[Federal Register Volume 83, Number 3 (Thursday, January 4, 2018)]
[Proposed Rules]
[Pages 475-490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28465]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2017-0051; FXES11130900000-178-FF09E42000]
RIN 1018-BC09


Endangered and Threatened Wildlife and Plants; Removing the 
Foskett Speckled Dace From the List of Endangered and Threatened 
Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft post-delisting monitoring 
plan.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to remove the Foskett speckled dace (Rhinichthys osculus ssp.), 
a fish native to Oregon, from the Federal List of Endangered and 
Threatened Wildlife on the basis of recovery. This determination is 
based on a review of the best available scientific and commercial 
information, which indicates that the threats to the Foskett speckled 
dace have been eliminated or reduced to the point where it no longer 
meets the definition of an endangered or threatened species under the 
Endangered Species Act of 1973, as amended (Act). We are seeking 
information and comments from the public regarding this proposed rule 
and the draft post-delisting monitoring plan for the Foskett speckled 
dace.

DATES: We will accept comments received or postmarked on or before 
March 5, 2018. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for submitting an 
electronic comment is 11:59 p.m. Eastern time on this date. We must 
receive requests for public hearings, in writing, at the address shown 
in FOR FURTHER INFORMATION CONTACT by February 20, 2018.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2017-0051, 
which is the docket number for this rulemaking. Then click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: Docket No. FWS-R1-ES-2017-0051, U.S. Fish 
and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Document availability: This proposed rule and a copy of the draft 
post-delisting monitoring (PDM) plan referenced throughout this 
document can be viewed at http://www.regulations.gov under Docket No. 
FWS-R1-ES-2017-0051, or at the Oregon Fish and Wildlife Office's 
website at https://www.fws.gov/oregonfwo. In addition, the supporting 
file for this proposed rule will be available for public inspection by 
appointment, during normal business hours, at the Oregon Fish and 
Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 97226; 
telephone 503-231-6179.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, 2600 SE 
98th Avenue, Suite 100, Portland, OR 97266; telephone: 503-231-6179; 
facsimile (fax): 503-231-6195. If you use a telecommunications device 
for the deaf (TDD), call the Federal Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may be 
removed from the Federal List of Endangered and Threatened Wildlife 
(List) due to recovery. A species is an ``endangered species'' for 
purposes of the Act if it is in danger of extinction throughout all or 
a significant portion of its range and is a ``threatened species'' if 
it is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range. The Act 
does not define the term ``foreseeable future.'' The Foskett speckled 
dace is listed as threatened, and we are proposing to delist the 
species (i.e., remove the species from the List) because we have 
determined it is not likely to become an endangered species now or 
within the foreseeable future. Delistings can only be made by issuing a 
rulemaking.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any one or a 
combination of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We have determined that the Foskett 
speckled dace is no longer at risk of extinction and has exceeded or 
met the following criteria for delisting described in the species' 
recovery plan:
    (1) Long-term protection of habitat, including spring source 
aquifers, spring pools and outflow channels, and surrounding lands, is 
assured;
    (2) Long-term habitat management guidelines are developed and 
implemented to ensure the continued persistence of important habitat 
features and include monitoring of current habitat and investigation 
for and evaluation of new spring habitats; and
    (3) Research into life history, genetics, population trends, 
habitat use and preference, and other important parameters is conducted 
to assist in further developing and/or refining criteria (1) and (2), 
above.
    As per recovery criterion (2), we consider the Foskett speckled 
dace to be a conservation-reliant species \1\ (see Scott et al. 2010, 
entire), given that it requires active management to maintain suitable 
habitat. To address this management need, the Bureau of Land Management 
(BLM), the Oregon Department of Fish and Wildlife (ODFW), and the 
Service developed and are implementing the Foskett Speckled Dace 
(Rhinichthys osculus ssp.) Cooperative Management Plan (CMP; USFWS et 
al. 2015), and are committed

[[Page 476]]

to the continuing long-term management of this species.
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    \1\ We define conservation-reliant species in this case as those 
that have generally met recovery criteria but require continued 
active management to sustain the species and associated habitat in a 
recovered condition.
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Information Requested

Public Comments

    We intend that any final action resulting from this proposal will 
be based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other governmental or State agencies, Tribes, the 
scientific community, industry, or other interested parties concerning 
this proposed rule. The comments that will be most useful and likely to 
influence our decisions are those supported by data or peer-reviewed 
studies and those that include citations to, and analyses of, 
applicable laws and regulations. Please make your comments as specific 
as possible and explain the basis for them. In addition, please include 
sufficient information with your comments to allow us to authenticate 
any scientific or commercial data you reference or provide. We 
particularly seek comments concerning:
    (1) Reasons why we should or should not remove Foskett speckled 
dace from the Federal List of Endangered and Threatened Wildlife (i.e., 
``delist'' the fish under the Act);
    (2) New biological or other relevant data concerning any threat (or 
lack thereof) to this fish (e.g., those associated with climate 
change);
    (3) New information on any efforts by the State or other entities 
to protect or otherwise conserve the Foskett speckled dace or its 
habitat;
    (4) New information concerning the range, distribution, and 
population size or trends of this fish;
    (5) New information on the current or planned activities in the 
habitat or range of the Foskett speckled dace that may adversely affect 
or benefit the fish; and
    (6) Information pertaining to the requirements for post-delisting 
monitoring of the Foskett speckled dace.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, may not meet the standard of 
information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531 
et seq.), which directs that determinations as to whether any species 
is an endangered or threatened species must be made ``solely on the 
basis of the best scientific and commercial data available.''
    Prior to issuing a final rule to implement this proposed action, we 
will take into consideration all comments and any additional 
information we receive. Such information may lead to a final rule that 
differs from this proposal. All comments and recommendations, including 
names and addresses, will become part of the administrative record.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We will not consider 
comments sent by email, fax, or to an address not listed in ADDRESSES. 
We will not consider hand-delivered comments that we do not receive, or 
mailed comments that are not postmarked by, the date specified in 
DATES. If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. Please note that comments posted to this 
website are not immediately viewable. When you submit a comment, the 
system receives it immediately. However, the comment will not be 
publicly viewable until we post it, which might not occur until several 
days after submission.
    If you mail or hand-deliver hardcopy comments that include 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. To ensure that the 
electronic docket for this rulemaking is complete and all comments we 
receive are publicly available, we will post all hardcopy submissions 
on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule and draft post-
delisting monitoring (PDM) plan, will be available for public 
inspection on http://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Oregon 
Fish and Wildlife Office (see Document availability under ADDRESSES, 
above).

Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public 
hearings on this proposal, if requested. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT within 45 days after the date of this Federal 
Register publication (see DATES, above). We will schedule at least one 
public hearing on this proposal, if any are requested, and announce the 
dates, times, and location(s) of any hearings, as well as how to obtain 
reasonable accommodations, in the Federal Register at least 15 days 
before the first hearing.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
was published on July 1, 1994 (59 FR 34270), we will seek the expert 
opinion of at least three appropriate independent specialists regarding 
this proposed rule as well as the draft PDM plan. The purpose of peer 
review is to ensure that decisions are based on scientifically sound 
data, assumptions, and analyses. These reviews will be completed during 
the public comment period.
    We will consider all comments and information we receive during the 
comment period on this proposed rule as we prepare the final 
determination. Accordingly, the final decision may differ from this 
proposal.

Background

Previous Federal Actions

    We published a final rule listing the Foskett speckled dace as 
threatened in the Federal Register on March 28, 1985 (50 FR 12302). 
This rule also found that the designation of critical habitat was not 
prudent because it would increase the likelihood of vandalism to the 
small, isolated springs that support this species. On April 27, 1998, a 
recovery plan was completed for the Foskett speckled dace as well as 
two other fish of the Warner Basin and Alkali Subbasin (USFWS 1998).
    On March 25, 2009 (USFWS 2009, entire), a 5-year review of the 
Foskett speckled dace status was completed, recommending no change in 
listing status. On February 18, 2014, we published a notice in the 
Federal Register announcing the initiation of 5-year status reviews and 
information requests for five species, including the Foskett speckled 
dace (79 FR 9263). No information was received from this request. The 
second 5-year review, completed on October 26, 2015 (USFWS 2015, 
entire), concluded that the status of the Foskett speckled dace had 
substantially improved since the time of listing according to the 
definitions of ``endangered species'' and ``threatened species'' under 
the Act and recommended that the Foskett speckled dace be considered 
for delisting.

Species Description

    The Foskett speckled dace (Rhinichthys osculus ssp.) is in the 
family Cyprinidae (Girard 1857) and is

[[Page 477]]

represented by two populations in Lake County, Oregon: A natural 
population that inhabits Foskett Spring on the west side of Coleman 
Lake, and an introduced population at Dace Springs (USFWS 1998, p. 14). 
The Foskett speckled dace is a small, elongate, rounded minnow (4 
inches (in) (10 centimeters (cm)) with a flat belly. The snout is 
moderately pointed, the eyes and mouth are small, and ventral barbels 
(i.e., whisker-like sensory organs near the mouth) are present. Foskett 
speckled dace have eight dorsal fin rays and seven anal fin rays, and 
the caudal fin is moderately forked (USFWS 1998, p. 8). The color of 
its back is dusky to dark olive; the sides are grayish green, with a 
dark lateral stripe, often obscured by dark speckles or blotches; and 
the fins are plain. Breeding males are reddish on the lips and fin 
bases.

Life History

    Relatively little is known about the biology of the Foskett 
speckled dace. Fish breed at age 1 year, and spawning begins in March 
to April and extends into July; individual fish can live for at least 4 
years (Scheerer et al. 2015, p. 2). Length-frequency histograms suggest 
the presence of multiple age classes and that successful reproduction 
occurs annually (Sheerer and Jacobs 2009, p. 5). Young-of-the-year fish 
are more common in the shallow marsh habitats (Scheerer et al. 2016, p. 
3). Presumably, similar to other dace, Foskett speckled dace require 
rock or gravel substrate for egg deposition (Sigler and Sigler 1987, p. 
208). The taxonomy of the Foskett speckled dace is summarized in the 
species' 5-year review (USFWS 2015).

