortnose 
sucker habitat and presence in the Wood River, and likely Crooked 
Creek, and that these areas are presumably being used by the species 
for spawning. Our determination to include this additional area as 
critical habitat for the shortnose sucker is based on information that 
the area provides spawning and rearing habitat for the species and 
contains the physical or biological features and as a result is 
important for ensuring multiple viable spawning populations are 
conserved throughout the species' range. As such, we have designated 
approximately an additional 7 mi (12 km) of stream length in Unit 1 for 
shortnose sucker that includes the same sections of the Wood River and 
Crooked Creek that were proposed and now designated in Unit 1 for the 
Lost River sucker (see Table 4 below).

Critical Habitat

Background

    Critical habitat is defined in section 3(5)(A) of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the provisions of 
section 4 of the Act, on which are found those physical or biological 
features
    (I) Essential to the conservation of the species and
    (II) Which may require special management considerations or 
protection; and
    (ii) Specific areas outside the geographical area occupied by the 
species at the time it is listed in accordance with the provisions of 
section 4 of the Act, upon a determination that such areas are 
essential for the conservation of the species.
    Conservation, as defined under section 3(3) of the Act, means to 
use and the use of all methods and procedures that are necessary to 
bring an endangered or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery,

[[Page 73748]]

or enhancement measures by non-Federal landowners. Where a landowner 
requests Federal agency funding or authorization for an action that may 
affect a listed species or critical habitat, the consultation 
requirements of section 7(a)(2) of the Act would apply, but even in the 
event of a destruction or adverse modification finding, the obligation 
of the Federal action agency is not to restore or recover the species, 
but to implement reasonable and prudent alternatives to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
specific elements of physical or biological features that further 
define the species' life-history requirements that are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for Lost River sucker and shortnose sucker from studies of this 
species' habitat, ecology, and life history as described in the 
Critical Habitat section of the proposed rule to designate critical 
habitat published in the Federal Register on December 7, 2011 (76 FR 
76337), and in the information presented below. Additional information 
can be found in the final listing rule published in the Federal 
Register on July 18, 1988 (53 FR 27130), and the Draft Revised Recovery 
Plan for the Lost River Sucker and Shortnose Sucker (Service 2011). We 
have determined that Lost River sucker and shortnose sucker require the 
following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

    Lakes, streams, marshes, and spring habitats with migratory 
corridors between these habitats provide space for individual and 
population growth and for normal behavior.
    Lost River sucker spend most of their lives within lakes although 
they primarily spawn in streams (Moyle 2002, p. 199). Spawning occurs 
in late winter and early spring in major

[[Page 73749]]

tributaries to lakes where they occur. In addition, a subpopulation of 
Lost River sucker utilizes spring areas within Upper Klamath Lake for 
spawning (Janney et al. 2008, p. 1813). After hatching, larval Lost 
River sucker drift downstream within spawning tributaries and reach 
lakes by spring. Larval habitat is generally along the shoreline, in 
water 6 inches (in) to 20 in (10 centimeters (cm) to 50 cm) deep where 
emergent vegetation provides cover from predators, protection from 
currents and turbulence, and abundant food (Cooperman and Markle 2004, 
p. 375). As larval suckers grow into the juvenile stage, they 
increasingly use deeper habitat with and without emergent vegetation. 
Adult Lost River sucker primarily use deep (greater than 6.6 ft (2.0 
m)), open-water habitat as well as spring-influenced habitats that act 
as refugia during poor water quality events (Banish et al. 2009, pp. 
159-161, 165).
    Reservoirs also figure prominently in meeting the requirements for 
space for individual and population growth and for normal behavior of 
Lost River sucker. Much of the upper Klamath River basin landscape has 
been hydrologically altered since Anglo-European settlement, including 
construction of reservoirs. Some reservoirs have adversely affected 
Lost River sucker, while others may provide benefits. For example, the 
dam on Malone Reservoir blocks access to historical Lost River sucker 
habitat for individuals migrating in the mainstem Lost River. In 
contrast, construction of hydroelectric dams on the mainstem Klamath 
River and construction of Clear Lake Reservoir likely have increased 
the amount of available habitat.
    Because shortnose sucker share the same habitats as Lost River 
sucker, the lakes, reservoirs, streams, marshes, and spring habitats 
with migratory corridors between these habitats also provide space for 
individual and population growth and for normal behavior of shortnose 
sucker. In contrast to larval Lost River sucker, larval shortnose 
sucker are more closely associated with shoreline and marsh habitat, 
although this distinction appears to disappear by the time both species 
become juveniles. Therefore, based on the information above, we 
identify lakes, reservoirs, streams, marshes, and spring habitats with 
migratory corridors between these habitats to be a physical or 
biological feature essential for the conservation of both Lost River 
sucker and shortnose sucker.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Adult Lost River sucker have subterminal mouths and gill raker 
structures that are adapted for feeding primarily on bottom-dwelling 
(benthic) macroinvertebrates in lake environments (NRC 2004, p. 190). 
Prey selection, however, appears to be a function of developmental 
shifts in habitat use. Lost River sucker larvae feed near the surface 
of the water column, primarily on chironomids (commonly called 
``midges''; a family of small flies whose larval and pupal stages are 
mainly aquatic) (Markle and Clauson 2006, pp. 494-495). Juvenile Lost 
River sucker rely less on surface-oriented feeding and shift to prey 
items from benthic areas. For instance, Markle and Clauson (2006, pp. 
495-496) documented that juvenile Lost River suckers consumed 
chironomid larvae as well as microcrustaceans (amphipods, copepods, 
cladocerans, and ostracods). As adults, Lost River sucker consume many 
of these same items (Moyle 2002, pp. 199-200).
    Shortnose sucker have terminal mouths and gill raker structures 
adapted for feeding on zooplankton (Moyle 2002, p. 203; NRC 2004, p. 
190). Similar to Lost River sucker, shortnose sucker also exhibit a 
shift in prey selection as they mature (Markle and Clauson 2006, pp. 
494-495). Adult shortnose sucker also consume many of the same prey 
items as juveniles, including chironomid larvae, amphipods, copepods, 
cladocerans, and ostracods (Moyle 2002, p. 203; Markle and Clauson 
2006, pp. 494-495).
    Habitats must provide the necessary conditions, including water 
with sufficient phytoplankton and fine aquatic substrate, to harbor 
prey species in sufficient quantity and diversity to meet the 
nutritional and physiological requirements necessary to maintain Lost 
River sucker and shortnose sucker populations. Therefore, based on the 
information above, we identify an abundant food base, including a broad 
array of chironomids, microcrustaceans, and other small aquatic 
macroinvertebrates, to be a biological feature essential for both Lost 
River sucker and shortnose sucker.

