10412 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2009–0010; 92210–1117–000– 

B4] 

RIN 1018–AV87 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Oregon Chub 

(Oregonichthys crameri) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the Oregon 

chub (Oregonichthys crameri) pursuant 

to the Endangered Species Act of 1973, 

as amended (Act). In total, 

approximately 53 hectares (ha) (132 

acres (ac)) fall within the boundaries of 

the proposed critical habitat 

designation. The proposed critical 

habitat is located in Benton, Lane, Linn, 

and Marion Counties, Oregon. 

DATES: We will accept comments 

received on or before May 11, 2009. We 

must receive requests for public 

hearings, in writing, at the address 

shown in the FOR FURTHER INFORMATION

CONTACT section by April 24, 2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. Mail or Hand Delivery: U.S. 

mail or hand-delivery: Public Comments 

Processing, Attn: RIN 1018–AV87; 

Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, Suite 

222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see ‘‘Public 

Comments’’ section below for more 

information). 

FOR FURTHER INFORMATION CONTACT: Paul 

Henson, State Supervisor, U.S. Fish and 

Wildlife Service, Oregon Fish and 

Wildlife Office, 2600 SE 98th Avenue, 

Suite 100, Portland, OR 97266 

(telephone 503–231–6179; facsimile 

503–231–6195). If you use a 

telecommunications device for the deaf 

(TDD) call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, we request comments or 

suggestions on this proposed rule. We 

particularly seek comments concerning: 

1. The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the species from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether the benefit of 

designation would outweigh threats to 

the species caused by the designation, 

such that the designation of critical 

habitat is prudent. 

2. Specific information on: 

• The amount and distribution of 

habitat for the species included in this 

proposed rule; 

• What areas occupied at the time of 

listing, and that contain features 

essential for the conservation of the 

species, we should include and why; 

and 

• What areas not occupied at the time 

of listing are essential to the 

conservation of the species and why. 

3. Land use designations and current 

or planned activities in areas occupied 

by the species, and their possible 

impacts on the species and the proposed 

critical habitat. 

4. Any foreseeable economic, national 

security, or other potential impacts 

resulting from the proposed designation 

and, in particular, any impacts on small 

entities and the benefits of including or 

excluding areas that exhibit these 

impacts. 

5. Whether the benefits of excluding 

any particular area from critical habitat 

outweigh the benefits of including that 

area as critical habitat under section 

4(b)(2) of the Act, after considering the 

potential impacts and benefits of the 

proposed critical habitat designation. 

6. Special management considerations 

or protections that the proposed critical 

habitat may require. 

7. Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate concerns and comments. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not 

consider comments sent by e-mail or fax 

or to an address not listed in the 

ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. If you submit a 

hardcopy comment that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy comments on 

http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection at 

http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Oregon Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT). 

You may obtain copies of the 

proposed rule by mail from the Oregon 

Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT) or by 

visiting the Federal eRulemaking Portal 

at http://www.regulations.gov. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For a more complete 

discussion of the ecology and life 

history of this species, please see the 

Oregon Chub 5-year Review Summary 

and Evaluation completed February 11, 

2008 (http://www.fws.gov/pacific/ 

ecoservices/endangered/recovery/ 

Documents/Oregonchub.pdf). 

Description and Taxonomy 

The Oregon chub (Oregonichthys 

crameri) was first described in scientific 

literature in 1908 (Snyder 1908, pp. 

181–182), but it wasn’t until 1991 that 

it was identified as a unique species 

(Markle et al. 1991, pp. 284–289). 

Oregon chub have an olive-colored back 

(dorsum) grading to silver on the sides 

and white on the belly. Scales are 

relatively large with fewer than 40 

occurring along the lateral line; scales 

near the back are outlined with dark 

pigment (Markle et al. 1991, pp. 286– 

288). While young of the year range in 

length from 7 to 32 millimeters (mm) 

(0.3 to 1.3 inches (in)), adults can be up 

to 90 mm (3.5 in) in length (Pearsons 

1989, p. 17). The species is 

distinguished from its closest relative, 

the Umpqua chub (Oregonichthys 

kalawatseti), by Oregon chub’s longer 

caudal peduncle (the narrow part of a 

fish’s body to which the tail is attached), 

mostly scaled breast, and more terminal 

mouth position (Markle et al. 1991, p. 

290). 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10413 

Distribution and Habitat 

Oregon chub are found in slack-water, 

off-channel habitats with little or no 

flow, silty and organic substrate, and 

considerable aquatic vegetative cover for 

hiding and spawning (Pearsons 1989, p. 

10; Markle et al. 1991, p. 288; Scheerer 

and Jones 1997, p. 5; Scheerer et al. 

2007, p. 3). The species’ aquatic habitat 

is typically at depths of less than or 

equal to 2 meters (m) (6.6 feet (ft)), and 

has a summer subsurface water 

temperature exceeding 15 °Celsius (°C) 

(61 °Fahrenheit (°F)) (Scheerer and Apke 

1997, p. 45; Scheerer 2002, p. 1073; 

Scheerer and McDonald 2003, p. 69). 

Optimal Oregon chub habitat provides 1 

square meter (m2) (11 square feet (ft2)) 

of aquatic surface area per adult, at 

depths between 0.5 m (1.6 ft) to 2 m (6.6 

ft) (Scheerer 2008b). Oregon chub can be 

relatively long lived with males living 

up to 7 years and females up to 9 years, 

although less than 10 percent of fish in 

most Oregon chub populations are older 

than 3 years (Scheerer and McDonald 

2003, p. 71). Outside of spawning 

season, the species is social and nonaggressive with fish of similar size 

classes schooling and feeding together 

(Pearsons 1989, pp. 16–17). 

The species is endemic to the 

Willamette River drainage of western 

Oregon (Markle et al. 1991, p. 288) and 

was formerly distributed throughout the 

Willamette River Valley in a dynamic 

network of off-channel habitats such as 

beaver ponds, oxbows, side channels, 

backwater sloughs, low-gradient 

tributaries, and flooded marshes in the 

floodplain (Snyder 1908, p. 182). 

Records show Oregon chub were found 

as far downstream as Oregon City, as far 

upstream as Oakridge, and in various 

tributaries within the Willamette basin 

(Markle et al. 1991, p. 288). 

Historically, Oregon chub would be 

dispersed and their habitat regularly 

altered, increased, or eliminated due to 

regular winter and spring flood events 

(Benner and Sedell 1997, pp. 27–28); 

this dispersal created opportunities for 

interbreeding between different 

populations. The installation of the 

flood control projects in the Willamette 

River basin altered the natural flow 

regime, and flooding no longer plays a 

positive role in creating Oregon chub 

habitat or providing opportunities for 

genetic mixing of populations. Flood 

events now threaten Oregon chub 

populations due to the dispersal of 

nonnative species that compete with or 

prey on Oregon chub. Whereas natural 

perturbations like floods often favor 

native species over nonnative species, 

human perturbations typically favor the 

nonnative species. In the Santiam River 

basin, the two largest natural 

populations of Oregon chub declined 

substantially after nonnative fishes 

invaded these habitat during the 1996 

floods, and no new populations of 

Oregon chub were discovered in 

habitats located downstream of existing 

chub populations during thorough 

sampling in 1997–2000. This suggests 

that no successful colonization occurred 

as a result of the flooding event 

(Scheerer 2002, p. 1078). 

Currently, the largest populations of 

Oregon chub occur in locations with the 

highest diversity of native fish, 

amphibian, reptile and plant species 

(Scheerer and Apke 1998, p. 11). Beaver 

(Castor canadensis) appear to be 

especially important in creating and 

maintaining habitats that support these 

diverse native species assemblages 

(Scheerer and Apke 1998, p. 45). 

Conversely, the establishment and 

expansion of nonnative species in 

Oregon have contributed to the decline 

of the Oregon chub, limiting the species’ 

ability to expand beyond its current 

range (Scheerer 2007, p. 92). Many sites 

formerly inhabited by the Oregon chub 

are now occupied by nonnative species 

(Scheerer et al. 2007, p. 9; Scheerer 

2007a, p. 96). Sites with high 

connectivity to adjacent flowing water 

frequently contain nonnative predatory 

fishes and rarely contain Oregon chub 

(Scheerer 2007, p. 99). The presence of 

centrarchids (e.g., Micropterus sp. 

(largemouth bass, smallmouth bass, 

bluegill) and Pomoxis sp. (crappies)), 

and bullhead catfishes (Ameiurus sp.) is 

probably preventing Oregon chub from 

recolonizing suitable habitats 

throughout the basin (Markle et al. 1991, 

p. 291). 

Although surveys conducted by the 

Oregon Department of Fish and Wildlife 

(ODFW) prior to the 1993 listing of 

Oregon chub as endangered under the 

Act indicated the presence of the 

species at 17 different locations, the 

impacts of floodplain alteration and 

nonnative predators and competitors 

were clearly represented in the 

relatively small numbers of Oregon 

chub found at these sites. At the time of 

listing, these surveys were the best 

evidence of the then-current 

distribution of the species. Of these 17 

sites, only 9 supported populations of 

10 or more Oregon chub, and all but 1 

of those populations were found within 

a 30-kilometer (km) (19-mile (mi)) 

stretch of the Middle Fork Willamette 

River in the vicinity of Dexter and 

Lookout Point Reservoirs in Lane 

County, Oregon; this stretch represented 

just 2 percent of the species’ historical 

range (58 FR 53800; October 18, 1993). 

Very small numbers of the species, 

between 1 and 7 individuals, were 

found at the remaining eight of the 17 

sites at the time of listing. Currently, the 

distribution of Oregon chub is limited to 

25 known naturally occurring 

populations and 11 reintroduced 

populations scattered throughout the 

Willamette Valley (Scheerer et al. 2007, 

p. 2; 2008a, p. 2). 

Previous Federal Actions 

In 1993, we listed Oregon chub as 

endangered, in accordance with the 

Endangered Species Act (Act) (58 FR 

53800; October 18, 1993). In that listing, 

we concluded that critical habitat was 

prudent but not determinable. A 

recovery plan for the Oregon chub was 

completed in 1998 (USFWS 1998). The 

Oregon chub recovery plan established 

certain criteria for downlisting the 

species from endangered to threatened, 

which included establishing and 

managing 10 populations of at least 500 

adults each that exhibit a stable or 

increasing trend for 5 years. The 

recovery plan states that, for purposes of 

downlisting the species, at least three 

populations must be located in each of 

the three sub-basins of the Willamette 

River identified in the plan (Mainstem 

Willamette River, Middle Fork 

Willamette, and Santiam River). The 

recovery plan also established criteria 

for delisting the Oregon chub (i.e., 

removing it from the List of Endangered 

and Threatened Wildlife). These include 

establishing and managing 20 

populations of at least 500 adults each, 

which demonstrate a stable or 

increasing trend for 7 years. In addition, 

at least four populations must be located 

in each of the three sub-basins 

(Mainstem Willamette River, Middle 

Fork Willamette, and Santiam River). 

The management of these populations 

must be guaranteed in perpetuity. 

On March 9, 2007, the Institute for 

Wildlife Protection filed suit in Federal 

district court, alleging that the Service 

and the Secretary of the Interior violated 

their statutory duties as mandated by 

the Act when they failed to designate 

critical habitat for the Oregon chub and 

failed to perform a 5-year status review 

(Institute for Wildlife Protection v. U.S. 

Fish and Wildlife Service). On March 8, 

2007, we issued a notice that we would 

begin a status review of the Oregon chub 

(72 FR 10547). We completed the 

Oregon chub 5-Year Review on February 

11, 2008. In a settlement agreement with 

the Plaintiff, we agreed to submit a 

proposed critical habitat rule for Oregon 

chub to the Federal Register by March 

1, 2009, and to submit a final critical 

habitat determination to the Federal 

Register by March 1, 2010. 

10414 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

We have established two Safe Harbor 

Agreements (SHAs) for the Oregon 

chub; both in Lane County, Oregon, in 

2001 (66 FR 30745; June 7, 2001) and 

2007 (72 FR 50976; September 5, 2007). 

These SHAs established new 

populations of Oregon chub in artificial 

ponds as refugia for natural populations, 

which contributes to the conservation of 

the species by reducing the risk of the 

complete loss of donor populations and 

any of their unique genetic material. 

The SHA policy was developed to 

encourage private and other non-Federal 

property owners to voluntarily 

undertake management activities on 

their property to enhance, restore, or 

maintain habitat to benefit federally 

listed species. SHAs provide assurances 

to property owners allowing alterations 

or modifications to enrolled property, 

even if such actions result in the 

incidental take of a listed species. For 

more information on previous Federal 

actions concerning the Oregon chub, 

refer to the Determination of 

Endangered Status for the Oregon Chub 

published in the Federal Register on 

October 18, 1993 (58 FR 53800) or the 

1998 Recovery Plan for Oregon Chub 

(USFWS 1998). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

1. The specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features 

a. Essential to the conservation of the 

species, and 

b. Which may require special 

management considerations or 

protection; and 

2. Specific areas outside the 

geographical area occupied by a species 

at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing 

activities that result in the destruction 

or adverse modification of critical 

habitat. Section 7 of the Act requires 

consultation on Federal actions that 

may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by the 

landowner. Where the landowner seeks 

or requests Federal agency funding or 

authorization of an activity that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7 would apply. However, even if a 

destruction or adverse modification 

finding were to be made, a landowner’s 

obligation would not be to restore or 

recover the species, but rather, to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat 

in order to receive the federal agency 

funding or authorization. 