Distribution

    The Foskett speckled dace is endemic to Foskett Spring in the 
Warner Basin, in southeastern Oregon (see Figure 1). The historical 
known natural range of the Foskett speckled dace is limited to Foskett 
Spring. At the time of listing in 1985, Foskett speckled dace also 
occurred at nearby Dace Spring where translocation was initiated in 
1979 (Williams et al. 1990, p. 243).
    Foskett speckled dace were probably distributed throughout 
prehistoric Coleman Lake (see Figure 1) during times that it held 
substantial amounts of water. The timing of the isolation between the 
Warner Lakes and the Coleman Lake Subbasin is uncertain although it 
might have been as recent as 10,000 years ago (Bills 1977, entire). As 
Coleman Lake dried, the salt content of the water increased and 
suitable habitat would have been reduced from a large lake to spring 
systems that provided adequate freshwater.
[GRAPHIC] [TIFF OMITTED] TP04JA18.000

    Given that both Foskett and Dace springs were historically below 
the surface of Coleman Lake, it is reasonable to assume that Foskett 
speckled dace occupied Dace Spring at some point in the past although 
none was documented in the 1970s. Beginning in 1979, Foskett speckled 
dace were translocated into the then-fishless Dace Spring to attempt to

[[Page 478]]

create a second population (see discussion below, under Abundance).

Habitat

    Foskett Spring is a small, natural spring that rises from a 
springhead pool that flows through a narrow, shallow spring brook into 
a series of shallow marshes, and then disappears into the soil of the 
normally dry Coleman Lake (Scheerer et al. 2016, p. 1). Foskett Spring 
is a cool-water spring with temperatures recorded at a constant 64.8 
degrees Fahrenheit ([deg]F) (18.2 degrees Celsius ([deg]C)) (Scheerer 
and Jacobs 2009, p. 5). The spring water is clear, and the water flow 
rate is less than 0.5 cubic feet (ft\3\) per second (0.01 cubic meters 
(m\3\) per second). The springhead pool has a loose sandy bottom and is 
heavily vegetated with aquatic plants. The ODFW estimated approximately 
864 square yards (yds\2\) (722 square meters (m\2\)) of wetland habitat 
are associated with the Foskett Spring area, including the spring pool, 
spring brook, tule marsh, cattail marsh, and sedge marsh (Scheerer and 
Jacobs 2005, p. 6; hereafter ``marsh'' unless otherwise noted). Foskett 
speckled dace occur in all the wetlands habitats associated with the 
spring. The fish use overhanging bank edges, grass, exposed grass 
roots, and filamentous algae as cover. In 1987, the BLM acquired the 
property containing both Foskett and Dace springs and the surrounding 
161 acres (ac) (65 hectares (ha)), of which approximately 69 ac (28 ha) 
were fenced to exclude cattle from the two springs. After fencing and 
cattle exclusion, encroachment by aquatic vegetation reduced the open-
water habitat (Sheerer and Jacobs 2007, p. 9). This is a common pattern 
in desert spring ecosystems and has resulted in reductions of fish 
populations at other sites (see Kodric-Brown and Brown 2007).
    In 2005, 2007, and 2009, the ODFW considered Foskett speckled dace 
habitat to be in good condition, but limited in extent (Scheerer and 
Jacobs 2005, p. 7; 2007, p. 9; and 2009, p. 5). They noted that 
encroachment by aquatic plants may be limiting the population and that 
a decline in abundance of Foskett speckled dace since 1997 was probably 
due to the reduction in open-water habitat. Deeper water with moderate 
vegetative cover would presumably be better habitat, judging from the 
habitats used by other populations of speckled dace, although Dambacher 
et al. (1997, no pagination) noted that past habitat management to 
increase open-water habitat has been unsuccessful in the long run due 
to sediment infilling and regrowth of aquatic plants. To address the 
encroachment by aquatic vegetation, in 2013, the BLM implemented a 
controlled burn in the surrounding marshes to reduce vegetation 
biomass. In 2013 and 2014, the BLM hand-excavated 11 pools and 
increased the open-water habitat by 196 yds\2\ (164 m\2\) (Scheerer et 
al. 2014, p. 9). The response of Foskett speckled dace to this habitat 
enhancement was substantial but relatively short-lived (see Abundance, 
below).
    Dace Spring is approximately 0.5 mile (mi) (0.8 kilometer (km)) 
south of Foskett Spring and is smaller than Foskett Spring. Baseline 
water quality and vegetation monitoring at Foskett and Dace springs 
were initiated by the BLM in 1987. Data collected on September 28, 
1988, documented that the springs had similar water chemistry, 
temperature, and turbidity (Williams et al. 1990, p. 244). To increase 
open-water habitat, the BLM and the Service worked together in 2009, to 
construct two ponds connected to the outlet channel of Dace Spring. In 
2013, the BLM reconfigured the inlet and outlet to the two ponds, 
allowing greater water flow and improving water quality (Scheerer et 
al. 2013, p. 8).

Abundance

    The population of Foskett speckled dace has been monitored 
regularly by the ODFW since 2005, and, while variable, the population 
appears to be resilient (i.e., ability of a species to withstand 
natural variation in habitat conditions and weather as well as random 
events). General observations made during these population surveys 
included the presence of multiple age-classes and the presence of 
young-of-the-year, which indicates that breeding is occurring and young 
are surviving for multiple years. Bond (1974) visually estimated the 
population in Foskett Spring to be between 1,500 and 2,000 individuals 
in 1974. In 1997, the ODFW obtained mark-recapture population estimates 
at both Foskett and Dace springs (Dambacher et al. 1997, no 
pagination). The Foskett Spring estimate was 27,787 fish, and the 
majority of the fish (97 percent) occurred in an open-water pool 
located in the marsh outside of the existing Foskett Spring cattle 
exclosure. Since 1997, population estimates have varied from 751 to 
24,888 individuals (Table 1). The data in Table 1 were obtained using 
the Lincoln-Petersen model (1997-2012), the Huggins closed-capture 
model (2011-2014), and a state-space model (2015-2016). Estimates were 
not calculated by habitat type using the Huggins model in 2011, because 
length-frequency data were not available for each habitat location 
(Scheerer et al. 2015, pp. 4-7; Scheerer et al. 2013, p. 5; Scheerer et 
al. 2014, p. 6; Scheerer et al. 2016, p. 6). Different models have been 
used to estimate abundance through time to provide the most accurate 
and robust estimates; for example, it was determined that the Lincoln-
Petersen estimator had underestimated abundance (Peterson et al. 2015). 
Abundance declined substantially from 1997 through 2012, a period when 
aquatic plants substantially expanded into open-water habitats 
(Scheerer et al. 2016, p. 9). The higher population estimates from 2013 
through 2015 were attributed to habitat management that increased open-
water habitat (see below) and most fish occurred in maintained habitats 
(Scheerer et al. 2016, p. 9). The population decline documented in 2016 
in Foskett Spring was likely a result of vegetation regrowth into the 
excavated areas (Scheerer et al. 2016, pp. 6-9). As a result of the 
vegetation regrowth and population decline in 2016, and consistent with 
the CMP, the BLM conducted an extensive habitat enhancement project in 
2017, excavating approximately 300 cubic yards (yds\2\) (251 m\2\) of 
vegetation and accumulated sediment in the Foskett Spring pool, stream, 
and portions of the wetland, resulting in a significant increase in 
open-water habitat. Prior to initiating this enhancement project in 
2017, the ODFW conducted a population survey that estimated 4,279 dace 
in Foskett Spring (95 percent CI: 3,878-4,782), a moderate increase in 
the estimate from the prior year (1,830) (P. Scheerer, ODFW, pers. 
comm. 2017). As noted previously, and as illustrated in Table 1 below, 
the variability in abundance is not uncommon for this species and 
appears in part to be driven by the availability of open-water habitat. 
Given information gained from prior habitat enhancement actions at 
Foskett and Dace springs, we anticipate the extensive habitat 
enhancement work conducted by the BLM in 2017 will support an increase 
in abundance in coming years.

[[Page 479]]



               Table 1--Foskett Spring: Population Estimates With 95 Percent Confidence Intervals of Foskett Speckled Dace by Habitat Type
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                                                                         Habitat Type or Location
             Model               Yr \1\ ------------------------------------------------------------------------------------------       Management
                                            Spring Pool      Spring brook       Tule marsh       Cattail marsh    Entire site \2\
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Lincoln-Petersen..............     1997  204 (90-317)....  702 (1,157-       no sample.......  26,881 (13,158-   27,787 (14,057-   none.
                                                            2,281).                             40,605).          41,516).
                                   2005  1,627 (1,157-     755 (514-1,102).  425 (283-636)...  353 (156-695)...  3,147 (2,535-     none.
                                          2,284).                                                                 3,905).
                                   2007  1,418 (1,003-     719 (486-1,057).  273 (146-488)...  422 (275-641)...  2,984 (2,403-     none.
                                          1,997).                                                                 3,702).
                                   2009  247 (122-463)...  1,111 (774-       1,062 (649-       158 (57-310)....  2,830 (2,202-     none.
                                                            1,587).           1,707).                             3,633).
                                   2011  322 (260-399)...  262 (148-449)...  301 (142-579)...  0...............  751 (616-915)...  none.
                                   2012  404 (354-472)...  409 (357-481)...  220 (159-357)...  0...............  988 (898-1,098).  Controlled burn.
Huggins.......................     2011  NA \3\..........  NA..............  NA..............  NA..............  1,728 (1,269-     none.
                                                                                                                  2,475).
                                   2012  633 (509-912)...  589 (498-1,024).  625 (442-933)...  0...............  1,848 (1,489-     Controlled burn.
                                                                                                                  2,503).
                                   2013  2,579 (1,985-     638 (566-747)...  6,891 (5,845-     3,033 (2,500-     13,142 (1,157-    Pool excavation and
                                          3,340).                             8,302).           3,777).           2,284).           hand excavation of
                                                                                                                                    spring brook and
                                                                                                                                    marshes.
                                   2014  2,843 (2,010-     7,571 (2,422-     11,595 (7,891-    2,936 (1,757-     24,888 (19,250-   Pool excavation and
                                          3,243).           13,892).          12,682).          7,002).           35,510).          hand excavation of
                                                                                                                                    spring brook and
                                                                                                                                    marshes.
State-space...................     2015  698 (520-2,284).  11,941 (5,465-    3,662 (2,158-     38 (8-111)......  16,340 (10,980-   none.
                                                            15,632).          6,565).                             21,577).
                                   2016  138 (122-226)...  656 (609-1240)..  1,021 (926-1245)  14 (12-19)......  1,830 (1,694-     none.
                                                                                                                  2,144).
                                   2017  925.............  1,032...........  2,322...........  NA \4\..........  4,279 (3,878-     Mechanical excavation
                                                                                                                  4,782).           to deepen the open
                                                                                                                                    water pools and
                                                                                                                                    channels.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note that there are two population estimates (i.e. Lincoln-Petersen and Huggins) for 2011 and 2012.
\2\ Site estimate totals were calculated from the total number of marked and recaptured fish and are not the sum of the estimates for the habitat types.
\3\ No estimates were calculated; see (Scheerer et al. 2015, pp. 4-7).
\4\ The cattail marsh habitat was too shallow to survey in 2017.

