[Federal Register Volume 84, Number 38 (Tuesday, February 26, 2019)]
[Proposed Rules]
[Pages 6110-6126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02979]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2017-0035; FXES11130900000-189-FF09E30000]
RIN 1018-BA43
Endangered and Threatened Wildlife and Plants; Removing the Borax
Lake Chub From the List of Endangered and Threatened Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS),
propose to remove the Borax Lake chub (currently listed as Gila
boraxobius), a fish native to Oregon, from the Federal List of
Endangered and Threatened Wildlife on the basis of recovery. This
proposal is based on a review of the best available scientific and
commercial information, which indicates that the threats to the Borax
Lake chub have been eliminated or reduced to the point where the
species no longer meets the definition of an endangered or threatened
species under the Endangered Species Act of 1973, as amended (Act). We
are seeking information and comments from the public regarding this
proposed rule.
DATES: We will accept comments received or postmarked on or before
April 29, 2019. Please note that if you are using the Federal
eRulemaking Portal (see ADDRESSES, below), the deadline for submitting
an electronic comment is 11:59 p.m. Eastern time on this date. We must
receive requests for public hearings, in writing, at the address shown
in FOR FURTHER INFORMATION CONTACT by April 12, 2019.
ADDRESSES: 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-R1-ES-2017-0035,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!'' Please ensure that you have found the
correct rulemaking before submitting your comment.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R1-ES-2017-
[[Page 6111]]
0035, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike,
Falls Church, VA 22041-3803.
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 Public Comments, below, for more information).
Document availability: This proposed rule is available on http://www.regulations.gov. In addition, the supporting file for this proposed
rule will be available for public inspection, by appointment, during
normal business hours, at our Oregon Fish and Wildlife Office, 2600 SE
98th Avenue, Suite 100, Portland, OR 97266; telephone 503-231-6179.
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor,
telephone: 503-231-6179. Direct all questions or requests for
additional information to: BORAX LAKE CHUB QUESTIONS, U.S. Fish and
Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue,
Suite 100, Portland, OR 97266. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Relay Service at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
removal from the List of Endangered and Threatened Wildlife (i.e.,
``delisting'') if it no longer meets the definition of endangered or
threatened. 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 Borax Lake chub is
currently listed as endangered, and we are proposing to delist the
species because we have determined it no longer meets the definition of
endangered and is not likely to become endangered in the foreseeable
future. We can only delist a species by issuing a rule to do so.
The basis for our action. A species may be determined to be an
endangered species 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 manmade factors affecting its
continued existence. We have determined that the Borax Lake chub is no
longer at risk of extinction, and the following criteria for delisting
described in the species recovery plan have been met or exceeded:
The presence of a naturally reproducing population of
Borax Lake chub in Borax Lake that is free of exotic species;
Permanent protection of the 160-acre (ac) (65-hectare
(ha)) parcel of land surrounding and including Borax Lake;
Removal of threats to subsurface waters from geothermal
energy exploration or development;
Reestablishment of ponds and natural marshes adjacent to
Borax Lake in order to create more chub habitat;
A viable, self-sustaining population of Borax Lake chub;
Permanent protection of the 160-ac (65-ha) parcel of land
to the north of Borax Lake;
Withdrawal of Borax Lake waters from appropriation (i.e.,
diversion and use under water right);
Establishment of a fence around the 640-ac (259-ha)
critical habitat area to prevent vehicle entry;
Establishment of monitoring programs to survey habitat and
fish population status; and
Lack of any new threats to the species or ecosystem for 5
consecutive years.
Information Requested
Public Comments
We intend that any final rule resulting from this proposal will be
based on the best available scientific and commercial data and will be
as accurate and effective as possible. Therefore, we invite Tribal,
State, and governmental agencies; the scientific community; industry;
and other interested parties to submit comments or recommendations
concerning any aspect of this proposed rule. Comments should be as
specific as possible. We are specifically requesting comments on:
(1) Biological information concerning the Borax Lake chub and
information on the Borax Lake ecosystem;
(2) Relevant data concerning presence or absence of current or
future threats to the Borax Lake chub and its habitat;
(3) Information regarding management plans or other mechanisms that
provide protection to the Borax Lake chub and its habitat;
(4) Information on the potential for changes in precipitation
levels and air and water temperatures to affect the Borax Lake chub due
to changes in the climate or other reasons (including any modeling data
and projections for the Alvord Basin);
(5) Information regarding potential for geothermal energy
development in the vicinity of Borax Lake, and any information useful
for determining the extent of potential effects to Borax Lake; and
(6) Any information relevant to whether the species falls within
the definition of either an endangered species under section 3(6) of
the Act (16 U.S.C. 1531 et seq.) or a threatened species under section
3(20) of the Act, including information on the five listing factors
under section 4(a)(1) of the Act and any other factors meeting the
criteria to support the recovery and removal of the species from the
List of Endangered and Threatened Wildlife (List; 50 CFR 17.11(h)).
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.''
We will take into consideration all comments and any additional
information we receive. Such information may lead to a final rule that
differs from this proposal. All comments, including commenters' names
and addresses, if provided to us, will become part of the
administrative record.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We will not consider
comments sent by email, by fax, or to an address not listed in
ADDRESSES. If you submit your comments electronically, your comments
must be submitted through the Federal eRulemaking Portal (http://www.regulations.gov) before 11:59 p.m. Eastern time on the date
specified in DATES. We will not consider hand-delivered comments that
we do not receive by the date specified in DATES, or mailed comments
that are not postmarked by that date.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
[[Page 6112]]
personal identifying information in your comment, 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.
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, Oregon Fish and Wildlife Office (see Document availability
under ADDRESSES, above).
Public Hearing
Section 4(b)(5)(E) of the Act provides for one or more public
hearings on this proposal, if requested. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT within 45 days after the date of this Federal
Register publication (see DATES, above). We will schedule at least one
public hearing on this proposal, if any are requested, and announce the
date, time, and place of the hearing(s), as well as how to obtain
reasonable accommodations, in the Federal Register at least 15 days
before any first hearing.
Peer Review
In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,'' which
was published on July 1, 1994 (59 FR 34270), we will seek the expert
opinion of at least three appropriate independent specialists regarding
scientific data and interpretations contained in this proposed rule. We
will send copies of this proposed rule to the peer reviewers
immediately following publication in the Federal Register. This
assessment will be completed during the public comment period. The
purpose of such review is to ensure that our decisions are based on
scientifically sound data, assumptions, and analysis. Accordingly, the
final decision may differ from this proposal.
Background
Previous Federal Actions
On May 28, 1980, we published a rule in the Federal Register to
emergency-list the Borax Lake chub (as Gila sp.) as endangered and to
designate critical habitat for the species (45 FR 35821). The emergency
rule provided protection to this species for 240 days, until January
23, 1981.
On October 16, 1980, we proposed to list the Borax Lake chub (as
Gila boraxobius) as an endangered species and to designate critical
habitat (45 FR 68886). The distribution of the Borax Lake chub is
limited to Borax Lake, its outflow, and Lower Borax Lake in Harney
County, Oregon. The proposed listing action was taken because proposed
geothermal development in and around Borax Lake, and human modification
of the lake, threatened the integrity of the species' habitat and,
hence, its survival.
On October 5, 1982, we published a final rule in the Federal
Register (47 FR 43957) listing the Borax Lake chub (as Gila boraxobius)
as endangered and designating areas totaling 640 acres (ac) (259
hectares (ha)) in and around Borax Lake as critical habitat for the
Borax Lake chub. A recovery plan for the species was completed on
February 4, 1987 (USFWS 1987).
A 5-year review of the Borax Lake chub's status was completed on
August 23, 2012 (USFWS 2012); this review concluded that the Borax Lake
chub's status had substantially improved since listing, and that the
Borax Lake chub no longer met the definition of an endangered species,
but may meet the definition of a threatened species throughout all of
its range, under the Act. Therefore, the review recommended the Borax
Lake chub be reclassified from endangered to threatened (i.e.,
``downlisted''). However, this proposed rule, which is based on
information contained in the 5-year review as well as additional
information that has become available since completion of the 5-year
review, proposes to remove the Borax Lake chub from the List (i.e., to
``delist'' the species).
Although we acknowledged in the 5-year review that recovery
criteria had largely been met, we recommended downlisting instead of
delisting due to the potential threat of geothermal development that,
at the time, was represented by a 2012 proposed geothermal development
on private lands within 1 to 3 miles (mi) (1.6 to 4.8 kilometers (km))
of Borax Lake. In addition to the recommendation to reclassify, the 5-
year review further recommended three remaining actions: (1) Completion
of the Borax Lake Chub Cooperative Management Plan (CMP); (2)
acquisition of groundwater and surface rights to geothermal development
on private lands to complement the Federal land mineral withdrawal
within the Alvord Known Geothermal Resource Area; and (3) monitoring of
the Borax Lake chub and the Borax Lake ecosystem.
Since completion of the 2012 5-year review, the Service, Bureau of
Land Management (BLM), Oregon Department of Fish and Wildlife (ODFW),
and The Nature Conservancy (TNC) have continued to implement recovery
actions; the CMP has been finalized; a fence to eliminate vehicle
access to critical habitat has been completed around Borax Lake; and
monitoring of Borax Lake chub and the Borax Lake ecosystem has been
conducted. Although the recovery plan did not call for acquisition of
groundwater and surface rights to geothermal development on private
lands outside the two 160-ac (65-ha) parcels eventually acquired by TNC
and designated critical habitat, the Service's 2012 5-year review and
CMP make that conservation recommendation. Although we will continue to
work with our partners to seek opportunities to reduce potential risk
from geothermal development on private lands in proximity to Borax
Lake, we no longer view geothermal development as an operative threat
such that the Borax Lake chub meets the definition of an endangered or
a threatened species under the Act. The Pueblo Valley Geothermal LLC
(Limited Liability Company), the last entity showing interest in
geothermal development in the Alvord Basin, did not file a formal
permit application with the BLM or the State of Oregon's Department of
Geology and Mineral Industries (DOGAMI), and the LLC was dissolved in
2013. We are unaware of any current proposals to develop geothermal
energy production in the Alvord Basin.
Species Information
At the time of listing, the genus Gila was considered to include
three subgenera: Gila, Siphateles (including the Borax Lake chub), and
Snyderichthys (Uyeno 1961, pp. 84-85; Bailey and Uyeno 1964, pp. 238-
239). Since our final listing determination (47 FR 43957; October 5,
1982), analysis of lepidological (scale morphology and arrangement) and
osteological (structure and function of bones) characters (Coburn and
Cavender 1992, pp. 344-347) and mitochondrial ribosomal RNA sequences
(Simons and Mayden 1997, p. 194; 1998, p. 315; Simons et al. 2003, pp.