For inclusion in a critical habitat 

designation, habitat within the 

geographic area occupied by the species 

at the time it was listed must contain the 

physical and biological features that are 

essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (areas on which are 

found the primary constituent elements, 

as defined at 50 CFR 424.12(b)). 

Occupied habitat that contains features 

essential to the conservation of the 

species meets the definition of critical 

habitat only if those features may 

require special management 

considerations or protection. Under the 

Act, we can designate areas that were 

unoccupied at the time of listing as 

critical habitat only when we determine 

that the best available scientific data 

demonstrate that the designation of that 

area is essential to the conservation of 

the species. When the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require such additional areas, we will 

not designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. An 

area currently occupied by the species 

but that was not occupied at the time of 

listing may, however, be essential to the 

conservation of the species and may be 

included in the critical habitat 

designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106– 

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, and 

establish procedures and guidelines to 

ensure that decisions made by the 

Service represent the best scientific data 

available. They require Service 

biologists, to the extent consistent with 

the Act and with the use of the best 

scientific data available, to use primary 

and original sources of information as 

the basis for recommendations to 

designate critical habitat. 

When we are determining which areas 

should be proposed as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that we 

may eventually determine are necessary 

for the recovery of the species, based on 

scientific data not now available to the 

Service. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be required for 

recovery of the species. 

Areas that support populations, but 

are outside the critical habitat 

designation, may continue to be subject 

to conservation actions we implement 

under section 7(a)(1) of the Act. They 

are also subject to the regulatory 

protections afforded by the Section 

7(a)(2) jeopardy standard, as determined 

on the basis of the best scientific 

information at the time of the agency 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available to these planning 

efforts calls for a different outcome. 

Methods 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10415 

available in determining areas that 

contain the features that are essential to 

the conservation of the Oregon chub. 

Data sources include research published 

in peer-reviewed articles; previous 

Service documents on the species, 

including the final listing determination 

(58 FR 53800; October 18, 1993) and the 

Recovery Plan for the Oregon chub 

(USFWS 1998); and annual surveys 

conducted by the ODFW (1992 through 

2008, as summarized in Scheerer et al. 

2007 and Scheerer 2008a). Additionally 

we utilized regional Geographic 

Information System (GIS) shape files for 

area calculations and mapping. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

occupied at the time of listing to 

propose as critical habitat, we consider 

the physical and biological features that 

are essential to the conservation of the 

species and that may require special 

management considerations or 

protection. These features are the 

primary constituent elements (PCEs) 

laid out in the appropriate quantity and 

spatial arrangement for conservation of 

the species. These include, but are not 

limited to: 

1. Space for individual and 

population growth and for normal 

behavior; 

2. Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

3. Cover or shelter; 

4. Sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and 

5. Habitats that are protected from 

disturbance or are representative of the 

historical geographical and ecological 

distributions of a species. 

We derive the specific PCEs required 

for the Oregon chub from the biological 

needs of the species as described in the 

Background section of this proposed 

rule and the following information. 

Space for Individual and Population 

Growth and Normal Behavior 

Flow Velocities and Depth 

Oregon chub habitats are typically 

slack-water off-channel water bodies 

with little or no flow, such as beaver 

ponds, oxbows, side channels, 

backwater sloughs, low-gradient 

tributaries (less than 2.5 percent 

gradient) and flooded marshes (Pearsons 

1989, p. 30–31; Markle et al. 1991, pp. 

288–289; Scheerer et al. 2007, p. 3; 

Scheerer 2008e). The species’ swimming 

ability has been described as poor, and 

it is believed that no or low flow 

velocity water optimizes the energy 

expenditure of these slow fish (Pearsons 

1989, p. 30–31). Although Oregon chub 

habitat may contain water of somewhat 

greater depth, the species mainly 

occupies water depths between 

approximately 0.5–2.0 m (1.6–6.6 ft). In 

order for a habitat to provide enough 

space to allow normal behavior for a 

population of 500 or more individuals, 

the water body needs to include 

approximately 500 square meters (m2 ) 

(0.12 ac) or more of aquatic surface area 

between 0.5–2.0 m (1.6–6.6 ft) deep. 

(Scheerer 2008b). 

Cover 

The species’ habitat preference varies 

depending on lifestage and season, but 

all Oregon chub require considerable 

aquatic vegetation for hiding and 

spawning activities (Pearsons 1989, p. 

22; Markle et al. 1991, p. 290; Scheerer 

and Jones 1997, p. 5; Scheerer et al. 

2007, p. 3). A minimum of 250 m2 (0.06 

ac) (or between approximately 25 and 

100 percent of the total surface area of 

the habitat) to be covered with aquatic 

vegetation is needed to provide lifehistory requirements for a population of 

500 Oregon chub (Scheerer 2008e). 

Aquatic plant communities within 

Oregon chub habitat include, but are not 

limited to, both native and nonnative 

species, including: 

1. Emergent vegetation: Carex spp. 

(sedge); Eleocharis spp. (spikerush); 

Scirpus spp. (bulrush); Juncus spp. 

(rush); Alisma spp. (water plantain); 

Polygyonum spp. (knotweed); Ludwigia 

spp. (primrose-willow); Salix spp. 

(willow); Sparganium spp. (bur-reed); 

and Typha spp. (cattail). 

2. Partly submerged/emergent 

vegetation: Ranunculus spp. 

(buttercup). 

3. Floating/submerged vegetation: 

Azolla spp. (mosquitofern); Callitriche 

sp. (water-starwort); Ceratophyllum sp. 

(hornwort); Elodea spp. (water weed); 

Fontinalis spp. (fontinalis moss); Lemna 

spp. (duckweed); Myriophyllum spp. 

(parrot feather); Nuphar spp. (pondlily); and Potamogeton spp. (pondweed) 

(Scheerer 2008c). 

Oregon chub in similar size classes 

school and feed together. Larval Oregon 

chub congregate in the upper layers of 

the water column, especially in shallow, 

near-shore areas. Juvenile Oregon chub 

venture farther from shore into deeper 

areas of the water column. Adult Oregon 

chub seek dense vegetation for cover 

and frequently travel in the mid-water 

column in beaver channels or along the 

margins of aquatic plant beds. In the 

early spring, Oregon chub are most 

active in the warmer, shallow areas of 

the ponds (Pearsons 1989, pp. 16–17; 

USFWS 1998, p. 10). 

Substrates 

Because Oregon chub habitat is 

characterized by little or no water flow, 

resulting substrates are typically 

composed of silty and organic material. 

In winter months, Oregon chub of 

various life stages can be found buried 

in the detritus or concealed in aquatic 

vegetation (Pearsons 1989, p. 16). 

Females prefer a highly organic, 

vegetative substrate for spawning and 

will lay their adhesive eggs directly on 

the submerged vegetation (Pearsons 

1989, p. 17, 23; Markle et al. 1991. p. 

290; Scheerer 2007b, p. 494). 

Food 

Known as obligatory sight feeders 

(Davis and Miller 1967, p. 32), Oregon 

chub feed throughout the day and stop 

feeding after dusk (Pearsons 1989, p. 

23). The fish feed mostly on water 

column fauna, especially invertebrates 

that live in dense aquatic vegetation. 

Markle et al. (1991, p. 288) found that 

the diet of Oregon chub adults consisted 

primarily of minute crustaceans 

including copepods, cladocerans, and 

chironomid larvae. The diet of juveniles 

also consists of minute organisms such 

as rotifers, copepods, and cladocerans 

(Pearsons 1989, p. 41–42). 

Water Quality 

With respect to water quality, the 

temperature regime at a site may 

determine the productivity of Oregon 

chub at that location. Spawning activity 

for the species has been observed from 

May through early August when 

subsurface water temperatures exceed 

15 °C (59 °F) or 16 °C (61 °F) (Scheerer 

and Apke 1997, p. 22; Markle et al. 

1991, p. 288; Scheerer and MacDonald 

2003, p. 78). The species will display 

normal life-history behavior at 

temperatures between approximately 15 

and 25 °C (59 and 77 °F). The upper 

lethal temperature for the fish was 

determined to be 31 °C (88 °F) in 

laboratory studies (Scheerer and Apke 

1997, p. 22). 

Optimal Oregon chub habitat contains 

water with dissolved oxygen levels 

greater than 3 parts per million (ppm), 

and an absence of contaminants such as 

copper, arsenic, mercury, and cadmium; 

human and animal waste products; 

pesticides; nitrogen and phosphorous 

fertilizers; and gasoline or diesel fuels. 

However, the species habitat is also 

characterized by high primary 

productivity and frequent algal blooms 

that might cause natural variability in 

water quality, especially dissolved 

oxygen levels (Scheerer and Apke 1997, 

10416 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

p. 15). Optimal Oregon chub habitat 

includes water dominated by fine 

substrates, but protected from excessive 

sedimentation. When excessive 

sediment is deposited, surface area can 

be lost as the sediment begins to 

displace open water. The resulting 

succession of open water habitat to wet 

meadow is detrimental to Oregon chub 

populations (Scheerer 2008c). 

The water quality in the habitats of 

many known extant Oregon chub 

populations is threatened due to their 

proximity to areas of human activity. 

Many of the known extant populations 

of Oregon chub occur near rail, 

highway, and power transmission 

corridors and within public park and 

campground facilities. These 

populations may be threatened by 

chemical spills from overturned truck or 

rail tankers; runoff or accidental spills 

of vegetation control chemicals; 

overflow from chemical toilets in 

campgrounds; sedimentation of shallow 

habitats from construction activities; 

and changes in water level or flow 

conditions from construction, 

diversions, or natural desiccation. 

Oregon chub populations near 

agricultural areas are subject to poor 

water quality as a result of runoff laden 

with sediment, pesticides, and 

nutrients. Logging in the watershed can 

result in increased sedimentation and 

herbicide runoff (USFWS 1998, p. 14). 

Reproduction and Rearing of Offspring 

Although most mature Oregon chub 

are found to be greater than or equal to 

2 years old, maturity appears to be 

mainly size- rather than age-dependent 

(Scheerer and McDonald 2003, p. 78). 

Males over 35 mm (1.4 in) have been 

observed exhibiting spawning behavior. 

Oregon chub spawn from April through 

September, when temperatures exceed 

15 °C (59 °F), with peak activity in July. 

Approximately 150 to 650 eggs will be 

released per spawning event, hatching 

within 10 to 14 days. As described 

above, females prefer a highly organic, 

vegetative substrate for spawning and 

will lay their adhesive eggs directly on 

the submerged vegetation (Pearsons 

1989, p. 17, 23; Markle et al. 1992, p. 

290; Scheerer 2007b, p. 494). Larvae and 

juveniles seek dense cover in shallow, 

warmer regions of off-channel habitats 

(Pearsons 1989, p. 17; Scheerer 2007b, 

p. 494). 

Habitats Protected From Disturbance 

Nonnative Fish 

Many species of nonnative fish that 

compete with or prey upon Oregon chub 

have been introduced and are common 

throughout the Willamette Valley, 

including largemouth bass (Micropterus 

salmoides), smallmouth bass 

(Micropterus dolomieui), crappie 

(Pomoxis sp.), bluegill (Lepomis 

macrochirus), and western mosquitofish 

(Gambusia affinis). Of the 747 

Willamette Valley sites sampled for 

Oregon chub by ODFW since the 

beginning of annual survey efforts by 

the agency in 1991, 42 percent 

contained nonnative fish. Most of the 

habitats surveyed that supported large 

populations of Oregon chub had no 

evidence of nonnative fish presence 

(Scheerer 2002, p. 1078; Scheerer 2007a, 

p. 96; Scheerer et al. 2007, p. 14). The 

presence of nonnative fish in the 

Willamette Valley, especially 

centrarchids (e.g., basses and crappie) 

and ictalurids (catfishes) is suspected to 

be a major factor in the decline of 

Oregon chub and the biggest threat to 

the species’ recovery (Markle et al. 

1991, p. 291; Scheerer 2002, p. 1078; 

Scheerer et al. 2007, p. 18). 

Specific interactions responsible for 

the exclusion of Oregon chub from 

habitats dominated by nonnative fish 

are not clear in all cases. While 

information confirming the presence of 

Oregon chub in stomach contents of 

predatory fish is lacking, many 

nonnative fish, particularly adult 

centrarchids and ictalurids are 

documented piscivores (fish eaters) 

(Moyle 2002, pp. 397, 399, 403; 

Wydoski and Whitney 2003, pp. 125, 

128, 130; Li et al. 1987, pp. 198–201). 

These fish are frequently the dominant 

inhabitants of ponds and sloughs within 

the Willamette River drainage and may 

constitute a major obstacle to Oregon 

chub recolonization efforts. Nonnative 

fish may also serve as sources of 

parasites and diseases; however, disease 

and parasite problems have not been 

studied in the Oregon chub. 

Observed feeding strategies and diet 

of introduced fish, particularly juvenile 

centrarchids and adult mosquitofish (Li 

et al. 1987, pp. 198–201), often overlap 

with diet and feeding strategies 

described for Oregon chub (Pearsons 

1989, pp. 34–35). This suggests that 

direct competition for food between 

Oregon chub and introduced species 

may further impede species survival as 

well as recovery efforts. The rarity of 

finding Oregon chub in waters also 

inhabited by mosquitofish may reflect 

many negative interactions, including 

but not limited to food-based 

competition, aggressive spatial 

exclusion, and predation on eggs and 

larvae (Meffe 1983, pp. 316, 319; 1984, 

pp. 1,530–1,531). Because many 

remaining population sites are easily 

accessible, there continues to be a 

potential for unauthorized introductions 

of nonnative fish, particularly 

mosquitofish and game fish such as bass 

and walleye (Stizostedion vitreurn). 

