[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Proposed Rules]
[Pages 8656-8667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01526]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0133; 4500030113]
RIN 1018-AY78


Endangered and Threatened Wildlife and Plants; Remove the Modoc 
Sucker From the Federal List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month petition finding; notice of 
availability of draft post-delisting monitoring plan.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
remove the Modoc sucker (Catostomus microps) from the Federal List of 
Endangered and Threatened Wildlife. This determination is based on a 
thorough review of the best available scientific and commercial 
information, which indicates that the threats to this species have been 
eliminated or reduced to the point that the species no longer meets the 
definition of an endangered species or a threatened species under the 
Endangered Species Act of 1973, as amended (Act). If finalized, the 
effects of this rule would be to remove the Modoc sucker from the List 
of Endangered and Threatened Wildlife. This proposed rule, if made 
final, would also remove the currently designated critical habitat for 
the Modoc sucker throughout its range. This document also constitutes 
our 12-month finding on a petition to reclassify the Modoc sucker from 
endangered to threatened. We are seeking information and comments from 
the public regarding this 12-month finding and proposed rule. In 
addition to the proposed rule, we are also seeking information and 
comments on the draft post-delisting monitoring plan.

DATES: We will accept comments received or postmarked on or before 
April 14, 2014. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by March 31, 2014.

ADDRESSES: Comment submission: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2013-0133, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2013-0133; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    Document availability: A copy of the Species Report referenced 
throughout this document can be viewed at http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=E053, at http://www.regulations.gov under Docket No. FWS-R8-ES-2013-0133, or at the 
Klamath Falls Fish and Wildlife Office's Web site at http://www.fws.gov/klamathfallsfwo. The draft post-delisting monitoring plan 
will be posted on our Endangered Species Program's national Web page 
(http://endangered.fws.gov), and the Klamath Falls Fish and Wildlife 
Office Web page (http://fws.gov/klamathfallsfwo), and on the Federal 
eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Laurie Sada, Field Supervisor, U.S. 
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 1936 
California Avenue, Klamath Falls, OR 97601; by telephone 541-885-8481, 
or by 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: 

Information Requested

    We intend any final action resulting from this proposal to be based 
on the best scientific and commercial data available, and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other governmental agencies, tribes, the

[[Page 8657]]

scientific community, industry, or other interested parties concerning 
this proposed rule. We particularly seek comments concerning:
    (1) Biological information on Modoc sucker, including additional 
information on its distribution, population size, and population trend;
    (2) Relevant information concerning any current or likely future 
threats (or lack thereof) to Modoc sucker, including the extent and 
adequacy of Federal and State protection and management that would be 
provided to Modoc sucker as a delisted species;
    (3) Current or planned activities within the range of Modoc sucker 
and their possible impacts to the species;
    (4) Regional climate change models and whether they are reliable 
and credible to use in assessing the effects of climate change on Modoc 
sucker and its habitat;
    (5) Our draft post-delisting monitoring plan. We request 
information regarding how best to conduct post-delisting monitoring, 
should the proposed delisting lead to a final delisting rule (see Post-
Delisting Monitoring Plan Overview section below, which briefly 
outlines the goals of the draft plan that is available for public 
comment concurrent with publication of this proposed rule). Such 
information might include suggestions regarding the monitoring focus, 
procedures for determining site occupancy and abundance, or for 
monitoring threats and recruitment over the course of at least 5 years.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include. Please 
note that submissions merely stating support for or opposition to the 
action under consideration without providing supporting information, 
although noted, will not be considered in making a determination, as 
section 4(b)(1)(A) of the Act directs that determinations as to whether 
any species is an endangered or threatened species must be made 
``solely on the basis of the best scientific and commercial data 
available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
Web site. If your submission is made via a hardcopy that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Klamath Falls Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. We must receive your request within 45 
days after the date of this Federal Register publication. Send your 
request to the address shown in FOR FURTHER INFORMATION CONTACT. We 
will schedule public hearings on this proposal, if any are requested, 
and announce the dates, times, and places of those hearings, as well as 
how to obtain reasonable accommodations, in the Federal Register and 
local newspapers at least 15 days before the hearing.

Previous Federal Action

    On January 31, 1984, we proposed to list the Modoc sucker as an 
endangered species and designate critical habitat under the Act based 
on threats from habitat degradation and loss due to activities (such as 
overgrazing by cattle) that cause erosion and siltation (49 FR 3892). 
These activities and resulting erosion were thought to have eliminated 
natural barriers separating Modoc suckers and the Sacramento suckers 
(Catostomus occidentalis), allowing hybridization and a loss of genetic 
integrity of Modoc sucker. We published a final rule listing Modoc 
sucker as an endangered species and designating critical habitat in the 
Federal Register on June 11, 1985 (50 FR 24526). The final rule also 
included predation by the nonnative brown trout (Salmo trutta) as a 
threat to Modoc sucker.
    Under the Act, we maintain the Lists of Endangered and Threatened 
Wildlife and Plants in title 50 of the Code of Federal Regulations 
(CFR) at 50 CFR 17.11 (for animals) and 17.12 (for plants) (Lists). We 
amend the Lists by publishing final rules in the Federal Register. 
Section 4(c)(2)(A) of the Act requires that we conduct a review of 
listed species at least once every 5 years. Section 4(c)(2)(B) requires 
that we determine: (1) Whether a species no longer meets the definition 
of endangered or threatened and should be removed from the Lists 
(delisted), (2) whether a species listed as endangered more properly 
meets the definition of threatened and should be reclassified to 
threatened (downlisted), or (3) whether a species listed as threatened 
more properly meets the definition of endangered and should be 
reclassified to endangered (uplisted). In accordance with 50 CFR 
424.11(d), using the best scientific and commercial data available, we 
will consider a species for delisting only if the data substantiate 
that the species is neither endangered nor threatened for one or more 
of the following reasons: (1) The species is considered extinct; (2) 
the species is considered recovered; or (3) the original data available 
when the species was listed, or the interpretation of such data, were 
in error.
    We published a notice announcing the initiation of a review of the 
status of Modoc sucker under section 4(c)(2) of the Act on March 22, 
2006 (71 FR 14538). We notified the public of completion of the 5-year 
review on May 21, 2010 (75 FR 28636). The 5-year review, completed on 
August 17, 2009 (Service 2009), resulted in a recommendation to change 
the status of the species from endangered to threatened. A copy of the 
2009 5-year review for Modoc sucker is available on the Service's 
Environmental Conservation Online System (http://http://ecos.fws.gov/docs/five_year_review/doc2546.pdf).
    On December 21, 2011, we received a petition dated December 19, 
2011, from the Pacific Legal Foundation, requesting the Service to 
reclassify the Modoc sucker from endangered to threatened. The petition 
was based on the analysis and recommendations contained in the most 
recent 5-year review. On June 4, 2012 (77 FR 32922), we published in 
the Federal Register a 90-day finding for the 2011 petition to 
reclassify the species. In our 90-day finding, we determined the 2011 
petition provided substantial information indicating the petitioned 
actions may be warranted, and we initiated a status review for Modoc 
sucker. This proposed rule to remove the Modoc sucker from the Federal 
List of Endangered and Threatened Wildlife also constitutes the 12-
month finding for the species.