71-76) have indicated that the genus Gila in the broad sense was not
descended from a common ancestor not shared with other groups.
Therefore, the three subgenera were elevated to genera. The American
Fisheries Society (Page et al. 2013, p. 78) has also followed this
approach and classified the Borax Lake chub within the genus
Siphateles. Consequently, the current scientific name of the Borax Lake
chub is Siphateles boraxobius. This taxonomic
[[Page 6113]]
revision changed the name of the listed entity from Gila boraxobius to
Siphateles boraxobius, but did not alter the description, distribution,
range, or listing status of the species from what it was at the time of
listing. Based on this revision, we consider Siphateles boraxobius to
be the most appropriate scientific name for this taxon. Because we are
proposing to remove the species from the List, we are not proposing to
amend the species' scientific name on the List, but future documents,
such as the post-delisting monitoring plan for the species, should
reflect this usage.
The Borax Lake chub is a small minnow (Family: Cyprinidae) endemic
to Borax Lake and its outflows. Borax Lake is a 10.2-ac (4.1-ha)
geothermally heated, alkaline spring-fed lake in southeastern Oregon.
The lake is perched 30 feet (ft) (10 meters (m)) above the desert floor
on large sodium-borate deposits (Williams and Bond 1980, p. 297). Water
depth averages approximately 3.3 ft (1.0 m), with a maximum measured
depth of 88.6 ft (27 m) at the thermal vent (Scheerer and Jacobs 2005,
p. 6). The lake bottom includes patches of bedrock and fine gravel,
with a sparse growth of aquatic plants, and is covered with thick,
fluffy silt. Average lake temperatures range from a high of 39.2
degrees Celsius ([deg]C) (102.6 degrees Fahrenheit ([deg]F)) to a low
of 22 [deg]C (71.6 [deg]F) near the shoreline (Scheerer et al. 2013,
pp. 3-6). Borax Lake chub prefer the shallow habitats along the margins
of the lake (Perkins et al. 1996, p. 8).
The Borax Lake chub is an opportunistic omnivore. The diets of
juveniles and adults are very similar and include aquatic and
terrestrial insects, algae, mollusks and mollusk eggs, aquatic worms,
fish scales, spiders, and seeds (Williams and Williams 1980, p. 113).
Males, and some females, reach reproductive maturity within one year.
Spawning occurs primarily in the spring but can occur year-around
(Williams and Bond 1983, pp. 412-413). The reproductive behavior and
length of incubation is unknown.
Population abundance estimates for the Borax Lake chub were
conducted annually from 1986 to 1997, from 2005 to 2012, and from 2015
to 2017. Over this period, the population abundance has shown a high
degree of variability, ranging from a low of 1,242 in 2015, to a record
high of 76,931 in 2017 (Scheerer et al. 2015, p. 3; M. Meeuwig in litt.
2017). A pattern of population reduction followed by a 1- to 5-year
period of rebuilding has been observed multiple times during the period
of record. The mechanisms contributing to variability in abundance are
not entirely clear, but Scheerer et al. (2012, p. 16) surmised that
because Borax Lake chub experience water temperatures that are at or
near their thermal critical maximum (Williams and Bond 1983, p. 412),
survival and recruitment are likely higher during years when water
temperatures are cooler in the lake. Water temperatures in Borax Lake
are influenced both by air temperatures and by the water temperature of
the lake's primary source of inflow, a deep geothermal aquifer.
Recovery
Recovery Planning
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 (i.e., 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. 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
help indicate when we would anticipate that an analysis of the five
threat factors under section 4(a)(1) would result in a determination
that the species is no longer an endangered species or threatened
species (see Summary of Factors Affecting the Species, below).
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 a species or remove it from the List is ultimately based on
an analysis of the best scientific and commercial data 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.
Recovery plans may be revised to address continuing or new threats
to the species as new substantive information becomes available. The
recovery plan identifies site-specific management actions that will
achieve recovery of the species, measurable criteria that set a trigger
for review of the species' status, and methods for monitoring recovery
progress. Recovery plans are intended to establish goals for long-term
conservation of listed species and define criteria that are designed to
indicate when the threats facing a species have been removed or reduced
to such an extent that the species may no longer need the protections
of the Act.
There can be many paths to accomplishing recovery of a species, and
because a status determination must be based on a current analysis of
the five threat factors under section 4(a)(1), it may be possible to
achieve recovery without fully meeting the recovery criteria that were
identified at the time the recovery plan was completed. For example, a
five-factor analysis may determine that current information on threats
and species status indicates the threats have been minimized
sufficiently to delist or downlist while the recovery criteria have
been partially or fully met or exceeded in various combinations. In
other cases, recovery opportunities may be discovered that were not
known when the recovery plan was finalized. These opportunities may be
used instead of methods identified in the recovery plan. Likewise,
information on the species may be learned that was not known at the
time the recovery plan was finalized. The new information may change
the extent that earlier criteria need to be met for recognizing
recovery of the species. Recovery of a species is a dynamic process
requiring adaptive management that may, or may not, fully follow the
guidance provided in a recovery plan.
The Borax Lake Chub Recovery Plan (USFWS 1987, pp. 27-30) described
an ``interim objective'' for potential reclassification to threatened
status, as well as a ``primary objective'' for recovery that could
result in removal of the species from the List (i.e., delisting). It
established the following four conditions as criteria for
reclassification from endangered to threatened status (i.e.,
downlisting):
(1) The presence of a naturally reproducing population of the Borax
Lake chub in Borax Lake that is free of exotic species;
(2) Permanent protection of the 160-ac (65-ha) parcel of land
surrounding and including Borax Lake (T37S, R33E,
[[Page 6114]]
sec. 14) by TNC or other appropriate public resource agency;
(3) Removal of threats to subsurface waters from geothermal energy
exploration or development; and
(4) Reestablishment of ponds and natural marshes adjacent to Borax
Lake in order to create more chub habitat, and reestablishment of Lower
Borax Lake by waters from Borax Lake in order to create more habitat.
The recovery plan stated that conditions to meet the primary
objective of recovery (i.e., delisting) include the above four
downlisting conditions as well as the following six additional
conditions:
(1) A viable, self-sustaining population of Borax Lake chub, which
is defined as a naturally sustaining population that is free of exotic
species and fluctuates in size within the seasonal ranges observed in
1986-1987;
(2) Permanent protection of the 160-ac (65-ha) parcel of land to
the north of Borax Lake (T37S, R33E, sec. 11) by TNC or another
appropriate public resource agency;
(3) Withdrawal of Borax Lake waters from appropriations (i.e.,
diversion and use under water right);
(4) Establishment of a fence around the 640-ac (259-ha) critical
habitat area to prevent vehicle entry;
(5) Establishment of monitoring programs to survey habitat and fish
population status; and
(6) Lack of any new threats to the species or ecosystem for 5
consecutive years.
Recovery Plan Implementation
Significant conservation objectives that address the primary
threats to the Borax Lake chub have been accomplished through
implementing the 1987 recovery plan, including protection of the Borax
Lake ecosystem from disturbances through acquisition of key private
lands, protection of subsurface and surface waters, closure of fragile
lands to vehicle access, removal of livestock grazing, monitoring, and
other recovery actions. The following discussion summarizes information
on recovery actions that have been implemented under each downlisting
and delisting criterion.
Downlisting Criteria
Downlisting Criterion 1: The presence of a naturally reproducing
population of Borax Lake chub in Borax Lake that is free of exotic
species. This criterion has been met. To be considered naturally
reproducing, Borax Lake chub need to reproduce in their natural habitat
in Borax Lake with no human intervention, such as supplementation with
hatchery- or aquarium-raised fish. The Borax Lake chub population has
never been supplemented with hatchery- or aquarium-raised fish and
continues to reproduce naturally on an annual basis. In the 3 decades
Borax Lake chub have been monitored, there has been only one documented
occurrence of an exotic fish species. In 2013, an ODFW biologist
observed a nonnative fish that was believed to be a bass given observed
morphology (Scheerer et al. 2013, pp. 2-3, 9-10). Subsequent efforts to
capture or observe this fish or other nonnative fishes were
unsuccessful, and none has been seen in subsequent monitoring. The
survival in Borax Lake of this nonnative fish, or of any other commonly
introduced nonnative fishes, is unlikely given the geothermally heated
high water temperatures.
We consider this criterion met based on the lack of need for
conservation actions supporting the species' reproductive success and
the fact that only a single occurrence of a nonnative species has been
documented. As noted above, we determined the likelihood of survival of
this nonnative fish was low, and no observations or detections of this
or other nonnative fishes have been made during subsequent surveys. See
Delisting Criterion 1 and C. Disease or Predation for additional
discussion regarding the potential for exotic species introduction into
Borax Lake.
Downlisting Criterion 2: Permanent protection for the 160-acre
parcel of land surrounding and including Borax Lake (T37S, R33E, sec.
14) by TNC or other appropriate public resource agency. This criterion
has been met. In 1983, TNC leased two 160-ac (65-ha) private land
parcels, one surrounding Borax Lake and the other immediately to the
north. In 1993, TNC acquired both parcels. TNC also acquired subsurface
mineral rights to the land surrounding Borax Lake. TNC designated the
land surrounding Borax Lake, and the 160-ac (65-ha) parcel to the
north, as a preserve for the purpose of conserving the Borax Lake
ecosystem. With the purchase of the two parcels by TNC, all lands
designated as critical habitat are in public or conservation ownership.
The diversion of water for irrigation and livestock grazing within
designated critical habitat ceased. TNC no longer permits vehicular
access to the preserve except for access for people with disabilities
or for scientific research.
In addition to the above, in 1983, the BLM designated 520 ac (210
ha) of public land surrounding Borax Lake as an ``area of critical
environmental concern'' (ACEC) to protect Borax Lake chub and its
habitat. In 2005, the record of decision for the resource management
plan for the Andrews Resource Area added 80 ac (32 ha), for a total
600-ac (243-ha) Borax Lake ACEC (BLM 2005a, p. 70). Following this
designation, the area was fenced to exclude livestock grazing. The lake
is now completely enclosed by fencing, including most of the 640 ac
(259 ha) of designated critical habitat, except for a small portion
that serves as a parking area for pedestrian access to the lake.
Downlisting Criterion 3: Removal of threats to subsurface waters
from geothermal energy exploration or development. This criterion has
been met. While this criterion does not identify a geographic area for
which threats of geothermal energy exploration or development should be
removed, the recovery plan's step-down outline and narrative describing
recovery actions clearly identify this criterion as pertaining to Borax
Lake and two 160-ac (65-ha) parcels of private land surrounding Borax
Lake (USFWS 1987, pp. 30-45). These lands were eventually purchased by
TNC and designated critical habitat for Borax Lake chub, thereby
removing the threat of geothermal development within close proximity to
Borax Lake. Although the recovery plan did not explicitly call for
removal of potential geothermal development threats outside of
designated critical habitat, the Service has acknowledged that
geothermal development outside critical habitat, but in proximity to
Borax Lake, may constitute a potential threat (USFWS 2012, p. 24).