    No Foskett speckled dace were documented in Dace Spring in the 
1970s. In 1979 and 1980, individuals were translocated from Foskett 
Spring to Dace Spring (Williams et al. 1990, p. 243; see Table 2). 
Although an estimated 300 fish were documented in 1986 (Williams et al. 
1990, p. 243), this initial effort failed to establish a population at 
Dace Spring due to a lack of successful recruitment (Dambacher et al. 
1997, no pagination). Only 19 fish were observed in 1997, and 
subsequent surveys failed to locate individuals in Dace Springs 
(Scheerer and Jacobs 2005, p. 2). In 2009, two pools were created at 
Dace Spring to increase open-water habitat and additional individuals 
were moved to the spring. Although recruitment was documented, major 
algal blooms and periods of low dissolved oxygen resulted in low 
survival (Scheerer et al. 2012, p. 8). Habitat manipulation by the BLM 
in 2013 improved water quality, and recruitment was documented in 2014 
and 2015 (Scheerer et al. 2014, p. 6; Scheerer et al. 2015, p. 5). The 
two constructed pools at Dace Spring are currently providing additional 
habitat and may continue to serve as a refuge population for Foskett 
speckled dace. Based on 2017 population estimates, Dace Spring numbers 
have increased dramatically since 2013 (Table 2). The population 
estimates in Table 2 were made with 95 percent confidence intervals, 
translocations, and habitat management (Williams et al. 1990, p. 243; 
Dambacher et al. 1997, no pagination; Scheerer and Jacobs 2005, p. 2; 
Scheerer et al. 2012, p. 1; Scheerer et al. 2013, pp. 2, 8; Scheerer et 
al. 2014, pp. 6, 9; Scheerer et al. 2015, p. 5; Scheerer et al. 2016, 
p. 6; Scheerer et. al. 2017, p. 6).

                   Table 2--Dace Spring: Summary of Foskett Speckled Dace Population Estimates
----------------------------------------------------------------------------------------------------------------
                Year                   Population estimate     Number translocated        Habitat management
----------------------------------------------------------------------------------------------------------------
Pre-1979...........................  0.....................  none..................  none.
1979...............................  no estimate...........  50....................  none.
1980...............................  no estimate...........  50....................  none.
1986...............................  300 \1\...............  none..................  none.
1997...............................  <20 \1\...............  none..................  none.
2005...............................  0.....................  none..................  none.
2009...............................  no estimate...........  none..................  construction of 2 pools.
2010...............................  no estimate...........  49....................  none.
2011...............................  34 (11-36)............  75....................  none.

[[Page 480]]

 
2012...............................  13 \2\................  none..................  none.
2013...............................  34 (17-62)............  200...................  construction of flow
                                                                                      through channels.
2014...............................  552 (527-694).........  324...................  none.
2015...............................  876 (692-1,637).......  none..................  none.
2016...............................  1,964 (1,333-4,256)...  none..................  none.
2017...............................  15,729 (12,259-58,479)  none..................  none.
----------------------------------------------------------------------------------------------------------------
\1\ No confidence interval calculated.
\2\ In 2012, there were a known total of 13 individuals.

Recovery Planning and Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the List. However, revisions to 
the List (i.e., adding, removing, or reclassifying a species) must 
reflect determinations made in accordance with sections 4(a)(1) and 
4(b) of the Act. Section 4(a)(1) requires that the Secretary determine 
whether a species is endangered or threatened (or not) because of one 
or more of five threat factors. Section 4(b) of the Act requires that 
the determination be made ``solely on the basis of the best scientific 
and commercial data available.'' Therefore, recovery criteria should 
help indicate when we would anticipate an analysis of the five threat 
factors under section 4(a)(1) would result in a determination that the 
species is no longer an endangered species or threatened species after 
evaluating the five statutory factors (see Summary of Factors Affecting 
the Species, below).
    While recovery plans provide important guidance to the Service, 
States, and other partners on methods of minimizing threats to listed 
species and measurable objectives against which to measure progress 
towards recovery, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. A decision to revise the 
status of a species or remove it from the List is ultimately based on 
analysis of the best scientific and commercial data available to 
determine whether a species is no longer considered endangered or 
threatened, regardless of whether that information differs from the 
recovery plan.
    Recovery plans may be revised to address continuing or new threats 
to the species as new substantive information becomes available. The 
recovery plan identifies site-specific management actions that will 
help recover the species, measurable criteria that set a trigger for 
eventual review of the species' listing status (e.g., under a 5-year 
review conducted by the Service), and methods for monitoring recovery 
progress. Recovery plans are intended to establish goals for long-term 
conservation of listed species and define criteria that are designed to 
indicate when the threats facing a species have been removed or reduced 
to such an extent that the species may no longer need the protections 
of the Act.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all criteria being fully met. For 
example, one or more criteria may be exceeded while other criteria may 
not yet be met. In that instance, we may determine that the threats are 
minimized sufficiently to delist. In other cases, recovery 
opportunities may be discovered that were not known when the recovery 
plan was finalized. These opportunities may be used instead of methods 
identified in the recovery plan. Likewise, information on the species 
may be learned that was not known at the time the recovery plan was 
finalized. The new information may change the extent that criteria need 
to be met for recognizing recovery of the species. Recovery of a 
species is a dynamic process requiring adaptive management that may, or 
may not, fully follow the guidance provided in a recovery plan.
    The Oregon Desert Fishes Working Group has been proactive in 
improving the conservation status of the Foskett speckled dace. This 
group of Federal and State agency biologists, academicians, and others 
has met annually since 2007 to: (1) Share species' status information; 
(2) share results of new research; and (3) assess ongoing threats to 
the species.
    The primary conservation objective in the Foskett speckled dace 
recovery plan is to enhance its long-term persistence through the 
conservation and enhancement of its limited range and habitat (USFWS 
1998, entire). The recovery plan states that the Foskett speckled dace 
spring habitat is currently stable, but extremely restricted, and any 
alterations to the spring or surrounding activities that indirectly 
modify the spring could lead to the extinction of this species. While 
the recovery plan does not explicitly tie the recovery criteria to the 
five listing factors in section 4(a)(1) of the Act, our analysis of 
whether the species has achieved recovery is based on these five 
factors, which are discussed in the Summary of Factors Affecting the 
Species section, below. The recovery plan outlines three recovery 
criteria to assist in determining when the Foskett speckled dace has 
recovered to the point that the protections afforded by the Act are no 
longer needed, which are summarized below. A detailed review of the 
recovery criteria for the Foskett speckled dace is presented in the 
species' 5-year review (USFWS 2015), which is available online at 
https://ecos.fws.gov/docs/five_year_review/doc4758.pdf, at http://www.regulations.gov under Docket No. FWS-R1-ES-2017-0051, or by 
requesting a copy from our Oregon Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT). The 2015 5-year review concluded that the 
risk of extinction has been substantially reduced, as threats have been 
managed, and recommended that the species be proposed for delisting 
(USFWS 2015, p. 29). The Foskett speckled dace has exceeded or met the 
following criteria for delisting described in the recovery plan:
    Recovery Criterion 1: Long-term protection to habitat, including 
spring source aquifers, spring pools and outflow channels, and 
surrounding lands, is assured.
    Criterion 1 has been met. In 1987, the BLM acquired and now manages 
the 160-ac (65-ha) parcel of land containing both Foskett and Dace 
springs (see

[[Page 481]]

