Federal Register, Volume 63 Issue 20 (Friday, January 30, 1998)

[Federal Register Volume 63, Number 20 (Friday, January 30, 1998)]
[Proposed Rules]
[Pages 4608-4613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2273]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE56

Endangered and Threatened Wildlife and Plants; Proposal To
Determine the Pecos Pupfish (Cyprinodon pecosensis) To Be an Endangered
Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list
the Pecos pupfish (Cyprinodon pecosensis) as an endangered species
without critical habitat under authority of the Endangered Species Act
of 1973, as amended (Act). The historical range of the Pecos pupfish
included the mainstream Pecos River and various lakes, gypsum
sinkholes, saline springs, and tributaries associated with the river
from the vicinity of Roswell, Chaves County, New Mexico, downstream to
the vicinity of Sheffield, Pecos County, Texas. The Pecos pupfish has
been replaced by sheepshead minnow (C. variegatus) x Pecos pupfish
hybrids throughout more than two-thirds of its historical range. The
Pecos pupfish was declining prior to introduction of the sheepshead
minnow, primarily as a result of competition and depredation by
nonnative fish species, and habitat loss caused by such factors as
water diversion, groundwater depletion, channelization, and watershed
disturbance (Sublette et al. 1990, Minckley et al. 1991). This
proposal, if made final, will implement Federal protection provided by
the Act for the Pecos pupfish.

DATES: Comments from all interested parties must be received by March
31, 1998. Public hearing requests must be received by March 16, 1998.

ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Ecological Services Field Office, U.S.
Fish and Wildlife Service, 2105 Osuna NE., Albuquerque, New Mexico
87113. Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.

FOR FURTHER INFORMATION CONTACT: Jennifer Fowler-Propst, Field
Supervisor, Ecological Services Field Office (Albuquerque) (see
ADDRESSES section) (telephone 505/761-4525).

SUPPLEMENTARY INFORMATION:

Background

The Pecos pupfish, described by Echelle and Echelle (1978), is a
member of the family Cyprinodontidae. The taxonomic status of the Pecos
pupfish had been uncertain for more than 30 years because of a previous
description of a pupfish (Cyprinodon bovinus) from the Pecos River
(Baird and Girard 1853). Type specimens from the Pecos River in the
original series were lost or in poor condition, but were assumed to be
the same as the Pecos pupfish until an extant population of C. bovinus
was found at Leon Springs, Texas, and confirmed as different from the
form in the Pecos River proper (Echelle and Miller 1974).
The Pecos pupfish is a small, deep-bodied (2.8 to 4.6 centimeter
(cm) (1.1 to 1.8 inch (in.)) standard length) gray-to-brown fish. Male
dorsal and anal fins are black almost to the margin with no yellow on
the dorsal, anal, or caudal fins. The lateral bars on the female are
typically broken into blotches ventrolaterally. The abdomen is
generally naked (i.e., without scales) except for a few scales in front
of the pelvic fins and a patch just behind the gill membrane isthmus.
There are 20 to 21 gill rakers, and usually 3 or 4 preorbital pores on
each side of the head (Echelle and Echelle 1978).
The Pecos pupfish is native to the Pecos River and its tributaries,
and nearby lakes, sinkholes, and saline springs in New Mexico and
Texas. The historical range of the species included the Pecos River
from Bitter Lake National Wildlife Refuge and Bottomless Lakes State
Park near Roswell, Chaves County, New Mexico, downstream approximately
650 km (404 mi) to the mouth of Independence Creek, southeast of
Sheffield, Pecos County, Texas (Wilde and Echelle 1992). It was also
found in gypsum sinkholes and saline springs at Bitter Lake National
Wildlife Refuge (including the Salt Creek Wilderness Area); sinkholes
and springs at Bottomless Lakes State Park (Brooks and Woods 1988); and
in Salt Creek, Reeves County, Texas.
In Texas, genetically pure populations of the Pecos pupfish are now
thought to occur only in the upper reaches of Salt Creek, Culberson and
Reeves counties, Texas (Wilde and Echelle 1992) and, less probably, in
2 water-filled gravel pits owned by the Phipps Gravel Company, in Pecos
County 10.8 km (6.7 mi) west of Grandfalls, Texas. In New Mexico, the
species still occurs in the Pecos River from north of Malaga upstream
to Bitter Lake National Wildlife Refuge. It continues to survive in the
Salt Creek Wilderness Area (North Tract) of Bitter Lake National
Wildlife Refuge, where it is found in sinkholes, springs and Salt Creek
(Brooks and Woods 1988, Sublette et al. 1990, Hoagstrom and Brooks
1997). It is also found at Bottomless Lakes State Park. This range
reduction represents a loss of more than two-thirds of the species'
former range (Echelle and Connor 1989).

