[Federal Register Volume 59, Number 171 (Tuesday, September 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21864]


[[Page Unknown]]

[Federal Register: September 6, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB94

 

Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Kootenai River Population of the White 
Sturgeon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered 
status pursuant to the Endangered Species Act of 1973, as amended 
(Act), for the Kootenai River population of the white sturgeon 
(Acipenser transmontanus). The Kootenai River population of the white 
sturgeon is restricted to approximately 270 river kilometers (km) (168 
miles (mi)) of the Kootenai River, in Idaho, Montana, and British 
Columbia, Canada, primarily upstream from Cora Linn Dam at the outflow 
from Kootenay Lake, British Columbia. With the exception of 1974, 
sturgeon recruitment has been declining since the mid-1960's, and there 
has been an almost complete lack of recruitment of juveniles into the 
population since 1974, soon after Libby Dam in Montana began operation. 
The population also faces threats from reduced biological productivity, 
and possibly poor water quality and the effects of contaminants. This 
rule implements the protection and conservation provisions afforded by 
the Act for the Kootenai River population of the white sturgeon.

DATES: October 6, 1994.


ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Ecological Services Field Office, 4696 Overland Road, 
Room 576, Boise, Idaho 83705.

FOR FURTHER INFORMATION CONTACT: Dr. Charles H. Lobdell, Field 
Supervisor, at the above address or telephone (208) 334-1931.

SUPPLEMENTARY INFORMATION:

Background

    White sturgeon (Acipenser transmontanus) are in the Family 
Acipenseridae, which consists of 4 genera and 24 species of sturgeon. 
Eight species of sturgeon occur in North America, with white sturgeon 
one of five species in the genus Acipenser. White sturgeon historically 
occurred on the Pacific Coast from the Aleutian Islands to central 
California. The species reproduces in at least three large river 
systems: the Sacramento-San Joaquin River in California, Columbia River 
basin in the Pacific Northwest, and the Fraser River system in British 
Columbia, Canada. The closely related green sturgeon (Acipenser 
medirostris) also occurs in the Pacific Coast region but is restricted 
in distribution to river estuaries.
    White sturgeon were first described by Richardson in 1863 from a 
single specimen collected in the Columbia River near Fort Vancouver, 
Washington (Scott and Crossman 1973). All sturgeon are distinguished 
from other fish in that they have a cartilaginous skeleton with a 
persistent notochord, and a protractile, tube-like mouth and sensory 
barbels ventrally on the snout. The white sturgeon is distinguished 
from other Acipenser by the specific arrangement and number of scutes 
(bony plates) along its body (Scott and Crossman 1973). The largest 
authentic record of a white sturgeon is a 630 kilogram (kg) (1,387 
pounds (lbs)) specimen taken from the Fraser River in British Columbia 
in 1897 (Scott and Crossman 1973). Individuals in landlocked 
populations tend to be smaller. For example, white sturgeon over 90 kg 
(200 lbs) have not been reported from the Kootenai River system 
(Apperson 1992, Graham 1981, Partridge 1983). White sturgeon are 
generally long-lived, with females living from 34 to 70 years (Pacific 
States Marine Fisheries Commission (PSMFC) 1992). The oldest of 342 
sturgeon captured in the Kootenai River during 1977 to 1982 was 
estimated to be 44 years old (Partridge 1983).
    For white sturgeon in general, the size or age of first maturity in 
the wild is quite variable (PSMFC 1992). Females normally require a 
longer period to mature than males, with females for most sturgeon 
species spawning between 15 to 25 years of age (Doroshov 1993). Only a 
portion of adult white sturgeon are reproductive or spawn each year, 
with the spawning frequency for females estimated at 2 to 11 years. 
Spawning occurs when the physical environment permits vitellogenesis 
(egg development) and cues ovulation. White sturgeon are broadcast 
spawners, releasing their eggs and sperm in fast water. In the lower 
Columbia River below McNary Dam, landlocked populations of white 
sturgeon normally spawn during the period of peak flows from April 
through July (Parsley et al. 1989). Spawning at peak flows with high 
water velocities disperses and prevents clumping of the adhesive eggs. 
Following fertilization, eggs adhere to the river substrate and hatch 
after a relatively brief incubation period of 8 to 15 days, depending 
on water temperature (Brannon et al. 1985). Recently hatched yolk-sac 
larvae swim or drift in the current for a period of several hours and 
settle into interstitial spaces in the substrate. Larval white sturgeon 
require 20 to 30 days to metamorphose into juveniles with a full 
complement of fin rays and scutes.
    The Kootenai River population of white sturgeon is one of 18 
landlocked populations of white sturgeon known to occur in western 
North America. The Kootenai River originates in Kootenay National Park 
in British Columbia, Canada. The river flows south into Montana, turns 
northwest into Idaho, and north through the Kootenai Valley back into 
British Columbia, where it flows through Kootenay Lake and eventually 
joins the Columbia River at Castlegar, British Columbia.
    Historically, little was known regarding the status and life 
history of the white sturgeon population in the Kootenai River basin 
prior to studies initiated during the late 1970's by the British 
Columbia Ministry of Environment and Parks (Andrusak 1980), Idaho 
Department of Fish and Game (IDFG) (Partridge 1983), and Montana 
Department of Fish, Wildlife and Parks (MDFWP) (Graham 1981).
    The Kootenai River population of white sturgeon is restricted to 
approximately 270 river km (168 river mi) in the Kootenai River basin. 
This reach extends from Kootenai Falls, Montana, located 50 river km 
(31 river mi) below Libby Dam, downstream through Kootenay Lake to Cora 
Linn Dam at the outflow from Kootenay Lake, British Columbia, Canada. 
Historically, Kootenai Falls represented an impassible natural barrier 
to the upstream migration of the white sturgeon. A natural barrier at 
Bonnington Falls downstream of Kootenay Lake has isolated the Kootenai 
River white sturgeon from other white sturgeon populations in the 
Columbia River basin since the last glacial age (approximately 10,000 
years) (Apperson and Anders 1991).
    Genetic analysis indicates that the Kootenai River sturgeon is a 
unique stock and constitutes a distinct interbreeding population 
(Setter and Brannon 1990). The average heterozygosity (or measure of 
the quantity of genetic variation) determined for the Kootenai River 
population at 0.54 compared to an average heterozygosity of 0.74 for 
white sturgeon in the Columbia River (Setter and Brannon 1990). Based 
on these comparisons, Setter and Brannon (1990) concluded ``* * * we 
find adequate evidence to distinguish these fish as a separate 
population based on differences in allele frequencies, the genetic 
distance calculation and the overall quantity of variation displayed.''
    In general, individual white sturgeon in the Kootenai River are 
broadly distributed, migrating freely between the Kootenai River and 
the deep, oligotrophic Kootenay Lake (Andrusak 1980). However, the 
species is not commonly found upstream of Bonners Ferry, Idaho to 
Montana (Apperson and Anders 1991). In 1980, Graham (1981) estimated 
that only one to five adult white sturgeon resided in Montana, found in 
the river reach immediately downstream of Kootenai Falls. Although 
white sturgeon use the main channel of the Kootenai River upstream to 
Kootenai Falls, few individuals have been reported from tributaries to 
the Kootenai River in Idaho and Montana.
    Based on tagging studies, Kootenai River white sturgeon are 
relatively sedentary during the summer and inhabit the deepest holes of 
the Kootenai River and Kootenay Lake (Apperson and Anders 1990). 
Kootenai River locations used by white sturgeon were generally sites 
over 20 feet (ft) (6 meters (m)) deep with column velocities less than 
0.77 ft per second (fps) (less than 0.24 m per second (mps)) and water 
temperature of 57 to 68 deg. F (14 to 20 deg. C) (PSMFC 1992), while 
depths utilized in Kootenay Lake ranged from 30 to over 300 ft (10 to 
100.5 m) (Apperson and Anders 1991). Compared with other waters 
containing white sturgeon, the Kootenai River is a relatively cool 
river with summer high temperatures of 68 to 72 deg. F (20 to 22 deg. 
C).
    White sturgeon in the Kootenai River are considered opportunistic 
feeders. Partridge (1983) found white sturgeon more than 28 inches (in) 
(80 centimeters (cm)) in length feeding on a variety of prey items, 
including chironomids, clams, snails, aquatic insects, and fish. 
Andrusak (British Columbia Environment, Parks and Lands, pers. comm., 
1993) noted that kokanee salmon (Oncorhynchus nerka) in Kootenay Lake, 
prior to a dramatic population crash beginning in the mid 1970's, were 
once considered an important prey item for adult white sturgeon.
    Historically (pre-Libby Dam construction and operation), habitat 
for white sturgeon spawning was considered available in an approximate 
96 river km (60 river mi) stretch of the Kootenai River from Shorty's 
Island in Idaho (river km 223, river mi 145) upstream to Kootenai Falls 
in Montana (river km 327, river mi 203) (Apperson, Idaho Department of 
Fish and Game, pers. comm., 1993). Monitoring of mature white sturgeon 
tagged with ultrasonic and radio transmitters in 1990 through 1993 has 
documented long distance movements upriver during the spring to 
suspected staging areas located from Shorty's Island (river km 230, 
river mi 143) to Bonners Ferry (river km 245, river mi 153), and the 
suspected spawning reach upstream of Bonners Ferry. For example, 
Apperson (1992) reported that six reproductively mature white sturgeon 
(three males and three females) tagged with ultrasonic transmitters 
were located weekly from April through July 1991 to monitor spawning 
related movements. By May, all six fish had moved upriver 16 to 114 
river km (10 to 71 river mi) between Shorty's Island and immediately 
downstream of Bonners Ferry. They remained congregated in this area 
through July. These fish exhibited movements similar to other sturgeon 
tagged and monitored in 1990. During May through July, white sturgeon 
fitted with transmitters occupied locations with water velocities that 
ranged from 0.3 to 0.6 mps (1 to 2 fps) in 1990, and 0.4 to 0.8 mps 
(1.3 to 2.5 fps) in 1991.
    Based on a comparison of population estimates made in 1982 and 
1990, Kootenai River white sturgeon declined from an estimated 1,194 
fish (range of 907 to 1,503) (Partridge 1983) to approximately 880 fish 
(range of 638 to 1,211) (Apperson and Anders 1991). The Bonneville 
Power Administration (BPA) (1993), commenting on the proposed rule, 
believes that the population has further declined in 1993 to an 
estimated 785 individuals (range 569 to 1,080) based on recent 
estimates of annual mortality and no natural recruitment since 1990.
    The population is reproductively mature, with few of the remaining 
white sturgeon younger than 20 years old (Apperson 1992). The Idaho 
Department of Fish and Game (IDFG) estimates that 7 percent of the 
female, and 30 percent of the male white sturgeon in the Kootenai River 
are reproductive each year (Apperson 1992). Based on a 1:1 sex ratio, 
this translated into 22 to 42 females and 96 to 182 males available to 
spawn in 1990. The actual number of available spawners is dependent 
upon size at maturity and spawning frequency. It is not certain at what 
age reproductive senescence occurs in white sturgeon, although most 
sturgeon species reproduce in the age brackets of 10 to 20 years for 
males and 15 to 25 years for females (Doroshov 1993).
    There has been an almost complete lack of recruitment of juveniles 
into the population since 1974, soon after Libby Dam began operation 
(Partridge 1983, Apperson and Anders 1991). The youngest white sturgeon 
found in recent studies include a single specimen from the 1977 
(Apperson and Anders 1991) year class and three specimens from a year 
class between 1976 and 1978 (BPA 1993). Additionally, no white sturgeon 
less than 51 cm (20 in) total length were collected in surveys 
conducted between 1977 and 1982 on the Kootenai River (PSMFC 1992).
    Partridge (1983) noted that white sturgeon recruitment was 
intermittent and possibly decreasing from the mid-1960's to 1974. This 
is demonstrated by lack of white sturgeon from the 1965 to 1969, 1971 
to 1973, and 1975 year-classes. Partridge speculated that the lack of 
recruitment was due in part to the elimination of rearing areas for 
juveniles through diking of slough and marsh side-channel habitats, and 
the increase in chemical pollutants (e.g., copper, zinc) in the river 
that may have affected spawning success. Based on the most recent 
annual mortality rate estimate of 0.0374 coupled with continuing zero 
recruitment in the future, BPA believes the population will further 
decline to an estimated 648 individuals by 1998, with only 17 to 33 
females available to spawn annually (BPA 1993).
    Fish community associates include the burbot (Lota lota) and 
several native salmonids: westslope cutthroat trout (Oncorhynchus 
clarki lewisi), rainbow trout (Salmo gairdneri), bull trout (Salvelinus 
confluentus), kokanee salmon (Oncorhynchus nerka), and mountain 
whitefish (Prosopium williamsoni). Both burbot and spawning kokanee 
salmon populations have declined dramatically in the Kootenai River 
since the 1950's. The decline in burbot is not fully understood, but is 
thought partially due to the changing Kootenai River hydrograph. 
Several factors are believed to have contributed to the kokanee 
collapse, primarily a decline in the overall biological productivity 
due to system dam construction and operations and the introduction of 
mysid shrimp in Kootenay Lake, an efficient competitor with kokanee for 
prey (Ashley and Thompson 1993).