Cover or Shelter

    The cover and shelter components, including emergent vegetation and 
depth, are the same for shortnose sucker as for Lost River sucker. Lost 
River sucker and shortnose sucker larvae density is generally higher 
within and adjacent to emergent vegetation than in areas devoid of 
vegetation (Cooperman and Markle 2004, p. 374; Crandall et al. 2008, p. 
413; Erdman and Hendrixson 2009, p. 18; Cooperman et al. 2010, p. 34). 
Emergent vegetation provides cover from predators and habitat for prey 
such as zooplankton, macroinvertebrates, and periphyton (Klamath Tribes 
1996, p. 12; Cooperman and Markle 2004, p. 375). Such areas also may 
provide refuge from wind-blown current and turbulence, as well as areas 
of warmer water temperature, which may facilitate larval growth 
(Cooperman and Markle 2004, p. 375; Crandall 2004, p. 7; Cooperman et 
al. 2010, pp. 35-36).
    Different life stages use different water depths as cover or 
shelter. Juvenile Lost River sucker and shortnose sucker primarily use 
relatively shallow (less than approximately 3.9 ft (1.2 m)) vegetated 
areas, but may also begin to move into deeper, unvegetated, off-shore 
habitats (Buettner and Scoppettone 1990, pp. 33, 51; Markle and Clauson 
2006, p. 499). Data from Upper Klamath Lake indicate juveniles less 
than 1 year of age often are found at depths less than 3 ft (1.0 m) in 
May and June, but shift in late July to water 5 to 6.5 ft (1.5 to 2.0 
m) deep (Burdick and Brown 2010, p. 50). No similar data exist from 
other occupied water bodies. Similarly, 1-year-old juveniles occupy 
shallow habitats during April and May, but may move into deeper areas 
along the western shore of Upper Klamath Lake (e.g., Eagle Ridge 
trench) until dissolved oxygen levels become reduced in mid- to late-
July (Bottcher and Burdick 2010, p. 17; Burdick and VanderKooi 2010, p. 
13). Juveniles then appear to move into shallower habitat along the 
eastern shore or main part of Upper Klamath Lake (Bottcher and Burdick 
2010, p. 17).
    It is assumed that subadults (individuals that display all of the 
characteristics of adults with the exception of reproductive maturity 
and reproductive structures (tubercles)) utilize habitats similar to 
adults (NRC 2004, p. 199). Adult Lost River sucker and shortnose sucker 
inhabit water depths of 3.0 to 15.7 ft (0.9 to 4.8 m) (Reiser et al. 
2001, pp. 5-26; Banish et al. 2009, p. 161). In addition, cover (e.g., 
large woody debris) is sparse in many of the lentic habitats occupied 
by adult Lost River sucker and shortnose sucker, so water depth or 
turbidity may provide concealment from avian predators (Banish et al. 
2009, p. 164).
    Therefore, based on the information above, we identify lakes and 
reservoirs with adequate amounts of emergent vegetation of appropriate 
depth and water quality to provide for cover and shelter as described 
above to be a

[[Page 73750]]

physical or biological feature essential for the conservation of the 
Lost River sucker and shortnose sucker. Although specific data are 
lacking, it is also likely that wetland and riparian vegetation along 
river corridors are important for juvenile sucker cover and rearing.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Throughout their range, Lost River sucker ascend large tributary 
streams to spawn, generally from February through April, often 
corresponding with spring snowmelt (Moyle 2002, p. 200; NRC 2004, p. 
194). They have been documented migrating upstream as many as 75 mi 
(120 km) in the Sprague River (Ellsworth et al. 2007, p. 20). Beginning 
at the same time, a segment of the Lost River sucker population uses 
shoreline areas affected by input of spring discharge for spawning in 
Upper Klamath Lake (Janney et al. 2008, p. 1813). In rivers, spawning 
occurs in riffles and pools over gravel and cobble substrate at depths 
less than 4.3 ft (1.3 m) and velocities up to 2.8 ft per second (85 cm 
per second; Buettner and Scoppettonne 1990, p. 20; Moyle 2002, p. 200; 
NRC 2004, p. 194). At shoreline spring habitat, spawning occurs over 
similar substrate and at similar depths. Females broadcast their eggs, 
which are fertilized most commonly by two accompanying males (Buettner 
and Scoppettone 1990, p. 17). The fertilized eggs settle within the top 
few inches of the substrate until hatching, around 1 week later. In the 
Sprague and Williamson Rivers that drain into Upper Klamath Lake, 
larvae spend little time in these rivers after swim-up, but quickly 
drift downstream (Cooperman and Markle 2003, pp. 1147-1149). Downstream 
movement occurs mostly at night near the water surface (Ellsworth et 
al. 2010, pp. 51-52). Larvae transform into juveniles by mid-July at 
about 0.98 in (25 mm) total length. Juvenile Lost River sucker 
primarily occupy relatively shallow (less than approximately 1.6 ft (50 
cm)), vegetated areas, but also may begin to move into deeper, 
unvegetated, off-shore habitats as they grow (Buettner and Scoppettone 
1990, pp. 32-33; NRC 2004, p. 198).
    Throughout their range, shortnose sucker ascend large tributary 
streams to spawn, generally from February through May, often 
corresponding with spring snowmelt (Moyle 2002, p. 204; NRC 2004, p. 
194). Shortnose sucker have been documented migrating upstream as far 
as 8 mi (13 km) in the Sprague River (Ellsworth et al. 2007, p. 20). 
Spawning at shoreline springs in Upper Klamath Lake by shortnose sucker 
is presently rare (NRC 2004, p. 194). In lotic habitat, spawning occurs 
in similar habitat as Lost River sucker spawning, although spawning may 
occur in areas with greater stream flow (up to 4.1 ft per second (125 
cm per second); Moyle 2002, p. 204). At shoreline spring habitat, 
spawning occurs over similar substrate and at similar depths to Lost 
River sucker spawning. Females broadcast their eggs, which are 
fertilized most commonly by two accompanying males (Buettner and 
Scoppettone 1990, p. 44). Larval out-migration, and larval and juvenile 
rearing patterns, are similar to Lost River sucker (Buettner and 
Scoppettone 1990, p. 51; Cooperman and Markle 2004, pp. 374-375; NRC 
2004, p. 198; Ellsworth et al. 2010, pp. 51-52).
    Therefore, based on the information above, we identify accessible 
lake and river spawning locations that contain suitable water flow, 
gravel and cobble substrate, and water depth (as well as flowing water) 
that provide for larval out-migration and juvenile rearing habitat as 
described above to be essential physical or biological features for 
both Lost River sucker and shortnose sucker.
Primary Constituent Elements for Lost River Sucker and Shortnose Sucker
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Lost River sucker and shortnose sucker in areas 
occupied at the time of listing, focusing on the features' primary 
constituent elements. Primary constituent elements (PCEs) are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to Lost River sucker and shortnose sucker are:
    (1) Water. Areas with sufficient water quantity and depth within 
lakes, reservoirs, streams, marshes, springs, groundwater sources, and 
refugia habitats with minimal physical, biological, or chemical 
impediments to connectivity. Water must have varied depths to 
accommodate each life stage: Shallow water (up to 3.28 ft (1.0 m)) for 
larval life stage, and deeper water (up to 14.8 ft (4.5 m)) for older 
life stages. The water quality characteristics should include water 
temperatures of less than 28.0 [deg]Celsius (82.4[emsp14][deg]F); pH 
less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; low 
levels of microcystin; and un-ionized ammonia (less than 0.5 mg per L). 
Elements also include natural flow regimes that provide flows during 
the appropriate time of year or, if flows are controlled, minimal flow 
departure from a natural hydrograph.
    (2) Spawning and rearing habitat. Streams and shoreline springs 
with gravel and cobble substrate at depths typically less than 4.3 ft 
(1.3 m) with adequate stream velocity to allow spawning to occur. Areas 
containing emergent vegetation adjacent to open water, provides habitat 
for rearing and facilitates growth and survival of suckers, as well as 
protection from predation and protection from currents and turbulence.
    (3) Food. Areas that contain an abundant forage base, including a 
broad array of chironomidae, crustacea, and other aquatic 
macroinvertebrates.
    With this designation of critical habitat, we have identified the 
physical or biological features essential to the conservation of the 
species, through the identification of the features' primary 
constituent elements that support the life-history processes of the 
species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. Threats identified in the final listing rule for these 
species include: (1) Poor water quality; (2) potential entrainment at 
water diversion structures; (3) lack of access to essential spawning 
habitat; (4) lack of connectivity to historical habitat (i.e., 
migratory impediments); (5) degradation of spawning, rearing, and adult 
habitat; and (6) avian predation and predation by or competition with 
nonnative fish.
    Poor water quality is particularly associated with high abundance 
of the blue-green alga Aphanizomenon flos-aque. Core samples of bottom 
sediments indicate that A. flos-aque was not present in Upper Klamath 
Lake prior to the 1900s (Bradbury et al. 2004, p. 162; Eilers et al. 
2004, p. 14). Its appearance is believed to be associated with 
increases in productivity of the lake through human influence (NRC 
2004, pp. 108-110). This alga now dominates the algal community from 
June to November, and, because of the high phosphorus concentrations 
and its