Numerous geologic studies have been conducted in the vicinity of
Borax Lake, yet there is limited detailed information regarding the
extent of the geothermal aquifer and the configuration of geothermal
fluid flow pathways surrounding Borax Lake (Schneider and McFarland
1995, entire; Fairley et al. 2003, entire; Fairley and Hinds 2004, pp.
827-828; Cummings 1995, pp. 12-19). As such, the best available
scientific information does not allow us to determine the precise
geographic distance over which geothermal development may represent a
threat to the Borax Lake chub and the Borax Lake ecosystem. Given the
lack of scientific information (i.e., depth, extent, source of water,
etc.) on the Borax Lake aquifer, a reasonable position is that
geothermal development outside of critical habitat may represent a
potential threat to Borax Lake chub and that the closer the development
is to critical habitat, the greater the likelihood that development
could affect the Borax Lake chub and the Borax Lake ecosystem.
With the passage of the Steens Mountain Cooperative Management and
[[Page 6115]]
Protection Act of 2000 (Steens Act; 16 U.S.C. 460nnn et seq.) and the
completion of the Steens Andrews Resource Management Plan, the BLM has
withdrawn the Alvord Known Geothermal Resource Area from mineral and
geothermal exploration and development (BLM 2005a, p. 49). The Steens
Act congressionally designated a ``mineral withdrawal area''
encompassing approximately 900,000 ac (364,217 ha) on BLM-administered
lands. The mineral withdrawal area contains the majority of the Alvord
Known Geothermal Resource Area (Alvord KGRA), including Borax Lake and
surrounding public lands, with the exception of 332 ac (134 ha) of BLM-
administered land located approximately 4.5 mi (7.2 km) from Borax Lake
(BLM 2005a, p. I-2; BLM 2005b, p. 4).
Private lands within the vicinity of Borax Lake are not affected by
the mineral withdrawal. Approximately 2,000 ac (809 ha) of privately
owned lands occur within a radius of approximately 1 to 3 mi (1.6 to
4.8 km) from Borax Lake. Based on geothermal development investigated
by various entities over the last 3 decades, it is reasonable to assume
that future geothermal development may be explored on private land in
the vicinity of Borax Lake. However, as of 2018 there are no active
proposals in place for such development (A. Mauer, in litt. 2018).
The most recent exploration for geothermal resource development
occurred in 2008, when the BLM received an inquiry from Pueblo Valley
Geothermal LLC regarding permitting processes for geothermal
exploratory drilling and the potential for developing a geothermal
electrical generation plant in the Alvord Lake basin potentially within
3 to 5 mi (4.8 to 8.0 km) of Borax Lake. Pueblo Valley Geothermal LLC
submitted a proposal to the BLM on January 31, 2012, for a binary
geothermal plant that would produce 20 to 25 megawatts. Pueblo Valley
Geothermal LLC also sought to acquire approximately 3,360 ac (1,360 ha)
of BLM land via land exchange in order to develop their project. The
BLM responded with a letter (Karges in litt. 2012) explaining that the
BLM-managed lands surrounding the private lands under lease are part of
the Leasable and Saleable mineral withdrawal enacted by the Steens Act
and implemented under the Steens Mountain Cooperative Management and
Protection Area Resource Management Plan. The BLM informed Pueblo
Valley Geothermal LLC that they would not be able to complete an
exchange for various reasons, including: (1) Difficulties in proposing
and mitigating a project that would alter land designated as Visual
Resource Management Class 2 (the visual resource management objective
for class 2 is to retain the existing character of the landscape, and
the level of change to the characteristic landscape should be low); (2)
the lack of time and staffing to complete a feasibility analysis; and
(3) the BLM's requirement that the exchange demonstrate a clear public
benefit. The BLM suggested the best route would be to find a geothermal
resource outside of the mineral withdrawal area and pursue exploration
and development there. Pueblo Valley Geothermal LLC subsequently has
become inactive and filed to dissolve their LLC status in the State of
Oregon on December 26, 2013.
As stated previously, although the passage of the Steens Act
designated a mineral withdrawal area on public lands surrounding Borax
Lake, it does not include 322 ac (134 ha) of BLM-administered lands and
2,000 ac (809 ha) of private land located within a radius of
approximately 1 to 4.5 mi (1.6 to 7.24 km) from Borax Lake. Therefore,
while we view this downlisting criterion as having been met, we
acknowledge there remains a potential for geothermal development on
lands not formally withdrawn from geothermal or mineral development in
the Alvord Basin and that future development of these resources
constitutes a potential threat to Borax Lake chub. That said, we have
determined the likelihood of this threat becoming operative in the
foreseeable future is low.
See Delisting Criterion 3 and D. The Inadequacy of Existing
Regulatory Mechanisms for additional discussion regarding the threat of
geothermal resource development.
Downlisting Criterion 4: Reestablishment of ponds and natural
marshes adjacent to Borax Lake in order to create more chub habitat,
and reestablishment of Lower Borax Lake by waters from Borax Lake in
order to create more habitat. This criterion has been met with the
exception of the reestablishment of Lower Borax Lake. However, the 5-
year review (USFWS 2012, pp. 7, 26) concluded that Lower Borax Lake
does not provide suitable habitat for Borax Lake chub due to
desiccation during summers with low precipitation and to unsuitable
habitat in the winter due to freezing. As a result, we no longer
consider reestablishment of Lower Borax Lake to be a necessary action
for Borax Lake chub recovery.
Numerous actions to maintain lake levels and restore natural
outflows have occurred at Borax Lake since the Borax Lake chub was
listed. Begun in 1983, TNC, with assistance from the BLM and the ODFW,
repaired holes in the northern and eastern shorelines of the lake, and
deepened the outflow channel on the southwestern shoreline to promote
flow to Lower Borax Lake (USFWS 1987, p. 23). In 1984, the Service and
TNC manually constructed several channels diverting water from the
southwestern outflow channel into the adjacent marsh (USFWS 1987, p.
25). By 2003, there was no open-water connection between Borax Lake and
Lower Borax Lake, but Lower Borax Lake did contain water at that time
(Williams and Macdonald 2003, p. 7).
The only habitat outside of Borax Lake that provides habitat for
Borax Lake chub is the wetland (referred to as ``the marsh'' in the
1982 listing rule (47 FR 43957; October 5, 1982)) to the south of Borax
Lake, the overflow channel that connects the wetland to Borax Lake, and
a second overflow channel on the northern end of the lake. Although the
wetland at times maintains water year-round, water levels are variable
and are influenced by a groundwater vent in the wetland and overflow
from Borax Lake. The seasonal pattern and overall contribution of
groundwater inputs to the wetland are not understood. In September
2015, the wetland was dry, due in part from reduced flow from Borax
Lake caused by a vegetation plug in the overflow channel and presumably
no or reduced contribution from groundwater. Later that fall, the
wetland was observed to be full, presumably due to increased
groundwater inputs. In response to the reduced flow in the overflow
channel, the ODFW manually removed vegetation in spring 2016, to
provide a more consistent flow through the overflow channel (P.
Scheerer 2016, pers. comm.). Therefore, while groundwater inputs to the
wetland are unpredictable, the increased flow through the overflow
channel due to manual vegetation removal by the ODFW is anticipated to
increase the likelihood of maintaining habitat in the wetland for the
Borax Lake chub. While the wetland and several overflow channels do not
represent a large amount of habitat for the Borax Lake chub, they are
potentially important cool-water refuge habitats during periods of
above-average air temperatures when suitable cool-water habitat in
Borax Lake may be reduced. An associated discussion can be found under
Delisting Criterion 1 and A. The Present or Threatened Destruction,
[[Page 6116]]
Modification, or Curtailment of Its Habitat or Range in this proposed
rule.
Delisting Criteria
In addition to the four downlisting criteria, the recovery plan
also identified six additional criteria for delisting.
Delisting Criterion 1: A viable, self-sustaining population of
Borax Lake chub, which is defined as a naturally sustaining population
that is free of exotic species and fluctuates in size within the
seasonal ranges observed in 1986 to 1987. This criterion has been met.
Data collected from 1986 through 2017 show a self-sustaining population
persists at Borax Lake. (In 2013 and 2014, surveys were not conducted
based on an assessment of the need for annual population data in
relation to potential take associated with monitoring.) The population
is naturally sustaining without the need for supplementation, such as
propagation in a hatchery or in aquaria.
The Borax Lake chub is a species that demonstrates high annual
variability in population abundance, ranging from a low of 1,242
estimated fish in 2015, to a high of 76,931 in 2017 (see table, below).
As recently as 2010 and 2011, the population estimates were 25,489 and
26,571, respectively. Prior to 2015, the lowest population estimate was
4,132 in 1988. Such population variability, with opportunistic
demographic resilience, is relatively common for small desert fishes
(Winemiller 2005, pp. 878-879). In the case of the Borax Lake chub,
population variation likely results from a combination of short life
span and occurrence in water temperatures at the edge of the species'
thermal tolerance. Given our improved knowledge of natural variability
as described above, we have concluded that the portion of this
delisting criterion that called for population levels to fluctuate
within the narrow range of population estimates conducted in 1986 and
1987 is unrealistic, and is no longer reasonable to maintain as a
recovery goal for this species.
Table of Population Mark--Recapture Estimates for Borax Lake Chub From 1986 to 2017, Including Adjusted Lincoln-
Peterson and Huggins Closed Capture Models (1)
----------------------------------------------------------------------------------------------------------------
Lower 95% Upper 95%
Year (2) Estimate confidence confidence
limit limit
----------------------------------------------------------------------------------------------------------------
1986............................................................ 15,276 13,672 17,068
1987............................................................ 8,578 7,994 9,204
1988............................................................ 4,132 3,720 4,589
1989............................................................ 14,052 13,016 15,172
1990............................................................ 19,165 18,117 20,273
1991............................................................ 33,000 31,795 34,251
1992............................................................ 25,255 24,170 26,388
1993............................................................ 35,650 34,154 37,212
1994............................................................ 13,421 12,537 14,368
1995............................................................ 35,465 33,533 37,510
1996............................................................ 8,259 7,451 9,153
1997............................................................ 10,905 10,377 11,459
2005............................................................ 14,680 12,585 17,120
2006............................................................ 8,246 6,715 10,121
2007............................................................ 9,384 7,461 11,793
2008............................................................ 12,401 10,681 14,398
2009............................................................ 14,115 12,793 15,573
2010............................................................ 25,489 23,999 27,071
2011............................................................ 26,571 24,949 28,301
2012............................................................ 9,702 9,042 10,452
2015............................................................ 1,242 1,077 1,456
2016............................................................ 9,003 8,045 10,560
2017............................................................ 76,931 68,444 86,952
----------------------------------------------------------------------------------------------------------------
(1) Adjusted Lincoln-Peterson and Huggins closed capture models are referenced in Scheerer et al. 2012, p. 7.