Background

    A completed scientific analysis is presented in detail in the Modoc 
Sucker Species Report (Service 2013, entire), which is available at 
http://www.regulations.gov at Docket Number

[[Page 8658]]

FWS-R8-ES-2013-0133. The Species Report was prepared by Service 
biologists to provide thorough discussion of the species ecology, 
biological needs, and analysis of the threats that may be impacting the 
species. The Species Report includes discussion of the following: 
Taxonomy and species description, habitat, biology, distribution and 
abundance, summary of factors affecting the species, and recovery. This 
detailed information is summarized in the following paragraphs of this 
Background section, the Recovery and Recovery Plan Implementation 
section, and the Summary of Factors Affecting the Species section.
    The Modoc sucker is a small species of fish in the family 
Catostomidae. Individuals measure 2.8 to 3.3 inches (70 to 85 
millimeters) in length at full maturity, with few adults exceeding 6.3 
to 7.1 in (160 to 180 mm). Modoc suckers are opportunistic feeders with 
diets consisting of algae, small benthic invertebrates, and detritus.
    Modoc sucker are primarily found in relatively small (second to 
fourth order), perennial and intermittent streams. They occupy an 
intermediate zone between the high-gradient and higher-elevation, 
coldwater trout zone and the low-gradient and low-elevation, warm-water 
fish zone. The pool habitat occupied by Modoc suckers generally 
includes fine sediments to small cobble bottoms, substantial detritus, 
and abundant cover. Spawning habitat appears to include gravel 
substrates in the relatively low-energy, flowing portions of pools or 
the protected area downstream of rocks (Reid 2008a). During low summer 
flows, pools inhabited by Modoc suckers can become isolated, which 
eliminates interaction of suckers within and among streams. Cover can 
be provided by overhanging banks, larger rocks, woody debris, and 
aquatic rooted vegetation or filamentous algae. Larvae occupy shallow 
vegetated margins; juveniles tend to remain free-swimming in the 
shallows of large pools, particularly near vegetated areas; and larger 
juveniles and adults remain mostly on, or close to, the bottom (Martin 
1972; Moyle and Marciochi 1975; Moyle 2002).
    At the time of listing, the species was known to occupy seven 
streams in the Turner Creek (Turner Creek, Washington Creek, and 
Hulbert Creek) and Ash Creek (Johnson Creek, Rush Creek, Dutch Flat 
Creek, and Ash Creek) sub-basins of the Pit River drainage in 
northeastern California. However, three of those streams (Rush Creek, 
Dutch Flat Creek, and Ash Creek) and a fourth (Willow Creek) in the Ash 
Creek sub-basin were presumed lost due to hybridization with Sacramento 
suckers (Catostomus occidentalis). It is now recognized that the 
historical distribution also included one additional stream (Garden 
Gulch Creek) in the Turner Creek sub-basin and three additional streams 
in the Goose Lake sub-basin (Thomas Creek, an unnamed tributary to 
Thomas Creek, and Cox Creek) in southern Oregon, a disjoined, upstream 
sub-basin of the Pit River. Also, a population has been established in 
Coffee Mill Creek in the Turner Creek sub-basin--a stream not known to 
have been occupied at the time of listing--as a result of California 
Department of Fish and Wildlife transplanting efforts.
    The current known distribution of Modoc sucker includes an 
estimated 42.5 miles (68.4 kilometers) of occupied habitat in 12 
streams within 3 sub-basins, compared to an estimated distribution of 
12.9 miles (20.8 kilometers) of occupied habitat in 7 seven streams 
within 2 sub-basins at the time of listing. Although population trend 
data is not available because survey methods have varied among years, 
surveys indicate that Modoc sucker populations still occur in all 
streams where Modoc sucker populations were known to occur 
historically. Surveys also indicate that Modoc suckers appear to occupy 
nearly all available suitable habitat within the streams where they 
occur in the Turner Creek, Ash Creek, and Goose Lake sub-basins. Land 
ownership throughout the species' range is 51 percent public lands 
(primarily the Modoc National Forest in northeastern California and the 
Fremont-Winema National Forests in southern Oregon), 48 percent private 
lands, and 1 percent State land.
    For a detailed discussion of Modoc sucker taxonomy and species 
description, habitat, biology, and distribution and abundance, please 
see the ``Background'' section of the Species Report, which includes 
subsections on ``taxonomy and species description'', ``habitat'', 
``biology'', and ``distribution and abundance'' (Service 2013, pp. 5-
23).

Recovery and Recovery Plan Implementation

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include: 
``Objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of [section 4 of the 
Act], that the species be removed from the list.'' However, revisions 
to the list (adding, removing, or reclassifying a species) must reflect 
determinations made in accordance with sections 4(a)(1) and 4(b) of the 
Act. Section 4(a)(1) requires that the Secretary determine whether a 
species is endangered or threatened (or not) because of one or more of 
five threat factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or human-made 
factors affecting its continued existence. Section 4(b) of the Act 
requires that the determination be made ``solely on the basis of the 
best scientific and commercial data available.'' Therefore, recovery 
criteria should indicate when a species is no longer an endangered 
species or threatened species under the five statutory factors.
    Thus, while recovery plans provide important guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and measurable objectives against which to measure 
progress towards recovery, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. A decision to revise the 
status of or remove a species from the Federal List of Endangered and 
Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of 
the best scientific and commercial data then available to determine 
whether a species is no longer an endangered species or a threatened 
species, regardless of whether that information differs from the 
recovery plan.
    At the time of listing, the Service, the California Department of 
Fish and Wildlife (CDFW), and the U.S. Forest Service (USFS) were 
developing an ``Action Plan for the Recovery of the Modoc sucker'' 
(Action Plan). The April 27, 1983, revision of this Action Plan was 
formally signed by all participants in 1984 (Service 1984). We 
determined that the Action Plan and its 1989 revisions (Service 1984, 
1989) adequately fulfilled the requirements of a recovery plan, and in 
a 1992 memorandum from the Regional Director (Region 1) to the 
Service's Director, we adopted it as the Recovery Plan for the Modoc 
sucker (Service 1992) and determined we would not

[[Page 8659]]

prepare a separate recovery plan pursuant to section 4(f) of the Act.
    The Recovery Plan included downlisting and delisting objectives 
(considered to be equivalent to criteria). Below, we outline the 
objectives to reclassify the Modoc sucker from endangered to threatened 
and the objectives to remove Modoc sucker from the List of Endangered 
and Threatened Wildlife, and we discuss progress towards meeting the 
objectives.
    Downlisting objective 1: Maintain the integrity of extant habitats 
and prevent the invasion of Sacramento suckers into isolated stream 
reaches of the Turner-Hulbert-Washington Creek system and upper Johnson 
Creek. The intent of meeting this objective was to halt the threat of 
further loss and degradation of habitat (Factor A) and to address the 
threat of genetic introgression from hybridization with Sacramento 
sucker (Factor E).
    Downlisting objective 2: Restore and maintain the quality of 
aquatic habitat conditions within these watersheds and thereby increase 
their carrying capacity for Modoc suckers. The intent of this objective 
was to further address habitat loss and degradation (Factor A) through 
active restoration, with the ultimate goal to allow the habitat to 
support an increase in population numbers. These efforts would improve 
the resiliency of the species (ability to withstand and recover from 
stochastic events, such as drought).
    Downlisting objective 3: Secure populations of Modoc sucker have 
been maintained in these creeks for 3 consecutive years. The intent of 
this objective was to monitor Modoc sucker populations to ensure 
recruitment had occurred and is based on the life history of Modoc 
suckers, in which individuals mature at age 2+ years.
    Since the time of listing, actions have been taken to maintain or 
improve Modoc sucker habitat within Turner Creek, Hulbert Creek, 
Washington Creek, and Johnson Creek as it relates to downlisting 
objectives 1 and 2. The Service and partners have implemented projects 
and management that maintain the integrity of extant habitat 
(downlisting objective 1) and restore and maintain the quality of 
habitat (downlisting objective 2) to provide effective stabilization of 
stream banks, fencing to exclude livestock grazing in riparian areas, 
restoration of riparian vegetation, and increased instream habitat. On 
public lands, 1.5 miles of Washington Creek, 0.2 mi of Hulbert Creek, 
0.5 mi of Coffee Mill Creek, and approximately 1.5 mi of Turner Creek 
have been fenced to protect riparian habitat (Reid 2008a, p. 85; M. 
Yamagiwa, USFS, personal communication). Additionally, since Modoc 
sucker was listed in 1985, fencing has been constructed to exclude 
cattle on Rush Creek and Johnson Creek below Higgins Flat (Modoc 
National Forest). Fencing led to immediately protecting extant habitat 
(immediate, near term), and allowed habitat to recover. This improved 
the quality and carrying capacity in the long term, thus addressing 
downlisting objectives 1 and 2. Extensive landowner outreach by the 
Service, USFS, and State agencies, and improved livestock grazing 
management practices in Modoc and Lassen Counties have also resulted in 
improved protection of riparian corridors on private lands in the 
Turner and Ash Creek sub-basins. Protection of riparian habitat by 
excluding cattle and by improving livestock grazing management 
practices on both public and private lands has resulted in improved 
habitat conditions along these streams as a result of reduced erosion 
and improved vegetative and hydrologic characteristics (Reid 2008a, pp. 
41, 85-86).
    Active habitat restoration (downlisting objective 2) has been 
implemented in many locations throughout the species range since the 
species was listed. Restoration on the Modoc National Forest has led to 
improved habitat conditions in riparian areas along many of the streams 
occupied by Modoc suckers. Willows have been planted along portions of 
streams occupied by Modoc suckers in the Turner Creek and Ash Creek 
sub-basins to stabilize streambanks and provide shading and cover (Reid 
2008a, pp. 85-86; USFS 2008, p. 16). As a result of riparian habitat 
improvements and improved livestock grazing management practices, 
channel widths have narrowed and created deeper habitat preferred by 
Modoc suckers (USFS 2008, p. 16). Other habitat restoration activities 
include juniper revetment (the use of cut juniper trees to stabilize 
streambanks), creation and expansion of pool habitat, placement of 
boulders within streams to provide cover and shade, and restoration of 
channel headcuts (areas of deep erosion) to prevent further downcutting 
of channels (Reid 2008a, pp. 85-86; USFS 2008, p. 16).
    Habitat conditions in designated critical habitat and other 
occupied streams have steadily improved since listing and have 
sustained populations of Modoc suckers for at least 25 years, although 
recent habitat surveys indicate erosion and sedimentation continue to 
be a problem along lower Turner Creek. However, this degraded reach 
amounts to 2.4 percent (1.01 mi/42.5 mi) of the total length of streams 
occupied by Modoc sucker. Land management practices employed on public 
and private lands since the early 1980s are expected to continue, or 
improve, thereby maintaining stable to upward habitat trends. Thus, we 
believe the integrity of extant habitat has been maintained (part of 
downlisting objective 1) and the quality of habitat has been restored 
and maintained through restoration efforts (downlisting objective 2), 
and we conclude that these portions of the downlisting objectives have 
been met.
    While part of downlisting objective 1 was to prevent invasion of 
Sacramento sucker, further research into the magnitude and consequences 
of genetic introgression with Sacramento suckers has led us to conclude 
that this part of the objective is no longer relevant. Observed levels 
of genetic introgression by Sacramento suckers in streams dominated by 
Modoc suckers are low, even when there are no physical barriers between 
the two species (Topinka 2006, pp. 64-65). This suggests that either 
ecological differences, selective pressures, or other natural 
reproductive-isolating mechanisms are sufficient to maintain the 
integrity of the species, even after more than a century of habitat 
alteration by human activities. Currently, only Ash Creek exhibits a 
considerable degree of introgression. Scientists who have studied 
suckers in western North America consider that, throughout their 
evolutionary history, hybridization among sympatric native fishes is 
not unusual and may actually provide an adaptive advantage (Dowling and 
Secor 1997, pp. 612-613; Dowling 2005, p. 10; Topinka 2006, p. 73; 
Tranah and May 2006, p. 313). Reexamination of information on natural 
barriers, morphological characters, and new genetic information that 
were unavailable at the time of listing indicate that hybridization is 
not a threat to the Modoc sucker and may be part of its natural 
evolutionary history. Thus, because of the new information that has 
become available since the time of listing, we believe this portion of 
the downlisting criterion, to prevent the invasion of Sacramento 
suckers, is obsolete and no longer needs to be met.
    Several estimates of population size of Modoc suckers in Turner 
Creek, Hulbert Creek, Washington Creek, and Johnson Creek have been 
completed since the 1970s, which found that Modoc sucker populations 
have been maintained in the Turner-Hulbert-Washington Creek system and 
upper Johnson Creek for 3 consecutive years (downlisting objective 3). 
Modoc suckers appear broadly