The bullfrog (Rana catesbiana), a 

nonnative amphibian, also occurs in the 

valley and breeds in habitats preferred 

by the Oregon chub (Bury and Whelan 

1984, pp. 2–3; Scheerer 1999, p. 7). 

Adult bullfrogs prefer habitat similar in 

characteristics (i.e., little to no water 

velocity, abundant aquatic and emergent 

vegetation) to the preferred habitat for 

Oregon chub, and are known to 

consume small fish as part of their diet 

(Cohen and Howard 1958, p. 225; Bury 

and Whelan 1984, p. 3), but it is unclear 

if they have a negative impact on 

Oregon chub populations, as several 

sites that have large numbers of 

bullfrogs also maintain robust Oregon 

chub populations (Scheerer 2008d). 

Flood Control 

Major alteration of the Willamette 

River for flood control and navigation 

improvements has eliminated most of 

the river’s historical floodplain, 

impairing or eliminating the 

environmental conditions in which the 

Oregon chub evolved. The decline of 

Oregon chub has been correlated with 

the construction of these projects based 

on the date of last capture at a site (58 

FR 53801; October 18, 1993). Pearsons 

(1989, pp. 32–33) estimated that the 

most severe decline occurred during the 

1950s and 1960s when 8 of 11 flood 

control projects in the Willamette River 

drainage were completed (USACE 1970, 

pp. 219–237). Other structural changes 

along the Willamette River corridor 

such as revetment and channelization, 

dike construction and drainage, and the 

removal of floodplain vegetation have 

eliminated or altered the slack water 

habitats of the Oregon chub (Willamette 

Basin Task Force 1969, pp. I9, II22–II24; 

Hjort et al. 1984, pp. 67–68, 73; Sedell 

and Froggatt 1984 pp. 1,832–1,833; Li et 

al. 1987, p. 201). Management of water 

bodies (such as reservoirs) adjacent to 

occupied Oregon chub habitat continues 

to impact the species by causing 

fluctuations in the water levels of their 

habitat such that it may exceed or drop 

below optimal water depths. 

Primary Constituent Elements for the 

Oregon Chub 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features, called primary 

constituent elements (PCEs), essential to 

the conservation of the Oregon chub and 

which may require special management 

considerations or protections. All areas 

proposed as critical habitat for Oregon 

chub are either occupied or within the 

species’ historical geographic range. 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10417 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species and 

the characteristics of the habitat 

necessary to sustain the essential lifehistory functions of the species, we have 

identified four PCEs for Oregon chub 

critical habitat: 

1. Off-channel water bodies such as 

beaver ponds, oxbows, side-channels, 

stable backwater sloughs, low-gradient 

tributaries, and flooded marshes, 

including at least 500 continuous square 

meters (5,400 square feet) of aquatic 

surface area at depths between 

approximately 0.5 and 2.0 m (1.6 and 

6.6 ft). 

2. Aquatic vegetation covering a 

minimum of 250 m2 (0.06 ac) (or 

between approximately 25 and 100 

percent) of the total surface area of the 

habitat. This vegetation is primarily 

submergent for purposes of spawning, 

but also includes emergent and floating 

vegetation, and algae which is important 

for cover throughout the year. Areas 

with sufficient vegetation are likely to 

also have the following characteristics: 

• Gradient less than 2.5 percent; 

• No or very low water velocity in 

late spring and summer; 

• Silty, organic substrate; and 

• Abundant minute organisms such 

as rotifers, copepods, cladocerans, and 

chironomid larvae. 

3. Late spring and summer subsurface 

water temperatures between 15 and 25 

°C (59 and 78 °F), with natural diurnal 

and seasonal variation. 

4. No or negligible levels of nonnative 

aquatic predatory or competitive 

species. Negligible is defined for the 

purpose of this proposed rule as a 

minimal level of nonnative species that 

will still allow the Oregon chub to 

continue to survive and recover. 

The need for space for individual and 

population growth and normal behavior 

is met by PCE (1); areas for 

reproduction, shelter, food, and habitat 

for prey are provided by PCE (2); 

optimal physiological processes for 

spawning and survival are ensured by 

PCE (3); habitat free from disturbance 

and, therefore, sufficient reproduction 

and survival opportunities is provided 

by PCE (4). 

This proposed designation is designed 

for the conservation of PCEs necessary 

to support the life-history functions that 

were the basis for the proposal. Each of 

the areas proposed in this rule has been 

determined to contain sufficient PCEs to 

provide for one or more of the lifehistory functions of the Oregon chub. 

Specifically, these areas fall into two 

groups: areas occupied at time of listing 

containing PCEs sufficient for one or 

more life-history functions, and areas 

not occupied at time of listing but that 

are essential to the conservation of the 

species and that also contain PCEs for 

one or more life-history functions. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of the Oregon chub. 

The steps we followed in identifying 

critical habitat were: 

1. Our initial step in identifying 

critical habitat was to determine, in 

accordance with section 3(5)(A)(i) of the 

Act and regulations at 50 CFR 424.12, 

the physical and biological habitat 

features (PCEs) that are essential to the 

conservation of the species as explained 

in the previous section. 

2. We then identified areas occupied 

by the Oregon chub at the time of 

listing. Of the 5 populations known at 

the time of the 1993 listing (58 FR 

53801), and the 12 additional sites 

confirmed by post-listing survey data to 

be occupied with one or more Oregon 

chub at the time of listing, 10 still 

support Oregon chub (Scheerer et al. 

2007, p. 2; Scheerer 2008a, p. 2) and 

contain at least one PCE. 

3. Since, based on the recovery plan 

criteria described above, we found that 

areas occupied at time of listing were 

not sufficient to conserve the species, 

the next step was the identification of 

any additional sites that were not 

occupied at the time of listing, but that 

are currently occupied and contain 

PCEs, and which may be essential for 

the conservation of the species. Surveys 

conducted in 2007 and 2008 indicate 

that 15 additional sites are currently 

occupied with one or more Oregon chub 

(Scheerer et al. 2007, p. 2; Scheerer 

2008a, p. 2). 

4. Next we identified sites that 

support introduced populations that 

also contain the PCEs, and which may 

be essential for the conservation of the 

species, which resulted in 11 additional 

sites being identified (Scheerer et al. 

2007, p. 2; Scheerer 2008a, p. 2). 

Collectively, the above efforts resulted 

in the identification of 36 occupied sites 

that met the above criteria. 

5. Our final step was to evaluate the 

36 occupied sites within the context of 

the 1998 Oregon Chub Recovery Plan, to 

determine which areas contained the 

physical and biological features in the 

amount and spatial configuration 

essential to the conservation of the 

species. This step involved the 

application of the following criteria: 

• Sites that support large, stable 

populations: From the list of occupied 

sites that contain PCEs, we selected sites 

that support populations meeting the 

delisting population criteria outlined in 

the 1998 Recovery Plan (i.e., 

establishing 20 populations of at least 

500 adults with a stable or increasing 

trend over seven years (USFWS 1998, p. 

28)), and also sites that are likely to 

meet the delisting criteria in the near 

future. Of the 18 sites meeting this 

selection criterion, 9 sites were 

occupied at the time of listing: 

Æ Unit 2B(5), Finley Gray Creek 

Swamp 

Æ Unit 3B, Elijah Bristow State Park— 

Berry Slough 

Æ Unit 3E, Dexter Reservoir RV 

Alcove—DEX3 

Æ Unit 3F, Dexter Reservoir Alcove— 

PIT1 

Æ Unit 3G, East Fork Minnow Creek 

Pond 

Æ Unit 3H, Hospital Pond 

Æ Unit 3I, Shady Dell Pond 

Æ Unit 3J, Buckhead Creek, and 

Æ Unit 3K, Wicopee Pond. 

Three other sites supported naturally 

occurring populations but were not 

occupied at the time of listing: 

Æ Unit 1B(1), Geren Island North 

Channel 

Æ Unit 1B(4), Gray Slough, and 

Æ Unit 3D, Elijah Bristow State Park 

Island Pond. 

In addition, six sites supported 

introduced populations: 

Æ Unit 1C, Foster Pullout Pond 

Æ Unit 2A(1), Russell Pond 

Æ Unit 2B(1), Ankeny Willow Marsh 

Æ Unit 2B(2), Dunn Wetland 

Æ Unit 2B(4), Finley Cheadle Pond, 

and 

Æ Unit 3A, Fall Creek Spillway 

Ponds. 

• Sites that are capable of supporting 

large populations: Because the 1998 

Recovery Plan for Oregon chub calls for 

establishing and maintaining a 

minimum of 20 populations that meet 

the recovery criteria, we identified 

seven currently occupied sites not 

already selected under the first criterion 

(above) that have the greatest potential 

to contribute to the long-term 

conservation and recovery of the 

species. Sites meeting this selection 

criterion include five sites that support 

naturally occurring populations: Unit 

1A, Santiam I–5 Side Channels; Unit 

1B(2), Stayton Public Works Pond; Unit 

2A(2), Shetzline Pond; Unit 2A(3), Big 

Island; and Unit 3C, Elijah Bristow State 

Park Northeast Slough. In addition two 

sites that support introduced 

populations met this criterion: Unit 

1B(3), South Stayton Pond; and Unit 

2B(3), Finley Display Pond. Each of 

these sites either currently, or in the 

past, has supported populations of over 

500 adults. 

10418 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

• Sites representative of the 

geographic distribution of Oregon chub: 

The delisting criteria outlined in the 

1998 Recovery Plan require that at least 

four populations be located in each of 

three sub-basins. We determined that 

the 25 sites selected under the 

preceding critical habitat criteria also 

met this objective (USFWS 1998, p. 28). 

Six units are being proposed as critical 

habitat in the Santiam River watershed, 

8 sites are being proposed as critical 

habitat in the Mainstem Willamette 

River watershed, and 11 sites are being 

proposed as critical habitat in the 

Middle Fork Willamette River 

watershed. By protecting a variety of 

habitats throughout the species’ 

historical range, we increase the 

probability that the species can adjust in 

the future to various limiting factors that 

may affect the population, such as 

predators, disease, and flood events 

exceeding annual high water levels. 

Based on this analysis, we are 

proposing to designate 25 units as 

critical habitat. Although the 1998 

recovery plan calls for establishing and 

maintaining a minimum of 20 

populations, we believe that 

establishing additional populations will 

allow the Service to mitigate the 

potential that some units may become 

unable to support the species or primary 

constituent elements over time because 

of predation issues or other factors. 

After applying the above criteria, we 

mapped the critical habitat unit 

boundaries at each of these 25 sites. 

Mapping was completed using a 

Geographic Information System (GIS), 

and involved several steps. Critical 

habitat unit boundaries were delineated 

to encompass the extent of habitat 

containing the physical and biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection. Polygon vertices (points 

where two lines meet) were collected 

along the annual high water mark at 

least every 30 meters (98 ft) around the 

perimeter of the site, and at a greater 

frequency in areas of complexity or 

where higher resolution was necessary. 

The full extent of each pond or slough 

was mapped; islands were mapped with 

the same method as the perimeter of the 

site. At sites where tributaries or 

channels entered or exited a site, only 

the extent of suitable Oregon chub 

habitat was mapped. The extent of chub 

use in open systems was defined by 

habitat features and by previous 

experience sampling in those areas. 

Habitat features that defined the limit of 

Oregon chub use in a channel included 

increased gradient, the absence of 

aquatic vegetation, and areas where 

gravel, cobble, or other large substrate 

was present. We combined the polygon 

data with information from aerial 

photos to determine the proposed 

critical habitat unit boundaries of each 

site. 

Special Management Considerations or 

Protections 

The term critical habitat is defined in 

section 3(5)(A) of the Act, in part, as 

geographic areas on which are found 

those physical or biological features 

essential to the conservation of the 

species and ‘‘which may require special 

management considerations or 

protections.’’ Accordingly, in 

identifying critical habitat in occupied 

areas, we assess whether the primary 

constituent elements within the areas 

determined to be occupied at the time 

of listing may require any special 

management considerations or 

protections. Although the determination 

that special management may be 

required is not a prerequisite to 

designating critical habitat in areas 

essential to the conservation of the 

species that were unoccupied at the 

time of listing, all areas being proposed 

as critical habitat require some level of 

management to address current and 

future threats to the Oregon chub, to 

maintain or enhance the physical and 

biological features essential to its 

conservation, and to ensure the recovery 

and survival of the species. 

The primary threats impacting the 

physical and biological features 

essential to the conservation of the 

Oregon chub that may require special 

management considerations within the 

proposed critical habitat units include: 

Competition and predation by 

nonnative fish; the potential for initial 

or further introduction of nonnative 

fish; vegetative succession of shallow 

aquatic habitats; possible agricultural 

chemical runoff; possible excessive 

siltation from logging in the watershed; 

other threats to water quality (including 

threat of toxic spills, low dissolved 

oxygen); and fluctuations in water levels 

due to regulated flow management at 

flood control dams, as well as low 

summer water levels. 

Some additional threats to the 

continued survival and recovery of the 

Oregon chub, such as the potential for 

reduced genetic diversity due to the low 

level of mixing between populations, 

will likely be addressed by direct 

management of populations (e.g., 

translocation of individuals) rather than 

by management of the physical and 

biological features of the habitat. Such 

threats, therefore, are not addressed in 

this section specific to the special 

management required of the physical 

and biological features of the proposed 

critical habitat areas. 