See Salzer 1992, p. 17; Salzer 1997, no pagination; Scheerer and Bangs 2011, p. 4; Scheerer et al. 2012, pp. 6-
7; Scheerer et al 2015, p. 3; Scheerer et al. 2016, p. 5; and M. Meeuwig in litt. 2017.
(2) Surveys were not conducted from 1998 to 2004, and from 2013 to 2014.
In the summer of 2015, above-average air temperatures may have
influenced water temperatures in Borax Lake, causing a population
decline. In 2016, however, perhaps supported by cooler air and water
temperatures, the population estimate rebounded to over 9,000
individuals (Scheerer et al. 2016, p. 3). These observations indicate
that temperature may annually affect Borax Lake chub survival and
abundance in Borax Lake. Borax Lake chub frequently experience water
temperatures that are at or near their thermal critical maximum of 34.5
[deg]C (94.1 [deg]F) (Williams and Bond 1983, p. 412). Therefore, Borax
Lake chub survival and recruitment appear to be higher during years
when lake temperatures are cooler. In prior years, when Borax Lake's
daily maximum water temperatures were substantially cooler than the 12-
year average (for example, in 2010 and 2011, there were fewer days
above the 12-year mean), Borax Lake chub abundance estimates exceeded
25,000 fish and were some of the highest abundance estimates recorded
(Scheerer et al. 2016, p. 8). Borax Lake water temperatures were
substantially higher than the 12-year average in June and July of 2015.
The elevated temperatures may have contributed to the substantial
decline in Borax Lake chub abundance observed between 2012 and 2015
(Scheerer et al. 2016, p. 9). In late July through the rest of the
summer 2015, and in the mid to late summer of 2016, water temperatures
in the lake were typically at or below the 12-year average, which may
have contributed to improved Borax Lake chub survival and the
significant increase in abundance (625 percent) observed in 2016
(Scheerer et al. 2016, p. 8). The population estimate in 2017 was
76,931, the largest count on record (M. Meeuwig in litt. 2017). While
air and water
[[Page 6117]]
temperature information for 2017 has not been analyzed, given the
recent trend of increasing abundance and prior observations, we
speculate lake temperatures were likely cooler than the 12-year average
during 2017. Thus, while the 2015 estimate of 1,242 fish represents the
lowest estimate on record, the pattern of variability observed over 3
decades of monitoring population abundance underscores the resiliency
of this species and its ability to rebound quickly (see table, above).
With one exception, periodic surveys since 2005 have not identified
any exotic species within Borax Lake (Scheerer and Jacobs 2005, 2006,
2007, 2008, 2009, and 2010; Scheerer and Bangs 2011; Scheerer et al.
2012, 2015, and 2016). However, in 2013, during shoreline surveys
conducted by the ODFW, biologists noted a large fish with paired dorsal
fins (presumably a bass) (Scheerer et al. 2013, p. 10). No additional
sightings of the bass occurred during the ODFW surveys (S. Hurn in
litt. 2014, unpaginated) or during subsequent efforts to capture the
bass (see C. Disease or Predation, below). Survival of the bass is
believed to be unlikely given the high water temperatures in Borax
Lake. No known occurrence of disease or predation affecting the
population of Borax Lake chub has occurred since the time of listing
(47 FR 43957; October 5, 1982). The best available scientific data
indicate Borax Lake chub are a viable, self-sustaining population in
habitat currently free from exotic species.
Delisting Criterion 2: Permanent protection for the 160-acre parcel
of land to the north of Borax Lake (T37S, R33E, sec. 11) by TNC or
other appropriate public resource agency. This criterion has been met.
In 1983, TNC leased two 160-ac (65-ha) private land parcels, one
surrounding Borax Lake and the other immediately to the north of the
lake. TNC purchased these two parcels in 1993, placing both parcels in
public or conservation ownership and protection.
Delisting Criterion 3: Withdrawal of Borax Lake waters from
appropriations. This criterion has been met. With the acquisition of
Borax Lake by TNC, surface waters on their land cannot be appropriated
by others. Additionally, in 1991, the ODFW filed an application for the
water rights to Borax Lake for conservation purposes. The water right
was certified and issued to the Oregon Water Resources Department on
December 16, 1998, for the purpose of providing habitat for the Borax
Lake chub (Oregon Water Resources Department in litt. 2018).
Delisting Criterion 4: Establishment of a fence around the 640-acre
critical habitat area to prevent vehicle entry. This criterion has been
mostly met. The Andrews/Steens Resource Area, Burns District BLM, has
constructed facilities to modify public access and enhance public
understanding of the Borax Lake area. The Burns District BLM closed
access roads in the vicinity of Borax Lake, realigned the fence
surrounding Borax Lake to limit vehicle access, and designated visitor
parking. Partial funding for the fencing project came from the BLM's
Threatened and Endangered Species Recovery Fund, an initiative started
in 2010 that supports projects targeting key recovery actions for
federally listed and candidate species occurring on BLM lands. The BLM
plans to install interpretive signs at the designated parking area
(USFWS et al. 2018, p. 7). The lake is now completely enclosed by
fencing, although approximately 30 ac (12 ha) of critical habitat
remains outside the fenced portion of the critical habitat, leaving
approximately 0.6 mi (1 km) of road accessible to vehicles within
designated critical habitat. The remaining area of the critical habitat
will remain unfenced to provide for vehicle access, parking, and
interpretative signs, while still protecting the Borax Lake
environment. The BLM and ODFW will continue to assess the effectiveness
of the vehicle closure for protection of the Borax Lake area. Barring
any new information indicating that the existing fencing is
insufficient to protect the Borax Lake chub, fencing of the remaining
critical habitat appears to be unnecessary.
Delisting Criterion 5: Establishment of monitoring programs to
survey habitats and fish population status. This criterion has been
met. Numerous studies of the ecology and habitat of Borax Lake have
been conducted (Salzer 1992; Scoppettone et al. 1995; Furnish et al.
2002; Scheerer and Jacobs 2005, 2006, 2007, 2008, 2009, 2010; Scheerer
and Bangs 2011; Scheerer et al. 2012, 2013). TNC conducted abundance
estimates from 1986 through 1997. The ODFW conducted mark-recapture
population surveys from 2005 through 2012, and again in 2015 and 2016;
developed a survey protocol; and recommended a long-term monitoring
strategy (Scheerer and Jacobs 2005, 2006, 2007, 2008, 2009, 2010;
Scheerer and Bangs 2011; Scheerer et al. 2012, 2013, 2015, 2016). The
ODFW also conducted surveys to monitor the condition of the lake
shoreline, outflows, and adjacent wetlands. Additional physical data,
including hydrologic information, substrate mapping, outflow
monitoring, tracking of water levels, and geological and slope
stability, were gathered in the 1990s (Scoppettone et al. 1995; Wilson
2000).
The Service, ODFW, and BLM collaboratively developed the Borax Lake
Chub CMP to outline individual agency roles and responsibilities, and
commitments into the future, regarding Borax Lake chub, the Borax Lake
ecosystem, and surrounding lands (USFWS et al. 2018). While this
proposed rule does not rely on the CMP, the CMP significantly enhances
progress made towards meeting this delisting criterion and other
delisting criteria, including ongoing conservation actions.
Delisting Criterion 6: Lack of any new threats to the species or
ecosystem for 5 consecutive years. This criterion has been met.
Although this proposed rule identifies climate change as a new
potential stressor in the future, we have determined it is not
operative on the species or its habitat currently, and is not
anticipated to negatively affect the species in the foreseeable future.
While potential increases in ambient air temperatures may cause warming
of Borax Lake water or, more accurately, slow the cooling of the
geothermal waters, we anticipate that thermal refuge associated with
shallow margin habitat and cool and cold water vents in the lake along
with the species' ability to rebound quickly following periods of
higher than normal air and water temperatures, will provide resilience
against any future potential effects of climate change. See our
discussion under A. The Present or Threatened Destruction,
Modification, or Curtailment of Its Habitat or Range, below, for a more
detailed description on potential effects of climate change.
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 vertebrate population segment of fish or
wildlife that 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
[[Page 6118]]
purposes; (C) disease or predation; (D) the inadequacy of existing
regulatory mechanisms; or (E) other natural or human made factors
affecting its continued existence. We must consider these same five
factors in delisting a species. We may delist a species according to 50
CFR 424.11(d) if the best available scientific and commercial data
indicate that the species is neither endangered nor threatened for the
following reasons: (1) The species is extinct; (2) the species has
recovered and is no longer endangered or threatened; and/or (3) the
original scientific data used at the time the species was classified
were in error.
A recovered species is one that no longer meets the Act's
definition of endangered or threatened. Determining whether a species
is recovered requires consideration 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 delisting or downlisting (i.e.,
reclassification from endangered to threatened) and the removal or
reduction of the Act's protections.
A species is ``endangered'' for purposes of the Act if it is in
danger of extinction throughout all or a ``significant portion of its
range'' and is ``threatened'' if it is likely to become endangered
within the foreseeable future throughout all or a ``significant portion
of its range.'' The word ``range'' in the significant portion of its
range phrase refers to the general geographical area in which the
species occurs at the time a status determination is made. For the
purposes of this analysis, we will evaluate whether the currently
listed species, the Borax Lake chub, should be considered endangered or
threatened.
The Act does not define the term ``foreseeable future.'' For the
purpose of this proposed 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 the Borax Lake chub. In considering the foreseeable future as
it relates to the status of the Borax Lake chub, we consider the
factors affecting the Borax Lake chub, historical abundance trends, and
ongoing conservation efforts. Our period of record for monitoring the
Borax Lake chub and its associated habitat extends upwards of 30 years
which, when combined with our knowledge of factors affecting the
species, allows us to reasonably predict future conditions, albeit with
diminishing precision over time. Given the best available scientific
and commercial information, for the purposes of this proposed rule we
consider the foreseeable future for Borax Lake chub to be a range of 20
to 30 years.
We also expect the ODFW, BLM, and TNC to continue to manage Borax
Lake and to conserve Borax Lake chub for the foreseeable future. This
expectation is based on the fact that for over 3 decades, the ODFW,
BLM, and TNC have taken actions benefiting the Borax Lake chub and the
Borax Lake ecosystem.