[[Page 8660]]

distributed throughout suitable habitat in these streams. Although the 
observations during each survey may not be directly comparable due to 
differences in sampling methods, there does not appear to be any major 
changes in observations of these stream populations over time. 
Observations of Modoc suckers in Hulbert Creek and Johnson Creek prior 
to 2008 appear to be greater than observations made in 2008 and 2012. 
However, this may be explained by differences in survey methods, 
inclusion of young-of-the-year suckers in earlier counts, and the fact 
that some numbers reported are population estimates rather than counts 
on individuals. Although population monitoring has not been conducted 
on an annual basis, sucker surveys conducted in 2008 and 2012 show that 
Modoc sucker populations have been maintained, and are still well 
established, in Turner Creek, Washington Creek, Hulbert Creek, and 
Johnson Creek--as well as each of the other streams known to be 
occupied at the time of listing--more than 25 years after listing. 
Thus, we believe that populations of Modoc sucker have been maintained 
(remained stable), demonstrating successful recruitment given that 
individuals mature at 2+ years, and that downlisting objective 3 has 
been met.
    Delisting objective 1: The remaining suitable, but presently 
unoccupied, stream reaches within Turner-Hulbert Creek-Washington Creek 
and Rush-Johnson Creek drainages must be renovated and restored to 
Modoc sucker. The intent of this objective was to further address 
habitat loss and degradation (Factor A) through active restoration. 
Once occupied, these stream reaches would demonstrate that the habitat 
is restored and has expanded. This restoration will allow the habitat 
to support an increase in population numbers, improving redundancy 
(having multiple populations that provide security from the risk of 
extinction of the spices given the low probability that all populations 
will be negatively affected by a single catastrophic event) and 
resiliency (ability to withstand and recover from stochastic events, 
such as drought) of the species.
    Delisting objective 2: Secure populations of Modoc suckers must be 
reestablished in at least two other streams outside of the above 
drainages, but within the historical range. The intent of this 
objective was to increase both habitat available and the number of 
populations, thereby increasing redundancy of the Modoc sucker 
populations.
    Delisting objective 3: All populations must have sustained 
themselves through a climactic cycle that includes drought and flood 
events. This objective was intended to indicate that Modoc suckers have 
responded positively to habitat protection and restoration and have a 
sufficient number of populations and individuals to withstand and 
recover from environmental variability and stochastic events.
    At the time of listing, it was estimated that Modoc suckers 
occupied 2.0 mi (3.2 km) of habitat in Turner Creek, 0.8 mi (1.3 km) of 
habitat in Hulbert Creek, 0.5 mi (0.8 km) of habitat in Washington 
Creek, 4.6 mi (7.4 km) in Rush Creek, and 1.2 mi (1.9 km) of habitat in 
Johnson Creek (Reid 2008a, p. 25). Since the time of listing, Reid 
(2008a, p. 25) estimated that there was 5.5 mi (8.9 km) of available 
habitat in Turner Creek, 3.0 mi (4.8 km) in Hulbert Creek, 4.1 mi (6.6 
km) in Washington Creek, 4.6 mi (7.4 km) in Rush Creek, and 2.7 mi (4.3 
km) in Johnson Creek. Habitat conditions along Turner Creek, Hulbert 
Creek, Washington Creek, and Johnson Creek have improved since the time 
of listing. Modoc suckers currently occupy all available habitats 
within Turner Creek, Hulbert Creek, Rush Creek, and Johnson Creek; 
Modoc suckers occupy 3.4 mi (5.5 km) of the available habitat in 
Washington Creek (Reid 2008a, p. 25). Therefore, we believe delisting 
objective 1 has been met.
    The Recovery Plan stated that additional populations were needed to 
provide population redundancy (delisting objective 2). New information 
indicates the presence of Modoc sucker populations in four streams that 
were not known to be occupied at the time of listing (Garden Gulch 
Creek in the Turner Creek sub-basin and Thomas Creek, an unnamed 
tributary to Thomas Creek, and Cox Creek in the Goose Lake sub-basin). 
In addition, a population of Modoc sucker has been established as a 
result of transplanting in Coffee Mill Creek in the Turner Creek sub-
basin. In 1987, CDFW transplanted Modoc suckers from Washington Creek 
to Coffee Mill Creek to establish an additional population in the 
Turner Creek sub-basin (CDFW 1986, p. 11). Modoc suckers appear to be 
well established and relatively abundant; spawning adult and juvenile 
suckers have been consistently observed there during visual surveys 
(Reid 2009, p. 25). Therefore, we believe that the intent of delisting 
objective 2 has been met by the discovery of Modoc sucker populations 
in additional locations and the establishment of one population.
    The northwestern corner of the Great Basin where the Modoc sucker 
occurs is naturally subject to extended droughts, during which even the 
larger water bodies such as Goose Lake have dried up (Laird 1971, pp. 
57-58). Regional droughts have occurred every 10 to 20 years in the 
last century (Reid 2008, pp. 43-44). Collections of Modoc suckers from 
Rush Creek and Thomas Creek near the end of the ``dustbowl'' drought of 
the 1920s to 1930s (Hubbs 1934, p. 1; Reid 2008a, p. 79) indicate that 
the species was able to persist in those streams even through a 
prolonged and severe drought. Modoc suckers have persisted throughout 
the species' historical range since the time it was listed in 1985, 
even though the region has experienced several pronounced droughts as 
well as heavy-precipitation, high-water years (for example, 2011), 
indicating that the species is at least somewhat resilient to weather 
and hydrologic fluctuations. Therefore, we believe delisting objective 
3 has been met.
    The Recovery Plan was based on the best scientific and commercial 
information available at the time. In evaluating the extent to which 
recovery objectives have been met, we must also assess new information 
that has become available since the species was listed and the recovery 
action plan prepared. As noted above, research and new information 
since the time of listing and the recovery action plan indicate that 
hybridization and introgression with Sacramento sucker is not a 
substantial threat to Modoc suckers. Additionally, Modoc suckers were 
found occupying areas they were not known to occupy at the time of 
listing. This new information alters the extent to which the recovery 
objectives related to hybridization and establishing new populations 
need to be met. In the case of hybridization and genetic introgression, 
we found that objective no longer relevant given the lack of threat to 
the species. With regard to the objective to establish new populations, 
we found that the discovery of additional populations substantially met 
the intent of the objective to provide for population redundancy so 
that reestablishing two additional populations was no longer needed.
    Additionally, we must assess whether a recovery plan adequately 
addresses all the factors affecting the species. The recovery 
objectives did not directly address predation by brown trout and other 
nonnative fish or the point at which that threat would be ameliorated, 
although actions were included. Since the time of listing, additional 
predatory nonnative fish have been recorded in streams containing Modoc 
suckers. Actions to address nonnative predatory