Previous Federal Action

    On November 21, 1991, the Service included the Kootenai River 
population of white sturgeon as a category 1 candidate species in the 
Animal Notice of Review (56 FR 58804), based primarily on the results 
of field studies conducted by IDFG. Category 1 candidates are taxa for 
which the Service has on file enough substantial information on 
biological vulnerability and threats to propose them for endangered or 
threatened status. On June 11, 1992, the Service received a petition 
from the Idaho Conservation League, Northern Idaho Audubon, and 
Boundary Backpackers to list the Kootenai River population of white 
sturgeon as threatened or endangered under the Act. The petition cited 
the continuing lack of natural flows affecting juvenile recruitment as 
the primary threat to the continued existence of the wild sturgeon 
population. Pursuant to section 4(b)(3)(A) of the Act, the Service 
published in the Federal Register on April 14, 1993 (58 FR 19401) a 
determination that the petition presented substantial information 
indicating that listing the sturgeon population as threatened or 
endangered may be warranted.
    Based upon the petition, status surveys, and other information on 
file, the Service proposed the Kootenai River population of white 
sturgeon for listing as endangered on July 7, 1993 (58 FR 36379). The 
proposed rule included information submitted by various agencies, 
including IDFG (Apperson 1992; Apperson and Anders 1990; 1991; 
Partridge 1983), MDFWP (Graham 1981; Graham and White 1985), the 
Service (Duke et al. 1990; Miller et al. 1991; Parsley et al. 1989) and 
the British Columbia Ministry of Environment and Parks, Fish and 
Wildlife (Andrusak 1980). The proposal included a public comment period 
of 120 days ending November 4, 1993 and gave notice of one public 
hearing in Sandpoint, Idaho. To accommodate additional public hearings 
in Bonners Ferry, Idaho, and Libby, Montana, the Service published a 
notice of public hearing on August 3, 1993 (58 FR 41237). The first 
comment period on the proposal, which originally closed on November 4, 
1993, was extended to November 19, 1993 (58 FR 54549) to provide the 
public with more time in which to submit comments.
    The Service now determines the Kootenai River population of white 
sturgeon to be an endangered species with publication of this rule.