Special management considerations 

or protections are needed in most of the 

units to address the impacts of 

competition and predation by nonnative 

fishes in Oregon chub habitat or to 

avoid the potential introduction of 

nonnative fishes into areas occupied by 

Oregon chub. Predatory nonnative 

fishes are considered the greatest 

current threat to the recovery of the 

Oregon chub. Management for the 

Oregon chub has focused on 

establishing secure, isolated habitats 

free of nonnative fishes. Nonnative 

fishes are abundant and ubiquitous in 

the Willamette River Basin, and 

monitoring and management are 

required to remove nonnative fishes 

from Oregon chub habitat when 

possible, and to protect Oregon chub 

populations that have not yet been 

affected by nonnative fishes from 

invasion. 

Special management is needed to 

reduce or eradicate the threat posed by 

nonnative fishes already present in the 

following proposed units: 

• Unit 1A Santiam I–5 Side Channels 

• Unit 1B(1) Geren Island North 

Channel 

• Unit 1B(2) Stayton Public Works 

Pond 

• Unit 1B(4) Gray Slough, Unit 2B(5) 

Finley Gray Creek Swamp 

• Unit 3C Elijah Bristow State Park— 

NE Slough 

• Unit 3D Elijah Bristow State Park 

Island Pond, and 

• Unit 3F Dexter Reservoir Alcove— 

PIT1. 

Special management or protections 

are needed to prevent the introduction 

or further introduction of nonnative 

fishes into the following proposed units: 

• Unit 1A Santiam I–5 Side channels 

• Unit 1B(2) Stayton Public Works 

Pond 

• Unit 1B(3) South Stayton Pond 

• Unit 1B(4) Gray Slough 

• Unit 1C Foster Pullout Pond 

• Unit 2A(2) Shetzline Pond 

• Unit 2A(3) Big Island 

• Unit 2B(1) Ankeny Willow Marsh 

• Unit 2B(3) Finley Display Pond 

• Unit 2B(4) Finley Cheadle Pond 

• Unit 2B(5) Finley Gray Creek 

Swamp 

• Unit 3A Fall Creek Spillway Ponds 

• Unit 3B Elijah Bristow State Park— 

Berry Slough 

• Unit 3C Elijah Bristow State Park— 

Northeast Slough 

• Unit 3D Elijah Bristow State Park 

Island Pond 

• Unit 3E Dexter Reservoir RV 

Alcove—DEX3 

• Unit 3F Dexter Reservoir Alcove— 

PIT1, Unit 3H Hospital Pond 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10419 

• Unit 3I Shady Dell Pond, and 

• Unit 3J Buckhead Creek. 

Although Oregon chub require some 

aquatic vegetation for cover and 

spawning, some areas of Oregon chub 

habitat are threatened by succession to 

wet meadow systems due to a lack of 

natural disturbance (such as floods) or 

excessive siltation. If vegetation 

completely fills in the open water areas 

of Oregon chub habitat, these areas are 

no longer suitable for the Oregon chub. 

Special management is required to 

prevent or set back vegetative 

succession in Unit 3G, East Fork 

Minnow Creek Pond, to alleviate this 

threat to the Oregon chub’s aquatic 

habitat. 

Some units require special 

management to avoid the degradation of 

water quality in Oregon chub habitats 

due to agricultural chemical runoff. 

Elevated levels of nutrients and 

pesticides have been found in some 

Oregon chub habitats (Materna and 

Buck 2007, p. 67). The source of the 

contamination is likely agricultural 

runoff from adjacent farm fields 

(Materna and Buck 2007, p. 68). Special 

management will be needed to reduce 

the incursion of potentially hazardous 

agricultural chemicals into Oregon chub 

habitats and maintain water quality in 

Units 1B(4) Gray Slough, Unit 2B(2) 

Dunn Wetland, and Unit 2B(4) Finley 

Cheadle Pond. 

Although Oregon chub utilize fine 

silty substrates, an overabundance of 

siltation resulting from activities such as 

logging poses a threat to Oregon chub 

habitat by filling in the shallow aquatic 

areas utilized by the species. Excess 

sedimentation can also lead to the 

succession of open water habitats to wet 

meadow, as discussed above. Special 

management to alleviate the threat 

posed by excess watershed siltation due 

to logging and other activities is needed 

in Unit 1B(1) Geren Island North 

Channel, Unit 2A(1) Russell Pond, Unit 

2B(5) Finley Gray Creek Swamp, Unit 

3G East Fork Minnow Creek Pond, Unit 

3J Buckhead Creek, and Unit 3K 

Wicopee Pond. 

Special management is required in 

several of the proposed critical habitat 

units to maintain the water quality 

required by Oregon chub and protect 

against the impacts of several potential 

threats to water quality. Many Oregon 

chub populations occur near rail, 

highway, and power transmission 

corridors, agricultural fields, and within 

public park and campground facilities, 

and there is concern that these 

populations could be threatened by 

chemical spills, runoff, or changes in 

water level or flow conditions caused by 

construction, diversions, or natural 

desiccation (58 FR 53800, U.S. Fish and 

Wildlife Service 1998, p. 14). Water 

quality investigations at sites in the 

Middle Fork and Mainstem Willamette 

subbasins have found some adverse 

effects to Oregon chub habitats caused 

by changes in nutrient levels. Elevated 

nutrient levels at some Oregon chub 

locations, particularly increased 

nitrogen and phosphorus, may result in 

eutrophication and associated anoxic 

conditions unsuitable for chub, or 

increased plant and algal growth that 

severely reduce habitat availability 

(Buck 2003, p. 12). Monitoring and 

special management are needed to 

ameliorate the effects of excessive 

nutrient levels in Oregon chub habitats, 

as well as provide protection against 

accidental sources of contamination to 

the extent possible, in the following 

units: 

• Unit 1A Santiam I–5 Side Channels 

• Unit 2B(5) Finley Gray Creek 

Swamp 

• Unit 3E Dexter Reservoir RV 

Alcove—DEX3 

• Unit 3F Dexter Reservoir Alcove— 

PIT1 

• Unit 3G East Fork Minnow Creek 

Pond 

• Unit 3H Hospital Pond 

• Unit 3I Shady Dell Pond, and 

• Unit 3J Buckhead Creek. 

Although the Oregon chub evolved in 

a dynamic environment in which 

frequent flooding continually created 

and reconnected habitat for the species, 

currently most populations of Oregon 

chub are isolated from each other due to 

the reduced frequency and magnitude of 

flood events and the presence of 

migration barriers such as impassable 

culverts and beaver dams (Scheerer et 

al. 2007, p. 9). Historically, regulated 

flow management of flood control dams 

eliminated many of the slough and side 

channel habitats utilized by Oregon 

chub by reducing the magnitude, extent, 

and frequency of flood events in the 

Willamette River Basin. Currently, flow 

management activities impact Oregon 

chub in many of their remaining 

habitats by inadvertently raising or 

lowering the depth of water bodies to 

levels above or below the optimum for 

the species. Water depths in the summer 

may be reduced to levels that threaten 

the survival of Oregon chub due to flow 

management in adjacent reservoirs or 

rivers, or from natural drought cycles. 

Special management is required to 

ameliorate the effects of fluctuating or 

reduced water levels for the Oregon 

chub in: 

• Unit 1A Santiam I–5 Side Channels 

• Unit 1B(1) Geren Island North 

Channel 

• Unit 1B(2) Stayton Public Works 

Pond 

• Unit 1B(4) Gray Slough 

• Unit 2A(3) Big Island 

• Unit 2B(5) Finley Gray Creek 

Swamp 

• Unit 3A Fall Creek Spillway Ponds 

• Unit 3C Elijah Bristow State Park— 

Northeast Slough 

• Unit 3D Elijah Bristow State Park 

Island Pond 

• Unit 3E Dexter Reservoir RV 

Alcove—DEX3 

• Unit 3F Dexter Reservoir Alcove— 

PIT1, and 

• Unit 3I Shady Dell Pond. 

In summary, we find that each of the 

areas we are proposing as critical habitat 

contains features essential to the 

conservation of the Oregon chub, and 

that these features may require special 

management considerations or 

protection. These special management 

considerations and protections are 

required to eliminate, or reduce to a 

negligible level, the threats affecting 

each unit and to preserve and maintain 

the essential features that the proposed 

critical habitat units provide to the 

Oregon chub. A more comprehensive 

discussion of threats facing individual 

sites is in the individual unit 

descriptions. 

The designation of critical habitat 

does not imply that lands outside of 

critical habitat do not play an important 

role in the conservation of the Oregon 

chub. Federal activities that may affect 

those unprotected areas outside of 

critical habitat are still subject to review 

under section 7 of the Act if they may 

affect Oregon chub. The prohibitions of 

section 9 against the take of listed 

species also continue to apply both 

inside and outside of designated critical 

habitat. Take is broadly defined in the 

Act as to harass, harm, wound, kill, trap, 

capture, or collect a listed species, or to 

attempt to engage in any such conduct. 

Proposed Critical Habitat Designation 

The areas we are proposing as critical 

habitat currently provide all habitat 

components necessary to meet the 

primary biological needs of the Oregon 

chub, as defined by the primary 

constituent elements. The areas 

proposed for designation are those areas 

most likely to substantially contribute to 

conservation of the Oregon chub, and 

when combined with future 

management of certain habitats suitable 

for restoration efforts, will contribute to 

the long-term survival and recovery of 

the species. 

Under the Act, we can designate 

critical habitat in areas outside of the 

geographical area occupied by the 

species at the time it is listed only when 

10420 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(1) the inclusion of specific areas 

occupied at the time of listing defined 

by the essential physical and biological 

factors are not sufficient to conserve the 

species; and (2) we determine that those 

areas outside the geographical area 

occupied by the species are essential for 

the conservation of the species. 

We have determined that 25 units 

totaling approximately 53 ha (132 acres) 

meet our definition of critical habitat for 

the Oregon chub, including land under 

State, Federal, other government, and 

private ownership. Nine of the critical 

habitat units described below constitute 

our best assessment of areas determined 

to be occupied at the time of listing that 

contain the primary constituent 

elements and require special 

management (units 2B(5), 3B, 3E, 3F, 

3G, 3H, 3I, 3J, 3K). Because the nine 

occupied units do not alone contain 

physical and biological features 

sufficient to conserve the species, we 

are proposing an additional 16 units. 

The other 16 proposed units constitute 

our best assessment of areas that were 

not occupied or not known to be 

occupied at the time of listing but were 

within the species’ historical range, 

which were found to be essential to the 

conservation of the Oregon chub. These 

additional areas include natural and 

introduced populations. The Critical 

Habitat Selection Criteria and Special 

Management Considerations or 

Protections sections above address why 

the inclusion of specific areas occupied 

at the time of listing defined by the 

essential physical and biological factors 

are not sufficient to conserve the 

species; and, for the additional 16 

proposed units, why we determine that 

those areas outside the geographical 

area occupied by the species are 

essential for the conservation of the 

species. 

Area 1: Santiam River Basin—Linn and 

Marion Counties, Oregon 

A. Mainstem 

Unit 1A, the Santiam I–5 Side 

Channels: This site consists of three 

ponds totaling 1.4 ha (3.3 ac), located on 

a 27-ha (66-ac) property on the south 

side of the Santiam River upstream of 

the Interstate Highway 5 bridge crossing 

in Linn County, Oregon. The areas 

containing Oregon chub include a small 

backwater pool, a gravel pit, and a side 

channel pond. This unit is owned by the 

Oregon Department of Transportation 

(ODOT) and Oregon chub were first 

observed here in 1997. Although only 

22 Oregon chub were counted at the site 

in 2007, the habitat contains 3 of the 4 

PCEs and has exhibited capability of 

supporting a substantial population of 

the species based on past survey 

population estimates of over 500 

individuals. The maximum water depth 

is approximately 3 m (9.8 ft), averaging 

1.5 m (4.9 ft), and the temperature was 

recorded at between 19.5 and 21 °C (60 

and 67 °F) on July 30, 2008. The 

substrate is composed of 80 percent silt 

and organic material, and there is a 

variety of emergent and submergent 

vegetation covering 65 percent of the 

surface area. Beaver have been observed 

at this location. This site is at risk of the 

vegetation expanding to levels 

detrimental to Oregon chub habitat. The 

site is periodically connected to the 

Santiam River, and its water levels can 

be affected by hydrologic changes in the 

river, particularly the low summer 

levels common in the drainage. 

Competing and predatory nonnative 

species have been observed; nonnative 

predators are suspected to be a major 

factor in the drop in Oregon chub 

population estimates at this site 

between the 2006 and 2007 surveys 

(Scheerer 2008d). 

B. North 

Unit 1B(1), Geren Island North 

Channel: This site totals approximately 

0.8 ha (1.9 ac) and is located on the 

grounds of a water treatment facility 

owned by the City of Salem in Marion 

County, Oregon. The species was first 

observed at this site in 1996. Although 

only 207 Oregon chub were counted at 

the site in 2008, the habitat contains 3 

of the 4 PCEs and has exhibited 

capability of supporting a substantial 

population of the species based on past 

survey population estimates of over 500 

individuals. The maximum water depth 

is 2.2 m (7.2 ft), averaging 1.8 m (5.9 ft), 

and the temperature was recorded at 

26 °C (79 °F) on July 10, 2008. The 

substrate is composed of 90 percent silt 

and organic material, and there is a 

variety of emergent and submergent 

vegetation covering 65 percent of the 

surface area. Beaver have been observed 

at this location. The site is screened and 

isolated from other water bodies, but 

water levels are influenced through 

water releases at Detroit and Big Cliff 

Dams. Competing and predatory 

nonnative species have been observed at 

the site. There is also a risk of excess 

sedimentation due to logging in the 

watershed. 