[[Page 8661]]

species and an assessment of their impact are discussed below. While 
not specific to predatory nonnative fish, attainment of delisting 
objective 3, indicating that Modoc sucker populations have sustained 
themselves since listing in 1985, provides some indication that 
nonnative predatory fish are no longer a serious threat to the species' 
persistence. Climate change is an additional threat identified since 
listing and preparation of the Recovery Plan. All threats, including 
those identified since listing and preparation of the Recovery Plan are 
further discussed below. Based on our analysis of the best available 
information, we conclude that the downlisting and delisting objectives 
have been substantially met. Additional threats not directly addressed 
in the recovery objectives are discussed below. Additional information 
on recovery and recovery plan implementation are described in the 
``Recovery'' section of the Species Report (Service 2013, pp. 58-65).

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 
1532(16)). A species may be determined to be an endangered or 
threatened species because of any one or a combination of the five 
factors described in section 4(a)(1) of the Act: (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or human-made 
factors affecting its continued existence. A species may be 
reclassified on the same basis.
    A recovered species is one that no longer meets the Act's 
definition of threatened or endangered. Determining whether a species 
is recovered requires consideration of whether the species is 
endangered or threatened because of the same five categories of threats 
specified in section 4(a)(1) of the Act. For species that are already 
listed as endangered or threatened, this analysis of threats is an 
evaluation of both the threats currently facing the species and the 
threats that are reasonably likely to affect the species in the 
foreseeable future following the delisting or downlisting and the 
removal or reduction of the Act's protections.
    A species is an ``endangered species'' for purposes of the Act if 
it is in danger of extinction throughout all or a significant portion 
of its range and is a ``threatened species'' if it is likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act does not define the term 
``foreseeable future.'' For the purposes of this rule, we define the 
``foreseeable future'' to be the extent to which, given the amount and 
substance of available data, we can anticipate events or effects, or 
reliably extrapolate threat trends, such that we reasonably believe 
that reliable predictions can be made concerning the future as it 
relates to the status of Modoc sucker. Specifically, for Modoc sucker, 
we consider two factors: the management of threats and the response of 
the species to management. First, as described below, the threats to 
the species have been successfully ameliorated, largely due to 
management plans that are currently in place and expected to stay in 
place, and that are expected to successfully continue to control 
potential threats (USFS 1989, entire; USFS 1991, entire). Management 
plans that consider natural resources are required by law for all 
Federal lands on which Modoc sucker occurs, which encompasses greater 
than 50 percent of the species' range. Management plans are required to 
be in effect at all times and to be in compliance with various Federal 
regulations. Efforts to promote conservation of Modoc sucker habitat on 
private lands have been successful and are expected to continue into 
the future. Second, the Modoc sucker has demonstrated a quick positive 
response to management over the past 28 years since the species was 
listed; based on this, we anticipate being able to detect a species 
response to any changes in the management that may occur because of a 
plan amendment. Therefore, in consideration of Modoc sucker's positive 
response to management and our partners' commitment to continued 
management, as we describe below, we do not foresee that management 
practices will change and we anticipate that threats to the Modoc 
sucker will remain ameliorated into the foreseeable future. The word 
``range'' in the significant portion of its range phrase refers to the 
range in which the species currently exists. For the purposes of this 
analysis, we first evaluate the status of the species throughout all 
its range, then consider whether the species is in danger of extinction 
or likely to become so in any significant portion of its range.
    At the time of listing, the primary threats to Modoc sucker were 
threats from habitat degradation and loss due to activities (such as 
overgrazing by cattle) that cause erosion and siltation, and eliminated 
natural barriers that resulted in loss of genetic integrity of the 
species due to hybridization with Sacramento suckers (Catostomus 
occidentalis). Predation by the nonnative brown trout (Salmo trutta) 
was also identified as a threat to Modoc sucker.
    A thorough analysis and discussion of the current status review 
initiated with our 2012 90-day finding (77 FR 32922) is detailed in the 
Species Report (Service 2013, entire). The following sections provide a 
summary of the past, current, and potential future threats impacting 
the Modoc sucker. These threats include activities (such as 
overgrazing) that cause erosion and siltation (Factor A); elimination 
of natural barriers (Factor A); climate change and drought (Factor A); 
predation by nonnative species (Factors C); and hybridization and 
genetic introgression (infiltration of genes of another species) 
(Factor E).

Erosion and Cattle Grazing

    The listing rule stated that activities (such as overgrazing) that 
cause a reduction in riparian vegetation, which then leads to stream 
erosion, siltation, and incision were a threat to the species. An 
increase in silt from eroding banks may fill in the preferred pool 
habitat of Modoc suckers and can cover gravel substrate used for 
spawning (50 FR 24526, June 11, 1985; Moyle 2002, p. 190). Sediment 
introduced into streams can adversely affect fish populations by 
inducing embryo mortality, affecting primary productivity, and reducing 
available habitat for macroinvertebrates that Modoc suckers feed upon 
(Moyle 2002, p. 191). However, land and resource management, as guided 
through regulations and policies, can effectively reduce or control 
threats to Modoc sucker.
    The National Forest Management Act (NFMA) and regulations and 
policies implementing the NFMA are the main regulatory mechanisms that 
guide land management on the Fremont-Winema and Modoc National Forests, 
which constitute about 51 percent of Modoc suckers' range. Since 
listing, the Fremont-Winema National Forests (USFS 1989, entire) and 
Modoc National Forest (USFS 1991, entire) have each included Modoc 
sucker and their habitat in their resource management plans. These 
plans are required by

[[Page 8662]]