[[Page 73751]]

ability to fix nitrogen, is able to reach seasonally high biomass 
levels that eventually produce highly degraded water quality (Boyd et 
al. 2002, p. 34). As a result of photosynthesis during algal blooms, pH 
levels increase to stressful levels for fish (Wood et al. 2006, p. 1). 
Once the algal bloom subsides, decomposition of the massive amounts of 
biomass can lower dissolved oxygen to levels harmful or fatal to fish 
(Perkins et al. 2000, pp. 24-25; Wood et al. 2006, p. 1). Additionally, 
other cyanobacteria (Microcystis sp.) may produce toxins harmful to 
sucker liver tissue (VanderKooi et al. 2010, p. 2). Special management 
considerations or protection are therefore needed to protect water 
quality from the deleterious effects of algal blooms and may include 
reducing excess phosphorus concentrations by fencing cattle out of 
riparian areas, reconfiguring agricultural waterways, increasing 
riparian stands of vegetation, and restoring wetland habitat that is 
crucial for filtering sediment and nutrients.
    Hydrographs of both Clear Lake Reservoir and Upper Klamath Lake 
exhibit patterns of a snow-melt-driven system with highest inflows and 
levels during spring and early summer, although groundwater also is a 
significant contributor to Upper Klamath Lake (Gannett et al. 2007, p. 
1). However, Clear Lake Reservoir, Gerber Reservoir, and Upper Klamath 
Lake are managed to store and divert water for irrigation every year. 
Clear Lake Reservoir is highly sensitive to drought and downstream 
water delivery because of its small watershed, low precipitation, 
minimal groundwater input, and high evaporation rates (NRC 2004, p. 
129). In the dry years of 1991 and 1992, the level of Clear Lake 
Reservoir was drawn down to extremely low levels for irrigation supply 
(Moyle 2002, p. 201). In 1992, Lost River sucker within Clear Lake 
Reservoir that were examined exhibited signs of stress, including high 
rates of parasitism and poor body condition (NRC 2004, p. 132). These 
signs of stress began to decline as the water level in Clear Lake 
Reservoir rose in 1993, at the end of the drought (NRC 2004, p. 132).
    In 2009, when lake levels were again low due to drought, diversions 
from Clear Lake Reservoir were halted in mid-summer, and there were no 
diversions again in 2010 in order to comply with the biological 
opinion's requirements for minimum lake elevations to avoid harm to 
listed fish. Likewise, the amount of available larval habitat and 
suitable shoreline spring spawning habitat in Upper Klamath Lake is 
significantly affected by even minor changes in lake elevation (Service 
2008, p. 79). Therefore, special management considerations or 
protection are needed to address fluctuations in water levels due to 
regulated flow and lake elevation management. Special management may 
include the following actions: Managing bodies of water such that there 
is minimal flow departure from a natural hydrograph; maintaining, 
improving, or reestablishing instream flows to improve the quantity of 
water available for use; and managing groundwater use.
    The effects of fluctuations in water levels due to regulated flow 
management may affect the ability of Lost River sucker and shortnose 
sucker to access refugia during periods of poor water quality. For 
example, Pelican Bay appears to act as a key refugium during periods of 
poor water quality, and efforts to maintain the quality and quantity of 
the habitat there may be beneficial for suckers (Banish et al. 2009, p. 
167). Therefore, special management considerations or protections are 
needed to address access to refugia and may include the following: 
Maintaining appropriate lake depths to allow access to refugia; 
restoring degraded habitats to improve quantity of flow at refugia as 
well as refugia quality; and maintaining or establishing riparian 
buffers around refugia to improve refugia water quality.
    The Klamath Project (Project) stores and later diverts water from 
Upper Klamath Lake for a variety of Project purposes. These operations 
result in fluctuating lake levels and flows at the outlet of the lake 
that differ from historic conditions, some of which increase movement 
of juvenile fish downstream of Upper Klamath Lake. As such, special 
management considerations or protection may be needed to address the 
timing and volume of water that is diverted to maintain sufficient lake 
elevations.
    Throughout the Upper Klamath Lake and Lost River Basin, timber 
harvesting and associated activities (road building) by Federal, State, 
tribal, and private landowners have resulted in soil erosion on 
harvested lands and transport of sediment into streams and rivers 
adjacent to or downstream from those lands (Service 2002, p. 65; NRC 
2004, pp. 65-66). Past logging and road-building practices often did 
not provide for adequate soil stabilization and erosion control. A high 
density of forest roads remains in the upper Klamath River basin, and 
many of these are located near streams where they likely contribute 
sediment (USFS 2010, p. 7). These sediments result in an increase of 
fine soil particles that can cover spawning substrata. The major 
agricultural activity in the upper Klamath River basin, livestock 
grazing, also has likely led to an increase in sediment and nutrient 
loading rates by accelerating erosion (Moyle 2002, p. 201; Service 
2002, pp. 56, 65; McCormick and Campbell 2007, pp. 6-7). Livestock, 
particularly cattle, have heavily grazed floodplains, wetlands, 
forests, rangelands, and riparian areas, and this activity has resulted 
in the degradation of these areas. Poorly managed grazing operations 
can alter the streamside riparian vegetation and compact soil surfaces, 
increasing groundwater runoff, lowering streambank stability, and 
reducing fish cover.
    The increase in sediment accumulation and nutrient loading is 
consistent with the changes in land use in the upper Klamath River 
basin occurring over the last century (Bradbury et al. 2004, pp. 163-
164; Eilers et al. 2004, pp. 14-16). Therefore, special management 
considerations or protection may be required to improve water quality 
and include: Reducing sediment and nutrient loading by protecting 
riparian areas from agricultural and forestry impacts, reducing road 
density to prevent excess sediment loading, and improving cattle 
management practices.
    Lost River sucker and shortnose sucker have limited hydrologic 
connection to spawning or rearing habitat. For example, lake levels in 
Clear Lake Reservoir in conjunction with flows in Willow Creek, the 
sole spawning tributary (Barry et al. 2009, p. 3), may adversely affect 
sucker populations during the spawning migration. Lake levels may be 
especially pertinent during years when spring runoff is intermediate 
and flows are sufficient for spawning migration by the suckers, but are 
not sufficient enough to increase lake elevations substantially during 
the narrow spawning window. This situation could create a condition in 
which flow is adequate for both species to spawn but lake elevation 
precludes suckers ability to access the habitat, although further 
research is needed to clarify this dynamic. Likewise, the amount of 
suitable shoreline spring spawning habitat in Upper Klamath Lake is 
significantly affected by even minor changes in lake elevation, but it 
is unknown exactly how such levels directly affect annual productivity. 
Several shoreline spring-spawning populations, including Harriman 
Springs and Barkley Springs, have been lost or significantly altered