Summary of Comments and Recommendations

    In the July 7, 1993 proposed rule (58 FR 36379), all interested 
parties were requested to submit comments or information that might 
contribute to the development of a final determination. The Service 
also gave notice of a public hearing to be held in Sandpoint, Idaho 
during the public comment period ending November 4, 1993. On August 3, 
1993, the Service published a Federal Register notice announcing two 
additional public hearings to be held prior to the November 4, 1993 
close of the comment period (58 FR 41237). Announcements of the 
proposed rule and notice of public hearings were sent to at least 156 
individuals including Federal, State, County, and City elected 
officials; State and Federal agencies; interested private citizens; and 
local area newspapers and radio stations. Announcements of the July 7, 
1993 proposed rule were also published in six newspapers: the Bonners 
Ferry Herald, Bonners Ferry, Idaho; Coeur d'Alene Press, Coeur d'Alene, 
Idaho; the Idaho Statesman, Boise, Idaho; The Spokesman Review, 
Spokane, Washington; the Tobacco Valley News, Eureka, Montana; and the 
Western News, Libby, Montana. To accommodate requests for additional 
public hearings in Bonners Ferry, Idaho, and Libby, Montana, the 
Service published a notice of public hearings in the Federal Register 
on August 3, 1993 (58 FR 41237). Three public hearings were held on the 
proposal: from 5 to 8 p.m. on August 24, 1993, in Bonners Ferry, Idaho; 
from 5 to 8 p.m. on August 25, 1992, in Libby, Montana; and from 1 to 4 
p.m. and 6 to 8 p.m. on August 26, 1993, in Sandpoint, Idaho. To 
provide the public with more time in which to provide comments, the 
Service published a third notice, on October 22, 1993, extending the 
comment period 15 days to November 19, 1993 (58 FR 54549).
    Thirty-four oral and forty written comments were received on the 
proposed rule. These included comments from three Federal agencies, 
four Montana and Idaho State agencies, four Canadian agencies, the 
Kootenai Tribe of Idaho, Idaho's two U.S. Senators, Montana's U.S. 
Representative, Idaho's Governor, fifteen County or City officials, and 
thirty-three individuals or groups. The Service considered all 
comments, including oral testimony at the three public hearings. A 
majority of comments opposed the proposed rule. Opposition was based on 
several factors, including the possible economic impacts of listing the 
white sturgeon population, and that all causes of decline are not 
currently known or fully understood. Seven written comments supported 
the proposed rule and five letters requested additional public 
hearings. Idaho Senators Larry Craig and Dirk Kempthorne requested that 
the Service ``* * * not proceed hastily towards a decision to list the 
Kootenai sturgeon * * *'' and suggested that the Service consider ``* * 
* the recovery strategy prepared by the Kootenai Tribe of Idaho.'' Many 
commenters provided information pertaining to further research needs, 
critical habitat, and recovery planning. These comments, in addition to 
recovery strategies submitted by the Kootenai Tribe of Idaho, Idaho 
Department of Fish and Game, and Montana Department of Fish, Wildlife & 
Parks, will be useful in the development of a recovery plan for the 
Kootenai River population of white sturgeon. Several commenters 
provided new and substantive biological information applicable to the 
listing decision. The British Columbia Ministry of Environment, Lands 
and Parks of Canada submitted information on a fertilization program 
for Kootenay Lake. The Kootenai Tribe provided additional information 
on white sturgeon captured in the Kootenai River in 1993, and the BPA 
provided annual reports describing results from a 1993 white sturgeon 
monitoring program ongoing in the Kootenai River. Comments of a similar 
nature or point of concern are grouped for consideration and response. 
A summary of these issues and the Service's response to each, are 
discussed below.
    Issue 1: Several commenters requested that the Service delay or 
preclude listing the Kootenai River white sturgeon because too little 
is known regarding all causes of decline. They also believed there were 
``obvious uncertainties'' regarding the Kootenai sturgeons' current 
status throughout its range. Some commenters questioned whether 
population estimates for Kootenai River white sturgeon cited in the 
proposed rule are a reliable indicator of its current status since the 
fish moves between the river and Kootenay Lake and additional fish may 
reside in the lake. Other respondents claim that the Service ignored 
all potential causes of decline in the proposed rule. Specifically, 
assertions in the proposed rule that ascribe the primary cause of 
decline to Kootenai River flow modification such as ``* * * the free-
flowing river habitat has been modified and impacted from development 
of the Kootenai River basin * * *''. The Lincoln County Board of 
Commissioners (Montana) believe ``* * * other potential causes of 
decline must be analyzed before a decision is made on the listing of 
the white sturgeon, while another respondent stated that ``* * * 
information strongly suggest other mechanisms are limiting sturgeon 
recruitment into the population.'' Because it appears that the Kootenai 
River white sturgeon population has been declining since the mid-
1960's, prior to the construction and operation of Libby Dam, 
additional causes of decline contributing to a lack of recruitment and 
survival should be investigated. These respondents also suggested that 
the Service initiate a comprehensive research study to develop 
additional data on the biological and environmental factors limiting 
sturgeon recruitment prior to any listing decision.
    Service response: The listing process includes an opportunity for 
the public to comment and provide new information that is evaluated and 
considered by the Service before making a final decision. Aside from 
previously cited studies and reports in the proposed rule (58 FR 
36379), the Service has reviewed and considered new information 
regarding distribution and general life history for the Kootenai River 
population of white sturgeon from BPA (1993), the Kootenai Tribe of 
Idaho (1993), and Marcuson (1993); information about Kootenay Lake 
fertilization studies (Ashley and Thompson 1993); and information 
contained in an independent status review prepared for the Pacific 
Northwest Utilities Conference Committee (Giorgi 1993).
    New information submitted during the comment period reaffirmed that 
the white sturgeon population continues to decline, and is not more 
widespread or found in other areas of the Kootenai River basin. 
According to BPA (1993) and Giorgi (1993), estimates showing a decline 
in the white sturgeon population from an estimated 1,194 fish (range 
907 to 1503) in 1982 (Partridge 1983) to 880 (range 638 to 1,211) in 
1990 (Apperson and Anders 1991) are not directly comparable because the 
1990 survey occurred in a river sampling reach almost 50 river km (31 
river mi) longer. However, both BPA and Georgi concur the population is 
declining. The Service believes recent population trends and population 
estimates accurately reflect the current status of the fish. Trends in 
population demographics reveal an aging population with no known 
recruitment of age 1 sturgeon since 1978. Additionally, although mark-
recapture studies reveal that white sturgeon move freely between the 
Kootenai River and Kootenay Lake, there is no evidence that white 
sturgeon reside or spawn in other tributaries entering Kootenay Lake, 
British Columbia.
    The Service acknowledged in the proposed rule that the white 
sturgeon population in the Kootenai River has been declining since the 
mid-1960's, with limited intermittent recruitment until 1974; and 
indicated that there are causal factors of decline other than ``* * * 
significant modifications of the natural hydrograph * * *'' (58 FR 
36379). For example, reduced biological productivity, habitat loss due 
to diking, poor water quality and contaminants, inadequate regulatory 
mechanisms, and possibly disease were all identified in the proposed 
rule as contributing to the decline and affecting recruitment of 
Kootenai River white sturgeon. Giorgi (1993) also reported that the 
relationship between recruitment and ``* * * spring/summer flow volumes 
in the Kootenai River is not apparent''. Based on year-class 
comparisons between 1974 (the last year of successful reproduction and 
measurable recruitment) and recent years with high flow conditions that 
resulted in no recruitment, Giorgi concluded that if ``* * * the 
linkage between flow levels, spawning, and recruitment were as strong 
as some have theorized, recruitment from these years should have 
occurred.'' The Service believes these types of comparisons are valid 
only if additional flow-related factors considered important in 
affecting sturgeon spawning behavior and early age recruitment are 
considered--the seasonal timing and duration of peak flows to encourage 
spawning behavior and the effects of load-factoring. For example, 
recent tracking studies have revealed reproductively mature white 
sturgeon equipped with radio and sonic transmitters moving upriver to 
the pre-spawning staging areas downstream of Bonners Ferry around mid-
May (Apperson 1992; Marcuson 1993). These fish will commonly stay in 
the suspected spawning reach immediately upstream through July 
dependent upon flow conditions and whether they have spawned. In 1974 
when the last strong year-class of sturgeon occurred, flows were 
increasing and remained highest during the May and June period, 
providing habitat conditions suitable to spawning and survival of eggs/
larvae to age 1 recruitment.
    Peak flows in the Kootenai River have varied seasonally in each 
year since 1975 when Libby Dam operations began. Load-factoring has 
affected the discharge stability at Libby Dam and sustained flows 
through the spawning reach near Bonners Ferry throughout the spring/
summer sturgeon reproduction season. For example, in 1981 flows peaked 
at Bonners Ferry near the same volume as in 1974, but not until July, 
while higher than normal natural flows (since 1974) peaked around mid-
June in 1990, early May in 1991, and May 15 in 1993. Recent monitoring 
efforts documented white sturgeon spawning in 1991 and 1993, and some 
level of spawning has likely occurred in several or most years since 
1974. The Service believes the combination of diminished mean discharge 
since 1974 at Bonners Ferry and the effects of daily and weekly load-
factoring on flow fluctuations have adversely affected sturgeon 
spawning behavior and egg/larval survival which has inhibited 
recruitment to age 1 since 1974.
    In summary, no new significant distributional or demographic 
information affecting the status of the white sturgeon were reported by 
any respondent. Moreover, monitoring and survey programs conducted from 
1990 through 1993 substantiate conclusions in the proposed rule that 
the Kootenai River white sturgeon population continues to decline and 
recruitment has been virtually non-existent since 1974. There is no 
recent evidence of successful spawning and survival past the egg stage. 
Existing regulations and experimental flow programs have not been 
effective in arresting this decline. The Service maintains that this 
final rule is based on the best information available. The Service also 
believes that sufficient information is provided on the Kootenai River 
population of white sturgeon to warrant making a determination on their 
status under the Act.
    Issue 2: Many commenters expressed concerns with the potential 
economic impacts to hydropower generation, recreation, agriculture and 
timber harvesting in the Kootenai River basin from listing the Kootenai 
River population of white sturgeon under the Act. For example, British 
Columbia (BC) Hydro believes that ``* * * some Canadian citizens and 
all B.C. Hydro ratepayers would be adversely affected by the proposed 
rule to list the sturgeon * * * as endangered.'' The Kootenai Valley 
Reclamation Association was concerned that higher Kootenai River flows 
during the sturgeon spawning season would increase pumping costs for 
area farmers growing crops behind levies downstream of Libby Dam. Other 
respondents requested that the Service consider the potential impacts 
to recreational boating and resident fisheries at Lake Koocanusa from 
future recovery measures dependent upon storage water regulated at 
Libby Dam. They also cited the possible negative consequences of 
implementing the interim flow strategy to benefit sturgeon spawning and 
recruitment as cited in the proposed rule, including impacts to 
reservoir refill and the effects of early summer drawdowns in Lake 
Koocanusa.
    Service response: Under section 4(b)(1)(A) of the Act, the listing 
process is based solely on the best scientific and commercial 
information available and economic considerations are not applicable. 
The legislative history of the provisions clearly states the intent of 
Congress to ``ensure'' that listing decisions are ``based solely upon 
biological criteria and to prevent non-biological considerations from 
affecting such decisions.'' (H.R. Rep. No. 97-835, 97th Congress 2nd 
Session 19 (1982)). Because of the clear intent of Congress to preclude 
the Service from considering economic and other non-biological impacts 
in the listing process, the Service has not addressed such impacts in 
this final rule. However, economic factors are considered when 
designating critical habitat and during the development of a recovery 
plan.
    Issue 3: Several respondents requested that the Service designate 
critical habitat during the final rulemaking process so that the 
potential economic impacts could be evaluated. Boundary County of Idaho 
officials believed that ``* * * To list the sturgeon without addressing 
critical habitat is a serious disservice to the people of Boundary 
County and a direct circumvention of the mandates of law * * *''. 
Another commenter representing the petitioner Idaho Conservation League 
stated that without critical habitat designation ``* * * it seems that 
the management plans that you (affected agencies) come up with will be 
out of touch with the direct habitat needs that exist on the ground * * 
*''.
    Service response: Under section 4(a)(3)(A) of the Act, the 
Secretary shall designate critical habitat to the maximum extent 
prudent and determinable at the time a species is determined to be 
threatened or endangered. Critical habitat is not a management plan, 
but a legally described list of those areas considered essential for 
the conservation of the species and that may require special management 
consideration or protection. It should be noted that a designation of 
critical habitat does not create a wildlife refuge or wilderness area, 
nor does it close the area to human activity. It applies only to 
Federal agencies that propose to fund, authorize, or carry out 
activities that may affect areas within designated critical habitat. 
Although critical habitat may be designated on private or State lands, 
activities on these lands are not affected by the designation unless 
they involve Federal authorization or funding. Additionally, critical 
habitat is not designated within foreign countries or in other areas 
outside of United States jurisdiction (50 CFR 424.12(h)).
    At the time of the proposed listing determination, critical habitat 
was not determinable because information necessary to perform the 
required analysis was not available. Because information sufficient to 
complete required analyses for a designation is still lacking, critical 
habitat for the Kootenai River population of white sturgeon is not 
presently determinable. The Service concludes that the threats to the 
Kootenai River white sturgeon population and benefits associated with 
listing justify taking action now, rather than waiting until a full 
analysis of critical habitat can be completed. See the ``Critical 
Habitat'' section below for a complete discussion on the issue of 
critical habitat designation relative to the listing of the Kootenai 
River population of white sturgeon. Furthermore, economic analyses 
conducted on determinations of critical habitat examine the costs 
attributed to critical habitat over and above costs associated with 
listing. Consequently, designating critical habitat would not result in 
an analysis of the costs of listing the sturgeon.
    Issue 4: Several commenters maintain that habitat problems should 
be addressed through existing regulatory processes and not through the 
Federal listing process. For example, Direct Services Industries, Inc. 
stated that the ``* * * USFWS has incorrectly determined that existing 
regulatory mechanisms are inadequate to assure conservation and 
recovery of the sturgeon and promote recovery of its purportedly 
declining population.'' They and other respondents also believe that 
operations at Libby Dam have not been modified to date because the 
biological needs and requirements of white sturgeon are not currently 
known. The IDFG also believes that recovery of the sturgeon population 
is still achievable without listing under the Act if the U.S. Army 
Corps of Engineers (Corps) would modify Kootenai River flow management 
to benefit sturgeon recruitment and survival.