NFMA and the Federal Land Policy and Management Act of 1976 (FLPMA). 
The NFMA requires revision of the Plans every 15 years; however, plans 
may be amended or revised as needed. Management plans are required to 
be in effect at all times (in other words, if the revision does not 
occur, the previous plan remains in effect) and to be in compliance 
with various Federal regulations. The plans direct these national 
forests to maintain or increase the status of populations of federally 
endangered or threatened species and their habitats. In addition, these 
plans guide riparian management with a goal of restoring and 
maintaining aquatic and riparian ecosystems to their desired management 
potential (USFS 1989, Appendix p. 86; USFS 1991, pp. 4-26, Appendix pp. 
M-1-M-2).
    Management direction for grazing on Forest-managed lands is 
provided through allotment management plans and permits, which 
stipulate various grazing strategies that will minimize adverse effects 
to the watershed and listed species. The allotment management plans 
outline grazing management goals that dictate rangeland management 
should maintain productive riparian habitat for threatened, endangered, 
and sensitive species (USFS 1995, p. 1). These grazing permits are 
valid for 10 years though operating instructions for these permits are 
issued on an annual basis. Also, as Federal agencies, the Fremont-
Winema and Modoc National Forests comply with the National 
Environmental Policy Act process when evaluating potential land-
disturbing projects or changes in National Forest management.
    Although State lands comprise only 1 percent of Modoc suckers' 
range, both California and Oregon provide habitat protection. In 
California on State lands, the California Fish and Game Code affords 
protection to stream habitats for all perennial, intermittent, and 
ephemeral rivers and streams. In Oregon, the Oregon Department of Land 
Conservation and Development requires local land use planning 
ordinances to protect natural resources, including riparian and wetland 
habitats.
    The improved livestock grazing management practices in these 
management plans have greatly reduced impacts to Modoc sucker habitat 
from poor livestock grazing practices since the time of listing. Since 
listing, some of the Modoc sucker streams on public land have been 
fenced to exclude or actively manage livestock grazing for the benefit 
of Modoc sucker conservation (Reid 2008a, pp. 34-36, 85). Riparian 
fencing along occupied streams to exclude cattle during the past 25 
years has resulted in continued improvements in riparian vegetative 
corridors, in-stream cover, and channel morphology.
    In 2012, the Klamath Falls Fish and Wildlife Office completed 
habitat surveys in Washington Creek, Garden Gulch Creek, Coffee Mill 
Creek, Dutch Flat Creek, Turner Creek, Hulbert Creek, and Johnson Creek 
within the Ash Creek and Turner Creek sub-basins. Data collected 
indicated that the average percent bank erosion was low (less than 40 
percent) at Garden Gulch Creek, Coffee Mill Creek, Hulbert Creek, 
Washington Creek, and Johnson Creek. Bank erosion appeared moderate at 
the Dutch Flat Creek site (49 percent) and was highest at the Turner 
Creek site (75 percent). However, these two degraded reaches (Dutch 
Flat Creek and Turner Creek) combined amount to only 4.1 percent (1.76 
mi/42.5 mi) of Modoc sucker's total occupied habitat. Bank erosion 
along these creeks has resulted in an introduction of silt, which can 
cover gravel substrate used for spawning by Modoc suckers (Moyle 2002, 
p. 191).
    Land management practices employed on public and private lands 
since the early 1980s are expected to continue, or improve, thereby 
maintaining upward habitat trends as documented by survey data. On 
public lands, the resource management plans are required by NFMA and 
FLPMA and continue to be in effect until revised. Continued commitment 
to protection of resources, including Modoc sucker and riparian areas, 
in future revisions is expected. As an example, within the Fremont-
Winema National Forest, Thomas Creek is a Priority Watershed under 
their Watershed Condition Framework, and the Forest is currently 
working on a watershed restoration action plan. The action plan will 
identify individual projects such as fish passage, instream 
restoration, and road treatments/closures. On State lands, the 
California Fish and Game Code affords protection to stream habitats for 
all perennial, intermittent, and ephemeral rivers and streams. The 
Oregon Department of Land Conservation and Development requires local 
land use planning ordinances to protect natural resources, including 
riparian and wetland habitats. However, there are no formalized 
agreements in place with private landowners that establish protection 
of Modoc sucker habitat, though continued outreach is expected to occur 
in the near future (e.g., through the Service's Partners for Fish and 
Wildlife Program).
    Although the 2012 habitat surveys indicate that livestock grazing 
still results in stream bank erosion along streams occupied by Modoc 
suckers, these surveys and the 2008 and 2012 fish surveys indicate that 
livestock grazing management has improved greatly, and as a result of 
reduced impact to habitat, there has been no reduction in the 
distribution of Modoc suckers, and grazing results in erosion in only a 
small portion (4.1 percent) of the species' range. Management plans 
that consider natural resources are required by law for all Federal 
lands on which Modoc sucker occurs. Management plans are required to be 
in effect at all times (in other words, if the revision does not occur, 
the previous plan remains in effect) and to be in compliance with 
various Federal regulations. Further, several organizations have 
partnered with private landowners to complete habitat restoration on 
the private land parcels to benefit fish passage and riparian habitat. 
Therefore, based on the best available information and expectation that 
current management practices will continue into the future, we conclude 
that livestock grazing and erosion does not constitute a substantial 
threat to the Modoc sucker now and is not expected to in the future.

Elimination of Natural Barriers

    The listing rule assumed that natural passage barriers in streams 
occupied by Modoc suckers had been eliminated by human activities, 
allowing hybridization between the Modoc and Sacramento suckers (see 
Hybridization and Genetic Introgression below). The lack of barriers 
was also thought to provide exposure to nonnative predatory fishes (see 
Predation by Nonnative Species below). However, surveys completed since 
the time of listing reveal no evidence of historical natural barriers 
that would have acted as a physical barrier. This is particularly true 
during higher springtime flows when Sacramento suckers make their 
upstream spawning migrations (Moyle 2002, p. 187). The source of this 
misunderstanding appears to have been a purely conjectural discussion 
by Moyle and Marciochi (1975, p. 559) that was subsequently accepted 
without validation, and Moyle makes no mention of it in his most recent 
account of Modoc sucker status (Moyle 2002, pp. 190-191). Since our 
current understanding is that the elimination of passage barriers did 
not occur, we conclude that elimination of passage barriers was 
incorrectly identified as a threat and is not a threat to Modoc sucker.

Predation by Nonnative Species

    The listing rule identified predation by nonnative brown trout as a 
threat to Modoc suckers (50 FR 24526, June 11,

[[Page 8663]]

1985). Since the time of listing, additional predatory nonnative fish 
species have been recorded in streams containing Modoc suckers (Service 
2009): Largemouth bass, sunfish (green and bluegill), and brown 
bullheads. Two of the three known sub-basins with Modoc suckers contain 
introduced predatory fishes. The Ash Creek sub-basin contains brown 
trout and possibly largemouth bass in downstream reaches of Ash Creek. 
The Turner Creek sub-basin contains a number of warm-water predatory 
fish. The Goose Lake sub-basin does not contain any nonnative predatory 
fish.
    The Ash Creek sub-basin contains brown trout, which have co-existed 
with Modoc suckers for over 70 years, but may suppress local native 
fish populations in small streams. There are no sources of largemouth 
bass upstream of Modoc sucker populations in the Ash Creek basin, 
although they may be present downstream in warmer, low-gradient reaches 
of Ash Creek proper. A substantial eradication effort in Johnson Creek, 
within the Ash Creek sub-basin, in 2009 and 2010 removed most brown 
trout from occupied Modoc sucker habitat (Reid 2010, p. 2).
    The Turner Creek sub-basin contains largemouth bass, sunfish (green 
and bluegill), and brown bullheads, of which only the bass are 
considered a significant predator on Modoc suckers. Bass do not appear 
to reproduce or establish stable populations in Turner Creek because 
the creek's cool-water habitat is generally unsuitable for supporting 
largemouth bass populations. Since 2005, the Service has supported a 
successful program of active management for nonnative fishes in the 
Turner Creek basin, targeting bass and sunfishes with selective angling 
and hand removal methods that do not adversely impact native fish 
populations (Reid 2008b, p. 1).
    Redband trout, the only native potential predator of Modoc sucker, 
also occupies upper Thomas Creek, but there are no nonnative fishes 
(Scheerer et al. 2010, pp. 278, 281). The upper reaches of Thomas Creek 
occupied by Modoc suckers are unlikely to be invaded by nonnative 
fishes given the lack of upstream source populations and presence of a 
natural waterfall barrier in the lowest reach.
    While Modoc suckers may be negatively impacted by introduced 
predatory fishes, such as brown trout and largemouth bass, they have 
persisted in the presence of nonnative predators, and populations have 
remained relatively stable in the Ash Creek and Turner Creek sub-basins 
prior to and since the time of listing. The separation of the three 
known basins containing Modoc suckers further reduces the probability 
that a new or existing nonnative predator would impact all three basins 
simultaneously. In some instances, natural constraints limit the 
distribution of nonnative predators, such as cool-water habitat. In 
other cases, natural or manmade barriers limit potential introductions, 
as do policies and regulations within Oregon and California. State 
regulations and fish stocking policies, in both California and Oregon, 
prohibit transfer of fish from one water body to another. Regulations 
prohibiting transfer of fish between water bodies discourage the spread 
of predatory fish species such as brown trout and largemouth bass 
throughout the Modoc sucker's range. In addition, CDFW has discontinued 
stocking of the predatory brown trout into streams in the Pit River 
basin, and the Oregon Department of Fish and Wildlife (ODFW) does not 
stock brown trout in the Goose Lake sub-basin. Based on current 
policies and regulations, we do not expect additional predatory fish to 
be introduced into Modoc sucker habitat in the future. Therefore, based 
on the best available information, we conclude that introduced 
predators do not constitute a substantial threat to the Modoc sucker 
now or in the future.