[[Page 73752]]

due to railroad construction (Andreasen 1975, pp. 39-40; NRC 2004, p. 
228).
    Historically, wetlands comprised hundreds of thousands of hectares 
throughout the range of the species (Gearhart et al. 1995, pp. 119-120; 
Moyle 2002, p. 200; NRC 2004, pp. 72-73), some of which likely 
functioned as crucial habitat for larvae and juveniles. Other wetlands 
may have played vital roles in the quality and quantity of water. Loss 
of ecosystem functions such as these, due to alteration or separation 
of the habitat, is as detrimental as physical loss of the habitat. 
Roughly 66-70 percent of the original 20,400 ha (50,400 ac) of wetlands 
surrounding Upper Klamath Lake was diked, drained, or significantly 
altered beginning around 1889 (Akins 1970, pp. 73-76; Gearhart et al. 
1995, p. 2; Larson and Brush 2010, p. 19). Additionally, of the 
approximately 13,816 ha (34,140 ac) of wetlands connected to Upper 
Klamath Lake, relatively little functions as rearing habitat for larvae 
and juveniles, partly due to lack of connectivity with current spawning 
areas (NRC 2004, pp. 72-73). Therefore, special management 
considerations or protection may be needed for water quantity to 
improve access to spawning locations and quality and quantity of 
wetlands used as rearing habitat. This may be accomplished by: 
Improving lake level management to allow access to spawning locations 
during late winter and early spring, restoring access to wetland 
rearing habitat, and creating wetland rearing habitat adjacent to lakes 
and reservoirs.
    The exotic fish species most likely to affect Lost River sucker and 
shortnose sucker is the fathead minnow. This species may prey on young 
Lost River sucker and shortnose sucker and compete with them for food 
or space (Markle and Dunsmoor 2007, pp. 571-573). For example, fathead 
minnow were first documented in the upper Klamath River basin in the 
1970s and are now the numerically dominant exotic fish in Upper Klamath 
Lake (Simon and Markle 1997, p. 142; Bottcher and Burdick 2010, p. 40; 
Burdick and VanderKooi 2010, p. 33). Additional exotic, predatory 
fishes found in sucker habitats, although typically in relatively low 
numbers, include yellow perch (Perca flavescens), bullhead (Ameiurus 
species), largemouth bass (Micropterus salmoides), crappie (Pomoxis 
species), green sunfish (Lepomis cyanellus), pumpkinseed (Lepomis 
gibbosus), and Sacramento perch (Archoplites interruptus) (NRC 2004, 
pp. 188-189). In addition to exotic fish species, recent information 
has shown that American white pelican (Pelecanus erythrorhynchos) and 
double-crested cormorant (Phalacrocorax auritus) prey on Lost River 
sucker and shortnose sucker (Burdick 2012, p. 1). Special management 
considerations or protection may be needed to protect the forage base 
from predation by exotic fish species and could be accomplished by the 
following: Reducing conditions that allow exotic fishes to be 
successful and restoring conditions that allow Lost River sucker and 
shortnose sucker to thrive; conducting evaluations to determine methods 
to remove exotic fish species; determining methods to reduce avian 
predation; and determining methods to reduce or eliminate competition 
for the forage base upon which Lost River sucker and shortnose sucker 
depend to survive.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--are necessary to ensure the 
conservation of the species. We are not designating any areas outside 
the geographical area occupied by the species because the areas 
occupied at the time of listing (and which continue to be occupied) are 
sufficient for the conservation of the species. All units are 
designated based on sufficient elements of physical and biological 
features being present to support Lost River sucker and shortnose 
sucker life-history processes.
    In determining which areas to consider as critical habitat, we 
reviewed the best available scientific data pertaining to the habitat 
requirements of this species, including information obtained from the 
Lost River sucker and shortnose sucker Recovery Team and the Recovery 
Implementation Committee. This review included participation and 
information from biologists from partner agencies and entities 
including Federal, State, tribal, and private biologists; experts from 
other scientific disciplines, such as hydrology and forestry; resource 
users; and other stakeholders with an interest in Lost River sucker and 
shortnose sucker and the habitats they depend on for survival or 
recovery. We also reviewed available data concerning Lost River sucker 
and shortnose sucker habitat use and preferences; habitat conditions; 
threats; population demographics; and known locations, distribution, 
and abundances of Lost River sucker and shortnose sucker. We considered 
the following criteria in identifying critical habitat:
    (1) In determining areas occupied by the Lost River and shortnose 
sucker to designate as critical habitat, we relied upon principles of 
conservation biology, including: (a) Representation and resiliency, to 
ensure sufficient habitat is protected throughout the range of the 
species to support population viability (e.g., demographic parameters); 
(b) redundancy, to ensure multiple viable populations are conserved 
throughout the species' range; and (c) representation, to ensure the 
representative genetic and life history of suckers (e.g., spring 
spawning and river spawning) were conserved (Shaffer and Stein 2000, 
pp. 301-321; Tear et al. 2005, p. 841).
    (2) Using the conservation biology principles and species-specific 
habitat needs, we examined the distribution of Lost River sucker and 
shortnose sucker to determine critical habitat based on the following 
criteria: (a) Largest occupied areas or populations; (b) most highly 
connected populations and habitat; (c) areas that can contribute to 
Lost River sucker and shortnose sucker conservation; and (d) areas with 
highest conservation potential. We then used these criteria to identify 
those areas that are necessary to conserve Lost River sucker and 
shortnose sucker and which also contain the physical or biological 
features that are essential to the conservation of these species. These 
criteria reflect the need to protect habitat that can support resilient 
populations, as well as habitat that supports life-history diversity in 
the species.
    (3) In selecting areas to designate as critical habitat, we 
considered factors such as size, connectivity to other aquatic 
habitats, and rangewide recovery considerations, including the 
importance of spawning and rearing habitat and sufficient water quality 
(Service 2011). We took into account the fact that Lost River sucker 
and shortnose sucker habitats include streams used largely for spawning 
and outmigration; lakes and reservoirs used for rearing, foraging, and 
migration; and springs used for spawning and refugia.
    (4) We examined geographic locations currently occupied by Lost 
River sucker and shortnose sucker and determined that certain areas did 
not contain elements essential to the conservation of these species, 
and we did not consider these areas as essential to the

[[Page 73753]]