below) and fenced 70 ac (28 ha) to exclude cattle from both springs, 
although the fence does not include the entire occupied habitat for 
Foskett speckled dace. The acquisition of this parcel of land by the 
BLM was specifically to provide conservation benefit to the Foskett 
speckled dace. We anticipate continued ownership of this habitat by the 
BLM in the future in part due to direction in the BLM's Lakeview 
District Resource Management Plan (RMP), which includes a management 
goal of retaining public land with high public resource values and 
managing that land for the purpose for which it was acquired (BLM 2003, 
p. 92). Additional support for continued ownership and management of 
the site by the BLM rests in the Federal Land Policy and Management Act 
of 1976 (FLPMA) (43 U.S.C. 1701 et seq.), as amended, which directs the 
BLM to manage public land to provide habitat for fish and aquatic 
wildlife and to protect the quality of water resources. Lastly, 
continued ownership and management by the BLM, and the protections 
afforded to Foskett and Dace springs from public ownership, is 
supported by the BLM's involvement as a cooperating agency in the 
development and implementation of the CMP finalized in August 2015 
(USFWS et al. 2015).
    While little information is available regarding spring flows or the 
status of the aquifer, the aquifer has limited capability to produce 
water for domestic or stock use (Gonthier 1985, p. 7). Given this, few 
wells exist in the Warner Valley and thus are not likely to impact 
Foskett or Dace springs. Recovery Criterion 1 addresses listing factor 
A (present or threatened destruction, modification, or curtailment of 
its habitat or range).
    Recovery Criterion 2: Long-term habitat management guidelines are 
developed and implemented to ensure the continued persistence of 
important habitat features and include monitoring of current habitat 
and investigation for and evaluation of new spring habitats.
    Criterion 2 has been met. With the understanding that the Foskett 
speckled dace is a conservation-reliant species, the BLM, ODFW, and 
Service developed a CMP (USFWS et al. 2015) that outlines long-term 
management actions necessary to provide for the continued persistence 
of habitats important to Foskett speckled dace. The CMP was agreed to, 
finalized, and signed by the Service, BLM, and ODFW in August 2015. The 
cooperating parties committed to the following actions: (1) Protect and 
manage Foskett speckled dace habitat; (2) enhance the habitat when 
needed; (3) monitor Foskett speckled dace populations and habitat; and 
(4) implement an emergency contingency plan as needed to address 
potential threats from the introduction of nonnative species, 
pollutants, or other unforeseen threats (USFWS et al. 2015, p. 3).
    Although the CMP is a voluntary agreement among the three 
cooperating agencies, it is reasonable to conclude the plan will be 
implemented into the foreseeable future for multiple reasons. First, 
each of the cooperating agencies have established a long record of 
engagement in conservation actions for Foskett speckled dace, including 
the BLM's prior contributions through land acquisition and three 
decades of habitat management at Foskett and Dace springs; scientific 
research and monitoring by the ODFW dating back to 1997; and funding 
support, coordination of recovery actions, and legal obligations by the 
Service to monitor the species into the future under the Foskett 
speckled dace post-delisting monitoring plan. In addition, all three 
cooperating agencies are active participants in the Oregon Desert 
Fishes Working Group, an interagency group facilitated by the Service 
that meets annually to discuss recent monitoring and survey information 
for multiple fish species, including Foskett speckled dace, as well as 
to coordinate future monitoring and management activities.
    Second, implementation of the CMP is already underway. The BLM has 
conducted quarterly site visits to determine the general health of the 
local spring environment using photo point monitoring techniques. In 
2017, the BLM conducted an extensive habitat enhancement project by 
excavating approximately 300 yards (yds\2\) (251 m\2\) of vegetation 
and accumulated sediment in the Foskett Spring pool, stream, and 
portions of the wetland, resulting in a significant increase in open-
water habitat. The BLM also provided funding to the ODFW to conduct 
population estimates of Foskett speckled dace. The ODFW provided 
personnel and technical assistance to the BLM for the above-mentioned 
excavation work in 2017, and they conducted an abundance estimate in 
2017 to keep track of the long-term trend of the population. The 
Service provided personnel and technical assistance to the BLM for the 
2017 excavation work and provided funding to the ODFW in 2015, 2016, 
and 2017 to conduct population estimates in Foskett and Dace springs.
    Third, the conservation mission and authorities of these agencies 
authorize this work even if the species is delisted. For example, the 
Lakeview District BLM's Resource Management Plan (RMP) and BLM Manual 
6840.06E both provide general management direction for Special Status 
Species, including the Foskett speckled dace. The FLPMA also directs 
the BLM to manage public land to provide habitat for fish and aquatic 
wildlife and to protect the quality of water resources. The ODFW's 
State of Oregon Wildlife Diversity Plan (Oregon Administrative Rule 
(OAR) 635-100-0080), Oregon Native Fish Conservation Policy (OAR 636-
007-0502), and the Oregon Conservation Strategy (ODFW 2016) each 
provide protective measures for the conservation of native fish 
including Foskett speckled dace, which will remain on the ODFW's 
sensitive species list even we remove it from the Federal List. The 
Service is authorized to assist in the protection of fish and wildlife 
and their habitats under authorities provided by the Act (16 U.S.C. 
1536), the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), 
and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j, not 
including 742d-l).
    Fourth, there is a practical reason to anticipate implementation of 
the CMP into the foreseeable future: The CMP actions are technically 
not complicated to implement, and costs are relatively low. We also 
have confidence that the actions called for in the CMP will be 
effective in the future because they have already proven effective as 
evidenced by the information collected from recent habitat actions and 
associated monitoring (Scheerer et al. 2016, entire).
    Lastly, if the CMP is not adhered to by the cooperating agencies or 
an evaluation by the Service suggests the habitat and population 
numbers are declining, the Service would evaluate the need to again add 
the species to the List (i.e., ``relist'' the species) under the Act. 
Taken together, it is therefore reasonable to conclude that the CMP 
will be implemented as anticipated and that the long-term recovery of 
Foskett speckled dace will be maintained and monitored adequately.
    Criterion 2 has been further met by the establishment of a refuge 
population of Foskett speckled dace at nearby Dace Spring. As described 
earlier in this proposed rule, dating back to 1979, multiple 
unsuccessful attempts were made to create a refuge population of 
Foskett speckled dace at Dace Spring. More recent actions have been 
more successful. Habitat modification at Dace Spring by the BLM, first 
in 2009 and again in 2013, and translocation of dace from Foskett 
Spring to Dace Spring by the ODFW in 2010, 2011, 2013, and 2014, have 
resulted in a population estimated in 2017 to be 15,729 fish

[[Page 482]]

(Table 2, above). Natural recruitment was documented in 2014, 2015, and 
2016 (Scheerer et al. 2016, p. 6).
    While our proposal to delist Foskett speckled dace is not dependent 
on the existence of a second population, the redundancy of a second 
population of Foskett speckled dace, should it prove viable over the 
long term, provides increased resiliency to the species' overall status 
and may reduce vulnerability to stochastic events and any future 
threats that may appear on the landscape.
    Recovery Criterion 3: Research into life history, genetics, 
population trends, habitat use and preference, and other important 
parameters is conducted to assist in further developing and/or refining 
criteria 1 and 2 above.
    This criterion has been met through population surveys by the ODFW 
and the Service, and investigations into the genetic relatedness of 
Foskett speckled dace in comparison with other nearby dace populations. 
In 1997, the Service contracted the ODFW to conduct an abundance survey 
and develop a population estimate for the Foskett speckled dace. In 
2005, 2007, 2009, and 2011 through 2017, the Service again contracted 
the ODFW to obtain mark-recapture population estimates for both Foskett 
and Dace springs. At the former, habitat-specific population estimates 
were developed. Captured fish were measured to develop length-frequency 
histograms to document reproduction. In addition to collecting 
abundance data, ODFW staff mapped wetland habitats, monitored 
vegetation, and measured temperature and water quality at both springs 
during each survey. Together, the population estimates and habitat 
mapping confirmed the relationship between open-water habitat and fish 
abundance (Sheerer et al. 2016, p. 8). Water quality monitoring 
highlighted the need for habitat enhancement at Dace Springs. Thus, 
these data assisted in further developing and/or refining recovery 
criteria 1 and 2.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of fish or 
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species 
may be determined to be an endangered or threatened species because of 
any one or a combination of the five factors described in section 
4(a)(1) of the Act: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We must consider these same five 
factors in delisting a species. We may delist a species according to 50 
CFR 424.11(d) if the best available scientific and commercial data 
indicate that the species is neither endangered nor threatened for the 
following reasons: (1) The species is extinct; (2) the species has 
recovered and is no longer endangered or threatened; and/or (3) the 
original scientific data used at the time the species was classified 
were in error.
    A recovered species is one that no longer meets the Act's 
definition of endangered or threatened. Determining whether a species 
is recovered requires consideration of the same five categories of 
threats specified in section 4(a)(1) of the Act. For species that are 
already listed as endangered or threatened, this analysis of threats is 
an evaluation of both the threats currently facing the species and the 
threats that are reasonably likely to affect the species in the 
foreseeable future following delisting or downlisting (i.e., 
reclassification from endangered to threatened) and the removal or 
reduction of the Act's protections.
    A species is ``endangered'' for purposes of the Act if it is in 
danger of extinction throughout all or a ``significant portion of its 
range'' and is ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a ``significant portion 
of its range.'' The word ``range'' in the significant portion of its 
range phrase refers to the range in which the species currently exists. 
For the purposes of this analysis, we will evaluate whether the 
currently listed species, the Foskett speckled dace, should be 
considered endangered or threatened throughout all of its range. Then 
we will consider whether there are any significant portions of the 
Foskett speckled dace's range where the species is in danger of 
extinction or likely to become so within the foreseeable future.
    The Act does not define the term ``foreseeable future.'' For the 
purpose of this proposed rule, we defined the ``foreseeable future'' to 
be the extent to which, given the amount and substance of available 
data, we can anticipate events or effects, or reliably extrapolate 
threat trends, such that we reasonably believe that reliable 
predictions can be made concerning the future as it relates to the 
status of the Foskett speckled dace.
    Based on population monitoring that began in 1997 by the ODFW, it 
has been established that the Foskett speckled dace population is 
variable, and the variability is directly linked to the amount of open-
water habitat (Scheerer et al. 2016, p. 8). There is no evidence to 
indicate that this relationship will change in the future. There also 
is no reason to expect local changes to ground water levels (see Factor 
A discussion, below), and climate changes modeled over the next 30 plus 
years (i.e., through 2049) are not predicted to impact the Foskett 
speckled dace (see Factor E discussion, below).
    Based on 30 years of the BLM owning and managing habitat at Foskett 
and Dace springs, 20 years of population monitoring by the ODFW, 
modeling of climate change impacts that suggest little change in 
environmental conditions over the next 30 years in the Warner Lakes 
Basin, and agency commitments in the CMP to manage habitat and monitor 
population status of the Foskett speckled dace by the three agency 
cooperators, we determine it is reasonable to define the foreseeable 
future for the Foskett speckled dace as 30 years. In considering what 
factors might constitute threats, we must look beyond the exposure of 
the species to a particular factor to evaluate whether the species may 
respond to the factor in a way that causes actual impacts to the 
species. If there is exposure to a factor and the species responds 
negatively, the factor may be a threat, and during the status review, 
we attempt to determine how significant a threat it is. The threat is 
significant if it drives or contributes to the risk of extinction of 
the species, such that the species warrants listing as endangered or 
threatened as those terms are defined by the Act. However, the 
identification of factors that could impact a species negatively may 
not be sufficient to compel a finding that the species warrants 
listing. The information must include evidence sufficient to suggest 
that the potential threat is likely to materialize and that it has the 
capacity (i.e., it should be of sufficient magnitude and extent) to 
affect the species' status such that it meets the definition of 
endangered or threatened under the Act.

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

    The Service listed the Foskett speckled dace as threatened in 1985 
(50 FR 12302; March 28, 1985), due to the species' very restricted 
range, its low

[[Page 483]]