Climate Change and Drought

    Our analyses under the Endangered Species Act include consideration 
of ongoing and projected changes in climate. The terms ``climate'' and 
``climate change'' are defined by the Intergovernmental Panel on 
Climate Change (IPCC). ``Climate'' refers to the mean and variability 
of different types of weather conditions over time, with 30 years being 
a typical period for such measurements, although shorter or longer 
periods also may be used (IPCC 2007, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (e.g., temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007, p. 78). Various types of changes in climate can have direct or 
indirect effects on species. These effects may be positive, neutral, or 
negative and they may change over time, depending on the species and 
other relevant considerations, such as the effects of interactions of 
climate with other variables (e.g., habitat fragmentation) (IPCC 2007, 
pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    The listing rule did not identify drought or climate change as 
threats to the continued existence of the Modoc sucker. However, the 
northwestern corner of the Great Basin is naturally subject to extended 
droughts, during which streams and even the larger water bodies such as 
Goose Lake have dried up (Laird 1971, pp. 57-58). Regional droughts 
have occurred every 10 to 20 years in the last century, and Goose Lake 
went dry as recently as 1992 and 2010 (Reid 2008a, pp. 43-44; R. 
Larson, KFFWO, personal communication). We have no records of how 
frequently Modoc sucker streams went dry. Some reaches of occupied 
streams have been observed to dry up (or flow goes subsurface through 
the gravel instead of over the surface) nearly every summer under 
current climatic conditions (Reid 2008, p. 42), indicating that 
headwater reaches did stop flowing. In extreme droughts, the suckers 
may have withdrawn to permanent main-stem streams, such as Rush, Ash, 
and Turner Creeks, and later recolonized the tributaries. Suckers also 
take refuge in natural spring-fed headwater reaches and in deeper, 
headwater pools that receive subsurface flow even when most of the 
stream channel is dry (Reid 2008, p. 43). Collections of Modoc suckers 
from Rush Creek and Thomas Creek near the end of the ``dustbowl'' 
drought (Hubbs 1934, p. 1; Reid 2008a, p. 79) and the continued 
persistence of Modoc suckers throughout its known range through 
substantial local drought years since 1985 demonstrate the resiliency 
of Modoc sucker populations to drought.
    Human-induced climate change could exacerbate low-flow conditions 
in Modoc sucker habitat during future droughts. A warming trend in the 
mountains of western North America is expected to decrease snowpack, 
hasten spring runoff, reduce summer stream flows, and increase summer 
water temperatures (Poff et al. 2002, p. 11; Koopman et al. 2009, p. 3; 
PRBO Conservation Science 2011, p. 15). Lower flows as a result of 
smaller snowpack could reduce sucker habitat, which might adversely 
affect Modoc sucker reproduction and survival. Warmer water 
temperatures could lead to physiological stress and could also benefit 
nonnative fishes that prey on or compete with Modoc suckers. Increases 
in the number and size of forest fires could also result from climate 
change (Westerling et al. 2006, p. 940) and could adversely affect 
watershed function resulting in faster runoff, lower base flows during 
the summer and fall, and increased sedimentation rates. It is

[[Page 8664]]

possible that lower flows may result in increased groundwater 
withdrawal for agricultural purposes and thus reduced water 
availability in certain stream reaches occupied by Modoc suckers. While 
these are all possible scenarios, we have no data on which to predict 
the likelihood or magnitude of these outcomes.
    In summary, droughts may be a concern because they could likely 
constrict the amount of available habitat and reduce access to spawning 
habitat. However, the species has not declined in distribution since 
the time of listing in 1985, even though the region where it exists has 
experienced several pronounced droughts since listing when total annual 
precipitation was approximately half of the long-term average (Western 
Regional Climate Center, http://www.wrcc.dri.edu/cgi-bin/cliMONtpre.pl?ca0161, accessed 23 January 2013). And, although we 
cannot predict future climatic conditions accurately, the persistence 
of Modoc sucker across its range through the substantial droughts of 
the last century suggests that the species is resilient to drought and 
reduced water availability. Because we are unable at this time to 
predict how climate change will exacerbate the effects of drought 
within the Modoc sucker's range, we cannot make meaningful projections 
on how the species may react to climate change or how its habitat may 
be affected. Therefore, based on the best available information, we 
conclude that droughts and climate change, while likely affecting Modoc 
sucker populations, do not constitute substantial threats to Modoc 
sucker now and are not expected to in the future.

Hybridization and Genetic Introgression

    The listing rule identified hybridization with the Sacramento 
sucker as a threat to the Modoc sucker. Hybridization can be cause for 
concern in a species with restricted distribution, particularly when a 
closely related, nonnative species is introduced into its range, which 
can lead to loss of genetic integrity or even extinction (Rhymer and 
Simberloff 1996, p. 83). At the time of listing, it was assumed that 
hybridization between Modoc suckers and Sacramento suckers had been 
prevented in the past by the presence of natural physical barriers, but 
that the loss of these stream barriers was allowing interaction and 
hybridization between the two species (see Elimination of Natural 
Barriers above). However, the assumption that extensive hybridization 
was occurring was based solely on the two species occurring in the same 
streams, and the identification of a few specimens exhibiting what were 
thought to be intermediate morphological characters. At the time of 
listing in 1985, genetic and complete morphological information to 
assess this assumption was not available.
    The morphological evidence for hybridization in the listing rule 
was based on a limited understanding of morphological variation in 
Modoc suckers and Sacramento suckers, derived from the small number of 
specimens available at that time. The actual number of specimens 
identified as apparent hybrids by earlier authors was very small, and 
many of these specimens came from streams without established Modoc 
sucker populations. Subsequent evaluation of variability in the two 
species was based on a larger number of specimens. It showed that the 
overlapping characteristics (primarily lateral line and dorsal ray 
counts) that had been interpreted by earlier authors as evidence of 
hybridization, are actually part of the natural meristic (involving 
counts of body parts such as fins and scales) range for the two 
species. As a result, this variability is no longer thought to be the 
result of genetic introgression between the two species (Kettratad 
2001, pp. 52-53).
    We initiated a study in 1999 to examine the genetics of suckers in 
the Pit River basin and determine the extent and role of hybridization 
between the Modoc and Sacramento suckers using both nuclear and 
mitochondrial genes (Palmerston et al. 2001, p. 2; Wagman and Markle 
2000, p. 2; Dowling 2005, p. 3; Topinka 2006, p. 50). The two species 
are genetically similar, suggesting that they are relatively recently 
differentiated or have a history of introgression throughout their 
range that has obscured their differences (Dowling 2005, p. 9; Topinka 
2006, p. 65). Although the available evidence cannot differentiate 
between the two hypotheses, the genetic similarity in all three sub-
basins, including those populations shown to be free of introgression 
based on species-specific genetic markers (Topinka 2006, pp. 64-65), 
suggests that introgression has occurred on a broad temporal and 
geographic scale and is not a localized or recent phenomenon. 
Consequently, the genetic data suggest that introgression is natural 
and is not caused or measurably affected by human activities.
    In a later study, Topinka (2006, p. 50) analyzed nuclear DNA from 
each of the two species and identified species-specific markers 
indicating low levels of introgression by Sacramento sucker alleles 
into most Modoc sucker populations. However, there was no evidence of 
first generation hybrids, and it is not clear whether introgression 
occurred due to local hybridization or through immigration by 
individual Modoc suckers carrying Sacramento alleles from other areas 
where hybridization had occurred.
    Scientists who have studied suckers in western North America 
consider that, throughout their evolutionary history, hybridization 
among sympatric native fishes is not unusual and may provide an 
adaptive advantage (Dowling and Secor 1997, pp. 612-613; Dowling 2005, 
p. 10; Topinka 2006, p. 73; Tranah and May 2006, p. 313). Further, 
despite any hybridization that has occurred in the past, the Modoc 
sucker maintains its morphological and ecological distinctiveness, even 
in populations showing low levels of introgression, and is clearly 
distinguishable in its morphological characteristics from the 
Sacramento sucker (Kettratad 2001, p. 3). The low levels of observed 
introgression by Sacramento suckers in streams dominated by Modoc 
suckers, even when there are no physical barriers between the two 
species, suggests that either ecological differences, selective 
pressures, or other natural reproductive-isolating mechanisms are 
sufficient to maintain the integrity of the species, even after more 
than a century of habitat alteration by human activities. Therefore, 
given the levels of observed introgression in streams dominated by 
Modoc suckers, the lack of evidence of first-generation hybrids, the 
fact that Modoc suckers and Sacramento suckers are naturally sympatric, 
and the continued ecological and morphological integrity of Modoc 
sucker populations, we conclude that hybridization and genetic 
introgression do not constitute threats to the Modoc sucker now and are 
not expected to in the future.