conservation of the species. Based on the following criteria, such 
determinations include those areas that have had severe habitat 
degradation and very low potential for conservation or restoration, 
areas that do not contribute to connectivity among populations, and 
areas where Lost River sucker or shortnose sucker populations are not 
viable; are not connected to spawning habitat; occur in low densities 
or abundances in very isolated populations; occur only as sink 
populations; and are greatly impacted by nonnative species.
    Based on the preceding criteria, we applied the following methods 
to identify and map critical habitat:
    (1) We identified the geographical areas occupied by Lost River 
sucker and shortnose sucker at the time of listing that contain the 
physical and biological features essential for the conservation of the 
species and which contain one or more of the primary constituent 
elements identified above. This was done by gathering information from 
the entities listed above and mapping Lost River sucker and shortnose 
sucker distribution. As a result of this review, Upper Klamath Lake and 
its major tributaries, the head of the Klamath River downstream to Iron 
Gate Dam, Clear Lake and its tributaries, Gerber Reservoir and its 
tributaries, Tule Lake and the Lost River proper were considered in 
this assessment.
    (2) We used data gathered during the Lost River sucker and 
shortnose sucker recovery planning process and the Revised Draft 
Recovery Plan for the Lost River Sucker and Shortnose Sucker (Service 
2011), and supplemented those data with recent data developed by State 
agencies, tribes, the U.S. Forest Service, Bureau of Land Management, 
and other entities. These data were used to update Lost River sucker 
and shortnose sucker status and distribution data for purposes of the 
critical habitat.
    (3) For areas where we had data gaps, we solicited expert opinions 
from knowledgeable fisheries biologists in the local area. Material 
reviewed included data in reports submitted during section 7 
consultations, reports from biologists holding section 10(a)(1)(A) 
recovery permits, research published in peer-reviewed scientific 
journals, academic theses, State and Federal government agency reports, 
and GIS data.
    (4) In streams, critical habitat includes the stream channel within 
the designated stream reach and a lateral extent as defined by the 
bankfull elevation on one bank to the bankfull elevation on the 
opposite bank, as well as the distribution information for the Lost 
River sucker and shortnose sucker. Bankfull is defined as the flow that 
just fills the stream channel to the top of its nearest banks but below 
a point where the water begins to overflow onto a floodplain. The 
lateral extent of critical habitat in lakes and reservoirs is defined 
by the perimeter of the water body as mapped according to the U.S. 
Geological Survey 2009 National Hydrography Dataset and distribution 
information for each species. Land ownership calculations were based on 
2011 Oregon and California Bureau of Land Management State office data 
layers. An updated data layer of Upper Klamath Lake and newly restored 
wetlands was provided by the USGS, Western Fisheries Research Center, 
and Klamath Falls Field Station.
    (5) When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
docks and bridges and other structures because such lands lack physical 
or biological features for Lost River sucker and shortnose sucker. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule have been 
excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0097, on our Internet 
sites http://www.fws.gov/klamathfallsfwo, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT 
above).
    We are designating as critical habitat lands that we have 
determined were occupied at the time of listing and continue to be 
occupied that contain the physical or biological features to support 
life-history processes essential to the conservation of the Lost River 
sucker and shortnose sucker.
    Two units were designated for each species based on sufficient 
elements of physical or biological features being present to support 
Lost River sucker and shortnose sucker life processes. Some units 
contained all of the identified elements of physical or biological 
features and supported multiple life processes. Some segments contained 
only some elements of the physical or biological features necessary to 
support the Lost River sucker and shortnose suckers' particular use of 
that habitat.

Final Critical Habitat Designation

    We are designating two units as critical habitat for Lost River 
sucker and two units as critical habitat for shortnose sucker. The 
critical habitat areas described below constitute our best assessment 
at this time of areas that meet the definition of critical habitat. For 
Lost River sucker, those two units, which were occupied at the time of 
listing and are still occupied, are: (1) Upper Klamath Lake Unit, 
including Upper Klamath Lake and tributaries as well as the Link River 
and Keno Reservoir, and (2) Lost River Basin Unit, including Clear Lake 
Reservoir and tributaries. For shortnose sucker, those two units, which 
were occupied at the time of listing and are still occupied, are: (1) 
Upper Klamath Lake Unit, including Upper Klamath Lake and tributaries 
as well as the Link River and Keno Reservoir, and (2) Lost River Basin 
Unit, including Clear Lake Reservoir and tributaries, and Gerber 
Reservoir and tributaries.
    The approximate area of each critical habitat unit is shown in 
tables 1 through 4.

[[Page 73754]]



Table 1--Area of Lakes and Reservoirs Designated as Critical Habitat for
                            Lost River Sucker
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                  Land ownership by     Size of unit in
     Critical habitat unit               type           acres (hectares)
------------------------------------------------------------------------
1. Upper Klamath Lake.........  Federal..............     15,198 (6,151)
                                State................          533 (216)
                                Private/Other........    74,684 (30,224)
                                                      ------------------
    Unit Total................  .....................    90,415 (36,590)
                                                      ------------------
2. Lost River Basin...........  Federal..............    27,238 (11,023)
                                State................                  0
                                Private/Other........           194 (79)
                                                      ------------------
    Unit Total................  .....................    27,432 (11,102)
                                                      ------------------
        Total.................  .....................   117,848 (47,691)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


  Table 2--Stream Length Designated as Critical Habitat for Lost River
                                 Sucker
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                                        Size of Unit in
     Critical habitat unit        Land ownership by          miles
                                         type             (kilometers)
------------------------------------------------------------------------
1. Upper Klamath Lake.........  Federal..............            13 (21)
                                State................        Less than 1
                                Private/Other........          106 (171)
                                                      ------------------
    Unit Total................  .....................          119 (191)
                                                      ------------------
2. Lost River Basin...........  Federal..............            23 (37)
                                State................        Less than 1
                                Private/Other........              3 (6)
                                                      ------------------
    Unit Total................  .....................            27 (43)
                                                      ------------------
        Total.................  .....................          146 (234)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


Table 3--Area of Lakes and Reservoirs Designated as Critical Habitat for
                            Shortnose Sucker
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                  Land ownership by     Size of unit in
     Critical habitat unit               type           acres (hectares)
------------------------------------------------------------------------
1. Upper Klamath Lake.........  Federal..............     15,198 (6,151)
                                State................          533 (216)
                                Private/Other........    74,684 (30,224)
                                                      ------------------
    Unit Total................  .....................    90,415 (36,590)
                                                      ------------------
2. Lost River Basin...........  Federal..............    32,051 (12,971)
                                State................                  0
                                Private/Other........        1,124 (455)
                                                      ------------------
    Unit Total................  .....................    33,175 (13,426)
                                                      ------------------
        Total.................  .....................   123,590 (50,015)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


   Table 4--Stream Length Designated as Critical Habitat for Shortnose
                                 Sucker
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                                        Size of unit in
     Critical habitat unit        Land ownership by          miles
                                         type             (kilometers)
------------------------------------------------------------------------
1. Upper Klamath Lake.........  Federal..............              6 (9)
                                State................        Less than 1
                                Private/Other........            41 (66)
                                                      ------------------

[[Page 73755]]

 
    Unit Total................  .....................            47 (76)
                                                      ------------------
2. Lost River Basin...........  Federal..............           72 (116)
                                State................        Less than 1
                                Private/Other........            16 (26)
                                                      ------------------
    Unit Total................  .....................           89 (143)
        Total.................  .....................          136 (219)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Lost River sucker and 
shortnose sucker, below.

Unit 1: Upper Klamath Lake

Lost River Sucker

    The Upper Klamath Lake unit is located in south-central Oregon 
within Klamath County and consists of approximately 90,415 ac (36,590 
ha) of lakes and 119 mi (191 km) of rivers. This unit includes Upper 
Klamath Lake and Agency Lake, together with some wetland habitat; 
portions of the Williamson and Sprague Rivers; Link River; Lake Ewauna; 
and the Klamath River from the outlet of Lake Ewauna downstream to Keno 
Dam. This unit was occupied at the time of listing and contains those 
physical or biological features essential to the conservation of the 
Lost River sucker that may require special management or protection. 
This unit, at least seasonally, contains primary constituent elements 
1, 2, and 3. The unit represents the largest population of Lost River 
sucker and provides redundancy in the number of Lost River sucker 
populations that are needed for conservation. Additionally, this unit 
contains areas for both river and spring spawning life histories, which 
are not known to occur elsewhere throughout the range of the species.
    The physical or biological features and the special management or 
protection they may require include: Maintaining water quality by 
preventing the deleterious effects of nuisance algal blooms, increased 
sedimentation, excess nutrients, and other factors affecting water 
quality; maintaining water quantity to prevent reductions in water 
levels that may limit access to spawning locations or refugia and 
reduce the depth of water used as cover, and cause a lack of access to 
essential rearing habitat (i.e., marsh and wetland areas); maintenance 
of gravel and cobble substrata to prevent the degradation of spawning, 
rearing, and adult habitat caused by past land management practices; 
and protection of the forage base by management of nonnative fish to 
reduce competition for available forage with Lost River sucker and 
minimize predation on Lost River sucker.