abundance, and extremely restricted and vulnerable habitat which was 
being modified. Adverse factors that were identified in the final 
listing rule included groundwater pumping for irrigation, excessive 
trampling of the habitat by livestock, channeling of the springs for 
agricultural purposes, other mechanical modifications of the aquatic 
ecosystem, and livestock water uses. The vulnerability of the habitat 
was accentuated by its very small size and a water flow rate of less 
than 0.5 cubic feet (ft\3\) per second (0.01 cubic meters (m\3\) per 
second) (50 FR 12304).
Livestock Use and Mechanical Modification
    Trampling of the wetland habitat was evident at the time of 
listing. Grazing cattle affects the form and function of stream and 
pool habitat by hoof shearing, compaction of soils, and mechanical 
alteration of the habitat. Since the listing, the BLM acquired the 
property containing Foskett and Dace springs by land exchange in 1987, 
and fenced 70 ac (28 ha) of the 160-ac (65-ha) parcel to exclude cattle 
from both Foskett and Dace springs as well as the two recently 
constructed ponds. While the exclusion of cattle likely improved water 
quality and habitat stability, it may have played a role in increasing 
the extent of encroaching aquatic vegetation.
    Although most of the habitat was excluded from grazing, a portion 
of the occupied habitat was not included in the fenced area. Examining 
the population trends within this unfenced habitat illustrates the 
variability of the population and the ability of the population to 
respond to management. In 1997, 97 percent of the estimated population 
of Foskett speckled dace was located in a shallow open-water pool in 
the cattail marsh (hereafter marsh) outside of the Foskett Spring 
exclosure fence. This marsh was dry in 1989 (Dambacher et al. 1997, no 
pagination), illustrating the variability in habitat conditions of this 
wetland system.
    In 2007, 14 percent of the estimated population of 2,984 Foskett 
speckled dace was located in the marsh outside of the exclusion fence 
(Scheerer and Jacobs 2007, p. 7), and trampling of the wetland habitat 
by cattle was evident (USFWS 2015, p. 19).
    In 2011 and 2012, no Foskett speckled dace were detected in the 
marsh outside of the exclusion fence (Scheerer et al. 2014, p. 6). In 
response, the BLM conducted a controlled burn in 2013; and in 2013 and 
2014, they excavated open-water habitat in the marsh. In 2013, over 
13,000 Foskett speckled dace were detected, with nearly 10,000 being in 
the restored marsh (Scheerer et al. 2013, p. 9). In 2014, nearly 25,000 
Foskett speckled dace were detected, with nearly 19,000 being in the 
restored marsh (Scheerer et al. 2014, p. 9). Unfortunately, the marsh 
and excavated pools outside the fence quickly grew dense with 
vegetation, and the excavated pool filled in with sediment; it is 
unclear if the pasture was rested during this period. Nonetheless, the 
positive relationship between dace abundance and open water (Scheerer 
et al. 2016, p. 8) illustrates the need for periodic vegetation removal 
to maintain appropriate habitat for the Foskett speckled dace (Scheerer 
et al. 2014, p. 9).
    Sometime in fall and/or winter of 2014 to 2015, unauthorized cattle 
grazing occurred in both the Foskett and Dace spring exclosures (Leal 
2015, pers. comm.). Cattle accessed the site after a gate was removed 
illegally. Based on photos provided by the BLM, it appears the 
vegetation utilization was sporadic although heavy in some areas, but 
damage to Foskett and Dace springs' streambanks appeared 
inconsequential. The BLM has replaced the gate and will continue to 
maintain the fence per their commitments outlined in the CMP (USFWS et 
al. 2015). Although cattle did access the Foskett and Dace spring 
sites, over time these exclosures have sufficiently protected Foskett 
and Dace springs from damage from livestock grazing. The quarterly site 
visits committed to by the BLM in the CMP will increase the ability to 
detect and remedy any future issues with open gates or downed fences. 
However, due to the remoteness of the site it is possible unauthorized 
grazing within the enclosures may infrequently occur in the foreseeable 
future. Given the results of previous monitoring of grazing within the 
enclosures we do not view grazing in the enclosure as a threat in the 
foreseeable future.
    Field surveys conducted from 2005 through 2015 at Foskett Spring 
did not reveal any sign of artificial channeling of water or mechanized 
impacts beyond the remnants of historical activities (i.e., two small 
rock cribs and side-casting of material around the spring). The habitat 
at Foskett Spring is extremely limited, and past encroachment by 
aquatic vegetation has reduced the area of open water. The decline in 
abundance of Foskett speckled dace from 1997 to 2011 (see Table 1, 
above) was likely due to the reduction in open-water habitat (Scheerer 
and Jacobs 2005, pp. 5, 7; Scheerer et al. 2012, p. 8). Management to 
increase open-water habitat, while very effective in the short term, 
needs to be periodically repeated as sediment infilling and subsequent 
growth of aquatic vegetation is continuous. As such, periodic 
management will be needed in perpetuity to maintain high-quality 
habitat for the Foskett speckled dace.
    The ODFW recommended that restoration efforts to increase open-
water habitat are needed to increase carrying capacity for Foskett 
speckled dace (Scheerer and Jacobs 2007, p. 9; Scheerer and Jacobs 
2009, pp. 5-6). Restoration efforts were conducted at Foskett Spring in 
2013 and 2014, and resulted in a 164 percent increase in open-water 
habitat and a peak population estimate in 2014 of 24,888 individuals 
(Scheerer et al. 2016, pp. 8-9). Periodic habitat maintenance at 
Foskett and Dace springs will be necessary to maintain open-water 
habitat for the Foskett speckled dace. The BLM, ODFW, and Service have 
committed to periodic habitat maintenance in the CMP signed in August 
2015. As noted earlier in this proposed rule, the CMP identifies 
actions such as protection of the aquatic habitat and surrounding land; 
management of the habitat to ensure continued persistence of important 
habitat features; monitoring of the fish populations and habitat; and 
implementation of an emergency contingency plan in case of nonnative 
introduction, pollutants, or other unforeseen threats. Implementation 
of these actions will significantly reduce or eliminate threats related 
to destruction, modification or curtailment of the Foskett speckled 
dace's habitat or range. It is reasonable to conclude the CMP will be 
implemented into the foreseeable future for the reasons summarized in 
the Recovery Planning and Recovery Criteria discussion, above.
    Mechanical modification and livestock watering uses are no longer 
considered a threat since the BLM acquired the property containing both 
Foskett and Dace springs and constructed a fence to exclude cattle from 
a majority of the habitat. We anticipate continued monitoring and 
maintenance of the exclusion fence into the foreseeable future by the 
BLM based on their commitments in the CMP and their long record of 
conservation management of habitat at Foskett and Dace springs.
Pumping of Groundwater and Lowering of the Water Table
    Streams and lakes in and around the Warner Basin have produced a 
variety of unconsolidated Pliocene to Holocene sediments that have 
accumulated and contribute to the structure of the aquifer (Gonthier 
1985, p. 17). Wells in other

[[Page 484]]

portions of the Warner Basin utilizing these Pleistocene lake bed 
aquifers tend to have low to moderate yields. Pleistocene lake bed 
deposits of clay, sand, and diatomaceous earth (i.e., soft, crumbly 
soil formed from the fossil remains of algae) have a thickness of up to 
200 ft (60 m) (Gonthier 1985, pp. 38-39; Woody 2007, p. 64). Hydraulic 
conductivity (i.e., ease with which a fluid can move) in these 
sediments ranges from 25 to 150 ft per day (7.6 to 46 m per day); while 
transmissivity (horizontal groundwater flow) in valleys in this 
sediment-filled basin and range region of Oregon, such as the Warner 
Valley aquifer system, ranges from 1,000 to 15,000 square feet (ft\2\) 
(92.90 to 1,393.55 square meters (m\2\)) per day (Gonthier 1985, p. 7). 
This is considered a poor quality aquifer with limited capability to 
produce water for domestic or stock use (Gonthier 1985, p. 7). 
Therefore, few wells exist in the Warner Valley and are not likely to 
impact Foskett or Dace spring.
    We have no evidence of groundwater pumping in the area. A query of 
the Oregon Water Resources Department database for water rights did not 
reveal any wells within 5 mi (8 km) of Foskett Spring. The closest well 
listed in the database is 5.9 mi (9.5 km) away along Twentymile Creek. 
No other wells were located closer to Foskett Spring.
    There are no Oregon Water Resources Department records of water 
rights in the vicinity of either spring. Any development of water 
resources and filing of water rights on BLM lands would require a 
permit (BLM 2003), and we anticipate the likelihood of the BLM 
receiving a permit request related to a new water right in the future 
would be low. Although groundwater pumping was identified as a 
potential threat at the time of listing, we have determined this is not 
currently a threat and is not anticipated to be a threat in the 
foreseeable future.
Habitat Enhancement and Creation of a Refuge Population
    To assess the effects of management on reducing the encroachment of 
aquatic vegetation at Foskett Spring and the response of fish to 
increased open water, the BLM conducted a controlled burn in 2013 in 
the tule and cattail marsh to reduce plant biomass (Scheerer et al. 
2014, p. 9). In 2013 and 2014, the BLM excavated pools to increase 
open-water habitat. The response of dace to these restoration efforts 
was remarkable with the 2014 population estimate being 24,888 (19,250-
31,500; 95 percent confidence interval) fish, and most of these fish 
occupied the restored marsh areas. The population data indicate that 
fluctuations in abundance and population trends are tied to the 
availability of open water (Scheerer et al. 2016, p. 8) and illustrate 
the need for periodic management to maintain open-water habitat.
    Habitat restoration at Dace Spring followed by translocations of 
dace has resulted in a second subpopulation of Foskett speckled dace. 
Two ponds were created and connected to the outlet channel of Dace 
Spring, and Foskett speckled dace were translocated to the ponds. The 
2016 population estimate was 1,964 fish, which is a substantial 
increase from the 2013 estimate of 34 fish. The estimate includes the 
200 dace that were transplanted from Foskett Spring in 2013 (Scheerer 
et al. 2014, p. 6). The 2017 population estimate in Dace Spring was 
15,729 (CI: 12,259-58,479) (Scheerer et. al. 2017, p. 6). Although the 
broad confidence limits infer low precision, even the low-end of the 
confidence limit (12,259) represents a significant increase over the 
2016 estimate of 1,964 individuals. Reproduction at Dace Spring was 
documented by the ODFW in 2014 (Scheerer et al. 2014, p. 6) and in 2015 
(Scheerer et al. 2015, p. 5). The ODFW is evaluating the long-term 
status of the Dace Spring population. Although results are positive, it 
is premature to conclude if establishment of this refuge population 
will be successful over the long term. While our proposal to delist 
Foskett speckled dace is not dependent on establishment of a refuge 
population, the redundancy of a second population of Foskett speckled 
dace at Dace Spring, should it prove viable over the long term, 
provides increased resiliency to the species' overall status and may 
reduce vulnerability to stochastic events and any future threats that 
may appear on the landscape.
Summary of Factor A
    Securing long-term habitat protections (Recovery Criterion 1) and 
developing and implementing long-term management techniques (Recovery 
Criterion 2) are important recovery criteria for this species, and many 
of the factors discussed above fulfill these criteria, which also were 
identified in the most recent 5-year review (USFWS 2015, entire). 
Acquisition of the property by the BLM has facilitated the recovery of 
Foskett speckled dace. The recent habitat enhancement work and the 
commitments made in the CMP provide assurance that with minor oversight 
and continued habitat enhancement by the BLM and ODFW, the species is 
not likely to become an endangered species in the foreseeable future. 
Although the CMP is voluntary, it is reasonable to conclude, for 
reasons summarized in the Recovery Planning and Recovery Criteria 
discussion above, that the plan will be implemented by all three 
cooperating agencies for the foreseeable future.
    Based on the best available information and confidence that current 
management will continue into the future as outlined in the CMP, we 
conclude that the present or threatened destruction, modification, or 
curtailment of habitat or range does not constitute a substantial 
threat to the Foskett speckled dace, now or in the foreseeable future.

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

    Overutilization for commercial, recreational, scientific, or 
educational purposes was not a factor in listing and, based on the best 
available information, we conclude that it does not constitute a 
substantial threat to the Foskett speckled dace now or in the 
foreseeable future.