Overall Summary of Factors Affecting Modoc Sucker

    Threats to the Modoc sucker that were considered in the 1985 
listing rule have been reduced or ameliorated or are no longer 
considered to have been actual threats at the time of listing. Further, 
climate change and drought are not considered substantial threats. 
Habitat conditions on both public and private lands have benefited 
since the time of listing as a result of improved livestock grazing 
management practices and construction of fencing to exclude cattle from 
riparian areas on several of the streams occupied by Modoc suckers. We 
expect habitat conditions to remain stable or improve. Although recent 
habitat surveys indicate erosion continues to be a problem along lower 
Turner Creek and in Dutch Flat Creek,

[[Page 8665]]

these areas represent 4.1 percent (1.76 mi/42.5 mi) of Modoc sucker's 
total occupied habitat. Habitat threats are addressed through multiple 
Federal and State regulations, including NFMA, California and Oregon 
State water regulations, and California Fish and Game Code. Therefore, 
these impacts are not considered a substantial threat to the species.
    Modoc suckers have coexisted with brown trout for more than 70 
years, and the overlap in distribution of largemouth bass and Modoc 
suckers is limited because bass are warm water fish that occur in 
lower-elevation reaches downstream of many of the reaches occupied by 
Modoc sucker, and reservoir outflows have been screened to reduce the 
risk of bass being flushed into streams occupied by Modoc sucker. 
Further, State regulations in both California and Oregon prohibit 
transfer of fish from one water body to another. Thus, introduced 
predators are not a significant risk to Modoc sucker populations. A 
greater understanding of the genetic relationships and natural gene 
flow between the Modoc suckers and Sacramento suckers has reduced 
concerns over hybridization between the two naturally sympatric 
species.
    Although none of the factors discussed above is having a major 
impact on Modoc sucker, a combination of factors could potentially have 
a much greater effect. For example, effects of erosion on habitat 
resulting from poor livestock grazing management practices could worsen 
during periods of prolonged, severe drought when some water sources may 
dry up, resulting in greater pressure on the remaining available water 
sources, which would likely degrade Modoc sucker habitat. However, the 
impacts of livestock grazing on Modoc sucker habitat has been greatly 
reduced or eliminated by improved grazing management practices and 
management plans, which are not expected to change. Although the types, 
magnitude, or extent of cumulative impacts are difficult to predict, we 
are not aware of any combination of factors that has not already or 
would not be addressed through ongoing conservation measures. Based on 
this assessment of factors potentially impacting the species, we 
consider Modoc sucker to have no substantial threats now or in the 
future (see Summary of Factors Affecting the Species section of the 
Species Report (Service 2013, pp. 23-57).

Finding

    An assessment of the need for a species' protection under the Act 
is based on whether a species is in danger of extinction or likely to 
become so because of any of five factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. As required by section 4(a)(1) of 
the Act, we conducted a review of the status of this species and 
assessed the five factors to evaluate whether Modoc sucker is 
endangered or threatened throughout all of its range. We examined the 
best scientific and commercial information available regarding the 
past, present, and future threats faced by the species. We reviewed 
information presented in the 2011 petition, information available in 
our files and gathered through our 90-day finding in response to this 
petition, and other available published and unpublished information. We 
also consulted with species experts and land management staff with the 
USFS, CDFW, and ODFW, who are actively managing for the conservation of 
Modoc sucker.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the exposure causes actual impacts to the species. If there is 
exposure to a factor, but no response, or only a positive response, 
that factor is not a threat. If there is exposure and the species 
responds negatively, the factor may be a threat and we then attempt to 
determine how significant the threat is. If the threat is significant, 
it may drive, or contribute to, the risk of extinction of the species 
such that the species warrants listing as endangered or threatened as 
those terms are defined by the Act. This determination does not 
necessarily require empirical proof of a threat. The combination of 
exposure and some corroborating evidence of how the species is likely 
impacted could suffice. The mere identification of factors that could 
impact a species negatively is not sufficient to compel a finding that 
listing is appropriate; we require evidence that these factors are 
operative threats that act on the species to the point that the species 
meets the definition of an endangered species or threatened species 
under the Act.
    Significant impacts at the time of listing that could have resulted 
in the extirpation of all or parts of populations have been eliminated 
or reduced since listing. We conclude that the previously recognized 
impacts to Modoc sucker from the present or threatened destruction, 
modification, or curtailment of its habitat or range (specifically, 
erosion due to poor cattle grazing management) (Factor A); elimination 
of natural barriers (Factor A); predation by nonnative species (Factor 
C); and hybridization or genetic introgression (specifically, from 
Sacramento sucker) (Factor E) do not rise to a level of significance, 
such that the species is in danger of extinction now or in the 
foreseeable future.
    As a result of the discovery of five populations not known at the 
time of listing and the documentation of the genetic integrity of 
populations considered in the 1985 listing rule to have been lost due 
to hybridization, the known range of the Modoc sucker has increased and 
it currently occupies its entire known historical range. Additionally, 
the distribution of occupied stream habitat for populations known at 
the time of listing has remained stable or expanded slightly since the 
time of listing, even though the region has experienced several 
droughts during this time period. Additionally, the relevant recovery 
objectives outlined in the Recovery Plan for the Modoc sucker have been 
met, indicating sustainable populations exist throughout the species' 
range. Finally, an assessment of factors that may be impacting the 
species did not reveal any significant threats to the species, now or 
in the future. We have carefully assessed the best scientific and 
commercial data available and determined that Modoc sucker is no longer 
in danger of extinction throughout all of its range, nor is it likely 
to become so in the future.

Significant Portion of the Range

    Having examined the status of Modoc sucker throughout all its 
range, we next examine whether the species is in danger of extinction 
in a significant portion of its range. The range of a species can 
theoretically be divided into portions in an infinite number of ways. 
However, there is no purpose in analyzing portions of the range that 
have no reasonable potential to be significant or in analyzing portions 
of the range in which there is no reasonable potential for the species 
to be endangered or threatened. To identify only those portions that 
warrant further consideration, we determine whether there is 
substantial information indicating that: (1) The portions may be 
``significant'' and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. Depending 
on the biology of the species, its range, and the threats it faces, it 
might be more efficient for us to address

[[Page 8666]]

the significance question first or the status question first. Thus, if 
we determine that a portion of the range is not ``significant,'' we do 
not need to determine whether the species is endangered or threatened 
there; if we determine that the species is not endangered or threatened 
in a portion of its range, we do not need to determine if that portion 
is ``significant.'' In practice, a key part of the determination that a 
species is in danger of extinction in a significant portion of its 
range is whether the threats are geographically concentrated in some 
way. If the threats to the species are essentially uniform throughout 
its range, no portion is likely to warrant further consideration. 
Moreover, if any concentration of threats to the species occurs only in 
portions of the species' range that clearly would not meet the 
biologically based definition of ``significant,'' such portions will 
not warrant further consideration.
    We consider the ``range'' of Modoc sucker to include an estimated 
42.5 miles (68.4 kilometers) of occupied habitat in 12 streams in the 
Turner Creek, Ash Creek, and Goose Lake sub-basins of the Pit River. 
This amount has improved greatly since the time of listing, when its 
known distribution was limited to an estimated 12.9 miles (20.8 
kilometers) of occupied habitat in seven streams in the Turner Creek 
and Ash Creek sub-basins. This distribution represents its entire known 
historical range, with the exception of Willow Creek within the Ash 
Creek sub-basin. Previous reports of Modoc suckers in Willow Creek are 
based on limited and unverifiable reports (Reid 2009, p. 14), and their 
present existence in Willow Creek remains questionable (Reid 2008a, p. 
25). Therefore, we consider the confirmed historical range to be 
occupied.
    We considered whether any portions of the Modoc sucker range might 
be both significant and in danger of extinction or likely to become so 
in the foreseeable future. One way to identify portions would be to 
identify natural divisions within the range that might be of biological 
or conservation importance. Modoc sucker inhabit three sub-basins of 
the Pit River, one of which, the Goose Lake sub-basin, is disjoined 
from the other two sub-basins (Turner Creek and Ash Creek sub-basins). 
These sub-basins have the potential to be significant areas to the 
species due to potential geographic isolation. Although the sub-basins 
have the potential to be significant, the populations of the species 
within the sub-basins are not in danger of extinction or likely to 
become so within the foreseeable future due to lack of significant 
threats. Another way to identify portions would be to consider whether 
any threats are geographically concentrated in some way that would 
indicate the species could be threatened or endangered in that area. As 
noted above, erosion due to poor grazing management still occurs within 
approximately 4.1 percent of the Modoc sucker range, and has the 
potential to adversely affect Modoc sucker in those areas. These two 
sites are within different sub-basins and, both collectively and per 
sub-basin, represent a very small fraction of the Modoc sucker's range. 
These areas, individually or collectively, are therefore unlikely to 
constitute a significant portion of the species' range. No other 
natural divisions occur, and no other potential remaining threats have 
been identified. Therefore, it is our conclusion, based on our 
evaluation of the current and potential threats to Modoc sucker, that 
these threats are neither sufficiently concentrated nor of sufficient 
magnitude to indicate the species is in danger of extinction or likely 
to become so in the foreseeable future in any of the areas that support 
the species, and thus, it is likely to persist throughout its 
historical range.
    We have carefully assessed the best scientific and commercial data 
available and determined that the Modoc sucker is no longer in danger 
of extinction throughout all or significant portions of its range, nor 
is it likely to become so in the future. As a consequence of this 
determination, we are proposing to remove this species from the list of 
endangered and threatened species under the Act.