Shortnose Sucker

    The unit is the same as for Lost River sucker, except that it 
contains only approximately 47 mi (76 km) of streams because shortnose 
sucker are not known to occur as far upstream as Lost River suckers 
within the Sprague River. As with the Lost River sucker, this unit also 
includes the 90,415 ac (36,590 ha) of lakes and reservoirs. This unit 
was occupied at the time of listing and contains those physical or 
biological features essential to the conservation of the species and 
which may require special management or protection. This unit, at least 
seasonally, contains primary constituent elements 1, 2, and 3. This 
unit is essential to shortnose sucker conservation because it supports 
the largest population of shortnose sucker and provides redundancy in 
the number of shortnose sucker populations that are needed for 
conservation. Additionally, this unit ensures shortnose sucker are 
distributed across various habitat types required by different life 
stages.
    The physical or biological features and the special management or 
protection they may require include: maintaining water quality by 
preventing the deleterious effects of nuisance algal blooms, increased 
sedimentation, excess nutrients, and other factors affecting water 
quality; maintaining water quantity to prevent reductions in water 
levels that may limit access to spawning locations or refugia and 
reduce the depth of water used as cover, and cause a lack of access to 
essential rearing habitat (i.e., marsh and wetland areas); maintenance 
of gravel and cobble substrata to prevent the degradation of spawning, 
rearing, and adult habitat caused by past land management practices; 
and protection of the forage base by management of nonnative fish to 
reduce competition for available forage with shortnose River sucker and 
minimize predation on shortnose sucker.

Unit 2: Lost River Basin

Lost River sucker

    The Lost River Basin unit is located in south-central Oregon in 
Klamath and Lake Counties as well as northeastern California in Modoc 
County and consists of approximately 27,432 ac (11,102 ha) of lake area 
and 27 mi (43 km) of river length. This unit includes Clear Lake 
Reservoir and its principal tributary. This unit was occupied at the 
time of listing and contains those physical or biological features 
essential to the conservation of the species and which may require 
special management or protection. This unit, at least seasonally, 
contains primary constituent elements 1, 2, and 3. This unit supports a 
large population of Lost River sucker and provides redundancy in the 
number of Lost River sucker populations that are needed for 
conservation. Additionally, this unit ensures Lost River sucker are 
distributed across various habitat types required by different life 
stages.
    The physical or biological features and the special management or 
protection they may require include: maintaining water quality by 
preventing the deleterious effects of nuisance algal blooms, increased 
sedimentation, excess nutrients, and other factors affecting water 
quality; maintaining water quantity to prevent reductions in water 
levels that may limit access to spawning locations or refugia and 
reduce the depth of water used as cover, and cause a lack of access to 
essential rearing habitat (i.e., marsh and wetland areas); maintenance 
of gravel and cobble substrata to prevent the degradation of spawning, 
rearing, and adult habitat caused by past land management

[[Page 73756]]

practices; and protection of the forage base by management of nonnative 
fish to reduce competition for available forage with Lost River sucker 
and minimize predation on Lost River sucker.

Shortnose Sucker

    The unit is the same as for Lost River sucker, but also includes 
Gerber Reservoir and its principal tributaries. This unit contains 
approximately 33,175 ac (13,426 ha) of lake area and 88 mi (142 km) of 
river length. This unit was occupied at the time of listing and 
contains those physical or biological features essential to the 
conservation of the species and which may require special management or 
protection. This unit, at least seasonally, contains primary 
constituent elements 1, 2, and 3. This unit represents a large 
population of shortnose sucker and provides redundancy in the number of 
shortnose sucker populations that are needed for conservation. 
Additionally, this unit is essential because it ensures shortnose 
sucker are distributed across various habitat types required by 
different life stages.
    The physical or biological features and the special management or 
protection they may require include: maintaining water quality by 
preventing the deleterious effects of nuisance algal blooms, increased 
sedimentation, excess nutrients, and other factors affecting water 
quality; maintaining water quantity to prevent reductions in water 
levels that may limit access to spawning locations or refugia and 
reduce the depth of water used as cover, and cause a lack of access to 
essential rearing habitat (i.e., marsh and wetland areas); maintenance 
of gravel and cobble substrata to prevent the degradation of spawning, 
rearing, and adult habitat caused by past land management practices; 
and protection of the forage base by management of nonnative fish to 
reduce competition for available forage with Lost River sucker and 
minimize predation on shortnose sucker.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Lost River sucker and 
shortnose sucker. As discussed above, the role of critical habitat is 
to support life-history needs of the species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any

[[Page 73757]]

proposed or final regulation that designates critical habitat, 
activities involving a Federal action that may destroy or adversely 
modify such habitat, or that may be affected by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Lost River sucker and shortnose sucker. These 
activities include, but are not limited to:
    (1) Actions that would significantly alter the level of lakes or 
reservoirs. Such activities could include, but are not limited to, 
water diversions, groundwater use, or water withdrawals. These 
activities could reduce the amount of habitat necessary for rearing of 
larvae and juvenile Lost River sucker and shortnose sucker, preclude 
access to spawning habitat, reduce or prevent access to refugia, and 
reduce the amount of water needed to provide the physical and 
biological features necessary for adult Lost River sucker and shortnose 
sucker.
    (2) Actions that would significantly increase sediment deposition 
within stream channels. Such activities could include, but are not 
limited to, livestock grazing that causes excessive sedimentation, road 
construction, channel alteration, timber harvest and management, off-
road vehicle use, and other watershed and floodplain disturbances. 
These activities could reduce and degrade spawning habitat of Lost 
River sucker and shortnose sucker by increasing the sediment deposition 
to deleterious levels.
    (3) Actions that would significantly alter lake, reservoir, and/or 
channel morphology or geometry. Such activities could include, but are 
not limited to, channelization, impoundment, road and bridge 
construction, mining, dredging, wetland alteration, and destruction of 
riparian vegetation. These activities may lead to changes in water 
flows and levels that would degrade or eliminate Lost River sucker and 
shortnose sucker habitats. These actions can also lead to increased 
sedimentation and degradation in water quality to levels that are 
beyond the tolerances of Lost River sucker and shortnose sucker.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation. Therefore, we are not 
exempting lands from this final designation of critical habitat for 
Lost River sucker and shortnose sucker pursuant to section 
4(a)(3)(B)(i) of the Act.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. The statute on its face, as well as the legislative history, 
is clear that the Secretary has broad discretion regarding which 
factor(s) to use and how much weight to give to any factor in making 
that determination.
    Under section 4(b)(2) of the Act, the Secretary may exclude an area 
from designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation and related factors (IEc 2012a). 
The draft analysis, dated April 17, 2012, was made available for public 
review from July 26, 2012, through August 27, 2012 (77 FR 43796). 
Following the close of the comment period, a final analysis (dated 
September 25, 2012) of the potential economic effects of the 
designation was developed taking into consideration the public comments 
and any new information (IEc 2012b).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for Lost River 
sucker and shortnose sucker; some of these costs will likely be 
incurred regardless of whether we designate critical habitat 
(baseline). The economic impact of the final critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (e.g., under 
the Federal listing and other Federal, State, and local regulations). 
The baseline, therefore, represents the costs incurred