Unit 1B(2), the Stayton Public Works 

Pond: This site totals approximately 0.4 

ha (1.0 ac) and is located in and owned 

by the City of Stayton, in Marion 

County, Oregon. The species was first 

observed at this location in 1998. 

Although only 68 Oregon chub were 

counted at the site in 2008, the habitat 

contains 3 of the 4 PCEs and has 

exhibited capability of supporting a 

substantial population of the species 

based on past survey population 

estimates of over 500 individuals. The 

maximum water depth is 2 m (6.6 ft) 

deep, averaging 1.2 m (3.9 ft), and the 

temperature was recorded at 25.5 °C 

(77.9 °F) on July 9, 2008. The substrate 

is composed of 90 percent silt and 

organic material, and there is a variety 

of emergent and submergent vegetation 

covering 100 percent of the surface area. 

Beaver have also been observed at this 

location. The site is periodically 

connected to the North Santiam River 

and is therefore at risk of low summer 

water levels and nonnative fish 

introduction. Competing and predatory 

nonnative species have been observed at 

this site. 

Unit 1B(3), South Stayton Pond: This 

site totals approximately 0.1 ha (0.2 ac), 

is located in Linn County, Oregon, and 

is owned by the Oregon Department of 

Fish and Wildlife (ODFW). This site was 

the location of a 2006 introduction of 54 

Oregon chub and a supplemental 2007 

introduction of 67 additional 

individuals. The population is currently 

estimated at 1,705 individuals and 

appears to be stable or increasing. The 

habitat contains all of the PCEs. The 

maximum water depth is 1.6 m (5.3 ft), 

averaging 0.9 m (3 ft), and the 

temperature was recorded at 24.5 °C 

(76.1 °F) on July 9, 2008. The substrate 

is composed of 90 percent silt and 

organic material, and there is a variety 

of emergent and submergent vegetation 

covering 100 percent of the surface area. 

The site is isolated from other water 

bodies and currently has no competing 

or predatory nonnative species. Because 

of the easy public access to the site, it 

may be at risk of illegal introduction of 

nonnative fish. 

Unit 1B(4), Gray Slough: This 

privately owned site totals 

approximately 2.5 ha (6.2 ac) and is in 

Marion County, Oregon. The species 

was first observed at this site in 1995. 

The population is currently estimated at 

655 individuals, has been stable for 5 

years, and the habitat contains 3 of the 

4 PCEs. The maximum water depth is 

2.5 m (8.2 ft), averaging 1.2 m (3.9 ft), 

and the temperature was recorded at 

23.5 °C (74.3 °F) on July 31, 2008. The 

substrate is composed of 100 percent silt 

and organic material, and there is a 

variety of emergent and submergent 

vegetation covering 55 percent of the 

surface area. Beaver, and also competing 

or predatory nonnative fish species, 

have been observed at this location. The 

site is periodically connected to the 

North Santiam River and is therefore at 

risk of low summer water levels and 

additional nonnative fish invasion. The 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10421 

site’s location on a property with 

agricultural activity places it at risk of 

chemical runoff. 

C. South 

Unit 1C, Foster Pullout Pond: This 

site totals 0.4 ha (1.0 ac), and is owned 

by the United States Army Corps of 

Engineers (USACE). The pond is located 

in Linn County, Oregon, on the north 

shore of Foster Reservoir in the South 

Santiam River drainage. The pond is 

perched several meters above the 

reservoir full pool level, is spring-fed, 

and the water level is maintained by a 

beaver dam at the outflow. This site was 

the location of a 1999 introduction of 85 

Oregon chub, and the population is 

currently estimated at 2,636 individuals. 

The population has been stable for 5 

years, and the habitat contains all of the 

PCEs. The maximum water depth is 2.0 

m (6.6 ft), averaging 1.2 m (3.9 ft), and 

the temperature was recorded at 21 °C 

(70 °F) on July 23, 2008. The substrate 

is composed of 100 percent silt and 

organic material, and there is a variety 

of emergent and submergent vegetation 

covering 100 percent of the surface area. 

Beaver have been observed at this 

location. The site is isolated from other 

water bodies and has no competing or 

predatory nonnative species, but the 

site’s accessibility to the public raises 

the risk of illegal introduction of 

nonnative fish. 

Area 2: Mainstem Willamette River 

Basin-Benton, Lane and Marion 

Counties, Oregon 

A. McKenzie River 

Unit 2A(1), Russell Pond: This 

privately owned site totals 

approximately 0.1 ha (0.1 ac) and is 

located in the Mohawk River drainage, 

Lane County, Oregon. In 2001, 350 

Oregon chub were introduced into the 

pond, followed by an additional 

introduction of 150 individuals in 2002 

as part of a Safe Harbor Agreement with 

the Service. The population is currently 

estimated at 651 individuals, has been 

stable for 5 years, and the habitat 

contains all of the PCEs. The maximum 

water depth is 2 m (6.6 ft), averaging 1.5 

m (4.9 ft), and the temperature was 

recorded at 18.5 °C (65.3 °F) on July 23, 

2008. The substrate is composed of 100 

percent silt and organic material, and 

there is a variety of emergent and 

submergent aquatic vegetation covering 

40 percent of the surface area. The site 

is isolated from other water bodies, and 

has no competing or predatory 

nonnative species. Threats to the site 

include possible excess sedimentation 

resulting from logging in the watershed. 

Unit 2A(2), Shetzline Pond: This 

privately owned site totals 

approximately 0.1 ha (0.3 ac), and is in 

the Mohawk River drainage, Lane 

County, Oregon. The species was first 

observed at this site in 2002. The site 

originally consisted of three manmade 

ponds, one of which (the south pond) 

contained Oregon chub. A restoration 

project was conducted in 2006 in the 

north and middle ponds to connect the 

ponds and create a more natural 

wetland. Nonnative fish in these ponds 

were removed with a rotenone 

treatment. However, to date the restored 

wetland has not been connected to the 

Oregon chub pond, although the site has 

a small inflow channel connecting it to 

Drury Creek (a tributary of the Mohawk 

River). Although only 130 Oregon chub 

were counted at the site in 2008, the 

habitat contains all of the PCEs and has 

exhibited capability of supporting a 

substantial population of the species, 

based on past survey population 

estimates of over 500 individuals. The 

maximum water depth is 2.5 m (8.2 ft), 

averaging 2 m (6.6 ft), and the 

temperature was recorded at 20 °C (68 

°F) on July 23, 2008. The substrate is 

composed of 100 percent silt and 

organic material, and there is a variety 

of emergent, submergent, and floating 

aquatic vegetation covering 100 percent 

of the surface area. The site currently 

has no competing or predatory 

nonnative species but, because of 

previous fishing for nonnative species 

that was allowed in the ponds, the site 

is at risk of illegal introduction of 

nonnative fish. 

Unit 2A(3), Big Island: This site totals 

3.3 ha (8.2 ac), is owned by the 

McKenzie River Trust, and is located 

along the McKenzie River in Lane 

County, Oregon. The species was first 

observed at this location in 2002. 

Although only 200 Oregon chub were 

counted at the site in 2008, the habitat 

contains all of the PCEs and has 

exhibited capability of supporting a 

substantial population of Oregon chub 

based on past survey population 

estimates of over 500 individuals. The 

maximum depth is 1.5 m (4.9 ft) deep, 

averaging 0.6 m (2.0 ft), and the 

temperature was recorded at 19 °C (66 

°F) on July 23, 2008. The substrate is 

composed of 90 percent silt and organic 

material, and there is a variety of 

emergent, submergent, and floating 

aquatic vegetation covering 72 percent 

of the surface area. Beaver have been 

observed at this location. Because the 

site has annual connectivity to the 

McKenzie River, its water levels can be 

affected by hydrologic changes in the 

river and it is at risk of the introduction 

of nonnative fish. No competing or 

predatory nonnative species have been 

observed to date. 

B. Willamette River Mainstem 

Unit 2B(1), Ankeny Willow Marsh: 

This site totals 14.0 ha (34.5 ac), and is 

located in Marion County, Oregon at the 

Ankeny National Wildlife Refuge where 

an introduction of 500 Oregon chub 

took place in 2004. The population is 

currently estimated at 36,455 

individuals and has been increasing. 

The habitat also contains all of the 

PCEs. The maximum depth is 2 m (6.6 

ft), averaging 0.7 m (2.3 ft), and the 

temperature at the site was recorded at 

25 °C (77 °F) on July 8, 2008. The 

substrate is composed of 100 percent silt 

and organic material and there is a 

variety of aquatic vegetation including 

emergent, submergent, floating and 

algae covering 100 percent of the surface 

area. Beaver and turtles have been 

observed at this location. Water is 

supplied to the pond from Sidney Ditch, 

which contains nonnative fish. The 

pump is screened, and the site currently 

has no competing or predatory 

nonnative species, although a high 

water event could foster the 

introduction of nonnative fish. 

Unit 2B(2), Dunn Wetland: This 

privately owned site in Benton County, 

Oregon, totals 6.1 ha (15.2 ac). In 1997, 

200 Oregon chub were introduced to the 

site, followed by the introduction of 373 

additional individuals in 1998 as part of 

a Safe Harbor Agreement with the 

Service. The owners restored the 

wetland in 1994 when a permanent 

(year round) spring-fed pond was 

constructed. Two additional permanent 

ponds were constructed in 1997 and 

1999. The entire wetland floods during 

the winter, and the ponds are 

interconnected. The population is 

currently estimated at 34,530 

individuals and has been stable for 

5 years. The habitat contains all of the 

PCEs. The maximum depth is 1 m 

(3.3 ft), averaging 0.6 m (2.0 ft), and the 

temperature was recorded at 23 °C (73 

°F) on July 28, 2008. The substrate is 

composed of 100 percent silt and 

organic material, and there is a variety 

of emergent and submergent aquatic 

vegetation covering 100 percent of the 

surface area. Beaver have been observed 

at this location. The site is isolated from 

other water bodies and has no 

competing or predatory nonnative 

species, but it is at risk of chemical 

runoff from agricultural activities. 

Unit 2B(3), Finley Display Pond: This 

site totals 1.0 ha (2.4 ac) and is located 

in Benton County, Oregon, on the 

William L. Finley National Wildlife 

Refuge. This unit was the subject of 

10422 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

several introductions of Oregon chub: 

60 in 1998, 45 in 1999, 49 in 2001, and 

75 in 2007. The current population 

estimate of 832 individuals along with 

past survey population estimates of over 

500 individuals establish the site’s 

capability of supporting a substantial 

population of the species. The habitat 

contains all of the PCEs. The maximum 

depth is 2.5 m (8.2 ft), averaging 1.5 m 

(4.9 ft), and the temperature was 

recorded at 19 °C (66 °F) on June 20, 

2008. The substrate is composed of 100 

percent silt and organic material, and 

there is a variety of emergent and 

submergent aquatic vegetation covering 

75 percent of the surface area. While 

this pond currently has no competing or 

predatory nonnative species, easy 

public access makes it vulnerable to 

illegal introductions of nonnative fish. 

Beaver have been observed at this 

location. 

Unit 2B(4), Finley Cheadle Pond: This 

site totals 0.9 ha (2.3 ac) and is located 

in Benton County, Oregon, on the 

William L. Finley National Wildlife 

Refuge. In 2002, 50 Oregon chub were 

introduced to this unit, followed by the 

introduction of 53 additional 

individuals in 2007. The population is 

currently estimated at 3,519 individuals, 

has been stable or increasing for 5 years, 

and the habitat contains all of the PCEs. 

The maximum depth is 3.3 m (10.8 ft), 

averaging 1.5 m (4.9 ft), and the 

temperature was recorded at 18.5 °C 

(65.3 °F) on June 20, 2008. The substrate 

is composed of 100% silt and organic 

material, and there is a variety of 

emergent and submergent aquatic 

vegetation covering 86 percent of the 

surface area. The site is isolated from 

other water bodies and has no 

competing or predatory nonnative 

species. Beaver have been observed at 

this location. The pond’s proximity to 

agricultural areas puts it at risk of 

chemical runoff and easy public access 

makes it vulnerable to illegal 

introductions of nonnative fish. 

Unit 2B(5), Finley Gray Creek Swamp: 

This site totals 3.0 ha (7.4 ac) and is 

located in Benton County, Oregon. Most 

of the unit is located on the southwest 

corner of the William L. Finley National 

Wildlife Refuge, however, a small 

portion of the unit is located on private 

property. The site was occupied by 

Oregon chub at the time of listing and 

the population is currently estimated at 

2,141 individuals and has been stable 

for 5 years. The habitat contains 3 of the 

4 PCEs. The maximum depth is 2.2 m 

(7.2 ft), averaging 1 m (3.3 ft), and the 

temperature was recorded at 22 °C 

(72 °F) on July 28, 2008. The substrate 

is composed of 100 percent silt and 

organic material, and there is a variety 

of emergent and submergent aquatic 

vegetation covering 100 percent of the 

surface area. Beaver have also been 

observed at this location. The site is 

periodically connected to other water 

bodies, and competing and predatory 

nonnative species have been observed. 

Gray Creek originates on the slopes west 

of Bellfountain Road, an area owned by 

private timber companies. The creek 

flows under Bellfountain Road onto 

Finley NWR where three dikes have 

been constructed to form Beaver Pond, 

Cattail Pond and Cabell Marsh. The 

waters of Gray Creek empty into Muddy 

Creek which drains into the Willamette 

River south of Corvallis. Extensive 

damming by beavers occurs between 

Bellfountain Road and the first dike at 

Beaver Pond, creating a narrow band of 

marsh habitat less than 1 mile in length, 

with a silty, detritus-laden substrate. 