Effects of This Rule

    If this proposed rule is made final, it would revise 50 CFR 
17.11(h) to remove the Modoc sucker from the List of Endangered and 
Threatened Wildlife and would revise 50 CFR 17.95(e) to remove 
designated critical habitat for the species. The prohibitions and 
conservation measures provided by the Act, particularly through 
sections 7 and 9, would no longer apply to this species. Federal 
agencies would no longer be required to consult with the Service under 
section 7 of the Act in the event that activities they authorize, fund, 
or carry out may affect Modoc sucker.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (50 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule and the draft post-delisting monitoring 
(PDM) plan. A thorough review of information that we relied on in 
preparing this proposed rule--including information on taxonomy, life-
history, ecology, population distribution and abundance, and potential 
threats--is presented in the Modoc Sucker Species Report (Service 2013) 
available at www.regulations.gov (Docket Number FWS-R8-ES-2013-0133). 
The purpose of peer review is to ensure that decisions are based on 
scientifically sound data, assumptions, and analyses. A peer review 
panel will conduct an assessment of the proposed rule, and the specific 
assumptions and conclusions regarding the proposed delisting. This 
assessment will be completed during the public comment period.
    We will consider all comments and information we receive during the 
comment period on this proposed rule as we prepare the final 
determination. Accordingly, the final decision may differ from this 
proposal.

Post-Delisting Monitoring Plan

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been recovered and delisted (50 CFR 17.11, 
17.12). The purpose of this post-delisting monitoring (PDM) is to 
verify that a species remains secure from risk of extinction after it 
has been removed from the protections of the Act. The PDM is designed 
to detect the failure of any delisted species to sustain itself without 
the protective measures provided by the Act. If, at any time during the 
monitoring period, data indicate that protective status under the Act 
should be reinstated, we can initiate listing procedures, including, if 
appropriate, emergency listing under section 4(b)(7) of the Act. 
Section 4(g) of the Act explicitly requires us to cooperate with the 
States in development and implementation of PDM programs, but we remain 
responsible for compliance with section 4(g) and, therefore, must 
remain actively engaged in all phases of PDM. We also seek active 
participation of other entities that are expected to assume 
responsibilities for the species' conservation post-delisting.

Post-Delisting Monitoring Plan Overview

    The Service has developed a draft PDM plan for the Modoc sucker. 
The PDM plan is designed to verify that Modoc sucker remains secure 
from risk of extinction after removal from the Federal List of 
Endangered and Threatened Wildlife by detecting

[[Page 8667]]

changes in its status and habitat throughout its known range.
    Although the Act has a minimum PDM requirement of 5 years, we will 
monitor Modoc sucker for a 10-year monitoring period to account for 
environmental variability (for example, drought) that may affect the 
condition of habitat and to provide for a sufficient number of surveys 
to document any changes in the abundance of the species. Based on the 
life history of Modoc suckers, in which individuals mature at age 2+ 
years, a complete survey of previously surveyed areas should be 
conducted every 2 years within the 10-year monitoring period. This will 
allow us to assess changes in abundance or the extent of the species' 
range over time; changes in the level of recruitment of reproducing 
fish into the population; and any potential changes in threats to the 
species. However, if a decline in abundance is observed or a 
substantial new threat arises, post-delisting monitoring may be 
extended or modified as described below.
    A multi-state occupancy approach (MacKenzie et al. 2009, entire) 
will be used to estimate the proportion of sites occupied, change in 
site occupancy, and change in abundance of Modoc suckers. Surveys for 
Modoc suckers will be completed following a modified version of a 
sampling protocol developed for Modoc sucker (Reid 2008b) that is 
consistent with the approach used in surveys conducted since 2008. This 
approach will allow for monitoring population status over time as it 
permits the estimation of the proportion of sites (within a stream and 
among all streams) that are occupied and that are in each state of 
abundance (low and high). During occupancy and abundance surveys, we 
will also monitor threats and recruitment. To measure recruitment, we 
will estimate the size of individuals to the nearest centimeter. 
Examination of fish sizes will allow a determination to be made if 
recruitment is occurring over time. Ideally, surveys will result in 
diverse size classes of fish, indicating recruitment is occurring. 
Threats, both biotic (for example, nonnative predatory fish) and 
abiotic (for example, excessive sedimentation) will also be assessed 
during surveys (both day and night). Prior to completing surveys, sites 
(pools) within streams will be landmarked and georeferenced to allow 
relocation for subsequent surveys.
    After each complete survey (conducted once every 2 years), the 
Service and its partners will compare the results with those from 
previous surveys and consider the implication of any observed 
reductions in abundance or threats to the species. Within 1 year of the 
end of the PDM period, the Service will conduct a final internal review 
and prepare (or contract with an outside entity) a final report 
summarizing the results of monitoring. This report will include: (1) A 
summary of the results from the surveys of Modoc sucker occupancy, 
states of abundance, recruitment, and change in distribution; and (2) 
recommendations for any actions and plans for the future. The final 
report will include a discussion of whether monitoring should continue 
beyond the 10-year period for any reason.
    With this notice, we are soliciting public comments and peer review 
on the draft PDM Plan including its objectives and procedures (see 
Public Comments Solicited). All comments on the draft PDM plan from the 
public and peer reviewers will be considered and incorporated into the 
final PDM plan as appropriate. The draft PDM plan will be posted on our 
Endangered Species Program's national Web page (http://endangered.fws.gov) and the Klamath Falls Fish and Wildlife Office Web 
page (http://fws.gov/klamathfallsfwo) and on the Federal eRulemaking 
Portal at http://www.regulations.gov. We anticipate finalizing this 
plan, considering all public and peer review comments, prior to making 
a final determination on the proposed delisting rule.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the names of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act

    We determined we do not need to prepare an Environmental Assessment 
or an Environmental Impact Statement, as defined under the authority of 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), 
in connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this proposed rule is 
available on the Internet at http://www.regulations.gov under Docket 
No. FWS-R8-ES-2013-0133 or upon request from the Field Supervisor, 
Klamath Falls Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Author

    The primary author of this proposed rule is the Pacific Southwest 
Regional Office in Sacramento, California, in coordination with the 
Klamath Falls Fish and Wildlife Office in Klamath Falls, Oregon (see 
FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.


Sec.  17.11  [Amended]

0
2. Amend Sec.  17.11(h) by removing the entry for ``Sucker, Modoc'' 
under ``Fishes'' in the List of Endangered and Threatened Wildlife.


Sec.  17.95  [Amended]

0
3. Amend Sec.  17.95(e) by removing the entry for ``Modoc Sucker 
(Catostomus microps)''.

    Dated: December 30, 2013.
Stephen Guertin,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2014-01526 Filed 2-12-14; 8:45 am]
BILLING CODE 4310-55-P