Factor C. Disease or Predation

    The original listing in 1985 states, ``There are no known threats 
to . . . Foskett speckled dace from disease or predation'' (50 FR 
12304; March 28, 1985). During the 2005 and 2011 population surveys, 
the ODFW biologist noted that: ``[t]he fish appear to be in good 
condition with no obvious external parasites'' (Scheerer and Jacobs 
2005, p. 7; Scheerer 2011, p. 6). During the 2007 and 2009 population 
surveys, the ODFW noted that the Foskett speckled dace appeared healthy 
and near carrying capacity for the available habitat at that time 
(Scheerer and Jacobs 2007, p. 8; 2009, p. 5). We have no additional 
information that would change this conclusion.
    The CMP includes quarterly field visits to Foskett and Dace springs 
to determine general health of the local spring environment and to 
identify threats that necessitate implementation of the emergency 
contingency plan, which could include the detection of disease and 
introduced predators. The emergency contingency plan describes steps to 
be taken to secure Foskett speckled dace in the event their persistence 
is under immediate threat (e.g., from introduction of nonnative fish 
that may threaten them due to predation or act as a disease vector).
Summary of Factor C
    Based on the best available information, we conclude that disease 
and predation do not constitute substantial threats to the Foskett

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speckled dace now or in the foreseeable future.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address the threats to the Foskett 
speckled dace discussed under other factors. Section 4(b)(1)(A) of the 
Act requires the Service to take into account ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species.'' In relation to 
Factor D under the Act, we interpret this language to require us to 
consider relevant Federal, State, and Tribal laws, regulations, and 
other such mechanisms that may minimize any of the threats we describe 
in the threats analyses under the other four factors, or otherwise 
enhance conservation of the species. We give strongest weight to 
statutes and their implementing regulations and to management direction 
that stems from those laws and regulations; an example would be State 
governmental actions enforced under a State statute or constitution, or 
Federal action under statute.
    For currently listed species that are being considered for 
delisting, we consider the adequacy of existing regulatory mechanisms 
to address threats to the species absent the protections of the Act. We 
examine whether other regulatory mechanisms would remain in place if 
the species were delisted, and the extent to which those mechanisms 
will continue to help ensure that future threats will be reduced or 
minimized.
    The 1985 listing rule states, ``The State of Oregon lists . . . 
Foskett speckled dace as [a] ``fully protected subspecies'' under the 
Oregon Department of Fish and Wildlife regulations. These regulations 
prohibit taking of the fishes without an Oregon scientific collecting 
permit. However, no protection of the habitat is included in such a 
designation and no management or recovery plan exists [for the Foskett 
speckled dace]'' (50 FR 12304; March 28, 1985).
    The Foskett speckled dace was listed as threatened by the State of 
Oregon in 1987, as part of the original enactment of the Oregon 
Endangered Species Act (Oregon ESA). The listing designated Foskett 
speckled dace as a ``protected species'' and prohibited take or 
possession unless authorized by a permit. The Oregon ESA prohibits the 
``take'' (kill or obtain possession or control) of State-listed species 
without an incidental take permit. The Oregon ESA applies to actions of 
State agencies on State-owned or -leased land, and does not impose any 
additional restrictions on the use of Federal land. In recognition of 
the successful conservation actions and future management commitments 
for the Foskett speckled dace and its habitat, the Oregon Fish and 
Wildlife Commission (OFWC) ruled to remove Foskett speckled dace from 
the State List of Threatened and Endangered Species on April 21, 2017.
    The ODFW's Native Fish Conservation Policy calls for the 
conservation and recovery of all native fish in Oregon (ODFW 2002), 
including Foskett speckled dace, now listed as sensitive on the ODFW's 
sensitive species list. The Native Fish Conservation Policy requires 
that the ODFW prevent the serious depletion of any native fish species 
by protecting natural ecological communities, conserving genetic 
resources, managing consumptive and non-consumptive fisheries, and 
using hatcheries responsibly so that naturally produced native fish are 
sustainable (OAR 635-007-0503). The policy is implemented through the 
development of collaborative conservation plans for individual species 
management units that are adopted by the OFWC. To date, the ODFW has 
implemented this policy by following the federally adopted recovery 
plan and will continue to conserve Foskett speckled dace according to 
the State rules for conserving native fish and more specifically the 
commitments made by the ODFW in the CMP. The State of Oregon Wildlife 
Diversity Plan (OAR 635-100-0080), Oregon Native Fish Conservation 
Policy (OAR 636-007-0502), and the Oregon Conservation Strategy (ODFW 
2016) provide additional authorities and protective measures for the 
conservation of native fish, including the Foskett speckled dace.
    Additionally, the CMP, prepared jointly and signed by the ODFW, 
BLM, and Service, will guide future management and protection of the 
Foskett speckled dace, regardless of its State or Federal listing 
status. The CMP, as explained in more detail in the Recovery Planning 
and Recovery Criteria discussion above, identifies actions to be 
implemented by the Service, BLM, and ODFW to provide for the long-term 
conservation of the Foskett speckled dace (Recovery Criterion 2).
    The approach of developing an interagency CMP for the Foskett 
speckled dace to promote continued management post-delisting is 
consistent with a ``conservation reliant species,'' described by Scott 
et al. (2005, pp. 384-385) as those that have generally met recovery 
criteria but require continued active management to sustain the species 
and associated habitat in a recovered condition. A key component of the 
CMP is continued management of aquatic vegetation, as necessary, to 
promote open-water habitat important to the species' long-term 
viability.
    Finally, the BLM manages the 160-ac (65-ha) parcel of land 
containing the Foskett and Dace spring sites consistent with the 
Lakeview District's RMP (BLM 2003), which provides general management 
guidelines for Special Status Species, and specifically states that the 
BLM will manage the Foskett speckled dace and its habitat consistent 
with the species' 1998 recovery plan.
Summary of Factor D
    In our discussion under Factors A, B, C, and E, we evaluate the 
significance of threats as mitigated by any conservation efforts and 
existing regulatory mechanisms. Regulatory mechanisms may reduce or 
eliminate the impacts from one or more identified threats. Where 
threats exist, we analyze the extent to which conservation measures and 
existing regulatory mechanisms address the specific threats to the 
species. The existence of regulatory mechanisms like the Lakeview 
District BLM's RMP, State conservation measures such as the Oregon 
Native Fish Conservation Strategy, along with the other authorities 
supporting each cooperating agency's entrance into the CMP agreement, 
reduce risk to the Foskett speckled dace and its habitat. As previously 
discussed, conservation measures initiated by the State of Oregon and 
the BLM under the CMP manage potential threats caused by activities 
such as illegal livestock grazing and trampling. For the reasons 
discussed above, we anticipate that the conservation measures initiated 
under the CMP will continue through at least the foreseeable future, 
which we have defined as 30 years. Consequently, we find that 
conservation measures, along with existing State and Federal regulatory 
mechanisms, are adequate to address these specific threats absent 
protections under the Act.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    The original listing rule in 1985 states, ``Additional threats 
include the possible introduction of exotic fishes into the springs, 
which could have disastrous effects on the endemic. Foskett speckled 
dace, either through competitive exclusion, predation, or

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introduced disease. Because these fishes occur in such limited and 
remote areas, vandalism also poses a potential threat'' (50 FR 12304; 
March 28, 1985).
    No exotic fish introduction or acts of vandalism have occurred 
since the time of listing. The Foskett speckled dace is vulnerable to 
invasive or nonnative species (aquatic plants, invertebrates, or fish 
species). However, this vulnerability is reduced in part due to the 
remoteness of the site and the lack of recreational or other reasons 
for the public to visit the area. It is also reduced by the 
establishment of a refuge population in Dace Spring. While the risk of 
introductions is low, the potential impact is high due to the highly 
restricted distribution of the Foskett speckled dace. The CMP includes 
quarterly monitoring and an emergency contingency plan to address 
potential threats from introduction of nonnative species or pollutants. 
Although the introduction of an exotic species represents a potential 
threat to the Foskett speckled dace, we believe the risk is low based 
on the isolation of the site, the minimal visitor use of the springs, 
the lack of connectivity to other waterways, and the monitoring agreed 
to and occurring in accordance with the CMP.
Other Risk Factors
    A species' habitat requirements, population size, and dispersal 
abilities, among other factors, help to determine its vulnerability to 
extinction. Key risk factors include small population size, dependence 
on a rare habitat type, inability to move away from sources of stress 
or habitat degradation, restrictions to a small geographic area, and 
vulnerability to catastrophic loss resulting from random or localized 
disturbance (Williams et al. 2005, p. 27). The Service listed the 
Foskett speckled dace in 1985 (50 FR 12302; March 28, 1985), in part 
due to these factors. This species had a very restricted natural range, 
it occurred in low numbers in a small spring that was extremely 
vulnerable to destruction or modification due to its small size, and a 
water flow rate of less than 0.5 ft\3\ per second (0.01 m\3\ per 
second). Additionally, the habitat upon which the Foskett speckled dace 
depends is fragile and has been affected by past livestock grazing and 
mechanical modification.
Small Population Size
    Surveys by the ODFW from 2005 through 2017 have documented that the 
number of Foskett speckled dace vary considerably through time and by 
habitat type (see Table 1, above), and available open-water habitat, 
which fluctuates annually, appears to be the key factor in determining 
the population size of this species (Scheerer et al. 2016, p. 8). The 
lowest population estimate was 751 fish (using the Lincoln-Petersen 
model) in 2011, and no individuals were documented in the cattail marsh 
that year (see Table 1, above). Management to create more open water in 
the marsh habitat at Foskett Spring was initiated in 2012 and completed 
in 2014, increasing the amount of open-water habitat by 150 percent, to 
approximately 358 yds\2\ (300 m\2\) (Scheerer et al. 2016, pp. 7-9). 
The increase in fish abundance in 2013 through 2015 was notable, 
especially in the two habitats where management occurred (see Table 1, 
above).
    Based on the relationship between the amount of open water and the 
number of Foskett speckled dace, the CMP includes removing encroaching 
vegetation to enhance open-water habitat, and excavating open-water 
pools. These activities will be conducted every 5 to 10 years or as 
determined necessary to maintain open-water habitat to support healthy 
populations of Foskett speckled dace.
    Additionally, the ongoing effort by the BLM and the Service to 
restore Dace Spring provides the potential for a refuge population of 
Foskett speckled dace. Two ponds have been created and connected to the 
outlet channel of Dace Spring; Foskett speckled dace have been 
translocated to the ponds (see Table 2, above). Reproduction and an 
associated population increase was documented by the ODFW in 2014, 
2015, 2016, and 2017. The ODFW is currently evaluating the status of 
the Foskett speckled dace in the new ponds, and, although results are 
positive, it is premature to predict long-term viability of the Dace 
Spring population. While our proposal to delist Foskett speckled dace 
is not dependent on the establishment of a refuge population, the 
redundancy of a second population of Foskett speckled dace provides 
additional robustness to the species' overall status.
Dependence Upon a Specific Rare Habitat Type and Inability To Disperse
    This species is known to occupy only Foskett Spring and Dace 
Spring. Due to the small size of Foskett Spring and the lack of 
connectivity to other aquatic habitat, there is no opportunity for the 
Foskett speckled dace to disperse away from stress, habitat 
degradation, or disturbance factors. There are no streams or drainages 
or other aquatic connections that provide alternate habitat or allow 
for emigration. As noted previously in this proposed rule, the BLM 
created two new ponds connected to the outlet channel of Dace Spring, 
and the ODFW has introduced Foskett speckled dace into these ponds in 
an attempt to establish a refuge population.
Restriction to a Small Geographic Area and Vulnerability to Stochastic 
Events
    The Foskett speckled dace is restricted to one small spring and has 
been translocated to two small, constructed ponds at an adjacent 
spring. The available open-water habitat at Foskett Spring is naturally 
limited, and encroaching aquatic vegetation periodically limits 
suitable habitat. However, removing sediments and vegetation to 
increase open-water habitat is a proven conservation measure that 
results in a significant increase in fish abundance. Because of its 
restricted natural distribution and dependence on a single water 
source, the Foskett speckled dace is more vulnerable to threats that 
may occur than species that are more widely distributed. While our 
proposal to delist Foskett speckled dace is not dependent on the 
existence of a second population, the redundancy of a second population 
of Foskett speckled dace, should it prove viable over the long term, 
increases the resiliency of the species and may reduce vulnerability to 
stochastic events and any future threats that may appear on the 
landscape.
    Additionally, the CMP provides for management of Foskett Spring and 
Dace Spring areas for the long-term conservation of the Foskett 
speckled dace. Although it is difficult to plan for and address 
catastrophic events, quarterly site visits and habitat and population 
surveys conducted regularly will facilitate the timely detection of 
changes to the habitat and as well as other unforeseen future threats.
Effects of Climate Change
    We also analyzed the effects of changing climate to the Foskett 
speckled dace and its habitat. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). ``Climate'' refers to the mean and variability of different 
types of weather conditions over time, with 30 years being a typical 
period for such measurements, although shorter or longer periods also 
may be used (IPCC 2007, p. 78). The term ``climate change'' thus refers 
to a change in the mean or variability of one or more measures of 
climate (e.g., temperature or precipitation) that persists for an 
extended period, typically decades or longer, whether the change is due 
to natural variability, human activity, or both (IPCC 2007, p. 78). 
Changes in