The refuge boundary in this area is 

irregular, and portions of the marsh are 

within the refuge boundary while other 

portions are located on private land. 

Steep, forested slopes rise up on either 

side of the marsh; the north slope is 

refuge land, while a large portion of the 

southern slope is private land. The 

creek’s location put the habitat at risk of 

excess sedimentation from logging 

activities and other water quality issues, 

including threat of spills and low 

dissolved oxygen. 

Area 3: Middle Fork Willamette River 

Basin—Lane County, Oregon 

Unit 3A, Fall Creek Spillway Ponds: 

This site totals 1.5 ha (3.8 ac), is owned 

by the USACE, and is the location of a 

1996 introduction of 500 Oregon chub. 

The ponds, located in the overflow 

channel below Fall Creek Dam, were 

formed by beaver dams that blocked the 

spillway overflow channel. The current 

Oregon chub population estimate of 

3,052 individuals along with past 

survey population estimates of over 500 

individuals establish the site’s 

capability of supporting a substantial 

population of the species. The habitat 

contains all of the PCEs. The maximum 

water depth is 1.8 m (5.9 ft), averaging 

0.7 m (2.3 ft), and the temperature was 

recorded at 23.5 °C (74.3 °F) on July 2, 

2008. The substrate is composed of 100 

percent silt and organic material, and 

there is a variety of emergent and 

submergent aquatic vegetation covering 

89 percent of the surface area. Because 

the site is supplied with water from 

seepage out of Fall Creek Reservoir 

spillway and flows into Fall Creek, it is 

at risk of impacts from flow 

management for flood control and low 

summer water levels. Although the site 

currently has no competing or predatory 

nonnative species, it is at risk of 

nonnative fish introduction if flood 

control measures at the Dam cause 

reservoir water to infiltrate the ponds. 

Unit 3B, Elijah Bristow State Park 

Berry Slough: This site totals 5.2 ha 

(12.7 ac) measured at the annual highwater elevation, is owned by the Oregon 

Parks and Recreation Department 

(OPRD), and was occupied by Oregon 

chub at the time of listing. Berry Slough 

appears to be an abandoned river 

channel consisting of a chain of shallow 

ponds connected by a spring-fed flow of 

several cubic feet per second, entering 

the Middle Fork Willamette River about 

4.0 kilometers (km) (2.5 miles (mi)) 

below Dexter Dam. Almost the entire 

1.6-km (1-mile) length of the slough lies 

within Elijah Bristow State Park. The 

population is currently estimated at 

5,459 individuals, and has been stable 

for 5 years, and the habitat contains all 

of the PCEs. The maximum water depth 

is 2.5 m (8.2 ft), averaging 1.2 m (3.9 ft), 

and the temperature was recorded at 

between 20 and 25 °C (68 and 77 °F) on 

July 16, 17, and 29, 2008. The substrate 

is composed of 100 percent silt and 

organic material, and there is a variety 

of emergent and submergent aquatic 

vegetation covering 100 percent of the 

surface area. The upper portion (beaver 

pond) at the site is isolated from other 

water bodies during most high-water 

events by a beaver dam and has no 

competing or predatory nonnative 

species. The site’s connection to the 

Middle Fork Willamette River creates 

the risk of nonnative fish introduction 

and threatens fluctuations in the site’s 

water level due to hydrologic changes in 

the river. 

Unit 3C, Elijah Bristow State Park 

Northeast Slough: This site totals 2.2 ha 

(5.4 ac), is owned by the OPRD, and 

Oregon chub were first observed here in 

1999. Although only 230 Oregon chub 

were counted at the site in 2008, the 

habitat contains 3 of the 4 PCEs and has 

exhibited capability of supporting a 

substantial population of the species 

based on past survey population 

estimates of over 500 individuals. The 

maximum depth is 2 m (6.6 ft), 

averaging 0.8 m (2.6 ft), and the 

temperature was recorded at 22 °C (72 

°F) on July 22, 2008. The substrate is 

composed of 10 percent silt and organic 

material, and there is a variety of 

emergent, submergent, and floating 

aquatic vegetation covering 100 percent 

of the surface area. Beaver have also 

been observed at this location. 

Competing and predatory nonnative 

species have also been observed. 

Because of its connection to the Middle 

Fork Willamette River, the water levels 

at this site can be affected by hydrologic 

changes in the river and the site is at 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10423 

risk of infiltration by additional 

nonnative fish. 

Unit 3D, Elijah Bristow State Park 

Island Pond: This site totals 2.1 ha (5.2 

ac), is owned by the OPRD, and Oregon 

chub were first observed here in 2003. 

The population is currently estimated at 

1,619 individuals and has been stable 

for 5 years. The habitat contains 3 of the 

4 PCEs. The maximum depth is 2 m (6.6 

ft), averaging 1.2 m (3.9 ft), and the 

temperature was recorded at 18 and 

25 °C (64 and 77 °F) at various locations 

within the site on July 17, 2008. The 

substrate is composed of 96 percent silt 

and organic material, and there is a 

variety of emergent and submergent 

aquatic vegetation covering 92 percent 

of the surface area. Competing and 

predatory nonnative species have been 

observed at this location. Because of its 

connection to the Middle Fork 

Willamette River, the water levels at this 

site can be affected by hydrologic 

changes in the river and the site is at 

risk of infiltration by additional 

nonnative fish. 

Unit 3E, Dexter Reservoir RV Alcove 

(DEX 3): This site totals 0.4 ha (0.9 ac) 

and is owned by the USACE. The site 

is located on the south side of Highway 

58 off Dexter Reservoir next to a 

recreational vehicle (RV) park, and was 

occupied by Oregon chub at the time of 

listing. The population is currently 

estimated at 4,024 individuals, and has 

been stable for 5 years, and the habitat 

contains 3 of the 4 PCEs. The maximum 

depth is 1 m (3.3 ft), averaging 0.7 m 

(2.3 ft), and the temperature was 

recorded at 22.5 °C (72.5 °F) on July 1, 

2008. The substrate is composed of 100 

percent silt and organic material, and 

there is a variety of emergent, 

submergent and floating aquatic 

vegetation covering 87 percent of the 

surface area. Competing and predatory 

nonnative species have been observed at 

this location. The site is periodically 

connected to Dexter Reservoir and is 

therefore subject to impacts from 

regulated flow management, as well as 

low summer water levels, and the risk 

of infiltration by additional nonnative 

fish. Because of the site’s close 

proximity to both the RV park and the 

highway, the water quality is at risk of 

contamination by spills and garbage. 

Unit 3F, Dexter Reservoir Alcove 

(PIT1): This site totals 0.1 ha (0.3 ac) 

measured at the annual high-water 

elevation and is owned by the USACE. 

The site is located on the south side of 

Highway 58 off Dexter Reservoir, and 

was occupied by Oregon chub at the 

time of listing. PIT1 is an embayment 

adjacent to the south shoulder of State 

Hwy 58 and connected by culvert 

beneath the highway to Dexter 

Reservoir. The area is owned by the 

State of Oregon but under USACE 

jurisdiction via a flowage easement. The 

site has gradually sloping banks, woody 

debris, and supports shrubs, emergent 

and submergent vegetation. There is 

also a large boulder riprap revetment on 

the highway side. A small, intermittent 

stream enters from the south. The 

population is currently estimated at 684 

individuals and has been stable for 5 

years. The habitat contains 3 of the 4 

PCEs. The maximum water depth is 1 m 

(3.3 ft), averaging 0.5 m (1.6 ft), and the 

temperature was recorded at 18 °C 

(64 °F) on July 2, 2008. The substrate is 

composed of 100 percent silt and 

organic material, and there is a variety 

of aquatic vegetation including 

emergent, submergent, and algae 

covering 100 percent of the surface area. 

Competing and predatory nonnative 

species have been observed at this 

location. Because of its connection to 

Dexter Reservoir, the site is subject to 

impacts from regulated flow 

management, as well as low summer 

water levels, and the risk of infiltration 

by additional nonnative fish. Because of 

the site’s close proximity to the 

highway, the water quality is at risk of 

contamination by spills. 

Unit 3G, East Fork Minnow Creek 

Pond: This site totals 1.3 ha (3.3 ac), is 

owned by the ODOT, and was occupied 

by Oregon chub at the time of listing. 

East Minnow Creek Pond is a large 

beaver pond on a small tributary to 

Minnow Creek that drains into Lookout 

Point Reservoir. The pond enters 

Minnow Creek just south of Highway 

58, after which the creek flows under 

the highway through a large box culvert. 

The population is currently estimated at 

2,156 individuals and has been stable 

for 5 years. The habitat contains all of 

the PCEs. The maximum depth is 1.2 m 

(3.9 ft), averaging 0.5 m (1.6 ft), and the 

temperature was recorded at 19 °C 

(66 °F) on July 2, 2008. The substrate is 

composed of 100 percent silt and 

organic material, and there is a variety 

of emergent, submergent, and floating 

aquatic vegetation covering 100 percent 

of the surface area. The site is isolated 

from other water bodies and has no 

competing or predatory nonnative 

species but is under several threats 

including excess sedimentation 

resulting from timber harvest in the 

watershed, vegetation displacement of 

open water habitat and, due to the site’s 

close proximity to the highway, 

contamination-related water quality 

issues. The ODOT is in the process of 

implementing a conservation bank for 

Oregon chub at this site; the bank 

includes the restoration, construction, 

and enhancement of Oregon chub 

habitat and other regionally significant 

habitats. 

Unit 3H, Hospital Pond: This site 

totals 0.5 ha (1.1 ac), is owned by the 

USACE, and was occupied by Oregon 

chub at the time of listing. The pond is 

located on the north side of the gravel 

road on the north shore of Lookout 

Point Reservoir and spring-fed Hospital 

Creek flows into the east end of the 

pond. The population is currently 

estimated at 3,682 individuals and has 

been stable for 5 years. The habitat 

contains all of the PCEs. The maximum 

water depth is 3 m (9.8 ft), averaging 2 

m (6.6 ft), and the temperature on the 

flooded terrace was recorded at 15 °C 

(59 °F) on July 1, 2008. The substrate is 

composed of 100 percent silt and 

organic material, and there is a variety 

of emergent, submergent, and floating 

aquatic vegetation covering 100 percent 

of the surface area. Although the site 

currently has no competing or predatory 

nonnative species, its connection to the 

reservoir puts it at risk of nonnative fish 

introduction. Beaver activity is evident 

in the pond. A culvert and gate at the 

outflow culvert maintains the high 

water level of the pond, but water levels 

in the pond can fluctuate due to its 

connection with the reservoir. 

Contamination-related water quality 

issues are also of concern due to the 

site’s close proximity to the road. 

Unit 3I, Shady Dell Pond: This site 

totals 1.1 ha (2.8 ac), is owned by the 

United States Forest Service (USFS), 

and was occupied by Oregon chub at the 

time of listing. Shady Dell Pond is 

located in the far southeast end of 

Lookout Point Reservoir along the south 

side of State Highway 58 in a USFS 

campground. The pond was a former 

slough that was partially isolated from 

the Middle Fork Willamette River 

during highway construction. The site 

has gradually sloping banks, slightly 

turbid water, moderately abundant 

aquatic vegetation, and a substrate mix 

of detritus, silt, and boulders. The pond 

was fed only by rainfall and seepage, 

with no obvious outlet, but the USFS 

installed a diversion pipe from Dell 

Creek to Shady Dell Pond to maintain 

adequate summer water levels and 

counteract the surface area shrinkage 

caused by evaporation, leakage, or both. 

The population is currently estimated at 

7,249 individuals, has been stable for 5 

years, and the habitat contains all of the 

PCEs. The maximum depth is 1.1 m (3.6 

ft), averaging 0.5 m (1.6 ft), and the 

temperature was recorded at 21 °C 

(70 °F) on July 22, 2008. The substrate 

is 100 percent silt and organic material, 

and there is a variety of emergent, 

submergent, and floating aquatic 

10424 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

vegetation covering 82 percent of the 

surface area. The site is isolated from 

other water bodies and has no 

competing or predatory nonnative 

species. Beaver have been observed at 

this location. Because of its proximity to 

the campground and its connection to 

Dell Creek the site is at risk from 

nonnative fish introduction and 

contamination-related water quality 

issues. 

Unit 3J, Buckhead Creek: This site 

totals 3.8 ha (9.3 ac), is owned by the 

USFS, and was occupied by Oregon 

chub at the time of listing. Buckhead 

Creek is a tributary flowing into the 

Middle Fork Willamette River at the 

northeast end of Lookout Point 

Reservoir. Access to the site is via a 

Lane County gravel road and USFS 

Road 5821 that skirts the east side of the 

river. The channel varies from a few 

meters (feet) to over 16 m (50 feet) wide 

with both sloping and undercut banks, 

a bottom composed of silt, boulders, 

gravel and detritus, with some woody 

debris and aquatic vegetation. The lower 

2.4 km (1.5 miles) of the creek flows 

through a slough-like, abandoned 

channel of the Middle Fork Willamette 

River and is wide, shallow, slightly 

turbid and low gradient, with marshy 

habitat. The population is currently 

estimated at 1,258 individuals and has 

been stable for 5 years. The habitat 

contains all of the PCEs. The maximum 

depth is 1.5 m (4.9 ft), averaging 0.8 m 

(2.6 ft), and the temperature was 

recorded at between 18 and 24 °C (64 

and 75 °F) on July 15 and July 21, 2008. 