[[Page 73758]]

regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we consider in 
the final designation of critical habitat. The analysis looks 
retrospectively at baseline impacts incurred since the species was 
listed, and forecasts both baseline and incremental impacts likely to 
occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Finally, the FEA looks retrospectively at costs that have 
been incurred since 1988 (year of the species' listing) (53 FR 27130), 
and considers those costs that may occur in the 20 years following the 
designation of critical habitat, which was determined to be the 
appropriate period for analysis because limited planning information 
was available for most activities to forecast activity levels for 
projects beyond a 20-year timeframe. The FEA quantifies economic 
impacts of Lost River sucker and shortnose sucker conservation efforts 
associated with the following categories of activity: (1) Activities 
affecting water supply--these activities may include water management 
activities such as dam operation and hydropower production within the 
reservoirs comprising critical habitat, particularly the Klamath 
Project on Upper Klamath Lake; (2) activities affecting water quality--
these activities may include agricultural activities, including 
livestock grazing, as well as in-water construction activities; and (3) 
activities affecting fish passage--these activities may include flood 
control or water diversions that may result in entrainment or lack of 
access to spawning habitat.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exercising his discretion to exclude any areas from 
this designation of critical habitat for the Lost River sucker and 
shortnose sucker based on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Klamath Falls Fish and Wildlife Office (see ADDRESSES) 
or by downloading from the Internet at http://www.regulations.gov or 
http://www.fws.gov/klamathfallsfwo.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that the lands within the designation of critical habitat 
for Lost River sucker and shortnose sucker are not owned or managed by 
the Department of Defense, and therefore we anticipate no impact on 
national security. Consequently, the Secretary is not exercising his 
discretion to exclude any areas from this final designation based on 
impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no finalized HCPs or other management plans for Lost River 
sucker and shortnose sucker, and the final designation does not include 
any tribal lands or tribal trust resources. We anticipate no impact on 
tribal lands, partnerships, or HCPs from this critical habitat 
designation. Accordingly, the Secretary is not exercising his 
discretion to exclude any areas from this final designation based on 
other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Order 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
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 certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designation for Lost River sucker and shortnose sucker will not 
have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as

[[Page 73759]]

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 on 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., water 
management, grazing, transportation, herbicide and pesticide 
application, forest management, restoration, or installation of fish 
passage). 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 authorized, 
funded, or carried out 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 authorize, fund, or carry out 
that may affect the Lost River sucker and shortnose sucker. 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 consultation for ongoing Federal activities 
(see Application of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the Lost 
River sucker and shortnose sucker and the designation of critical 
habitat. The analysis is based on the estimated impacts associated with 
the rulemaking as described in Chapters 4 through 5 and Appendix A of 
the analysis and evaluates the potential for economic impacts related 
to: (1) Activities affecting water supply--these activities may include 
water management activities such as dam operation and hydropower 
production within the reservoirs comprising critical habitat, 
particularly the Klamath Project on Upper Klamath Lake; (2) activities 
affecting water quality--these activities may include agricultural 
activities, including livestock grazing, as well as in-water 
construction activities; and (3) activities affecting fish passage--
these activities may include flood control or water diversions that may 
result in entrainment or lack of access to spawning habitat.
    Small entities may participate in section 7 consultation as a third 
party (the primary consulting parties being the Service and the Federal 
action agency). It is therefore possible that the small entities may 
spend additional time considering critical habitat during section 7 
consultation for the suckers. Additional incremental costs of 
consultation that would be borne by the Federal action agency and the 
Service are not relevant to this screening analysis as these entities 
(Federal agencies) are not small.
    Chapter 4 of the FEA projects section 7 consultations associated 
with seven types of activities. Of these activities, small entities are 
not anticipated to incur incremental costs associated with water 
management, transportation, herbicide and pesticide application, forest 
management, restoration, or installation of fish passage. As described 
in Chapter 4, impacts to these activities are expected to be incurred 
largely by Federal and State agencies, including the Bureau of 
Reclamation, Oregon Department of Transportation, the Federal Highway 
Administration, the Federal Aviation Administration, the Forest 
Service, the Bureau of Land Management, and the Klamath Basin National 
Wildlife Refuge. The analysis does forecast that PacifiCorp will engage 
in two section 7 consultations related to its HCP. However, PacifiCorp 
not a small entity.
    The FEA focused its analysis on the incremental impacts associated 
with section 7 consultation on grazing activities, which may be borne 
by small entities. Across the study area, which includes the 3 counties 
overlapping the proposed critical habitat designation, 125 businesses 
are engaged in the beef cattle ranching and farming industry. Of these, 
121, or 97 percent, have annual revenues at or below the small business 
threshold of $750,000, and thus are considered small (see Exhibit A-1 
of the FEA). A section 7 consultation on grazing activity may cover one 
or more grazing allotments, and a small entity may be permitted to 
graze on one or more of these allotments. Because the number of 
allotments and grazing permittees varies from consultation to 
consultation, this analysis makes the simplifying assumption that 1 
small entity is affected in each of the 20 allotments adjacent to 
proposed critical habitat. These 20 small entities represent 
approximately 16.5 percent of small grazers across the study area.
    The total annualized impacts to the 20 entities that may incur 
administrative costs is approximately $24,600, with annualized impacts 
of $2,170. Assuming 20 affected small entities and that each entity has 
annual revenues of $132,000, these annualized impacts per small entity 
are expected to comprise 0.08 percent of annual revenues.
    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we concluded that this rule would not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for Lost River sucker and shortnose sucker will not have a significant 
economic impact on a substantial number of small entities, and a 
regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB

[[Page 73760]]

has provided guidance for implementing this Executive Order that 
outlines nine outcomes that may constitute ``a significant adverse 
effect'' when compared to not taking the regulatory action under 
consideration.
    The economic analysis finds that none of these criteria are 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related impacts associated with Lost River sucker and 
shortnose sucker conservation activities within critical habitat are 
not expected. As such, the designation of critical habitat 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 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The FEA concludes incremental impacts may occur due to 
administrative costs of section 7 consultations for water management, 
grazing, transportation, herbicide and pesticide application, forest 
management, restoration, or installation of fish passage; however, 
these impacts are not expected to significantly affect small 
governments. Consequently, we do not believe that the critical habitat 
designation would significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Lost River sucker and shortnose sucker in a 
takings implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or 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. We believe that the takings 
implications associated with this critical habitat designation will be 
insignificant, in part, because only lands that are considered occupied 
by the Lost River sucker and shortnose sucker are being included in the 
designation. While private property owners may experience impacts from 
this designation of critical habitat related to activities requiring a 
Federal permit (e.g., an individual requiring a permit from the U.S. 
Army Corps of Engineers to develop a retaining wall or boat dock within 
critical habitat) they are not expected to be significant. With the 
exception of some new consultations and additional administrative costs 
related to addressing critical habitat in future consultation efforts, 
future impacts related to section 7 consultations and project 
modifications are expected to remain largely the same or fewer than 
they have in the past. The takings implications assessment concludes 
that this designation of critical habitat for Lost River sucker and 
shortnose sucker does not pose significant takings implications for 
lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in California and Oregon. We 
received comments from the Oregon Department of Fish and Wildlife and 
have addressed them in the Summary of Comments and Recommendations 
section of the rule. The designation of critical habitat in areas 
currently occupied by the Lost River sucker and shortnose sucker 
imposes nominal additional restrictions to those currently in place 
and, therefore, has little incremental impact on State and local 
governments and their activities The designation of critical habitat in 
areas currently occupied by the Lost River sucker and shortnose sucker 
may impose nominal additional regulatory restrictions to those 
currently in place and, therefore, may have some incremental impact on 
State and local governments and their