In considering what factors might constitute threats, we must look
beyond the exposure of the species to a particular factor to evaluate
whether the species may respond to the factor in a way that causes
actual impacts to the species. If there is exposure to a factor and the
species responds negatively, the factor may be a threat, and during the
status review, we attempt to determine how significant a threat it is.
The threat is significant if it drives or contributes 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.
However, the identification of factors that could impact a species
negatively may not be sufficient to compel a finding that the species
warrants listing. The information must include evidence sufficient to
suggest that the potential threat is likely to materialize and that it
has the capacity (i.e., it should be of sufficient magnitude and
extent) to affect the species' status such that it meets the definition
of endangered or threatened under the Act.
In examining threats to narrowly distributed endemic species such
as Borax Lake chub, we must also consider that natural rarity (i.e., a
species that only exists in one or a few locations, thought it may be
abundant there), in and of itself, does not constitute a threat under
the Act. Natural rarity may increase risk or vulnerability if threats
are operative on the species or its habitat now or in the foreseeable
future, but rarity alone, in the absence of an operative threat, does
not warrant protection to a species under the Act.
In the following analysis, we evaluate the status of the Borax Lake
chub through the five-factor analysis of threats currently affecting,
or that are likely to affect, the species within the foreseeable
future.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
At the time of listing in 1982 (47 FR 43957; October 5, 1982), the
primary threats to the Borax Lake chub consisted of potential impacts
from geothermal energy development on BLM and private lands near Borax
Lake, diversion of the lake's outflows by alteration of the shoreline
crust, and potential development of a recreation facility. Since the
time of listing, actions have been taken to reduce or eliminate these
threats, as discussed below. We also include an analysis of the effects
of climate change as a potential threat in the foreseeable future.
Recreation, Water Diversion, and Shoreline Habitat Alteration
The recreation facility discussed in the 1982 listing rule was
never developed, and acquisition of the property by TNC eliminated the
potential for development of a recreation facility at the Borax Lake
site (Williams and Macdonald 2003, p. 12).
The ODFW filed for water rights at Borax Lake in 1991, and that
water right is now certified to the Oregon Water Resources Department,
to prevent further attempts at diverting the water and to ensure
maintenance of the water elevation in Borax Lake (see Delisting
Criterion 3 discussion, above). The purpose of the water right is to
provide the required habitat conditions for Borax Lake chub. The right
is established under Oregon Revised Statute 537.341, with a priority
date of August 21, 1991. The right is limited to the amount of water
necessary to maintain a surface water elevation of 4,081 ft (1,244 m)
above mean sea level. For purposes of water distribution, the instream
right shall not have priority over human or livestock consumption. The
right has been recorded in the State record of Water Right Certificates
as 75919 (Oregon Water Resources Department in litt. 2018).
The 160-ac (65-ha) private land parcel containing Borax Lake was
purchased by TNC in 1993. Subsurface mineral rights are included. Since
TNC acquisition, surface waters on their land, upon which Borax Lake is
located, can no longer be appropriated by others. Additionally, TNC
ended the practice of actively diverting surface water from the eastern
side of the lake to reduce the impact from prior water diversions. The
BLM designated the adjacent 600 ac (243 ha) of public lands as an ACEC
for the conservation of Borax Lake chub, and the area was fenced to
exclude
[[Page 6119]]
livestock grazing (see Downlisting Criterion 2 discussion, above).
Off-road vehicle damage along the lake shoreline has been
documented in the past (Scheerer and Jacobs 2005, p. 6; 2006, p. 7;
2007, p. 6; 2008, p. 6; 2009, p. 8; 2010, p. 4; Scheerer and Bangs
2011, p. 9; Scheerer et al. 2012, p. 13; Scheerer et al. 2013, p. 6).
As a result, in 2011, the BLM and TNC completed a perimeter fence
surrounding the lake and most of the associated critical habitat to
exclude unauthorized vehicles, and in 2013, they installed locks on all
access gates. Due to the completion of the perimeter fence, the threat
to Borax Lake chub and its habitat from shoreline habitat alteration by
vehicles has been addressed.
Geothermal Development
Geothermal exploration and development has been pursued in the
Alvord Known Geothermal Resource Area and specifically in the vicinity
of Borax Lake from the early 1970s (Wassinger and Koza 1980, p. 1) to
2013. The Alvord Known Geothermal Resource Area is a 176,835-ac
(71,563-ha) area within the Alvord Basin (Wassinger and Koza 1980, p.
7). Development of geothermal resources was considered in 1980, and
exploratory wells were drilled in 1982 (47 FR 43957; October 5, 1982).
In 1994, Anadarko proposed additional geothermal exploration and
development, and the BLM prepared a notice of intent to prepare an
environmental impact statement (EIS). After receiving public scoping
comments, Anadarko withdrew its development proposal, and no EIS was
written (T. Geisler 2009, pers. comm.).
The passage of the Steens Act in 2000, and the finalization of the
BLM Resource Management Plan (RMP) (BLM 2005a, p. 71), withdrew mineral
and geothermal resources from development on Federal lands within the
Alvord Known Geothermal Resource Area. The BLM retained 332 ac (134 ha)
of land with high potential for geothermal resources west of Fields and
within 4.5 mi (7.2 km) of Borax Lake open for leasable mineral and
geothermal development (BLM 2005a, p. I-2). Private lands within this
area are not affected by the mineral withdrawal.
In 2008, the BLM and DOGAMI received inquiries on behalf of private
landowners in Alvord Basin regarding the development of geothermal
resources. The BLM was contacted regarding electrical transmission and
right-of-way (ROW) access to cross BLM lands in order to explore and
develop commercial geothermal electrical power (K. Bird 2008, pers.
comm.). The developer, Pueblo Valley Geothermal LLC, met with the BLM
in 2008, to discuss their interest in obtaining an ROW permit to access
private land and construct a power plant. Although the Steens Act and
subsequent RMP withdrew the Alvord Known Geothermal Resource Area from
geothermal development, the RMP could allow a ROW permit because the
area in question is not within the Cooperative Management and
Protection Area boundary. ROWs are a valid use of public lands under
sections 302 and 501 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1701 et seq.), as amended (BLM 2005a, p. 59). The BLM
would be responsible under the National Environmental Policy Act (42
U.S.C. 4321 et seq.) to analyze any proposed ROW project, including the
connected actions, such as exploratory well drilling and power line
construction.
The proposed power plant was anticipated to generate 1 to 10
megawatts. Pueblo Valley Geothermal LLC acquired a 53-year lease on
approximately 2,000 ac (809 ha) from landowners located south of Alvord
Lake, and within 3 mi (4.8 km) and as close as 1 mi (1.6 km) from Borax
Lake (P. Hall 2009, pers. comm.). Pueblo Valley Geothermal LLC also
placed an advertisement in the publication ``Geothermal Energy Weekly''
seeking investors for a 20- to 25-megawatt geothermal facility
(Geothermal Energy Association 2010, no pagination). The developer
indicated in 2011 that they were progressing with resource assessments
regarding the total megawatt and economic potential (P. Hall 2011,
pers. comm.). No formal permit applications were received by the BLM or
DOGAMI in 2011 (R. Houston 2008, pers. comm.; 2010, pers. comm.; R.
Houston in litt. 2011), and as of 2018 we are not aware of such (A.
Mauer, in litt. 2018).
Pueblo Valley Geothermal LLC submitted an informal proposal to the
BLM on January 31, 2012, seeking to acquire 3,360 ac (1,360 ha) of BLM
land in the vicinity of the Borax Lake geothermal aquifer in the
interest of developing an air-cooled binary geothermal plant to produce
20 to 25 megawatts of electricity (T. McLain in litt. 2012). The BLM
responded with a letter on March 14, 2012, explaining that due to
various reasons including resource concerns, funding, and staffing
priorities, such a land exchange was not feasible at that time (Karges
in litt. 2012). Pueblo Valley Geothermal LLC indicated to us that the
proposal to develop geothermal energy on private land in the vicinity
of Borax Lake was not active (P. Hall 2014, pers. comm.). The Oregon
Secretary of State Office maintains an online business registry of
Limited Liability Company (LLC) companies. The list was consulted, and
we found that the company, Pueblo Valley Geothermal LLC, filed an
article of dissolution on December 26, 2013. A review of the Harney
County Assessor's property records show that 320 ac (129 ha) of land
previously leased by Pueblo Valley LLC, which is approximately 1 mi
(1.6 km) west of Borax Lake, is now owned by Oregon Geothermal LLC. We
do not have any new information on permit applications from Oregon
Geothermal LLC or any other new geothermal proposals that may arise in
the foreseeable future.
Potential impacts resulting from geothermal development that were
identified at the time of listing include effects to water elevation in
Borax Lake due to the interconnecting aquifers or springs. Drilling
could disrupt the hot water aquifer that supplies Borax Lake. Potential
impacts from geothermal energy drilling could include changes to the
aquifer pressure or temperature and the potential to lessen or
eliminate inflows to the lake from the geothermal aquifer. Changes to
water flow and water temperature may have an adverse impact on the
Borax Lake chub. Although the species tolerates thermal waters,
excessive warming of the lake's water could cause adverse effects, and,
at extremes, would be lethal to the Borax Lake chub.
In summary, proposals to develop geothermal energy resources in the
Borax Lake vicinity have occurred sporadically in the 1970s, in the
1980s, in 1994, and in 2008 through 2012. However, none of these
proposals has moved forward with permitting and implementation over a
4-decade period, and this history leads us to conclude that the
likelihood of geothermal energy development now and in the foreseeable
future is low. Furthermore, while geothermal development in the
vicinity of Borax Lake has been considered a potential threat to the
Borax Lake chub, the precise effects of possible geothermal development
on the species are uncertain and unpredictable. The potential effects
to the species would depend upon the specifics, such as the scale of
the project and proximity to Borax Lake, of any geothermal energy
development that might proceed to the implementation phase. Depending
on the particular circumstances of any particular project, such
development could potentially have a negative effect on the species, or
it might have no or negligible effects. The effects of any future
geothermal project proposal on
[[Page 6120]]
Borax Lake chub would be assessed based on specific project details and
other data available at the time. If an assessment suggested a future
geothermal project would likely cause significant risk to Borax Lake
and the well-being of Borax Lake chub, and existing regulatory
mechanisms did not deter or result in modifications to the development
to minimize or eliminate likelihood of impacts to the chub, we have the
discretion to use the emergency listing authorities under section
4(b)(7) of the Act, such as we used in the May 28, 1980, emergency
listing of Borax Lake chub (45 FR 35821). The possibility of geothermal
development in the vicinity of Borax Lake will continue to represent a
potential threat to Borax Lake chub and its habitat, but we have
determined the likelihood of this threat becoming operative in the
foreseeable future is low.