The substrate is composed of 98 percent 

silt and organic material, and there is a 

variety of emergent, submergent, and 

floating aquatic vegetation covering 80 

percent of the surface area. Beaver 

frequent the area and Oregon chub are 

often found in beaver ponds on the 

lower 2.4 km (1.5 mi) of the creek. 

Although the site currently has no 

competing or predatory nonnative 

species, its connection to the river puts 

it at risk of nonnative fish introduction. 

Other threats include excess 

sedimentation from logging in the 

watershed as well as contaminationrelated water quality issues due to the 

site’s close proximity to the road. 

Unit 3K, Wicopee Pond: This site 

totals 1.4 ha (3.3 ac), is owned by the 

USFS, and was occupied at the time of 

listing as a result of a 1988 introduction 

of 50 Oregon chub. The pond, a former 

borrow pit adjacent to Salt Creek in the 

upper Middle Fork Willamette River 

drainage, was created when a bridge 

crossing was constructed on a small 

logging road that crosses Salt Creek, 

along Highway 58. The population is 

currently estimated at 5,431 individuals 

and has been stable for 5 years. The 

habitat contains all of the PCEs. The 

maximum depth is 2 m (6.6 ft), 

averaging 1.2 m (3.9 ft), and the 

temperature was recorded at 17 °C (63 

°F) on June 30, 2008. The substrate is 

100 percent silt and organic material, 

and there is a variety of emergent, 

submergent and floating aquatic 

vegetation and algae covering 100 

percent of the surface area. Beaver have 

been observed at this location and the 

site has no competing or predatory 

nonnative species. The site is at risk of 

excess sedimentation resulting from 

logging in the watershed. 

Table 1 provides a summary of the 

approximate area (hectares/acres) of 

sites by County and ownership 

determined to meet the definition of 

critical habitat to the Oregon chub. 

Table 2 provides ownership information 

and the area of each proposed critical 

habitat unit. 

TABLE 1—AREAS IN HECTARES (ACRES) DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR THE OREGON

CHUB (DEFINITIONAL AREA) BY COUNTY AND OWNERSHIP (TOTALS MAY NOT SUM DUE TO ROUNDING) 

County Private State Federal Other 

government 

Definitional 

area 

Benton .................................................................................. 7.3 (18.1) 3.7 (9.2) 6.3 (27.3) 

Lane ..................................................................................... 3.5 (8.6) 10.8 (26.5) 8.7 (21.6) ........................ 23.0 (56.7) 

Linn ...................................................................................... 1.4 (3.6) 0.4 (1.0) 1.8 (4.6) 

Marion .................................................................................. 2.5 (6.2) ........................ 14.0 (34.5) 1.2 (2.8) 17.6 (43.6) 

Total .............................................................................. 13.3 (32.9) 12.2 (30.11) 26.8 (66.3) 1.2 (2.8) 53.5 (132.1) 

TABLE 2—CRITICAL HABITAT UNITS PROPOSED FOR THE OREGON CHUB (TOTALS MAY NOT SUM DUE TO ROUNDING) 

[Area estimates reflect all land within critical habitat unit boundaries] 

Critical habitat unit Land ownership Hectares Acres 

1A ....................................................... State of Oregon, ODOT .................................................................................. 1.4 3.3 

1B(1) ................................................... City of Salem .................................................................................................. 0.8 1.9 

1B(2) ................................................... City of Stayton ................................................................................................ 0.4 1.0 

1B(3) ................................................... State of Oregon, ODFW ................................................................................. 0.1 0.2 

1B(4) ................................................... Private ............................................................................................................. 2.5 6.2 

1C ....................................................... USACE ............................................................................................................ 0.4 1.0 

2A(1) ................................................... Private ............................................................................................................. 0.1 0.1 

2A(2) ................................................... Private ............................................................................................................. 0.1 0.3 

2A(3) ................................................... Private ............................................................................................................. 3.3 8.2 

2B(1) ................................................... USFWS ........................................................................................................... 14.0 34.5 

2B(2) ................................................... Private ............................................................................................................. 6.1 15.2 

2B(3) ................................................... USFWS ........................................................................................................... 1.0 2.4 

2B(4) ................................................... USFWS ........................................................................................................... 0.9 2.3 

2B(5) ................................................... USFWS & Private ........................................................................................... 3.0 7.4 

3A ....................................................... USACE ............................................................................................................ 1.5 3.8 

3B ....................................................... State of Oregon, OPRD .................................................................................. 5.2 12.7 

3C ....................................................... State of Oregon, OPRD .................................................................................. 2.2 5.4 

3D ....................................................... State of Oregon, OPRD .................................................................................. 2.1 5.2 

3E ....................................................... USACE ............................................................................................................ 0.4 0.9 

3F ....................................................... USACE ............................................................................................................ 0.1 0.3 

3G ....................................................... State of Oregon, ODOT .................................................................................. 1.3 3.3 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10425 

TABLE 2—CRITICAL HABITAT UNITS PROPOSED FOR THE OREGON CHUB (TOTALS MAY NOT SUM DUE TO ROUNDING)— 

Continued 

[Area estimates reflect all land within critical habitat unit boundaries] 

Critical habitat unit Land ownership Hectares Acres 

3H ....................................................... USACE ............................................................................................................ 0.5 1.1 

3I ......................................................... USFS .............................................................................................................. 1.1 2.8 

3J ........................................................ USFS .............................................................................................................. 3.8 9.3 

3K ....................................................... USFS .............................................................................................................. 1.4 3.3 

Total ......................................................................................................................... 53.5 132.1 

[Key of abbreviations in Table 2: 

ODOT—Oregon Department of 

Transportation 

ODFW—Oregon Department of Fish and 

Wildlife 

USACE—United States Army Corps of 

Engineers 

USFWS—U.S. Fish and Wildlife Service 

OPRD—Oregon Parks and Recreation 

Department 

USFS—U.S. Forest Service] 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the courts of 

appeal for the Fifth and Ninth Circuits 

have invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F. 3d 1059 (9th Cir 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 

442F (5th Cir 2001)), and we do not rely 

on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, an important factor in 

determining whether an action will 

destroy or adversely modify critical 

habitat is whether, with implementation 

of the proposed Federal action, the 

affected critical habitat would remain 

functional (or retain those PCEs that 

relate to the ability of the area to 

periodically support the species) to 

serve its intended conservation role for 

the species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

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 

proposed or 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 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. This is a 

procedural requirement only, as any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. However, once proposed 

species become listed, or proposed 

critical habitat is designated as final, the 

full prohibitions of section 7(a)(2) of the 

Act apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

The primary utility of the conference 

procedures is to allow a Federal agency 

to maximize its opportunity to 

adequately consider species proposed 

for listing and proposed critical habitat 

and, if we list the proposed species or 

designate proposed critical habitat, to 

avoid potential delays in implementing 

their proposed action because of the 

section 7(a)(2) compliance process. We 

may conduct conferences either 

informally or formally. We typically use 

informal conferences as a means of 

providing advisory conservation 

recommendations to assist the agency in 

eliminating conflicts that the proposed 

action may cause. We typically use 

formal conferences when the Federal 

agency or the Service believes the 

proposed action is likely to jeopardize 

the continued existence of the species 

proposed for listing or adversely modify 

proposed critical habitat. 

We generally provide the results of an 

informal conference in a conference 

report, while we provide the results of 

a formal conference in a conference 

opinion. We typically prepare 

conference opinions on proposed 

critical habitat in accordance with 

procedures contained at 50 CFR 402.14, 

as if the proposed critical habitat was 

already designated. We may adopt the 

conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. Activities on State, 

Tribal, local, or private lands requiring 

a Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from us 

under section 10 of the Act) or involving 

some other Federal action (such as 

funding from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7(a)(2) 

consultations. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

compliance with the requirements of 

section 7(a)(2) of the Act will be 

documented through the Service’s 

issuance of: 

1. A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

2. A biological opinion for Federal 

actions that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

10426 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, some 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement may affect subsequently 

listed species or designated critical 

habitat. 

Application of the Jeopardy and 

Adverse Modification Standards 

Jeopardy Standard 

Currently, the Service applies an 

analytical framework for Oregon chub 

jeopardy analyses that relies heavily on 

the importance of known populations to 

the species’ survival and recovery. The 

section 7(a)(2) of the Act analysis is 

focused not only on these populations 

but also on the habitat conditions 

necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the Oregon chub in a 

qualitative fashion without making 

distinctions between what is necessary 

for survival and what is necessary for 

recovery. Generally, the jeopardy 

analysis focuses on the range-wide 

status of the Oregon chub, the factors 

responsible for that condition, and what 

is necessary for this species to survive 

and recover. An emphasis is also placed 

on characterizing the condition of the 

Oregon chub in the area affected by the 

proposed Federal action and the role of 

affected populations in the survival and 

recovery of the Oregon chub. That 

context is then used to determine the 

significance of adverse and beneficial 

effects of the proposed Federal action 

and any cumulative effects for purposes 

of making the jeopardy determination. 

Adverse Modification Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the PCEs to be functionally 

established. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the PCEs to an extent 

that appreciably reduces the 

conservation value of critical habitat for 

the Oregon chub. Generally, the 

conservation role of Oregon chub 

critical habitat units is to support the 

various life-history needs and provide 

for the conservation of the species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for the 

Oregon chub include, but are not 

limited to: 

1. Actions that would adversely affect 

the Oregon chub’s space for individual 

and population growth and normal 

behavior. These include altering the 

flow, gradient, or depth of the water 

channel by way of activities such as 

channelization, impoundment, road and 

bridge construction, mining, dredging, 

and destruction of riparian vegetation. 

These activities may lead to changes in 

water flows and levels that would 

degrade, reduce, or eliminate the habitat 

necessary for the growth and 

reproduction of Oregon chub. 

2. Actions that would significantly 

alter areas for reproduction, shelter, and 

food (habitat for prey). These include: 

• Reducing or eliminating vegetative 

cover of the water channel by activities 

such as release of contaminants into the 

surface water or connected groundwater 

at a point source or by dispersed release 

(non-point source). These activities can 

result in loss of the vegetative cover that 

is vital to the Oregon chub’s ability to 

spawn and hide from predators. 

• Altering the substrate within the 

water channel through sediment 

deposition from livestock grazing, road 

construction, channel alteration, timber 

harvest, off-road vehicle use, and other 

watershed and floodplain disturbances. 

When these activities increase the 

sediment deposition to levels that begin 

to change open-water habitat to 

emergent wetland, the habitat necessary 

for the growth and reproduction of these 

fish is reduced or eliminated. 

• Significantly decreasing the 

populations of minute organisms in the 

water channel that make up the food 

base of the Oregon chub. 

3. Actions that would significantly 

alter water temperature, thereby 

negatively affecting the Oregon chub’s 

physiological processes for normal 

spawning and survival. Such activities 

could include, but are not limited to, 

release of chemicals, biological 

pollutants, or heated effluents into the 

surface water or connected groundwater 

at a point source or by dispersed release 

(non-point source). These activities 

could alter water quality to conditions 

that are beyond the tolerances of Oregon 

chub and result in direct or cumulative 

adverse effects to these individuals and 

their life cycles. 

4. Actions that would disturb the 

habitat of Oregon chub by introducing, 

spreading, or augmenting nonnative 

competitive or predatory aquatic species 

into any of the proposed designated 

units. Such activities may include, but 

are not limited to, stocking for sport, 

aesthetics, biological control, or other 

purposes; the illegal use of live bait fish, 

aquaculture, or dumping of aquarium 

fish or other species; and connection of 

a designated critical habitat unit to 

another water body known to contain 

nonnative aquatic species. These 

activities could cause Oregon chub 

fatalities, displace Oregon chub from 

their habitat, and/or cause Oregon chub 

to spend a disproportionate amount of 

time hiding at the expense of foraging. 

We consider all of the units proposed 

as critical habitat to contain features 

essential to the conservation of the 

Oregon chub. All units are within the 

geographic range of the species and are 

currently occupied by the Oregon chub. 

To ensure that their actions do not 

jeopardize the continued existence of 

the Oregon chub, Federal agencies 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10427 

already consult with us on activities in 

areas currently occupied by the Oregon 

chub, or in unoccupied areas if the 

species may be affected by the action. 

Exemptions 

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

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

• An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

• A statement of goals and priorities; 

• A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP must, 

to the extent appropriate and applicable, 

provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. No. 

108–136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed integrated 

natural resources management plan 

within the proposed critical habitat 

designation. Therefore, there are no 

specific lands that meet the criteria for 

being exempted from the designation of 

critical habitat pursuant to section 

4(a)(3) of the Act. 

Exclusions 

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

Section 4(b)(2) of the Act states that 

the Secretary must designate or make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If, based on this 

analysis, we determine that the benefits 

of exclusion outweigh the benefits of 

inclusion, we can exclude the area only 

if such exclusion would not result in the 

extinction of the species. 

Under section 4(b)(2) of the Act, we 

must consider all relevant impacts, 

including economic impacts. In 

addition to economic impacts, we 

consider a number of factors in a section 

4(b)(2) analysis. For example, we 

consider whether there are lands owned 

by the Department of Defense (DOD) 

where a national security impact might 

exist. We also consider whether 

landowners have developed any Habitat 

Conservation Plans (HCPs) for the area, 

or whether there are conservation 

partnerships that would be encouraged 

or discouraged by designation of, or 

exclusion from, critical habitat in an 

area. In addition, we look at the 

presence of Tribal lands or Tribal Trust 

resources that might be affected, and 

consider the government-to-government 

relationship of the United States with 

the Tribal entities. We also consider any 

social impacts that might occur because 

of the designation. 