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climate can have direct or indirect effects on species, may be 
positive, neutral, or negative, and they may change over time, 
depending on the species and other relevant considerations such as the 
effects of interactions of climate with other variables (e.g., habitat 
fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we used 
our expert judgment to weigh relevant information, including 
uncertainty, in considering the effects of climate change on the 
Foskett speckled dace.
    Global climate projections are informative and, in some cases, the 
only or the best scientific information available for us to use. 
However, projected changes in climate and related impacts can vary 
substantially across and within different regions of the world (IPCC 
2007, pp. 8-12). Therefore, we use ``downscaled'' projections when they 
are available and have been developed through appropriate scientific 
procedures because such projections provide higher-resolution 
information that is more relevant to spatial scales used for analyses 
of a given species (see Glick et al. 2011, pp. 58-61, for a discussion 
of downscaling).
    Downscaled projections were available for our analysis of the 
Foskett speckled dace from the U.S. Geological Survey (USGS) (https://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp). The National 
Climate Change Viewer is based on the mean of 30 models which can be 
used to predict changes in air temperature for the Warner Lakes basin 
in Lake County, Oregon. The models predict an increase in the mean 
maximum air temperature of 3.2[emsp14][deg]F (1.8 [deg]C) and an 
increase in the mean annual minimum air temperature of 
3.1[emsp14][deg]F (1.7 [deg]C) in the 25-year period from 2025 to 2049. 
Mean precipitation is not predicted to change, but annual snow 
accumulation is predicted to decrease by 0.4 in (10.16 millimeters 
(mm)) during the same period.
    Over the ensuing 25-year period from 2050 to 2074, the mean annual 
maximum air temperature is predicted to increase by 4.9 degrees [deg]F 
(2.7 [deg]C), and the change in mean annual minimum air temperature is 
predicted to increase by 4.3[emsp14][deg]F (2.4 [deg]C). The 2050 to 
2074 model predicts no change in the mean annual precipitation and 
annual snow accumulation is predicted to decrease by 0.4 in (9.6 mm) 
for the Warner Lakes basin (Alder and Hostetler 2013, entire).
    Increase in the ambient air temperature may cause slight warming of 
Foskett Spring surface water. This may reduce the overall amount of 
habitat available for Foskett speckled dace due to an increase in water 
temperatures, especially at the lower end of the outlet stream and 
marsh habitat; however, Foskett speckled dace prefer the spring and 
pool habitats through the stream portion of the outlet channel. Changes 
to precipitation, aquifer recharge, or vegetative community around 
Foskett Spring as a result of climate change would not likely have an 
impact on Foskett speckled dace. The occupied habitat is fed from a 
spring that has a fairly consistent temperature of approximately 
65[emsp14][deg]F (18 [deg]C), and the vegetative community is not 
likely to change from the predicted temperature increases.
Summary of Factor E
    The original listing rule in 1985 (50 FR 12302; March 28, 1985) 
identified introduction of exotic fishes as a potential threat. 
However, in over 30 years of monitoring, no exotic fishes have been 
detected, and there is no evidence of attempts to introduce exotic fish 
species. Other potential threats such as small population size, 
dependence on a specific or rare habitat type, the inability to 
disperse, restriction to a small geographic area, vulnerability to 
stochastic events, and climate change also have been assessed and 
determined to be minimal. Based on the best available information, we 
conclude that other natural or manmade factors do not constitute a 
substantial threat to the Foskett speckled dace now or in the 
foreseeable future.

Cumulative Impacts

    Together, the factors discussed above could result in cumulative 
impacts to the Foskett speckled dace. For example, effects of cattle 
grazing directly on the habitat in combination with mechanical 
disturbances could result in a greater overall impact to Foskett 
speckled dace habitat. Although the types, magnitude, or extent of 
cumulative impacts are difficult to predict, we are not aware of any 
combination of factors that have not already been, or would not be, 
addressed through ongoing conservation measures that are expected to 
continue post-delisting and into the future, as described above. The 
best scientific and commercial data available indicate that the species 
is relatively abundant, and that the factors are not currently 
resulting, nor are they anticipated to cumulatively result, in 
reductions in Foskett speckled dace numbers and/or to the species' 
habitat.

Proposed Determination of Species Status

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for 
determining whether a species is an endangered species or threatened 
species and should be included on the Federal Lists of Endangered and 
Threatened Wildlife and Plants (listed). The Act defines an endangered 
species as any species that is ``in danger of extinction throughout all 
or a significant portion of its range'' and a threatened species as any 
species ``that is likely to become endangered throughout all or a 
significant portion of its range within the foreseeable future.''
    On July 1, 2014, we published a final policy interpreting the 
phrase ``significant portion of its range'' (SPR) (79 FR 37578). In our 
policy, we interpret the phrase ``significant portion of its range'' in 
the Act's definitions of ``endangered species'' and ``threatened 
species'' to provide an independent basis for listing a species in its 
entirety; thus there are two situations (or factual bases) under which 
a species would qualify for listing: A species may be in danger of 
extinction or likely to become so in the foreseeable future throughout 
all of its range; or a species may be in danger of extinction or likely 
to become so throughout a significant portion of its range. If a 
species is in danger of extinction throughout an SPR, it, the species, 
is an ``endangered species.'' The same analysis applies to ``threatened 
species.''
    Our final policy addresses the consequences of finding a species is 
in danger of extinction in an SPR, and what would constitute an SPR. 
The final policy states that (1) if a species is found to be endangered 
or threatened throughout a significant portion of its range, the entire 
species is listed as an endangered species or a threatened species, 
respectively, and the Act's protections apply to all individuals of the 
species wherever found; (2) a portion of the range of a species is 
``significant'' if the species is not currently endangered or 
threatened throughout all of its range, but the portion's contribution 
to the viability of the species is so important that, without the 
members in that portion, the species would be in danger of extinction, 
or likely to become so in the foreseeable future, throughout all of its 
range; (3) the range of a species is considered to be the general 
geographical area within which that species can be found at the time 
the Service or the National Marine Fisheries Service makes any 
particular status determination; and (4) if a vertebrate species is 
endangered or threatened throughout an SPR, and the population in that 
significant portion is a valid DPS, we will list the DPS rather

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than the entire taxonomic species or subspecies.
    The SPR policy is applied to all status determinations, including 
analyses for the purposes of making listing, delisting, and 
reclassification determinations. The procedure for analyzing whether 
any portion is an SPR is similar, regardless of the type of status 
determination we are making. The first step in our assessment of the 
status of a species is to determine its status throughout all of its 
range. Depending on the status throughout all of its range, we will 
subsequently examine whether it is necessary to determine its status 
throughout a significant portion of its range. If we determine that the 
species is in danger of extinction, or likely to become so in the 
foreseeable future, throughout all of its range, we list the species as 
an endangered (or threatened) species and no SPR analysis will be 
required. The same factors apply whether we are analyzing the species' 
status throughout all of its range or throughout a significant portion 
of its range.
    As described in our policy, once the Service determines that a 
``species''--which can include a species, subspecies, or distinct 
population segment (DPS)--meets the definition of ``endangered 
species'' or ``threatened species,'' the species must be listed in its 
entirety and the Act's protections applied consistently to all 
individuals of the species wherever found (subject to modification of 
protections through special rules under sections 4(d) and 10(j) of the 
Act).
    Thus, the first step in our assessment of the status of a species 
is to determine its status throughout all of its range. Depending on 
the status throughout all of its range, we will subsequently examine 
whether it is necessary to determine its status throughout a 
significant portion of its range. Under section 4(a)(1) of the Act, we 
determine whether a species is an endangered species or threatened 
species because of any of the following: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
Overutilization for commercial, recreational, scientific, or 
educational purposes; (C) Disease or predation; (D) The inadequacy of 
existing regulatory mechanisms; or (E) Other natural or manmade factors 
affecting its continued existence. These five factors apply whether we 
are analyzing the species' status throughout all of its range or 
throughout a significant portion of its range.