[[Page 73761]]

activities. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. This final rule uses standard property descriptions and identifies 
the elements of physical or biological features essential to the 
conservation of the Lost River sucker and shortnose sucker within the 
designated areas to assist the public in understanding the habitat 
needs of the species.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands occupied by the Lost River sucker and shortnose sucker at the 
time of listing that contain the features essential for conservation of 
the species, and no tribal lands unoccupied by the Lost River sucker 
and shortnose sucker that are essential for the conservation of the 
species. Therefore, we are not designating critical habitat for the 
Lost River sucker and shortnose sucker on tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Klamath Falls Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this rulemaking are the staff members of the 
Klamath Falls Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    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. Amend Sec.  17.11(h) by revising the entry for ``Sucker, Lost 
River'' and ``Sucker, shortnose'' under ``Fishes'' in the List of 
Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 73762]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                     Vertebrate
--------------------------------------------------------                         population where                      When       Critical     Special
                                                            Historic range        endangered or         Status        listed      habitat       rules
           Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Sucker, Lost River...............  Deltistes luxatus...  U.S.A. (CA, OR).....  Entire.............  E                      313     17.95(e)           NA
 
                                                                      * * * * * * *
Sucker, shortnose................  Chasmistes            U.S.A. (CA, OR).....  Entire.............  E                      313     17.95(e)           NA
                                    brevirostris.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
 3. In Sec.  17.95, amend paragraph (e) by adding an entry for ``Lost 
River Sucker (Deltistes luxatus)'' and an entry for ``Shortnose Sucker 
(Chasmistes brevirostris)'', in the same order that these species 
appear in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Lost River Sucker (Deltistes luxatus)
    (1) Critical habitat units are depicted for Klamath and Lake 
Counties, Oregon, and Modoc County, California, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of Lost 
River sucker consist of three components:
    (i) Water. Areas with sufficient water quantity and depth within 
lakes, reservoirs, streams, marshes, springs, groundwater sources, and 
refugia habitats with minimal physical, biological, or chemical 
impediments to connectivity. Water must have varied depths to 
accommodate each life stage: Shallow water (up to 3.28 ft (1.0 m)) for 
larval life stage, and deeper water (up to 14.8 ft (4.5 m)) for older 
life stages. The water quality characteristics should include water 
temperatures of less than 82.4 [deg]Fahrenheit (28.0 [deg]Celsius); pH 
less than 9.75; dissolved oxygen levels greater than 4.0 mg per L; low 
levels of microcystin; and un-ionized ammonia (less than 0.5 mg per L). 
Elements also include natural flow regimes that provide flows during 
the appropriate time of year or, if flows are controlled, minimal flow 
departure from a natural hydrograph.
    (ii) Spawning and rearing habitat. Streams and shoreline springs 
with gravel and cobble substrate at depths typically less than 4.3 ft 
(1.3 m) with adequate stream velocity to allow spawning to occur. Areas 
containing emergent vegetation adjacent to open water, provides habitat 
for rearing and facilitates growth and survival of suckers, as well as 
protection from predation and protection from currents and turbulence.
    (iii) Food. Areas that contain an abundant forage base, including a 
broad array of chironomidae, crustacea, and other aquatic 
macroinvertebrates.
    (3) Critical habitat does not include manmade structures (such as 
docks and bridges) and the land on which they are located existing 
within the legal boundaries on January 10, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of the U.S. Geological Survey 2009 National 
Hydrography Dataset, and critical habitat was then mapped using North 
American Datum (NAD) 83, Universal Transverse Mercator Zone 10N 
coordinates. The maps in this entry establish the boundaries of the 
critical habitat designation. The coordinates or plot points or both on 
which each map is based are available to the public at the Service's 
Internet site, http://www.fws.gov/klamathfallsfwo, at http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0097, and at the field 
office responsible for the designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.

[[Page 73763]]

    (5) Note: An index map for designated critical habitat units for 
the Lost River sucker follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR11DE12.000


[[Page 73764]]


    (6) Unit 1: Upper Klamath Lake Unit, Klamath County, Oregon. Note: 
Map of Unit 1, Upper Klamath Lake Unit, of critical habitat for Lost 
River sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.001


[[Page 73765]]


    (7) Unit 2: Lost River Basin Unit, Klamath County, Oregon. Note: 
Map of Unit 2, Lost River Basin Unit, of critical habitat for Lost 
River sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.002

* * * * *
Shortnose Sucker (Chasmistes brevirostris)
    (1) Critical habitat units are depicted for Klamath and Lake 
Counties, Oregon, and Modoc County, California, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
shortnose sucker consist of three components:
    (i) Water. Areas with sufficient water quantity and depth within 
lakes, reservoirs, streams, marshes, springs, groundwater sources, and 
refugia habitats with minimal physical, biological, or chemical 
impediments to connectivity. Water must have varied depths to 
accommodate each life stage: Shallow water (up to 3.28 ft (1.0 m)) for 
juveniles, and deeper water (up to 14.8 ft (4.5 m)) for adults. The 
water quality characteristics should include water temperatures of less 
than 82.4 [deg]F (28.0 [deg]Celsius); pH less than 9.75; dissolved 
oxygen levels greater than 4.0 mg per L; low levels of microcystin; and 
un-ionized ammonia (less than 0.5 mg per L). Elements also include 
natural flow regimes that provide flows during the appropriate time of 
year or, if flows are controlled, minimal flow departure from a natural 
hydrograph.
    (ii) Spawning and rearing habitat. Streams and shoreline springs 
with gravel and cobble substrate at depths typically less than 4.3 ft 
(1.3 m) with adequate stream velocity to allow spawning to occur. Areas 
containing

[[Page 73766]]

emergent vegetation adjacent to open water provides habitat for rearing 
and facilitates growth and survival of suckers, as well as protection 
from predation and protection from currents and turbulence.
    (iii) Food. Areas that contain an abundant forage base, including a 
broad array of chironomidae, crustacea, and other aquatic 
macroinvertebrates.
    (3) Critical habitat does not include manmade structures (such as 
docks and bridges) and the land on which they are located existing 
within the legal boundaries on January 10, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of the U.S. Geological Survey 2009 National 
Hydrography Dataset, and critical habitat was then mapped using North 
American Datum (NAD) 83, Universal Transverse Mercator Zone 10N 
coordinates. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site, 
http://www.fws.gov/klamathfallsfwo, at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2011-0097, and at the field office responsible for 
the designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: An index map for designated critical habitat units for 
the Lost River sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.003


[[Page 73767]]


    (6) Unit 1: Upper Klamath Lake Unit, Klamath County, Oregon. Note: 
Map of Unit 1, Upper Klamath Lake Unit, of critical habitat for 
shortnose sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.004


[[Page 73768]]


    (7) Unit 2: Lost River Basin Unit, Klamath County, Oregon. Note: 
Map of Unit 2, Lost River Basin Unit, of critical habitat for shortnose 
sucker follows:
[GRAPHIC] [TIFF OMITTED] TR11DE12.005

* * * * *

    Dated: November 20, 2012.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-29332 Filed 12-10-12; 8:45 am]
BILLING CODE 4310-55-C