    Service response: The Service believes that, although the lack of 
reproduction and successful recruitment is the most immediate threat to 
the sturgeon population, other factors are also contributing to their 
decline. In recent years, efforts by various State agencies and the 
Kootenai Tribe, authorized by the Northwest Power Planning Council 
(NWPPC) (1987) and funded by BPA, have been undertaken to identify all 
environmental factors limiting the white sturgeon population in the 
Kootenai River. Additionally, the Corps and BPA have committed to 
providing experimental flows releases from Libby Dam for sturgeon. For 
example, 400,000 acre-feet of water was released from Libby Dam during 
May and June 1993 as a test to stimulate sturgeon spawning. However, 
the experiment was intended only to evaluate possible spawning flow 
thresholds, not to provide flow or habitat conditions necessary for 
survival beyond the egg stage throughout the spawning season.
    The Corps and BPA, in conjunction with the Bureau of Reclamation 
(Reclamation), have also developed a flow proposal starting in 1994 
based on results of the 1993 experimental flow and water availability 
in an effort to provide for spawning and recruitment of Kootenai River 
white sturgeon. The flow proposal includes provisions to ``shape'' 
flows from Libby Dam to achieve the ``desired'' sturgeon flows in 3 out 
of every 10 years, dependent upon flow forecasts (water availability), 
and only to the extent that flows will not reduce refill or violate 
flood control requirements (Corps 1993).
    Despite this flow proposal and cooperative monitoring efforts to 
better comprehend the factors affecting the Kootenai River white 
sturgeon, there is no long-term commitment to modify dam operations and 
manage stored water at other times of the year to ensure that sturgeon 
flows are provided starting in 1994 or other early years of the 10 year 
cycle. The Corps and BPA continue to prioritize Libby Dam operations to 
meet other demands, primarily hydropower and recreation, and not for 
the benefit of Kootenai River white sturgeon or other resident fishes.
    In summary, long-term provisions to govern future Libby Dam water 
management that fully consider the habitat needs of white sturgeon 
reproduction in the Kootenai River are still required and have not been 
implemented to date. See Factor D in ``Summary of Factors Affecting the 
Species'' for a complete discussion on the inadequacy of existing 
regulatory mechanisms for the Kootenai River population of white 
sturgeon.
    Issue 5: Several respondents expressed support for the Kootenai 
River white sturgeon recovery strategy prepared by the Kootenai Tribe 
of Idaho. The Kootenai Tribal Plan (Plan), submitted during the public 
comment period, describes a detailed conservation program based on 
three recovery strategies: (1) the re-establishment of natural 
spawning, (2) a supplementation program, and (3) additional research. 
The Pacific Northwest Utilities Conference Committee; Direct Services 
Industries, Inc.; City of Bonners Ferry, Idaho; Boundary County Board 
of Commissioners, Idaho; and Idaho's U.S. Senators Larry Craig and Dirk 
Kempthorne, among others, endorsed the Plan and requested that the 
Service implement the Plan in lieu of federally listing the sturgeon. 
Additionally, the IDFG and MDFWP each submitted recovery strategies 
that describe their respective recommendations for recovery of the 
Kootenai River white sturgeon. Both IDFG and MDFWP's recovery 
strategies are similar in that each relies on re-establishment of 
natural spawning in years when precipitation provides average or above 
average water availability, and population augmentation and/or 
supplementation in below average or drought water years.
    Service response: According to section 2(b) of the Act, one of the 
``purposes of this Act [is] to provide a means whereby the ecosystems 
upon which endangered species and threatened species depend may be 
conserved.'' Once a species becomes listed as threatened or endangered, 
section 4(f) of the Act directs the Service to develop and implement 
recovery plans for that species. Recovery means improvement in the 
status of a listed species to the point at which listing is no longer 
appropriate under the criteria provided in section 4 of the Act (50 CFR 
402.02). Two goals of the recovery process are: (1) the maintenance of 
secure, self-sustaining wild populations of the species; and (2) 
restoration of the species to a point where it is a viable, self-
sustaining component of its ecosystem.
    Recovery programs submitted by the Kootenai Tribe of Idaho, IDFG, 
and MDFWP are basically similar in that their overall goal is to 
achieve a naturally reproducing, self-sustaining population of Kootenai 
River white sturgeon. However, each of the three programs differs in 
its reliance on supplementation as an interim augmentation measure, and 
for meeting long-term recovery goals. While the Service recognizes that 
captive propagation and supplementation can be valid conservation tools 
and assist in recovery efforts, they, by themselves, do not contribute 
to the maintenance of a secure, self-sustaining Kootenai River white 
sturgeon population in the wild. For example, if the Service were to 
implement provisions of any or each of the three agency recovery 
strategies in lieu of listing, such implementation would not be binding 
on the Corps or BPA to modify the current Libby Dam operations or flow 
regime in the Kootenai River for the long-term benefit of white 
sturgeon recruitment and survival in the wild. See Factor D in 
``Summary of Factors Affecting the Species'' for a complete discussion 
on the inadequacy of existing regulatory mechanisms for the Kootenai 
River population of white sturgeon.
    In summary, the Service believes that information contained in each 
of the three agency recovery strategies will be useful in future 
recovery planning efforts and the development of a recovery plan. Such 
a recovery plan would include measures to address all threats to the 
sturgeon and incorporate provisions that implement realistic, natural 
flow based solutions within water management constraints for successful 
white sturgeon recruitment in the Kootenai River.
    Issue 6: Several comments were received from Canadian agencies and 
individuals requesting that the Service consider the international 
implications of any final listing decision. For example, the Canadian 
Department of Fisheries and Oceans, while concurring that action must 
be taken to protect the sturgeon, was concerned that ``* * * in 
protecting the white sturgeon, measures could be implemented which have 
the potential to impact other non-targeted stocks of Canadian fish.'' 
British Columbia Environment also expressed similar concerns regarding 
impacts to fish resources and recreational angling in area reservoirs 
and rivers ``* * *  given the integrated nature of the power grid in 
B.C., Washington, Idaho and Montana.'' B.C. Hydro believes listing the 
sturgeon population will impose adverse environmental, social 
(recreational), and energy costs on many citizens in Canada.
    Service response: As stated previously (Issue #2), listing 
decisions are to be based solely on the best scientific and commercial 
information available, and socioeconomic considerations and non-
biological impacts may not be considered in listing decisions. The 
Service shares Canada's concerns regarding possible environmental and 
economic impacts from any listing decision. The Service will work with 
Canadian government agencies to promote international cooperation for 
recovery of the Kootenai River white sturgeon and address potential 
environmental impacts to other aquatic resources in Canada and the 
United States.
    Issue 7: Many comments were received expressing concerns that any 
recovery measures implemented for white sturgeon would adversely affect 
other species in the Kootenai River basin. These resident species 
include the Idaho State sensitive burbot or ling, westslope cutthroat 
trout, and the bull trout. For example, concerns were expressed that 
future changes in Libby Dam operations to benefit white sturgeon could 
reduce bull trout access to spawning streams and impact reservoir 
productivity affecting reservoir bull trout populations. Some 
respondents believe that future Kootenai River flow management schemes, 
developed for the benefit of Kootenai River white sturgeon spawning and 
recruitment, could also reduce the hydroelectric systems flexibility to 
provide ``federally-mandated flows'' for listed salmon stocks 
downstream in the mid-Columbia River, and cause direct and indirect 
impacts to resident fish species in Lake Koocanusa behind Libby Dam.
    Service response: The Service agrees that these are valid concerns. 
Concerns regarding the possible adverse environmental and non-
biological effects from implementing future recovery measures cannot be 
considered in a decision to list a species. However, these concerns are 
important in developing recovery measures that take into account 
environmental effects to other species. The Service will fully consider 
the environmental effects and consequences of implementing future 
recovery measures for Kootenai River white sturgeon.
    Issue 8: Several commenters requested that the Service prepare an 
environmental assessment or environmental impact statement under the 
National Environmental Policy Act (NEPA) for the proposed listing 
action. For example, Scott Orr of the Montana House of Representatives 
believes that NEPA is required for the Service to ``* * * fully 
disclose its understanding of what the status of the white sturgeon 
really is. It would provide the public with the same information the 
Service has and it would allow the public to completely understand the 
reasoning behind any decision the Service may make.'' Additionally, 
Direct Services Industries, Inc., also maintains that the interim flow 
strategy developed for white sturgeon spawning and recruitment as 
described in the proposed rule ``* * * would constitute a major federal 
action significantly affecting the quality of the environment, which 
would necessitate preparation of an EIS under NEPA.''
    Service response: As discussed in the NEPA section of this rule, it 
has been determined that such analyses are not required in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the Service's 
reasons for this determination was published in the Federal Register on 
October 25, 1983 (48 FR 49244). The Service will consider economic and 
other environmental factors during the analysis of critical habitat 
designation and in development of a recovery plan. Federal actions to 
implement a recovery plan would be subject to NEPA analysis at the time 
they are proposed.
    Issue 9: Two respondents believe that if the Kootenai River 
population of white sturgeon is provided protection under the Act, it 
should be listed as threatened instead of endangered. Specifically, 
without defined threshold criteria to distinguish between a threatened 
or endangered status, ``* * * it will be difficult to develop delisting 
criteria to rebuild the Kootenai River white sturgeon population.''
    Service response: The proposal to list the Kootenai River 
population of white sturgeon as endangered was based on an assessment 
of the best scientific and commercial information available at the 
time. In making this final listing determination, the Service has 
considered the current status of the fish, including population 
demographics, and continued lack of successful reproduction and 
recruitment since the mid-1970's. The population had declined to an 
estimated 880 individuals in 1990, and possibly declined to around 785 
individuals in 1993 based upon BPA's (1993) recent estimates. The 
population may be reaching the age of reproductive senescence, since 
for most sturgeon species females reproduce between the ages of 15 to 
25 years (Doroshov 1993). Although the continuing lack of natural flows 
affecting sturgeon juvenile recruitment is considered the primary 
threat to its continued existence, other factors are also contributing 
to the wild populations' decline. See the ``Summary of Factors 
Affecting the Species'' section for a more complete discussion on the 
factors affecting the white sturgeon's decline. Consequently, the 
Service has determined that this distinct population of white sturgeon 
is in danger of extinction throughout its range and therefore fits the 
Act's definition of an endangered species.
    Issue 10: In comments on the proposed rule, BPA stated that two 
Libby Dam operational decisions cited as examples of other uses taking 
priority over the needs of Kootenai River white sturgeon need further 
clarification. Additionally, BPA believes the proposed rule also 
misinterpreted the level of cooperation between the Service and other 
State, Federal, Canadian agencies and the Kootenai Indian Tribe in 
forming the White Sturgeon Technical Committee in June 1992 to address 
Kootenai River white sturgeon issues. Specifically, the statement that 
``* * * Based on discussions and recommendations by the Kootenai River 
Sturgeon Technical Committee, the Service adopted an interim flow 
proposal as the basis of any prelisting Conservation Agreement * * *''.
    Service response: The two operational decisions in question were 
described in Factor D of the ``Summary of Factors Affecting the 
Species'' section of the proposed rule. The first example occurred 
during early June 1992. BPA required that water be stored behind Libby 
Dam for recreational purposes (not as part of an energy exchange as 
stated in the proposed rule) at the request of B.C. Hydro. As a result, 
flows dropped from nearly 20,000 cubic feet per second (cfs) to 4,000 
cfs (566 cubic meters per second (cms) to 113 cms) in the Kootenai 
River during the critical spawning period. At that time, three mature 
female sturgeon tagged with ultrasonic transmitters were staging in the 
suspected spawning reach near Bonners Ferry when suitable temperature 
and possibly adequate flow conditions were present. Subsequent to the 
flow reduction no eggs or larvae or other evidence of spawning were 
reported for the 1992 sturgeon spawning season.
    In the second example, BPA in mid-February 1993 started drafting 
the nearly 1 million acre-feet stored behind Libby Dam to meet firm 
power needs. The Service had been working with the Corps to develop an 
Memorandum of Agreement (MOA) that included a flow regime for 1993 
using all or part of this stored water for white sturgeon reproduction. 
Approximately 400,000 acre-feet of this water ended up being released 
as the 1993 experimental flow test. As previously described, BPA 
acknowledged that this experimental test flow was probably insufficient 
to maximize sturgeon spawning opportunity and ensure egg/larvae 
survival in 1993, likely contributing to another year-class failure. 
The BPA also noted that the early drafting ``* * * was done consistent 
with the Pacific Northwest Coordination Agreement * * *'' Regardless of 
the causes, these actions demonstrate the continued reluctance to 
manage Kootenai River water for most non-hydropower purposes.
    Regarding the Sturgeon Technical Committee, the Service agrees that 
committee members were not authorized to approve future management 
actions, or did not necessarily support the interim flow proposal. As 
stated in the proposed rule, the Service adopted the interim flow 
proposal based upon the best empirical data and only as a minimum first 
step to address flow related problems affecting white sturgeon 
reproduction in the Kootenai River.
    In summary, no substantive comments were received indicating that 
the Kootenai River white sturgeon is more abundant, widespread or less 
endangered than described in the proposed rule. Opposing comments were 
based primarily upon concerns that listing of the Kootenai River white 
sturgeon would affect water management at Libby Dam (and Koocanusa 
Reservoir) or impact the economy of the Kootenai River basin, rather 
than information concerning the species status. Because many of these 
comments focused on recovery concerns, they will be useful in 
developing recovery options for the Kootenai River population of white 
sturgeon. Some opposing comments questioned the adequacy of the 
Service's data, specifically concerning the current status of the 
population and whether all of the causes of decline have been 
considered. The Service has continued to gather information regarding 
the status of the Kootenai River white sturgeon since publication of 
the proposed rule in July 1993 and believes that this final rule is 
based on the best scientific and commercial information available. As 
discussed in detail in the ``Summary of Factors Affecting the Species'' 
section, the Service concludes that the Kootenai River population of 
white sturgeon continues to decline from the combined effects of lack 
of recruitment and natural mortality and is in danger of extinction.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1533) and 
regulations (50 CFR part 424) promulgated to implement the listing 
provisions of the Act set forth the procedures for adding species to 
the Federal Lists. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1). These factors and their applicability to the Kootenai 
River population of white sturgeon (Acipenser transmontanus) are as 
follows:

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

    The significant modifications to the natural hydrograph in the 
Kootenai River caused by flow regulation at Libby Dam is considered the 
primary reason for the Kootenai River white sturgeon's continuing lack 
of recruitment and declining numbers (Apperson and Anders 1991). Since 
1972 when Libby Dam began regulating flows (though not fully 
operational until 1975), spring flows in the Kootenai River have been 
reduced an average 50 percent, and winter flows have increased by 300 
percent over normal. As a consequence, natural high spring flows 
required by white sturgeon for reproduction rarely occur during the May 
to July spawning season when suitable temperature, water velocity, and 
photoperiod conditions exist. Spring flows in the Kootenai River below 
Libby Dam are also normally far below the flows observed in 1974, the 
last year with appreciable white sturgeon production (Apperson 1992). 
Flows in 1974 exceeded 35,000 cfs (1,000 cms) during most of the 
spawning season. The current operation of Libby Dam drastically alters 
seasonal downstream discharge by storing the natural spring runoff, 
providing more predictable flows throughout the year, and allowing late 
summer load factoring (power peaking) flows (Apperson 1992).
    Evidence of spawning by Kootenai River white sturgeon has been 
documented only in 1991 and 1993. In 1990 and 1991, river discharge 
during the suspected spawning period was atypical for the post-Libby 
Dam period. Instead of discharge declining through late spring as 
occurred during 1989 and most prior years following Libby Dam 
operation, increasing and higher than ``normal'' flows coincided with 
increasing water temperatures through June in 1990 and 1991. In both 
years, mature female sturgeon tagged with ultrasonic transmitters moved 
from 15 to 110 river km (10 to 68 river mi) upriver and congregated in 
the 16 river km (10 river mi) reach near Bonners Ferry (Apperson 1992). 
These migrations coincided with an increase in flows near Bonners Ferry 
from approximately 24,700 cfs to nearly 42,400 cfs (700 to 1,200 cms) 
and an increase in water temperature from 8 to 14  deg.C (46 to 57 
deg.F).
    Although no sturgeon eggs were recovered in 1990, 13 eggs were 
collected in early July 1991 from an artificial substrate placed in the 
suspected spawning area near river km 243 (river mi 155) at Bonners 
Ferry, within 0.06 mi (100 m) downriver from the railroad bridge 
(Apperson 1992). The eggs, estimated to be approximately 3 days of age, 
were spawned when water temperatures were 14  deg.C (57  deg.F) and 
discharge between June 29 and July 2 ranged from 14,125 to 19,400 cfs 
(400 to 500 cms). Water velocities where sturgeon eggs were collected 
were estimated at 2.4 to 3.1 fps (0.8 to 1.0 mps); these velocities 
were at the lower end of velocity ranges measured in white sturgeon 
spawning areas during egg collection in the lower Columbia River (1.6 
to 9.1 fps or 0.5 to 2.8 mps) (Miller et al. 1991). Although pre-
spawning migratory behavior was observed in both 1990 and 1991, the 
higher than normal Kootenai River flows through the suspected spawning 
area occurred only for a brief period, with a few viable eggs collected 
in 1991. Evidence that more than one female spawned successfully, or 
whether the eggs spawned in 1991 survived past the larval stage, is 
lacking.
    Spawning was also documented during the 1993 experimental test flow 
(see Factor D below for a more complete discussion of this test flow). 
Two eggs spawned from two separate females were collected during the 
test flow period on artificial substrate mats in the same general 
location where eggs were found in 1991. The first egg was collected on 
June 10, with an estimated spawning date of June 7. The second egg 
collected on June 15 was not fertilized. Flows at Bonners Ferry during 
this period averaged 20,000 cfs (566 cms) with no load-following and 
water temperatures ranged from 12 to 14  deg.C (54 to 57  deg.F). A 
third egg was collected on July 10 in a D-ring net. However, the egg 
was dead and the back-calculated time of spawning was not determinable. 
Although 1993 spawning monitoring efforts were intense, larval sturgeon 
are normally difficult to collect. Similar to 1991 results, there is 
currently no evidence that eggs spawned in 1993 survived past the 
larval stage.
    Additional adverse impacts to sturgeon because of reduced spring 
flow conditions may result from load-factoring or load-following at 
Libby Dam. Load-factoring, the deliberate practice of artificially 
raising and lowering river levels over a daily or weekly pattern for 
peak power generation or recreation, can create rapid changes in 
tailwater flows and affect depth, temperature, dissolved gases, and 
other physical-chemical conditions in the tailwater. Load-factoring at 
Libby Dam is a frequent and sporadic operating practice contributing to 
routine fluctuations in river elevations of 1 to 3 ft (0.3 to 0.9 m) 
per day (Kim Apperson, IDFG, pers. comm., 1993). These fluctuations may 
adversely affect sturgeon spawning behavior and reduce any egg/larvae 
survival by dewatering early rearing habitats. Because sturgeon 
spawning coincides with peak flows during spring and early summer, 
flows within natural fluctuations are considered important in 
maintaining consistent sturgeon spawning behavior during the spawning 
period (Lance Beckman, U.S. Fish and Wildlife Service, pers. comm., 
1993).
    Kootenai River white sturgeon eggs and larvae are subject to 
downstream drift and are vulnerable to dewatering from flow 
fluctuations for 4 to 6 weeks post-spawning. This is especially 
critical for eggs and larvae deposited in shallow, littoral areas 
within the 16 river km (10 river mi) stretch downstream of Bonners 
Ferry. For example, initial study results from Instream Flow 
Incremental Methodology (IFIM) monitoring in the Kootenai River near 
Bonners Ferry indicate that potential egg and larval habitats may be 
exposed or dewatered when flows drop below 11,000 cfs (BPA 1993). Load-
factoring also affects and modifies the primary and secondary 
productivity in lotic ecosystems (Ward and Stanford 1979). White 
sturgeon normally begin exogenous feeding within 2 weeks following 
hatching. Therefore, the availability of native benthos, periphyton, 
and zooplankton suitable as prey organisms is critical to their early 
survival.
    The Service believes that some sturgeon spawning may occur on a 
periodic, and possibly annual basis in the Kootenai River. However, 
survival past the age/larval stage is suspect since recruitment (above 
age 1) was virtually non-existent from 1974 to 1978, and unknown after 
1978. For example, three adult white sturgeon were captured in 1993 
near Shorty's Island (river mi 141, river km 227) while fishing for 
broodstock sturgeon (BPA 1993). One fish was estimated at 14 years old, 
likely spawned during 1978. A second fish was estimated to be 14 to 17 
years of age, suggesting it came from the 1975 to 1978 year class(es) 
while the third fish was not aged because both aging structures 
(pectoral fin rays) were deformed.
    Another contributing factor to the white sturgeon decline is the 
elimination of side channel slough habitat in the Kootenai River 
floodplain due to diking and bank stabilization to protect agricultural 
lands from flooding. Much of the Kootenai River has been channelized 
and stabilized from Bonners Ferry downstream to Kootenay Lake, 
resulting in reduced aquatic habitat diversity, altering flow 
conditions at potential remaining spawning and nursery areas, and 
altering remaining substrates and conditions necessary for survival. 
The former slough and side channel areas were considered important 
rearing and foraging habitat for early age sturgeon and their prey 
(Partridge 1983).
    In summary, these extensive aquatic habitat and flow modifications 
in the Kootenai River basin are believed to have caused adverse effects 
on white sturgeon reproduction, recruitment, and survival, and threaten 
the continued existence of the population.