Effects of Climate Change
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 analysis, we use
expert judgment to weigh relevant information, including uncertainty,
in our consideration of various aspects of climate change.
As is the case with all stressors we assess, even if we conclude
that a species is currently affected or is likely to be affected in a
negative way by one or more climate-related impacts, it does not
necessarily follow that the species meets the definition of an
``endangered species'' or a ``threatened species'' under the Act. If a
species is listed as endangered or threatened, knowledge regarding the
vulnerability of the species to, and known or anticipated impacts from,
climate-associated changes in environmental conditions can be used to
help devise appropriate strategies for its recovery.
Global climate projections are informative and, in some cases, the
only or the best scientific information available for us to use.
However, projected changes in climate and related impacts can vary
substantially across and within different regions of the world (e.g.,
IPCC 2007, pp. 8-12). Therefore, we use ``downscaled'' projections when
they are available and have been developed through appropriate
scientific procedures, because such projections provide higher
resolution information that is more relevant to spatial scales used for
analyses of a given species (see Glick et al. 2011, pp. 58-61, for a
discussion of downscaling).
With regard to our analysis for the Borax Lake chub, we evaluated
downscaled projections from the National Climate Change Viewer (Alder
and Hostetler 2014, 2017). These projections are based on the mean of
30 models that can be used to predict changes in air temperature for
the Alvord Lake basin in Harney County, Oregon. The models predict that
during the period from 2025 to 2049, the July mean maximum air
temperature will increase by 2.4 [deg]C (4.3 [deg]F) from the
historical mean, and the January mean minimum air temperature will
increase by 2.3 [deg]C (4.1 [deg]F). The model predicts very little
change in the mean annual precipitation and runoff for the Alvord Lake
basin (Alder and Hostetler 2014, pp. 3-5; 2017, unpaginated).
Increases in ambient air temperatures may cause warming of Borax
Lake water or, more accurately, slow the cooling of the geothermal
waters. During the warmest times of the year, this may reduce the
amount and suitability of habitat available for Borax Lake chub because
Borax Lake chub use the edges of the lake, areas around cool and cold
water vents within the lake, several overflow channels, and a wetland
where waters are shallower and the temperatures have cooled from the
geothermal source to suitable water temperatures for Borax Lake chub
survival. Scheerer et al. (2015, p. 9) suggested there is likely a
correlation between water temperatures and chub population abundance.
Monitoring of lake temperatures since 2005 indicates that high
population abundance in 2010 and 2011 (greater than 25,000 individuals)
correspond with lake temperatures that were cooler during this period
when compared to temperatures recorded in 2006 to 2009 and 2012 to
2016. Higher water temperatures since 2012 and lower population
abundance during this time provide additional evidence towards this
potential relationship between water temperatures and annual survival
rates (Scheerer et al. 2015, p. 8). The lowest estimated population
abundance on record (1,242) for Borax Lake chub occurred in 2015,
following unseasonably warm air and water temperatures in June and July
of that year in conjunction with reduced access to cool water refugia
through the overflow channel (Scheerer et al. 2016, p. 8). A similar
die-off was suspected to have occurred in July 1987, during a period of
unseasonably warm temperatures when mortalities were documented and
fish were observed congregating in the coolest portions of the lake
(Scheerer et al. 2015, pp. 6-7). In 2016, water temperatures and air
temperatures were cooler than average and the overflow channel had been
cleared; the population of Borax Lake chub then rebounded to an
estimated 9,003 individuals (Scheerer et al. 2016, p. 3), similar to
previous rebounds following population declines.
Although a specific analysis has not been conducted to determine
the amount and suitability of thermal refuge habitat that may be
available under various lake temperature conditions, information
presented in Scheerer and Bangs 2011, pp. 5-8, and Scheerer et al.
2012, pp. 7-11, suggest the availability of shallow margin habitat
around the perimeter of the lake, along with the outflow channel and
wetland, likely provide thermal refuge (i.e., cooler water) habitat for
the species during these events. In addition, monitoring by the ODFW in
2011 and 2012 documented cool and cold water vents within portions of
the lake that likely contribute to moderating lake temperatures and
provide additional areas of thermal refuge (P. Scheerer, pers. comm.
2018). While there is evidence these cool and cold water vents, as well
as warm and hot vents within the lake (in addition to the primary vent)
vary in temperature year to year, the aggregate of these thermal refuge
habitats, along with the species' ability to rebound quickly following
periods of higher than normal air and water temperatures, are
anticipated to provide resilience against potential future effects of
climate change.
Changes to precipitation, drought, aquifer recharge, or vegetative
community around Borax Lake as a result of climate change would not
likely have an impact on the Borax Lake chub. Borax Lake is perched
above the valley floor, there is no inflow of water from above-ground
sources, and the
[[Page 6121]]
vegetative community is not likely to change due to the temperature
increases predicted.
Summary of Factor A
Since the time of listing in 1982 (47 FR 43957; October 5, 1982),
actions have been taken to reduce or eliminate the destruction and
modification of Borax Lake chub habitat. This includes the acquisition
of Borax Lake and surrounding lands by TNC, the BLM's designation of
adjacent lands as an ACEC, protection of subsurface and surface waters,
protection from mineral withdrawal, and closure of fragile lands to
livestock grazing and unauthorized vehicle access. Although these
measures have removed and minimized various threats to Borax Lake and
surrounding lands, the potential for geothermal development, and
consequent possible impacts to Borax Lake chub and its habitat,
remains. The possibility of geothermal development in the vicinity of
Borax Lake will continue to represent a potential threat to Borax Lake
chub and its habitat, but we have determined the likelihood of this
threat becoming operative in the foreseeable future is low.
Increase in the ambient air temperature from climate change could
slow the cooling of the geothermal waters that create Borax Lake.
Cooling of the waters of Borax Lake, especially the shallow margin
areas including several overflow channels and the wetland, is important
to the Borax Lake chub during warm times of the year given that
temperatures in some areas of the lake often exceed the thermal maximum
for this species (Scheerer and Bangs 2011, p. 8) reported as 34.5
degrees Celsius (94 degrees Fahrenheit) (Williams and Bond 1983, p.
412).
Above-average air temperatures in the summer of 2015 correlate with
the above-average water temperatures documented in Borax Lake during
the same time frame and may have contributed to the low population
estimate that fall (Scheerer et al. 2016, p. 9). In the future, changes
in water temperature due to increases in ambient air temperatures
caused by climate change could result in a reduction in the amount of
habitat available at suitable water temperatures, thus reducing the
overall amount of habitat available for the Borax Lake chub during warm
periods of the year. It is reasonable to assume the frequency of these
events due to climate change may increase such that there is a
possibility for consecutive year events of drought and associated
abnormally warm air and water temperatures. We anticipate that thermal
refuge associated with shallow margin habitat and cool and cold water
vents in the lake along with the species' ability to rebound quickly
following periods of higher than normal air and water temperatures,
will provide resilience against potential future effects of climate
change.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization for commercial, recreational, scientific, or
educational purposes was not a factor in listing (47 FR 43957; October
5, 1982) and is currently not known to be a threat to the Borax Lake
chub, nor is it likely to become so in the foreseeable future.
C. Disease or Predation
Disease was not a factor in listing of the Borax Lake chub (47 FR
43957; October 5, 1982) and is currently not known to be a threat to
Borax Lake chub, nor is it likely to become so in the foreseeable
future.
Likewise, predation was not noted as a factor in the listing of
Borax Lake chub (47 FR 43957; October 5, 1982). Although we do not
believe predation is a threat currently or in the foreseeable future, a
single observation of an exotic fish did occur in 2013 (see Delisting
Criterion 1, above, for more discussion). Exotic fish were not observed
in repeated surveys, and no known impacts to Borax Lake chub occurred.
The high water temperatures in Borax Lake, which likely limited the
long-term survival of this exotic fish, also limit the overall
likelihood of establishment of exotic species in Borax Lake. The
establishment of a perimeter fence around Borax Lake by the BLM and TNC
in 2011 further reduced the likelihood of purposeful or accidental
introductions of exotic species to the extent that we conclude that the
threat of predation has been addressed.
As noted previously in this proposed rule, the BLM, ODFW, and the
Service developed a CMP that will guide future monitoring for nonnative
species, monitoring of Borax Lake chub, vehicle access restrictions,
and public outreach and education (USFWS et al. 2018). While the CMP
provides agency commitments for long-term stewardship of Borax Lake and
Borax Lake chub, this proposed rule does not rely on the actions
described in the CMP.
D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine the stressors identified within the
other factors as ameliorated or exacerbated by any existing regulatory
mechanisms or conservation efforts. Section 4(b)(1)(A) of the Act
requires that the Service take into account ``those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species . . .'' In
relation to Factor D under the Act, we interpret this language to
require the Service to consider relevant Federal, State, and Tribal
laws, regulations, and other such binding legal mechanisms that may
ameliorate or exacerbate any of the threats we describe in threat
analyses under the other four factors or otherwise enhance the species'
conservation. Our consideration of these mechanisms is described in
detail within each of the threats or stressors to the species (see full
discussion under this section, Summary of Factors Affecting the
Species).
The following provides an overview of the existing regulatory
protections that protect the Borax Lake ecosystem and Borax Lake chub.
The Nature Conservancy
The 160-ac (65-ha) private land parcel containing Borax Lake and
the 160-ac parcel to the north were purchased by TNC in 1993.
Subsurface mineral rights are included. Since TNC acquisition, surface
waters on their land, upon which Borax Lake is located, can no longer
be appropriated by others. Additionally, TNC ended the practice of
actively diverting surface water from the eastern side of the lake to
reduce the impact from prior water diversions.
BLM--Federal Land and Rights-of-Way
The passage of the Steens Act of 2000 and the completion of the
Steens Andrews Resource Management Plan (RMP) withdrew the Alvord KGRA
from mineral and geothermal exploration and development (BLM 2005). The
Steens Act congressionally designated a mineral withdrawal area
encompassing 900,000 ac (364,217.1 ha) of the planning area on BLM-
administered lands. The mineral withdrawal area contains the majority
of the Alvord KGRA, including Borax Lake and surrounding public lands,
with the exception of 332 ac (134.4 ha) located approximately 4.5 mi
(7.242 km) from Borax Lake (BLM 2005). Private lands within this area
are not affected by the mineral withdrawal. Approximately 2,000 ac
(809.4 ha) of privately owned land occur within a 3-mi (4.83-km) radius
of Borax Lake and are not subject to BLM's withdrawal. The BLM has
responsibility to review all applications for geothermal development
within the Alvord KGRA that occur on BLM lands and some applications
for development on private lands if the development
[[Page 6122]]
requires ROW for access or transmission lines across BLM-managed lands.