Foskett Speckled Dace--Determination of Status Throughout All of Its 
Range

    We conducted a review of the status of Foskett speckled dace and 
assessed the five factors to evaluate whether Foskett speckled dace is 
in danger of extinction, or likely to become so in the foreseeable 
future, throughout all of its range. We found that, with periodic 
management, Foskett speckled dace populations are persistent but 
cyclical within a range of 751 to 24,888 individuals over the last 
decade (Table 1). During our analysis, we found that impacts believed 
to be threats at the time of listing are either not as significant as 
originally anticipated or have been eliminated or reduced since 
listing, and we do not expect any of these conditions to substantially 
change post-delisting and into the foreseeable future, nor do we expect 
the effects of climate change to affect this species. The finalization 
of the CMP acknowledges the ``conservation-reliant'' nature of Foskett 
speckled dace and the need for continued management of the habitat at 
Foskett Spring and affirms the BLM, ODFW, and Service will continue to 
carry out long-term management actions. Long-term management actions 
and elimination and reduction of threats apply to all populations of 
the species, such that both populations are secure.
    We conclude that the previously recognized impacts to the Foskett 
speckled dace no longer are a threat to the species. In order to make 
this conclusion, we analyzed the five threat factors used in making 
Endangered Species Act listing (and delisting) decisions.

Foskett Speckled Dace--Determination of Status Throughout a Significant 
Portion of Its Range

    Because we determined that Foskett speckled dace is not in danger 
of extinction or likely to become so in the foreseeable future 
throughout all of its range, we will consider whether there are any 
significant portions of its range in which the species is in danger of 
extinction or likely to become so. To undertake this analysis, we first 
identify any portions of the species' range that warrant further 
consideration. The range of a species can theoretically be divided into 
portions in an infinite number of ways. To identify only those portions 
that warrant further consideration, we determine whether there are any 
portions of the species' range: (1) That may be ``significant,'' and 
(2) where the species may be in danger of extinction or likely to 
become so in the foreseeable future. We emphasize that answering these 
questions in the affirmative is not equivalent to a determination that 
the species should be listed--rather, it is a step in determining 
whether a more-detailed analysis of the issue is required.
    If we identify any portions (1) that may be significant and (2) 
where the species may be in danger of extinction or likely to become so 
in the foreseeable future, we conduct a more thorough analysis to 
determine whether both of these standards are indeed met. The 
determination that a portion that we have identified does meet our 
definition of significant does not create a presumption, prejudgment, 
or other determination as to whether the species is in danger of 
extinction or likely to become so in the foreseeable future in that 
identified SPR. We must then analyze whether the species is in danger 
of extinction or likely to become so in the SPR. To make that 
determination, we use the same standards and methodology that we use to 
determine if a species is in danger of extinction or likely to become 
so in the foreseeable future throughout all of its range (but applied 
only to the portion of the range now being analyzed).
    We evaluated the range of the Foskett speckled dace to determine if 
any area may be significant. The Foskett speckled dace is endemic to 
Foskett Spring in the Warner Basin. The historical known natural range 
of the Foskett speckled dace is limited to Foskett Spring. At the time 
of listing in 1985, Foskett speckled dace also occurred at nearby Dace 
Spring, located approximately one-half mile south of Foskett Spring, 
where translocation of specimens from Foskett Spring was initiated in 
1979. Because of its narrow range limited to two springs within half 
mile of each other, and because speckled dace currently occupying Dace 
Spring originated from translocations from Foskett Spring, we find that 
the species is comprised of is a single, population and there are no 
logical biological divisions delineating portions of the range. For 
this reason, we did not identify any portions that may be significant 
because of natural or biological divisions indicating biological or 
conservation importance.
    A key part of identifying portions appropriate for further analysis 
is whether the threats are geographically concentrated. If a species is 
not in danger of extinction or likely to become so in the foreseeable 
future throughout all of its range and the threats to the species are 
essentially uniform throughout its range, then there is no basis on 
which to conclude that the species may be in danger of extinction or 
likely to become so in the foreseeable

[[Page 489]]

future in any portion of its range. Therefore, we also examined whether 
any threats are geographically concentrated in some way that would 
indicate the species may be in danger of extinction, or likely to 
become so, in a particular area. We conclude that none of them are 
concentrated in any particular area of the species' range. Although 
some of the factors we evaluated in the Summary of Factors Affecting 
the Species section above occur in specific habitat types (i.e. the 
spring pool, stream habitat, and marsh habitat), the factors affecting 
the Foskett speckled dace occur at similarly low levels throughout its 
range and would affect all individuals of the population. Additionally, 
because the species acts as a single population, no portion is likely 
to have a different status or be differently affected by threats than 
any other portion or than that of the species throughout all of its 
range. Therefore, even if Foskett Spring and the nearby Dace Spring 
were considered to be separate portions of the species' range, no 
threats or their effects are sufficiently concentrated to indicate the 
species may be in danger of extinction, or likely to become so in 
either area. As noted earlier in this rule, our proposal to delist 
Foskett speckled dace is not dependent on establishment of a refuge 
population at Dace Spring. However, the redundancy of a second 
population of Foskett speckled dace at Dace Spring, should it prove 
viable over the long term, provides increased resiliency to the 
species' overall status and may reduce vulnerability to stochastic 
events and any future threats that may appear on the landscape. For 
these reasons, we conclude that the species is not in danger of 
extinction, or likely to become so, throughout a significant portion of 
its range.

Conclusion

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Foskett speckled dace. The threats that led to the species being 
listed under the Act (primarily the species' extremely restricted and 
vulnerable habitat which was being modified; Factor A) have been 
removed or ameliorated by the actions of multiple conservation partners 
over the past 30 years; these include securing the property and 
developing long-term management strategies to ensure that appropriate 
habitat is maintained. Given various authorities that enabled the three 
cooperating agencies to enter into the Foskett Speckled Dace CMP, and 
the long record of engagement and proactive conservation actions 
implemented by the three cooperating agencies over a 30-year period, we 
expect conservation efforts will continue to support a healthy viable 
population of the Foskett speckled dace post-delisting and into the 
foreseeable future. Because the species is not in danger of extinction 
now or in the foreseeable future throughout all of its range or any 
significant portion of its range, the species does not meet the 
definition of an endangered species or threatened species. We conclude 
the Foskett speckled dace no longer requires the protection of the Act, 
and, therefore, we are proposing to remove it from the Federal List of 
Endangered and Threatened Wildlife.

Effects of This Proposed Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) by 
removing the Foskett speckled dace from the Federal List of Endangered 
and Threatened Wildlife. Accordingly, we would also remove the Foskett 
speckled dace from the rule promulgated under section 4(d) of the Act 
at 50 CFR 17.44(j). The prohibitions and conservation measures provided 
by the Act, particularly through sections 7 and 9, would no longer 
apply to this species. Federal agencies would no longer be required to 
consult with the Service under section 7 of the Act in the event that 
activities they authorize, fund, or carry out may affect the Foskett 
speckled dace. No critical habitat has been designated for Foskett 
speckled dace, so there would be no effect to designated critical 
habitat. State laws related to the Foskett speckled dace would remain 
in place and be enforced and would continue to provide protection for 
this species.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires the Secretary of the Interior, 
through the Service and in cooperation with the States, to implement a 
system to monitor for not less than 5 years for all species that have 
been recovered and delisted. The purpose of this requirement is to 
develop a program that detects the failure of any delisted species to 
sustain populations without the protective measures provided by the 
Act. If, at any time during the monitoring period, data indicate that 
protective status under the Act should be reinstated, we can initiate 
listing procedures, including, if appropriate, emergency listing.
    A draft PDM plan has been developed for the Foskett speckled dace, 
building on and continuing the research that was conducted during the 
listing period. The draft PDM plan will be peer reviewed by specialists 
and available for public comment upon the publication of this proposed 
rule. Public and peer review comments submitted in response to the 
draft PDM plan will be addressed within the body of the plan and 
summarized in an appendix to the plan. The draft PDM plan was developed 
by the Service and ODFW. The draft PDM plan consists of: (1) A summary 
of the species' status at the time of proposed delisting; (2) an 
outline of the roles of PDM cooperators; (3) a description of 
monitoring methods; (4) an outline of the frequency and duration of 
monitoring; (5) an outline of data compilation and reporting 
procedures; and (6) a definition of thresholds or triggers for 
potential monitoring outcomes and conclusions of the PDM.
    The draft PDM plan proposes to monitor Foskett speckled dace 
populations following the same sampling protocol used by the ODFW prior 
to delisting. Monitoring would consist of two components: Foskett 
speckled dace distribution and abundance, and potential adverse changes 
to Foskett speckled dace habitat due to environmental or anthropogenic 
factors. The PDM would continue for 9 years, which would begin after 
the final delisting rule is published. Monitoring through this time 
period would allow us to address any possible negative effects to the 
Foskett speckled dace.
    The draft PDM plan identifies measurable management thresholds and 
responses for detecting and reacting to significant changes in the 
Foskett speckled dace's protected habitat, distribution, and 
persistence. If declines are detected equaling or exceeding these 
thresholds, the Service, in combination with other PDM participants, 
will investigate causes of these declines, including considerations of 
habitat changes, substantial human persecution, stochastic events, or 
any other significant evidence. The result of the investigation will be 
to determine if the Foskett speckled dace warrants expanded monitoring, 
additional research, additional habitat protection, or relisting as a 
threatened or endangered species under the Act. If relisting the 
Foskett speckled dace is warranted, emergency procedures to relist the 
species may be followed, if necessary, in accordance with section 
4(b)(7) of the Act.

Required Determinations

Clarity of 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

[[Page 490]]

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

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), Executive Order 13175, and the Department of 
the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    We do not believe that any Tribes will be affected by this rule. 
However, we have contacted the Burns Paiute Tribe to coordinate with 
them regarding the proposed rule.

References Cited

    A complete list of all references cited in this proposed rule is 
available at http://www.regulations.gov or upon request from the person 
listed under FOR FURTHER INFORMATION CONTACT.

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


Sec.  17.11  [Amended]

0
2. Amend Sec.  17.11(h) by removing the entry for ``Dace, Foskett 
speckled'' under FISHES from the List of Endangered and Threatened 
Wildlife.


Sec.  17.44  [Amended]

0
3. Amend Sec.  17.44(j) by:
0
a. Removing the words ``and Foskett speckled dace (Rhinichthys osculus 
subspecies)'' from the introductory text; and
0
b. In paragraphs (j)(1) and (j)(2), removing the word ``these'' in both 
places it appears and adding in its place the word ``this''.

    Dated: November 15, 2017.
James W. Kurth,
Deputy Director for U.S. Fish and Wildlife Service Exercising the 
Authority of the Director for U.S. Fish and Wildlife Service.
[FR Doc. 2017-28465 Filed 1-3-18; 8:45 am]
 BILLING CODE 4333-15-P