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

    All legal commercial and sport harvest for Kootenai River white 
sturgeon has been eliminated in Idaho, Montana, and British Columbia. 
However, it is not known what impact, if any, to Kootenai River 
sturgeon may still be occurring from the illegal harvest.
    While no historic evidence of white sturgeon exploitation in the 
Kootenai River basin during the 1800's exists (PSMFC 1992), sturgeon 
were utilized by the Kootenai Indians ``* * * at least several hundred 
years ago'' (Graham and White 1985). In Idaho, the harvest of white 
sturgeon in the Kootenai River was first regulated in 1944 when 
commercial fishing was prohibited and sport fishing restrictions were 
imposed (Apperson 1992). With increasingly restrictive harvest and 
length restrictions, an estimated 10 to 20 white sturgeon were 
harvested per year from 1944 through the mid-1970's. Partridge (1983) 
reported that although the legal harvest had reached a relatively 
constant 51 to 52 fish per year over the 1979 through 1981 period, the 
total number of sturgeon caught was decreasing with fewer fish being 
released. Partridge also found that only 13 percent (n = 50) of the 342 
sturgeon sampled were younger than age 15 and smaller than the legal 
size of 32 in (92 cm) total length. He concluded that lack of 
recruitment was limiting the population and fishery. Following this 
investigation and citing concerns about the status of the population, 
Idaho terminated the legal sport harvest in 1984, limiting the sturgeon 
fishery to catch and release only.
    In Montana, the harvest of white sturgeon was not restricted prior 
to 1972 (Apperson 1992). Graham and White (1985) reported that burbot 
(ling) anglers and fishermen using set-lines harvested sturgeon in the 
Kootenai River downstream of Kootenai Falls during the 1940's and 
1950's. Beginning in 1972, harvest was restricted to two sturgeon per 
year with a slot (size) limit of between 36 and 54 in (102 to 183 cm). 
Over a 6-year period, 5 to 18 sturgeon were harvested annually. Fishing 
for sturgeon in Montana has been prohibited since 1979, and the species 
is now classified as a ``Species of Special Concern'' (MTNHP 1993).
    In British Columbia, the white sturgeon harvest was first regulated 
in 1952 (Apperson 1992). During the 1974 through 1989 period, anglers 
were required to secure a permit to fish for white sturgeon and allowed 
to harvest one white sturgeon per year over 1 m total length. An 
average of 55 permits were issued annually from 1973 to 1980 with an 
estimated annual legal and illegal harvest of 10 to 20 fish (Graham 
1981). Most sturgeon angling occurred on or near the Kootenai River 
delta or in the river. Setlining for white sturgeon in British Columbia 
was prohibited in 1989, and a total ban on the sport harvest was 
imposed in 1990. Current regulations allow catch and release only for 
white sturgeon in Kootenay Lake.
    A few adult white sturgeon are collected each year for experimental 
culture purposes. The Kootenai Tribal Experimental Hatchery in Bonners 
Ferry, Idaho, is currently evaluating factors limiting recruitment, 
including the relationship between water quality and gamete viability, 
as well as habitat use and survival of juvenile white sturgeon released 
into the Kootenai River. Collection for experimental culture purposes 
does not appear to be a threat at this time. The BPA recently completed 
an evaluation of a captive broodstock program to determine the 
environmental impacts and genetic risk of supplementation on the 
remaining wild white sturgeon population in the Kootenai River (Kincaid 
1993).

C. Disease or Predation

    Not known to be applicable. However, the potential exists for 
disease to enter the wild Kootenai River white sturgeon population 
through the release of hatchery raised sturgeon, such as those from the 
Kootenai Tribe's experimental hatchery. Diseases known to occur in 
white sturgeon hatcheries include bacterial diseases, protozoans, 
fungi, adenovirus, and the white sturgeon iridovirus (WSIV) (PSMFC 
1992). Many of these causative diseases are commonly found in natural 
water systems, while the WSIV pathogen is thought to reside naturally 
in several wild populations of white sturgeon. During late November 
1992, an outbreak of the WSIV killed most of the nearly 23,000 
fingerling Kootenai River white sturgeon being raised at the Kootenai 
Tribe hatchery, and the IDFG hatchery at Sandpoint, Idaho. High fish 
densities and low dissolved oxygen conditions at the hatchery at the 
time of the WSIV outbreak were considered contributing factors. 
According to BPA (1993), WSIV problems at the experimental hatchery 
have been alleviated by installing additional tanks and supplying 
additional water. Although it appears that white sturgeon fingerlings 
are most susceptible to WSIV when confined under hatchery rearing 
conditions, the Service is concerned that WSIV and other diseases in 
wild white sturgeon reared in hatcheries may also be transmitted to the 
remaining wild population when released.
    Fish predation may be a contributing source of mortality for 
Kootenai River white sturgeon eggs and larvae, although no data to 
support this suggestion exists specific to the Kootenai River. In the 
Columbia River downstream of McNary Dam, common carp (Cyprinus carpio), 
largescale suckers (Catostomus macrocheilus), and northern squawfish 
(Ptychocheilus oregonensis) have been collected with white sturgeon 
eggs in their stomachs (Duke et al. 1990).