ROWs are a valid use of public lands under sections 302 and 501 of the
Federal Land Policy and Management Act of 1976 (BLM 2005). The BLM
would be responsible under the National Environmental Policy Act to
analyze any proposed ROW project including the connected action (i.e.,
energy development on private lands).
In 1983, the BLM designated 520 ac (210 ha) of public land
surrounding Borax Lake as an ACEC to protect Borax Lake chub and its
habitat. In 2005, the record of decision for the RMP for the Andrews
Resource Area added 80 ac (32 ha), for a total 600-ac (243-ha) Borax
Lake ACEC (BLM 2005a, p. 70).
Off-road vehicle damage along the lake shoreline has been
documented in the past (Scheerer and Jacobs 2005, p. 6; 2006, p. 7;
2007, p. 6; 2008, p. 6; 2009, p. 8; 2010, p. 4; Scheerer and Bangs
2011, p. 9; Scheerer et al. 2012, p. 13; Scheerer et al. 2013, p. 6).
As a result, in 2011, the BLM and TNC completed a perimeter fence
surrounding the lake and most of the associated critical habitat to
exclude unauthorized vehicles, and in 2013, they installed locks on all
access gates. Due to the completion of the perimeter fence, the threat
to the Borax lake chub from shoreline habitat alteration by vehicles
has been addressed.
State of Oregon, Department of Geology and Mineral Industries (DOGAMI)
In Oregon, Oregon Revised Statute (ORS) chapter 522 authorizes
DOGAMI to control drilling, re-drilling, and deepening of wells for the
discovery and production of geothermal resources. Under this authority,
a developer undertaking geothermal exploration on all land (public and
private) must first obtain a permit from DOGAMI (Oregon Administrative
Rule (OAR) 632-020-0028). DOGAMI process requires circulation of any
permit application to other State agencies that manage natural
resources such as the Water Resources Department, ODFW, Department of
Environmental Quality, State Parks and Recreation Department,
Department of Land Conservation and Development, Department of State
Lands, and the governing body of the county and geothermal heating
district in which the well will be located (ORS 522.125(1)). Any of
these agencies can suggest conditions under which a permit should be
granted or denied. DOGAMI is required to take State agency comments
into consideration when deciding to grant a permit (OAR 632-020-0170).
As part of the conditions for geothermal development on private land, a
developer is required by DOGAMI to provide baseline information needed
to show there would be no connection to geothermal or groundwater
continuity in areas of environmental concern (i.e., Borax Lake or the
BLM's designated ACEC near Borax Lake). Therefore, the DOGAMI is
required to accept comment, and consider protective measures. This
additional review through the DOGAMI process may benefit the Borax Lake
chub through the addition of conservation measures necessary to obtain
a permit for geothermal exploration.
State of Oregon, Oregon Department of Energy's Energy Facility Siting
Council (EFSC)
The EFSC has regulatory and siting responsibility for proposed
generating facilities greater than 35 megawatts in Oregon. The OAR-345-
022-0040 prohibits the EFSC from issuing site certificates for energy
development in protected areas such as BLM ACECs and State natural
heritage areas such as TNC's Borax Lake Preserve. For proposed energy
developments in unprotected areas, the EFSC applies Division 22 siting
standards for fish and wildlife habitat (OAR 345-022-0060), threatened
and endangered species (OAR 345-022-0070), and general standards of
review (OAR 345-022-000). Specific to Borax Lake chub, OAR 345-022-0060
requires that a proposed facility comply with the habitat mitigation
goals and standards of the ODFW as defined in OAR 635-415-0025. The
ODFW defines Borax Lake chub habitat as a Habitat Category 1 under the
habitat mitigation standard. The mitigation goal for Habitat Category 1
is no loss of either habitat quantity or quality. The ODFW is required
to protect habitats in Category 1 by recommending or requiring: (1)
Avoidance of impacts through alternatives to the proposed development
action, or (2) no authorization of the proposed development action if
impacts cannot be avoided. To issue a site certificate, the EFSC must
find that the design, construction, and operation of the facility,
taking into account mitigation, are consistent with the fish and
habitat mitigation goals and standards of OAR 635-415-0025 (OAR 345-
022-0060 Fish and Wildlife Habitat).
State of Oregon, Oregon Department of Fish and Wildlife
The Borax Lake chub was listed as endangered in 1987, and then
reclassified to threatened in 2017 under the Oregon Endangered Species
Act (Oregon ESA), which prohibits the ``take'' (killing or obtaining
possession or control) of listed species without an incidental take
permit. The State of Oregon determined that Borax Lake chub fit the
definition of threatened rather than endangered due to substantial
progress in conservation and recovery of the species. The State
criteria for recovery of Borax Lake chub is met due to (1) the
protected ownership by TNC; (2) natural reproductive potential is not
endangered; (3) primary habitat is protected; (4) habitat is protected
from commercial use; (5) public access is restricted to foot traffic;
(6) no harvest is allowed; (7) only infrequent scientific or
educational use occurs; (8) most surrounding land is protected from
geothermal development on Federal lands; and (9) water rights of the
lake were obtained by the ODFW for the purpose of conserving Borax Lake
chub.
The Oregon ESA applies to actions of State agencies on State-owned
or leased land, and does not impose any additional restrictions on the
use of private lands (ORS 496.192). The Oregon ESA is implemented by
the State independently from the Federal Endangered Species Act; thus,
if finalized, this proposed rule would not directly impact the current
State listing of Borax Lake chub. Under the Oregon ESA, State agencies
(other than State land-owning or land-managing agencies) determine the
role they may serve in contributing toward conservation or take
avoidance (OAR 635-100-0150). The Oregon Endangered Species List is a
nonregulatory tool that helps focus wildlife management and research
with the goal of preventing species from declining to the point of
extinction (ORS 496.171, 496.172, 496.176, 496.182, and 496.192).
Per OAR 635-415-0025 (Habitat Mitigation Policy), the ODFW would
provide comments and recommendations on risks to all native fish and
wildlife from a proposed geothermal development project in the Alvord
Basin through all State and county permitting processes. If there was
any indication that a proposed geothermal development project would
have a geothermal or groundwater connection with Borax Lake, the ODFW
would recommend that alternatives be developed or that the action not
be permitted (ODFW 2012, p. 9).
The ODFW filed for water rights at Borax Lake in 1991, and that
right is now certified to the Oregon Water Resources Department, to
prevent further attempts at diverting the water and to ensure
maintenance of the water elevation in Borax Lake (see Delisting
Criterion 3 discussion, above). The
[[Page 6123]]
purpose of the water right is to provide the required habitat
conditions for the Borax Lake chub. The right is established under
Oregon Revised Statute 537.341, with a priority date of August 21,
1991. The right is limited to the amount of water necessary to maintain
a surface water elevation of 4,081 ft (1,244 m) above mean sea level.
For purposes of water distribution, the instream right shall not have
priority over human or livestock consumption. The right has been
recorded in the State record of Water Right Certificates as 75919.
Thus, the protections of the Oregon ESA, ODFW policy on geothermal
development permitting, and the establishment of a dedicated water
right for conservation at Borax Lake provide for significant ongoing
protection and allow for critical review of future development
projects.
Summary of Factor D
Conservation ownership of Borax Lake and surrounding lands by TNC
(320 ac; 129 ha), withdrawal of Borax Lake waters from appropriation,
the mineral withdrawal within the Alvord KGRA under the 2000 Steens
Act, and the mineral withdrawal and management guidelines under the
BLM's ACEC around Borax Lake (600 ac; 243 ha) provide significant
regulatory protections to the Borax Lake ecosystem that would remain
unchanged should this proposal to delist the Borax Lake chub be
finalized. While State and Federal regulatory mechanisms exist that
would protect the Borax Lake ecosystem from potential effects of
development of geothermal resources on 2,000 ac (809 ha) of private
land in proximity to Borax Lake, these regulatory mechanisms do not
guarantee a development proposal would not legally proceed to
implementation. However, these regulatory mechanisms ensure State and
Federal natural resource agencies will be made aware of any proposals
moving forward for permitting (e.g., DOGAMI) and that comments by
applicable State and Federal resource agencies will be considered. As
noted previously, DOGAMI requires geothermal developers to provide
baseline information to show there would be no connection to geothermal
or groundwater in areas of environmental concern (e.g., Borax Lake or
the BLM's designated ACEC near Borax Lake). Similarly, the EFSC
requires that a proposed facility comply with the habitat mitigation
goals and standards of the ODFW as defined in OAR 635-415-0025. These
regulatory mechanisms do not completely remove potential risk to the
Borax Lake chub from geothermal development, but they do reduce the
likelihood of impact from development on private lands in the vicinity
of Borax Lake.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
The 1982 listing rule (47 FR 43957; October 5, 1982) did not
identify any other natural or human-made factors affecting Borax Lake
chub or its habitat. No threats have arisen under this threat factor
since that time, and none is anticipated in the foreseeable future.
Potential impacts of climate change are addressed in this proposed rule
under A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range, above.
Overall Summary of Factors Affecting the Borax Lake Chub
The primary factors that threatened the Borax Lake chub at the time
of listing (47 FR 43957; October 5, 1982) were potential impacts from
geothermal energy development, diversion of the lake's outflows by
alteration of the shoreline crust, and potential development of a
recreation facility. Most of these threats or potential threats have
been removed or ameliorated by implementing actions identified in the
Borax Lake Chub Recovery Plan (see the discussion of downlisting
criteria under Recovery, above). Actions that have been taken to reduce
or eliminate the destruction and modification of Borax Lake chub
habitat (Factor A) include acquisition of Borax Lake by TNC, the BLM's
designation of adjacent lands as an ACEC, protection of subsurface and
surface waters, protection from mineral withdrawal, and closure of
fragile lands to livestock grazing and unauthorized vehicle access.
Proposals to develop geothermal energy resources in the Borax Lake
vicinity have occurred sporadically over the last 4 decades, and for
that reason, it is reasonable to expect additional proposals to develop
geothermal energy are likely in the foreseeable future. However, none
of these proposals has moved forward with implementation over a 4-
decade period, and this history leads us to conclude that the
likelihood of geothermal energy development in the vicinity of Borax
Lake in the foreseeable future is low. Furthermore, while geothermal
development in the vicinity of Borax Lake is considered a potential
threat to Borax Lake chub, the precise effects of possible geothermal
development on the species are uncertain and unpredictable given the
unknown nature of geothermal fluids and their behavior deep
underground. The response of the species would depend upon the
specifics of any geothermal energy development that might proceed to
the implementation phase (e.g., scale of the project and proximity to
Borax Lake). Depending on the circumstances of any particular project,
such development could potentially have a negative effect on the
species or it might have no or negligible effects. The possibility of
geothermal development in the vicinity of Borax Lake will continue to
represent a potential threat to Borax Lake chub and its habitat, but we
have determined the likelihood of this threat becoming operative in the
foreseeable future is low.