We have preliminarily considered the 

potential economic impacts of this 

proposed critical habitat designation, 

and are not proposing to exclude any 

areas under section 4(b)(2) of the Act 

because of economic, national security, 

or other considerations. Although some 

sites have a level of management for 

Oregon chub in place, none of the sites 

currently have the type of 

comprehensive management plan 

required to ensure the conservation of 

the species on site, such as any legally 

operative HCPs that cover the species, 

draft HCPs that cover the species and 

have undergone public review and 

comment, State conservation plans that 

cover the species, or National Wildlife 

Refuge System Comprehensive 

Conservation Plans that specifically 

mention and plan for Oregon chub 

conservation. Additionally, none of the 

lands or waters within the proposed 

designation are owned or managed for 

purposes of national security by the 

Department of Defense, and the 

proposed designation does not include 

any Tribal lands or trust resources. 

Therefore, we anticipate no impact to 

national security, Tribal lands, 

partnerships, or habitat conservation 

plans from this proposed critical habitat 

designation. Based on the best available 

information, we have preliminarily 

determined that all of the units 

proposed as critical habitat contain the 

features essential to, or are otherwise 

essential for the conservation of, this 

species. However, to ensure our final 

determination is based on the best 

available information, we are soliciting 

comments on any foreseeable economic, 

national security, or other potential 

impacts resulting from this proposed 

designation of critical habitat from 

governmental, business, or private 

interests, and in particular, any 

potential impacts on small entities. We 

are also soliciting comments on whether 

the benefits of exclusion of a particular 

area outweigh the benefits of inclusion. 

Economic Analysis 

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

Secretary to exclude areas from critical 

habitat for economic reasons if the 

Secretary determines that the benefits of 

such exclusion exceed the benefits of 

designating the area as critical habitat. 

However, this exclusion cannot occur if 

it will result in the extinction of the 

species concerned. 

In compliance with section 4(b)(2) of 

the Act, the Service is preparing an 

economic analysis of the impacts of 

proposing critical habitat designation 

and related factors for the Oregon chub, 

to evaluate the potential economic 

impact of the designation. We will 

announce the availability of the draft 

economic analysis as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

10428 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

downloading from the Internet at 

http://www.regulations.gov, or from the 

Oregon Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT

section). Based on public comment on 

that document, areas may be excluded 

from critical habitat by the Secretary 

under the provisions of section 4(b)(2) 

of the Act. This is provided for in the 

Act, and in our implementing 

regulations at 50 CFR 242.19. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we are 

obtaining the expert opinions of at least 

three appropriate and independent 

specialists regarding this proposed rule. 

The purpose of peer review is to ensure 

that our critical habitat designation is 

based on scientifically sound data, 

assumptions, and analyses. We have 

invited these peer reviewers to comment 

during this public comment period on 

our specific assumptions and 

conclusions in this proposed 

designation of critical habitat. 

We will consider all comments and 

information we receive during this 

comment period on this proposed rule 

during our preparation of a final 

determination. Accordingly, our final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if we 

receive any requests for hearings. We 

must receive your request for a public 

hearing within 45 days after the date of 

this Federal Register publication. Send 

your request to the address listed in FOR

FURTHER INFORMATION CONTACT. We will 

schedule public hearings on this 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the first hearing. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under Executive Order 

(E.O.) 12866. OMB bases its 

determination upon the following four 

criteria: 

1. Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

2. Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

3. Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

4. Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared pursuant to section 

4(b)(2) of the ESA and E.O. 12866. This 

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

a. This rule will not produce a Federal 

mandate. In general, a Federal mandate 

is a provision in legislation, statute, or 

regulation that would impose an 

enforceable duty upon State, local, tribal 

governments, or the private sector and 

includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10429 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

b. We do not believe that this rule will 

significantly or uniquely affect small 

governments. Due to current public 

knowledge of the species’ protection, 

the prohibition against take of the 

species both within and outside of the 

designated areas, and the fact that for 

this species we believe critical habitat 

provides no incremental restrictions, we 

do not anticipate that this rule will 

significantly or uniquely affect small 

governments. As such, a Small 

Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Takings 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the 

Oregon chub in a takings implications 

assessment. The takings implications 

assessment concludes that this proposed 

designation of critical habitat for the 

Oregon chub does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in Oregon. The designation of critical 

habitat in areas currently occupied by 

the Oregon chub imposes no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

may have some benefit to these 

governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

proposed designating critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This proposed 

rule uses standard property descriptions 

and identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of the Oregon chub. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

a. Be logically organized; 

b. Use the active voice to address 

readers directly; 

c. Use clear language rather than 

jargon; 

d. Be divided into short sections and 

sentences; and 

e. Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no Tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation of the Oregon chub and no 

Tribal lands that are unoccupied areas 

that are essential for the conservation of 

the Oregon chub. Therefore, designation 

of critical habitat for the Oregon chub 

has not been designated on Tribal lands. 

Energy Supply, Distribution, or Use 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for the Oregon chub is not 

expected to significantly affect energy 

supplies, distribution, or use. Although 

there are some hydroelectric operations 

on dams operated by the USACE 

adjacent to several critical habitat units 

along the Middlefork Willamette River, 

the USACE recently completed a formal 

consultation with the Service regarding 

the effect of those operations on Oregon 

chub. The Biological Opinion On the 

Continued Operation and Maintenance 

of the Willamette River Basin Project 

and Effects to Oregon Chub, Bull Trout, 

and Bull Trout Critical Habitat 

Designated Under the Endangered 

Species Act (USFWS 2008b) established 

strict Terms and Conditions for the 

conservation of Oregon chub in those 

10430 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

habitats that would be impacted by dam 

operations. These same habitats are 

included in this proposal. The 

designation of critical habitat in the 

areas adjacent to the hydroelectric 

operations will not change current 

Oregon chub conservation practices 

surrounding dam operations. Therefore, 

this action is not a significant energy 

action and no Statement of Energy 

Effects is required. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Oregon Fish and Wildlife Office (see 

FOR FURTHER INFORMATION CONTACT). 

Author(s) 

The primary authors of this package 

are staff members of the Oregon Fish 

and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

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; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

2. In § 17.11(h), revise the entry for 

‘‘Chub, Oregon’’ under ‘‘Fishes’’ in the 

List of Endangered and Threatened 

Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population 

where endangered or 

threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Chub, Oregon ...... Oregonichthys 

crameri.

U.S.A. (OR) ........ entire ........................ E 520 17.95(e) NA 

* * * * * * * 

* * * * * 

3. In § 17.95(e), add an entry for 

‘‘Oregon Chub (Oregonichthys crameri)’’ 

under ‘‘Fishes’’, in the same alphabetic 

order as this species appears in 

§ 17.11(h), to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Oregon Chub (Oregonichthys crameri) 

(1) Critical habitat units are depicted 

for Benton, Lane, Linn, and Marion 

Counties, Oregon, on the maps below. 

(2) The primary constituent elements 

of critical habitat for the Oregon chub 

are the habitat components that provide: 

(i) Off-channel water bodies such as 

beaver ponds, oxbows, side-channels, 

stable backwater sloughs, low-gradient 

tributaries, and flooded marshes, 

including at least 500 continuous square 

meters (0.12 ac) of surface area and 

water depth between approximately 

0.5–2.0 m (1.6–6.6 ft). This PCE 

provides space for individual and 

population growth and normal behavior. 

(ii) Aquatic vegetation covering a 

minimum of 250 m2 (.061 ac) (or 

between approximately 25 and 100 

percent of the total surface area of the 

habitat). This vegetation is primarily 

submergent for purposes of spawning, 

but also includes emergent and floating 

vegetation, and algae, which is 

important for cover throughout the year. 

This PCE provides areas for 

reproduction, shelter, and food (habitat 

for prey). Areas with sufficient 

vegetation are likely to also have the 

following characteristics: 

(A) Gradient less than 2.5 percent; 

(B) No or very low water velocity in 

late spring and summer; 

(C) Silty, organic substrate; and 

(D) Abundant minute organisms such 

as rotifers, copepods, cladocerans, and 

chironomid larvae. 

(iii) Late spring and summer 

subsurface water temperatures between 

15 and 25 °C (59 and 78 °F), with natural 

diurnal and seasonal variation. This 

PCE enables optimal physiological 

processes for spawning and survival. 

(iv) No or negligible levels of 

nonnative aquatic predatory or 

competitive species. Negligible is 

defined for the purpose of this proposed 

rule as a minimal level of nonnative 

species that will still allow the Oregon 

chub to continue to survive and 

reproduce. This PCE provides Oregon 

chub habitat free from disturbance and, 

therefore, sufficient reproduction and 

survival opportunities. 

(3) Critical habitat does not include 

man-made structures (including, but not 

limited to, docks, seawalls, pipelines, or 

other structures) and the land on which 

they are located existing within the 

boundaries on the effective date of this 

rule. 

(4) Critical Habitat Map Units. The 

data layer defining critical habitat was 

created using a Trimble GeoXT GPS 

unit. These critical habitat units were 

mapped using Universal Transverse 

Mercator, Zone 10, North American 

Datum 1983 (UTM NAD 83) 

coordinates. These coordinates establish 

the vertices and endpoints of the 

boundaries of the units. 

BILLING CODE 4310–55–P 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10431 

(5) Note: Index map for critical habitat 

for the Oregon chub follows: 


EP10MR09.004</GPH><FNP>
10432 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(6) Unit 1A: Santiam I–5 Side 

Channels, Linn County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 1A Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.005</GPH><FNP>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10433 

(7) Unit 1B(1): Geren Island North 

Channel, Marion County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 1B(1) Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.006</GPH><FNP>
10434 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(8) Unit 1B(2): Stayton Public Works 

Pond, Marion County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 1(B)(2) is found at 

paragraph (10)(ii) of this entry. 

(9) Unit 1B(3): South Stayton Pond, 

Linn County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 1(B)(3) is found at 

paragraph (10)(ii) of this entry. 

(10) Unit 1B(4): Gray Slough, Marion 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Units 1B(2), 1B(3), 

and 1B(4) of critical habitat for Oregon 

chub (Oregonichthys crameri) follows: 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10435 


EP10MR09.007</GPH><FNP>
10436 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(11) Unit 1C: Foster Pullout Pond, 

Linn County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 1C Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.008</GPH><FNP>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10437 

(12) Unit 2A(1): Russell Pond, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 2(A)(1) is found at 

paragraph (13)(ii) of this entry. 

(13) Unit 2A(2): Shetzline Pond, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Units 2A(1) and 

2A(2) of critical habitat for Oregon chub 

(Oregonichthys crameri) follows: 

10438 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 


EP10MR09.009</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10439 

(14) Unit 2A(3): Big Island, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 2A(3) Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.010</GPH>
10440 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(15) Unit 2B(1): Ankeny Willow 

Marsh, Marion County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 2B(1) Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.011</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10441 

(16) Unit 2B(2): Dunn Wetland, 

Benton County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 2B(2) Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.012</GPH>
10442 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(17) Unit 2B(3): Finley Display Pond, 

Benton County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 2(B)(3) is found at 

paragraph (19)(ii) of this entry. 

(18) Unit 2B(4): Finley Cheadle Pond, 

Benton County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 2(B)(4) is found at 

paragraph (19)(ii) of this entry. 

(19) Unit 2B(5): Finley Gray Creek 

Swamp, Benton County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Units 2B(3), 2B(4), 

and 2B(5) of critical habitat for Oregon 

chub (Oregonichthys crameri) follows: 

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10443 


EP10MR09.013</GPH>
10444 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(20) Unit 3A: Fall Creek Spillway 

Ponds, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 3A Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.014</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10445 

(21) Unit 3B: Elijah Bristow State Park 

Berry Slough, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 3B is found at paragraph 

(23)(ii) of this entry. 

(22) Unit 3C; Elijah Bristow State Park 

Northeast Slough, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 3C is found at paragraph 

(23)(ii) of this entry. 

(23) Unit 3D: Elijah Bristow State Park 

Island Pond, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Units 3B, 3C, and 3D 

of critical habitat for Oregon chub 

(Oregonichthys crameri) follows: 

10446 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 


EP10MR09.015</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10447 

(24) Unit 3E: Dexter Reservoir RV 

Alcove—DEX3, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 3E is found at paragraph 

(25)(ii) of this entry. 

(25) Unit 3F: Dexter Reservoir 

Alcove—PIT1, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Units 3E and 3F of 

critical habitat for Oregon chub 

(Oregonichthys crameri) follows: 

10448 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 


EP10MR09.016</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10449 

(26) Unit 3G: East Fork Minnow Creek 

Pond, Lane County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 3G Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.017</GPH>
10450 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 

(27) Unit 3H: Hospital Pond, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 3H Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 


EP10MR09.018</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10451 

(28) Unit 3I: Shady Dell Pond, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: A map showing critical 

habitat unit 3I is found at paragraph 

(29)(ii) of this entry. 

(29) Unit 3J: Buckhead Creek, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Units 3I and 3J of 

critical habitat for Oregon chub 

(Oregonichthys crameri) follows: 

10452 Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 


EP10MR09.019</GPH>
Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Proposed Rules 10453 

(30) Unit 3K: Wicopee Pond, Lane 

County, Oregon. 

(i) [Reserved for textual description of 

unit.] 

(ii) Note: Map of Unit 3K Critical 

Habitat for Oregon Chub (Oregonichthys 

crameri) follows: 

* * * * * Dated: February 26, 2009. 

Jane Lyder, 

Assistant Deputy Secretary, Department of 

the Interior. 

[FR Doc. E9–4528 Filed 3–9–09; 8:45 am] 

BILLING CODE 4310–55–C 


EP10MR09.020</GPH>