D. The Inadequacy of Existing Regulatory Mechanisms

    The IDFG currently classifies the Kootenai River population of 
white sturgeon as endangered, which it defines as ``any species in 
danger of extinction throughout all or a significant portion of its 
Idaho range'' (IDFG 1992). While such designation regulates the take or 
possession of those species classified as threatened or endangered, the 
State lacks authority to impose or implement additional conservation 
measures to ensure survival or recovery of the Kootenai River 
population of white sturgeon.
    In Montana, the Kootenai River white sturgeon is classified as a 
``Species of Special Concern'' (MTNHP 1993). The fish is currently 
managed under restricted harvest regulation, with catch and release 
only and possession prohibited. Similar to Idaho, Montana also lacks 
authority to impose additional conservation measures on flow management 
at Libby Dam to benefit white sturgeon.
    The Corps regulates the management of water at Libby Dam. The Libby 
Dam project was authorized by Title II of Public Law 81-516, the Flood 
Control Act of 1950, primarily for flood control, hydropower 
generation, and recreation purposes (Corps 1984). Present Corps policy 
states that equal consideration should be given to environmental 
concerns in accordance with project objectives. However, other than 
providing minimum flow releases of 4,000 cfs (113 cms) from Libby Dam 
to maintain rainbow trout habitat downstream, permanent operational 
flow alternatives for Libby Dam to benefit white sturgeon recruitment 
have not been implemented.
    Because operation of Libby Dam is considered part of the 
Coordinated Columbia River System, BPA is also involved in the 
management of Kootenai River operations. The Coordinated Columbia River 
System refers to all projects operated under at least three 
authorities: The Columbia River Treaty, the Pacific Northwest 
Coordination Agreement, and Federal flood control statutes. The 
Columbia River Treaty of 1961 between Canada and the United States 
provided for the building of four storage reservoirs including Libby 
Dam, in the upper Columbia River drainage, primarily for flood control 
and power production. The Pacific Northwest Coordination Agreement, an 
intricate contract between the Corps, BPA, and Reclamation, calls for 
the planned operation to accommodate all of the authorized purposes of 
the Columbia River hydropower system. These authorized purposes include 
flood control, navigation, irrigation, and power production (System 
Operation Review Interagency Team 1991).
    The aforementioned treaty and contract, and various Federal flood 
control statutes, have established stringent planning and operation 
criteria for the Columbia River system. In addition, alternative 
operational scenarios for the 14 Federal hydro projects of the 
Coordinated Columbia River system are being developed and analyzed by 
the Systems Operations Review (SOR) program. The Resident Fish 
Technical Work Group of SOR is evaluating alternative operations at 
each of the Federal projects that address the needs of Kootenai River 
white sturgeon, and other resident fishes. At the time of this rule, 
the SOR is still undergoing NEPA review and analysis. Therefore, 
operational changes at Libby Dam to benefit white sturgeon and other 
resident fish in the Kootenai River basin resulting from the SOR 
process are not likely to be implemented any time soon.
    The Service joined efforts in June 1992 with IDFG, MDFWP, the 
Corps, the Kootenai Tribe, and other U.S. and Canadian regional 
agencies to form a Kootenai River White Sturgeon Technical Committee 
(Committee). The goal of the Committee was to identify factors 
affecting Kootenai River white sturgeon and develop a regional, 
prelisting recovery strategy that would form the basis of a 
Conservation Agreement (CA) or Memorandum of Agreement (MOA) between 
the Service and the various agencies. The Service noted the MOA would 
need to include measures to remove threats to the sturgeon and include 
long-term provisions to modify flows in the Kootenai River below Libby 
Dam that would result in successful spawning and recruitment.
    Based on discussions and recommendations by some members of the 
Committee, the Service adopted an interim flow proposal as the basis of 
any prelisting CA or MOA. This alternative attempted to match flows of 
1974, the last year of successful reproduction and measurable 
recruitment to the population, but reduced peak flows to 35,000 cfs 
(1,000 cms) to minimize flooding impacts and dike damage at Bonners 
Ferry and reduce nitrogen supersaturation effects below Libby Dam. The 
interim flow strategy specified that discharge from Libby Dam be 
regulated so that river flows through the suspected spawning reach near 
Bonners Ferry stay at the 35,000 cfs (1,000 cms) discharge throughout 
the white sturgeon spawning, egg incubation, and early rearing period. 
The flow strategy also contained provisions to eliminate peak-loading 
during the enhanced flow period. Prior to publication of the proposed 
rule (58 FR 36379), the Service was unable to successfully negotiate a 
CA to implement the interim flow proposal developed by the Committee.
    Partially as an outcome of the Committee discussions, the Corps and 
BPA provided 400,000 acre-feet of water from Lake Koocanusa as a test 
flow to stimulate white sturgeon spawning in 1993. The water was 
initially stored to provide flows for federally listed salmon in the 
lower Columbia River. However, the water was shaped and released in a 
manner to provide a test for white sturgeon. This water was released 
from Libby Dam between May 28 and June 16 to elevate Kootenai River 
flows at Bonners Ferry to approximately 20,000 cfs (566 cms), to 
provide information about sturgeon spawning activity at that flow (BPA 
1993). BPA acknowledges that the duration of the 1993 test flow ``* * * 
was probably not sufficient to allow all white sturgeon an opportunity 
to spawn.'' Intensive egg sampling and monitoring by the IDFG and 
Kootenai Tribe of Idaho during and following the test flow period 
collected three sturgeon eggs, presumably spawned by at least two 
female sturgeon. Based on monitoring results from the 1991 and 1993 
spawning test flow, the Corps and BPA have suggested that white 
sturgeon will successfully spawn at flow levels lower than the `shaped' 
35,000 cfs peak flows some members of the Committee, including the 
Service, believe are needed to maximize sturgeon reproduction 
opportunities (BPA 1993; Corps 1993). Subsequently, these agencies have 
proposed an alternate flow strategy to provide for ``* * * maximum 
spawning opportunity'' in 3 out of 10 years starting in 1994 based on 
research to date and dependent upon flow forecasts and water 
availability. General provisions are as follows:

    In May, release flows to maintain 15,000 cubic feet per second 
at Bonners Ferry, Idaho, as local inflow subsides. Increase flows to 
20,000 cubic feet per second at Bonners Ferry beginning at the time 
when water temperatures there have reached 12-13 deg. C, and 
maintain for 25 days for sturgeon spawning. Commencement of 20,000 
cubic feet per second flows would generally occur in early June. 
Flows would be reduced over 3 days to 11,000 cubic feet per second 
at Bonners Ferry and maintained for 28 days. Load following would be 
eliminated during May through July in years that proposed sturgeon 
flows are attempted.

    The Service considers the proposal an acknowledgement by the water 
management agencies that flows are indeed an important component 
affecting sturgeon recruitment and is encouraged that the effects of 
flow stability, i.e., duration of and load-factoring, on sturgeon 
reproductive success are addressed in the flow proposal.
    However, the Service believes the proposed action is deficient in 
at least four areas: (1) The flow proposal is not based on empirical 
evidence or data to support the conclusion that sturgeon spawning 
opportunity will be maximized throughout the potential reproductive 
season; (2) there is no agency commitment to initiate proposed sturgeon 
flows early in the 10 year cycle. For example, the flow proposal as 
currently worded would allow enhanced flows to start in year 7 or 8; 
(3) providing sturgeon flows each year is solely dependent upon ``above 
average'' water availability and will not reduce refill in Lake 
Koocanusa; and (4) there are no provisions to adjust flows or modify 
operations in future years if monitoring demonstrates a need for 
additional flows for white sturgeon recruitment. Additionally, the 
question whether successful natural recruitment 3 out of 10 years is 
sufficient to maintain this population still needs to be addressed.
    In summary, the BPA and the Corps have committed to only providing 
experimental flows for white sturgeon in some years with several 
qualifying conditions. They have not yet committed to implement long-
term conservation measures on Libby Dam operations for non-hydropower 
purposes, specifically to protect and enhance recruitment opportunities 
for white sturgeon in the Kootenai River basin. Additionally, BPA has 
previously stated that additional conservation measures to benefit 
sturgeon would be available if the species were listed.
    The Pacific Northwest Electric Power Planning and Conservation Act 
of 1980 (Power Planning Act) was a recent attempt by the U.S. Congress 
to address the hydropower impacts on fish and wildlife in the Columbia 
River system. The Power Planning Act directed the NWPPC to ``* * * 
promptly develop and adopt * * * a program to protect, mitigate, and 
enhance fish and wildlife, including related spawning grounds and 
habitat, on the Columbia River and its tributaries'' (16 U.S.C. 
839b(h)(1)(A)). BPA has been charged with funding all efforts and 
projects to protect, mitigate, and enhance fish and wildlife consistent 
with the NWPPC's Program. Ongoing efforts by various State agencies and 
the Kootenai Tribe, authorized by the NWPPC (1987) and funded by BPA, 
have been undertaken to identify environmental factors limiting the 
white sturgeon population in the Kootenai River, and develop and 
maintain an experimental white sturgeon culture facility on the 
Kootenai River. Despite these efforts to better comprehend the factors 
affecting the Kootenai River white sturgeon, a change in the flow 
regime associated with dam operation on the Kootenai River is still 
needed to enable this population to successfully reproduce and increase 
in size.
    In summary, the Corps and BPA have committed to experimental flow 
releases from Libby Dam for Kootenai River white sturgeon in possibly 3 
out of the next 10 years. However, providing these flows is contingent 
upon meeting other project priority uses. The proposed action increases 
discharge and sustains flows in the Kootenai River at only 57 percent 
of the discharge the Service believes is necessary to maximize sturgeon 
spawning and maintain suitable larval rearing habitats. Existing 
regulatory mechanisms are not sufficient to ensure the survival and 
recovery of this species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