An increase in ambient air temperatures due to climate change may
reduce the amount and suitability of habitat for Borax Lake chub during
the warmest times of the year (June through August) due to water
temperatures that can meet or sometimes exceed thermal maximums for the
species. However, shallow-water thermal refuge habitats around the
margins of Borax Lake (the overflow channel and wetland), cool and cold
water vents within the lake, along with the species' ability to rebound
quickly following periods of low population abundance, are expected to
provide resilience against potential future effects of climate change
to the Borax Lake chub.
Factor B (overutilization for commercial, recreational, scientific,
or educational purposes), Factor C (disease and predation), and Factor
E (other natural or manmade factors affecting its continued existence)
were not identified as threat factors in the listing of Borax Lake chub
in 1982 (47 FR 43957; October 5, 1982), and these factors are currently
not known to be threats to the Borax Lake chub now or in the
foreseeable future.
We conclude that existing regulatory mechanisms (Factor D) provide
significant protections to Borax Lake chub and its habitat, especially
on Federal lands, and address most of the reasons that the species was
listed. No regulatory mechanisms are in place that fully prevent
geothermal development on private lands in the vicinity of Borax Lake.
However, we determined that this potential threat is not likely to
manifest in the foreseeable future; therefore, no threats remain that
require regulatory mechanisms to address them in the event that the
species were delisted and the protections of the Act were no longer in
place.
[[Page 6124]]
Proposed Determination of Species Status
Introduction
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for
determining whether a species is an endangered species or threatened
species and should be included on the Federal Lists of Endangered and
Threatened Wildlife and Plants (listed). The Act defines an endangered
species as any species that is ``in danger of extinction throughout all
or a significant portion of its range'' and a threatened species as any
species ``that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following 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.
Determination of Status Throughout All of the Species' Range
As required by section 4(a)(1) of the Act, we conducted a review of
the status of the Borax Lake chub and assessed the five factors to
evaluate whether it 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. Significant threats identified at the time of listing (47 FR
43957; October 5, 1982) have been eliminated or reduced. We conclude
that under Factor A (the present or threatened destruction,
modification, or curtailment of its habitat or range), the possibility
of geothermal development in the vicinity of Borax Lake will continue
to represent a potential threat to Borax Lake chub and its habitat, but
we have determined the likelihood of this threat becoming operative in
the foreseeable future is low. We did not identify any other threats
from development on private lands in the vicinity of Borax Lake. We
have identified climate change as a new potential threat to Borax Lake
chub, but the magnitude and frequency of this potential threat is
generally unknown at this time. We conclude that Factor B
(overutilization for commercial, recreational, scientific, or
educational purposes) and Factor C (disease or predation) are not
threats to Borax Lake chub. We conclude that under Factor D (the
inadequacy of existing regulatory mechanisms), the existing regulatory
mechanisms provide significant protections to Borax Lake chub and its
habitat, especially on Federal lands, but they do not address potential
impacts of geothermal development on private lands. However, as
discussed above, we have determined that the likelihood of the threat
of geothermal development in the vicinity of Borax Lake becoming
operative in the foreseeable future is low; therefore, no regulatory
mechanisms are needed to address this potential threat. All of these
threats apply similarly throughout the range of the species in Borax
Lake.
Thus, after assessing the best available information, we conclude
that the Borax Lake chub is not currently in danger of extinction, and
is not likely to become so within the foreseeable future throughout all
of its range.
Because we have determined that the Borax Lake chub is not in
danger of extinction or likely to become so in the foreseeable future
throughout all of its range, we will consider whether there are any
significant portions of its range in which the species is in danger of
extinction or likely to become so in the foreseeable future.
Determination of Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range (SPR). Having determined that the Borax Lake chub is not in
danger of extinction now or likely to become so in the foreseeable
future throughout all of its range, we now consider whether it may be
in danger of extinction or likely to become so in the foreseeable
future in an SPR. The range of a species can theoretically be divided
into portions in an infinite number of ways, so we first screen the
potential portions of the species' range to determine if there are any
portions that warrant further consideration. To do this, we look for
portions of the species' range for which there is substantial
information indicating that: (1) The portion may be significant, and
(2) the species may be in danger of extinction or likely to become so
in the foreseeable future in that portion. A portion only warrants
further consideration if there is substantial information that both of
these statements are true for that portion. Therefore, for a particular
portion, if we determine that there is not substantial information that
one of these statements is true, then the species does not warrant
listing because of its status in that portion of its range.
We evaluated the range of the Borax Lake chub to determine if any
area may be a significant portion of the range. The Borax Lake chub is
a narrow endemic that occurs in Borax Lake in the Alvord Basin. The
historical known natural range of the Borax Lake chub is limited to
Borax Lake and associated outflows and wetlands. Based on the small
range of the Borax Lake chub, approximately 10.2-ac (4.1-ha), we
determined that the species is a single, contiguous population and that
there are no separate areas of the range that are likely to be of
greater biological or conservation importance than any other areas due
to natural biological reasons alone. Therefore, there is not
substantial information that logical, biological divisions exist that
would support delineating one or more portions within the species'
range.
Based on our determination that no natural biological divisions are
delineating separate portions of the Borax Lake chub population, we
conclude that there are no portions of the species' range for which
both (1) the portions are likely to be significant and (2) the species
is likely to be in danger of extinction or likely to become so in the
foreseeable future in those portions. This makes it unnecessary for us
to undertake any further consideration or analysis of whether this
species is endangered or threatened throughout an SPR. We conclude
therefore that there is no significant portion of the species' range
where it is an endangered species or a threatened species. Our approach
to analyzing SPR in this determination is consistent with the court's
holding in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018).
Our review of the best available scientific and commercial
information indicates that the Borax Lake chub is not in danger of
extinction nor likely to become endangered within the foreseeable
future throughout all or a significant portion of its range. Therefore,
we find that the Borax Lake chub does not meet the definition of a
threatened species, and we propose to remove the Borax Lake chub from
the List.
Effects of the Proposed Rule
This proposal, if made final, would revise 50 CFR 17.11(h) by
removing the Borax Lake chub from the Federal List of Endangered and
Threatened Wildlife.
[[Page 6125]]
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 the Borax Lake chub.
Critical habitat for Borax Lake chub at 50 CFR 17.95(e) would be
removed if this proposal is made final. State laws related to Borax
Lake chub would remain in place, be enforced, and continue to provide
protection for this species.
Post-Delisting Monitoring
Section 4(g)(1) of the Act requires the Secretary of the Interior,
through the Service and in cooperation with the States, to implement a
system to monitor for not less than 5 years for all species that have
been recovered and delisted. The purpose of this requirement is to
develop a program that detects the failure of any delisted species to
sustain populations 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.
A draft post-delisting monitoring (PDM) plan has been developed for
the Borax Lake chub, building on and continuing the research that was
conducted during the listing period. The draft PDM plan will be peer
reviewed by specialists and will be available for public comment upon
the publication of this proposed rule at http://www.regulations.gov,
under docket number FWS-R1-ES-2017-0035. Public and peer review
comments submitted in response to the draft PDM plan will be addressed
within the body of the plan and summarized in an appendix to the plan.
The draft PDM plan was developed by the Service and is based on actions
outlined in the CMP developed by the Service, BLM, and ODFW. The draft
PDM plan consists of: (1) A summary of the species' status at the time
of proposed delisting; (2) an outline of the roles of PDM cooperators;
(3) a description of monitoring methods; (4) an outline of the
frequency and duration of monitoring; (5) an outline of data
compilation and reporting procedures; and (6) a definition of
thresholds or triggers for potential monitoring outcomes and
conclusions of the PDM.
The draft PDM plan proposes to monitor Borax Lake chub following
the same sampling protocol used by the ODFW prior to delisting.
Monitoring would consist of three components: Borax Lake chub
abundance, potential adverse changes to Borax Lake chub habitat due to
environmental or anthropogenic factors, and monitoring DOGAMI for
drilling applications. The PDM would consist of surveys to estimate
population abundance conducted once every 3 years over a 9-year period
(four population surveys total), which would begin after the final
delisting rule is published. Given the Borax Lake chub is a short lived
fish (few survive beyond 1 year; Scoppettone et al. 1995, p. 36),
periodic monitoring over this time period would allow us to address any
possible negative effects to the Borax Lake chub. Additionally, the
chub experienced wide fluctuation in its population year-to-year.
Limited data points for a widely fluctuating population can lead to
weak information. Therefore, we chose to extend the time sequence to
ensure we can accurately measure changes in trends.
The draft PDM plan identifies measurable management thresholds and
responses for detecting and reacting to significant changes in the
Borax Lake chub's protected habitat, distribution, and persistence. If
declines are detected equaling or exceeding these thresholds, the
Service, in combination with other PDM participants, would investigate
causes of these declines, including considerations of habitat changes,
substantial human persecution, stochastic events, or any other
significant evidence. The result of the investigation would be to
determine if the Borax Lake chub warrants expanded monitoring,
additional research, additional habitat protection, or relisting as an
endangered or a threatened species under the Act. If such monitoring
data or an otherwise updated assessment of threats (such as specific
information on proposed geothermal development projects) indicate that
relisting the Borax Lake chub is warranted, emergency procedures to
relist the species may be followed, if necessary, in accordance with
section 4(b)(7) of the Act.
Required Determinations
Clarity of This Proposed 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 numbers 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 have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations 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).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175, and the Department of
the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. 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 Native American culture, and to
make information available to Tribes.
We do not believe that any Tribes would be affected if we adopt
this rule as proposed. However, we have contacted the Burns Paiute
Tribe to coordinate with them regarding this proposed rule.
References Cited
A complete list of all references cited in this proposed rule is
available at http://www.regulations.gov at Docket
[[Page 6126]]
No. FWS-R1-ES-2017-0035 or upon request from the Oregon Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are staff members of our
Oregon Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we hereby 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; and 4201-4245,
unless otherwise noted.
Sec. 17.11 [Amended]
0
2. Amend Sec. 17.11(h) by removing the entry for ``Chub, Borax Lake''
under FISHES from the List of Endangered and Threatened Wildlife.
Sec. 17.95 [Amended]
0
3. Amend Sec. 17.95(e) by removing the entry for ``Borax Lake Chub
(Gila boraxobius).''
Dated: December 7, 2018.
Margret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-02979 Filed 2-25-19; 8:45 am]
BILLING CODE 4333-15-P