     Although not fully understood, there is evidence that the overall 
biological productivity of the Kootenai River downstream of Libby Dam 
has been altered. Based on limnological studies of Kootenay Lake, Daley 
et al. (1981) concluded that the construction and operation of Libby 
Dam (and Duncan Dam, Canada) ``* * * has drastically altered the annual 
hydrograph and has resulted in modifications to the quality of water 
now entering the lake by removing nutrients, by permitting the 
stripping of nutrients from the water in the river downstream from the 
dam, and altering the time at which the nutrients are supplied to the 
lake.'' Potential threats to the Kootenai River white sturgeon from 
declining biological productivity include: (1) decreased prey abundance 
and limited food availability for all life stages of sturgeon 
downstream of Libby Dam, (2) reduced condition factor in adult white 
sturgeon, possibly impacting fecundity and reproduction, and (3) a 
possible reduction in the overall capacity for the Kootenai River and 
Kootenay Lake systems to sustain substantial populations of white 
sturgeon and other native fishes. The British Columbia Ministry of 
Environment, Lands and Parks is currently experimenting with 
fertilization of Kootenay Lake to increase biological productivity and 
enhance native fisheries (Ashley and Thompson 1993). Beginning in 1993, 
BPA funded IDFG and Idaho State University to study primary 
productivity, community respiration, and nutrient cycling in the 
Kootenai River from Libby Dam downstream to Kootenay Lake (BPA 1993). 
It will be several years before results from these studies explain what 
extent, if any, reduced biological productivity has been a contributing 
factor to the Kootenai River white sturgeon's population decline.
    Poor water quality and excessive nutrients in the Kootenai River 
were once considered major problems for the white sturgeon and other 
native fishes prior to the construction and operation of Libby Dam. 
Graham (1981) concluded that poor water quality conditions in the 
1950's and 1960's resulting from industrial and mine development most 
likely affected white sturgeon reproduction and recruitment. Poor water 
quality, i.e., heavy metals and other contaminants, may have affected 
white sturgeon reproductive success and impacted their prey base.
    Major sources of pollution in the Kootenai River basin were 
effluents from a lead-zinc mine and concentrator; a fertilizer 
processing plant; and sewage treatment plants on the St. Mary River (an 
upstream tributary in Canada); and a vermiculite mine and processing 
plant 11 river km (7 river mi) upstream of Libby, Montana. Significant 
improvements in Kootenai River water quality were noted by 1977, due in 
part to waste water control and effluent recycling measures initiated 
in the late 1960's.
    Today, many of these pollutants and contaminants persist, primarily 
bound in sediments. Apperson (1992) noted that detectable levels of 
aluminum, copper, lead, zinc, and strontium were found in sturgeon 
oocyte (egg) samples from the Kootenai River along with detectable 
levels of PCB's and pesticides. However, other than copper the 
detectable levels of these compounds (e.g., PCB's, organochlorines, 
zinc) were either (1) lower than levels found in other Columbia River 
basin sturgeon populations that successfully reproduce, or (2) not 
enough is known regarding the toxicity of these pollutants to sturgeon. 
Partridge (1983) expressed concerns that contaminants, primarily high 
concentrations of copper and zinc, may inhibit survival of white 
sturgeon eggs and larvae. Apperson (1992) believed that ``* * 
*concentrations of copper found in white sturgeon oocytes potentially 
present the most severe contaminant effect on reproductive success'' 
since some of the copper concentrations found in water samples taken in 
the Kootenai River were in the range of levels known to inhibit yolk 
uptake in larval white sturgeon.
    One of the initial objectives of the Kootenai Indian Tribe's 
experimental hatchery was to determine the relationship between water 
quality (including toxicants) and gamete viability. Initial culture 
efforts documented successful fertilization and incubation, and that 
sturgeon gametes (i.e. eggs and sperm) from wild sturgeon are generally 
viable (Apperson and Anders 1991). While this demonstrates that wild 
sturgeon eggs are viable when spawned under hatchery conditions, the 
effects of heavy metals, organochlorines, and other contaminants in 
Kootenai River waters and sediments on the reproductive success of wild 
sturgeon is unknown.
    Sturgeon eggs and embryos are sensitive to pollutants, with some 
heavy metals known to be toxic at very minute concentrations (Dettlaff 
et al. 1993). Georgi (1993) notes that the chronic effects of wild 
sturgeon spawning in ``chemically polluted'' water and rearing on 
contaminated sediments, in combination with bioaccumulation of 
contaminants in the food chain, is possibly impacting the successful 
reproduction and early age recruitment to the Kootenai River white 
sturgeon population. In summary, the degree to which poor water 
quality, sediment, and prey base contamination are factors threatening 
Kootenai River white sturgeon survival are not known, and remain 
potential threats to the species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the species in determining to issue this rule. 
Based on this evaluation, the preferred action is to list the Kootenai 
River population of white sturgeon (Acipenser transmontanus) as 
endangered because the population has been declining since the mid-
1960's. The remaining population in 1993 is estimated at 785 
individuals (range 569 to 1,080) based on estimated annual mortality 
rates and recent zero recruitment, with most individual sturgeon older 
than 20 years of age. There has been almost no recruitment of juveniles 
into the population since 1974 and the population may be reaching a 
stage of reproductive senescence.
    The reduced river flows during the critical spring spawning and 
early rearing season as a result of the operation of Libby Dam has 
impacted recruitment since the mid-1970's, and threatens the continued 
existence of this population. The population also faces threats from 
reduced biological productivity, and possibly poor water quality and 
the effects of contaminants. Because this distinct population of white 
sturgeon is in danger of extinction throughout its range, it fits the 
Act's definition of an endangered species. For reasons discussed below, 
critical habitat is not being proposed at this time.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that critical 
habitat be designated to the maximum extent prudent and determinable 
concurrently with the determination that a species is endangered or 
threatened. Regulations implementing section 4 of the Act provide that 
a designation of critical habitat is not determinable when one or both 
of the following situations exists: (1) Information sufficient to 
perform required analyses of the impacts of the designation is lacking, 
or (2) the biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat (50 CFR 
424.12). The Service has completed its analysis of the biological 
status of the Kootenai River population of the white sturgeon, yet has 
not completed the analysis necessary for the designation of critical 
habitat. The Service has decided to proceed with the final listing 
determination now and to consider the designation of critical habitat 
in a separate rulemaking.
    Consequently, the Service has determined that critical habitat for 
the Kootenai River population of white sturgeon is not presently 
determinable because information sufficient to perform the required 
analyses of the impacts of such a designation is lacking. The Service 
will continue to gather and review information concerning habitat 
requirements of this sturgeon and has identified several activities 
that may adversely impact those habitats. For example, the Service has 
identified the lack of natural flows in the Kootenai River below Libby 
Dam as the primary threat to this white sturgeon population. Other than 
a need for basic understanding of streamflow conditions necessary for 
providing spawning and early rearing habitat during the normal May 
through July sturgeon spawning season, the life history requirements 
for other life stages of white sturgeon are not sufficiently well known 
to permit identification of an area in the Kootenai River basin as 
designated critical habitat. Additionally, many Kootenai River white 
sturgeon migrate freely throughout the Kootenai River system and spend 
part of their life in Kootenay Lake in British Columbia, Canada. 
Critical habitat designation is not allowed outside the United States 
since only Federal agencies are under the jurisdiction of section 7 of 
this Act.
    The Service is still gathering and reviewing information on the 
life history needs of the Kootenai River population of the white 
sturgeon and the potential economic consequences of designating 
critical habitat. Additional biological information that may be useful 
in designating critical habitat for Kootenai River white sturgeon may 
include identification of specific river areas necessary for spawning, 
reproduction, and rearing of offspring; and water quantity, 
temperatures, and velocity in the Kootenai River required to meet some 
life history need (e.g., spawning and early rearing). Economic 
considerations in critical habitat designations are only the economic 
costs and benefits of additional requirements or management measures 
likely to result from the designation that are above the economic 
effects attributable to listing the population.
    The Service concludes that the threats to the Kootenai River white 
sturgeon population and the benefits associated with listing justify 
taking action now, rather that waiting until a full analysis of 
critical habitat is completed. Protection of the sturgeon's habitat 
will be addressed through the recovery process and through section 7 
consultations to determine whether Federal actions are likely to 
jeopardize the continued existence of the species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing results in 
public awareness and conservation actions by Federal, State, and local 
agencies, private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the States and requires 
that recovery actions be carried out for all listed species. Such 
actions may be initiated following listing. The protection required of 
Federal agencies and the prohibitions against taking and harm are 
discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a proposed species or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
insure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Federal actions that may be affected by this listing include the 
continued operation of Libby Dam and Kootenai River flow management by 
the Corps. The Corps would be required to consult with the Service on 
the previously mentioned Libby Dam operations. Bonneville Power 
Administration would be required to consult with the Service regarding 
the Kootenai River white sturgeon research program authorized by the 
Northwest Power Planning Council (1987) and funded by BPA. In addition, 
consultation by the Corps, BPA, and Reclamation may be necessary if the 
SOR process results in a change in the operation or reauthorization of 
the Joint Coordination Columbia River System.
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take 
(including harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, collect, or attempt any such conduct), import or export, 
transport in interstate or foreign commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It also is illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing endangered species permits are at 50 CFR 17.22 
and 17.23. Such permits are available for scientific purposes, to 
enhance the propagation or survival of the species, and/or for 
incidental take in connection with otherwise lawful activities. In some 
instances, permits may be issued during a specified period of time to 
relieve undue economic hardship that would be suffered if such relief 
were not available.
    Requests for copies of the regulations on listed wildlife and 
inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Endangered Species Permits, 911 N.E. 
11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063, 
facsimile 503/231-6243).

National Environmental Policy Act

    The Service has determined that an Environmental Assessment, as 
defined under the authority of the National Environmental Policy Act of 
1969, need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Endangered Species Act, as amended. A 
notice outlining the Service's reasons for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Idaho State Office (see ADDRESSES 
section).

Author

    The primary author of this final rule is Stephen D. Duke, U.S. Fish 
and Wildlife Service, Idaho State Office (see ADDRESSES section); 
telephone (208) 334-1931.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is hereby amended as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under FISHES, to the List of Endangered and 
Threatened Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

    Dated: August 19, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-21864 Filed 9-2-94; 8:45 am]
BILLING CODE 4310-55-P