Previous Federal Actions

In both the December 30, 1982, Review of Vertebrate Wildlife,
Notice of Review (47 FR 58454); and the September 18, 1985, Review of
Vertebrate Wildlife, Notice of Review (50 FR 37958), the Pecos pupfish
was included as a category 2 species. Category 2 candidates were those
species for which the Service had information indicating that listing
may be warranted but for which it lacked sufficient information on
status and threats to support issuance of proposed listing rules.
However, based on new information from more recent surveys, the Pecos
pupfish was identified as a Category 1 candidate in the January 6,
1989, Animal Notice of Review (54 FR 554) and in the November 21, 1991,
Animal Notice of Review (56 FR 58804). Category 1 candidates were those
species for which the Service had on file sufficient information to
support issuance of proposed listing rules. In the February 28, 1996,
Candidate Notice of Review (61 FR 7596), the Service discontinued the
designation of multiple categories of candidates, and only former
category 1 species are now recognized as candidates for listing
purposes. The Pecos pupfish remained as a candidate species in the
February 28, 1996, Notice of Review (61 FR 7596) and in the September
19, 1997, Notice of Review (62 FR 49398).

[[Page 4609]]

Pre-proposal letters requesting comments and information were
mailed to interested parties, including Federal, State, and local
agencies, in June 1991 and again in March 1997. Responses were received
to the 1991 request from three New Mexico State agencies, one Texas
State agency, a national wildlife refuge, three Federal agencies, three
scientific experts, and a county judge. One Federal agency, one State
agency, two universities, and one environmental group responded to the
1997 request. Where appropriate, the comments received were included in
this proposed rule. A presentation of the current known status of the
species was made at the Annual Meeting of the Pecos River Compact
Commission on April 17, 1997.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations
(50 CFR part 424) promulgated to implement the listing provisions of
the Act set forth the procedures for adding species to the Federal
lists. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1). These factors and their application to the Pecos pupfish
(Cyprinodon pecosensis) are as follows:

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

Historical habitat of the Pecos pupfish in New Mexico has been
drastically altered or destroyed by human uses of the Pecos River and
activities in its watershed. These alterations include: conversion of
flowing waters into slack waters by impoundment; alteration of flow
regimes (including conversion of perennial flow to intermittent or no
flow, and the reduction, elimination, or modification of natural
flooding patterns); alteration of silt and bed loads; loss of marshes
and backwaters; increases or decreases in water temperatures; and
alteration of stream channel characteristics from well-defined, surface
level, heavily vegetated channels with a diversity of substrates and
habitats, to deeply cut unstable arroyos with little riparian
vegetation, uniform substrate, and little habitat diversity. Causes of
such alterations include: water diversion, damming, channelization,
channel down-cutting, excessive groundwater pumping with resultant
lowering of water tables, destruction of riparian vegetation, and other
watershed disturbances. These ongoing changes in habitat conditions,
along with displacement of the species by hybrids, threaten the
survival of the Pecos pupfish throughout its entire range (Wilde and
Echelle 1992).
Low velocity floodplain habitats adjacent to the main channel of
the Pecos River provide refugia for the small Pecos pupfish from high
flows in the main channel. These habitats are also characterized by
higher levels of productivity and more stable food sources for the
omnivorous pupfish. However, channelization and stream incision of the
Pecos River, exacerbated by encroachment and channel armoring by salt
cedar, have eliminated extensive floodplain habitat along the Pecos
River. Wetlands and marshes adjacent to the river, once regularly
flooded by peak river flows, are now dry or are only sporadically
wetted. Reduction of base flows also occurred as a result of dam
construction and reservoir operation, greatly reducing the number and
extent of these habitats linked to the main river channel. The
continuing loss of these floodplain habitats is a significant threat to
the Pecos pupfish.
Pecos pupfish living in sinkholes and springs are threatened by
groundwater depletion. In southeastern New Mexico, groundwater is the
primary water source for a variety of uses, including drinking water
and irrigation. This dependence on groundwater has lowered the water
tables, resulting in a decline in water levels in sinkholes and springs
where Pecos pupfish live. When the water table was higher, water flowed
between sinkholes; because the water table has been lowered, these
sinkholes are no longer interconnected (Lee Marlatt, U.S. Fish and
Wildlife Service, Bitter Lake National Wildlife Refuge, pers. comm.
1987). Because they are isolated from the river which is inhabited by
sheepshead minnows, sinkhole populations of Pecos pupfish are more
protected from the threat of hybridization than are river populations.
Because sinkhole populations are more protected from the threat of
hybridization, the loss of these populations would seriously affect the
survival of the species.

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

The Service is unaware of threats to the species from these
factors. Pecos pupfish may occasionally be collected as bait by anglers
and as specimens for scientific study, but these uses probably have a
negligible effect on total population numbers.

C. Disease or Predation

The Service is unaware of threats to the species from disease.
Sinkholes that support introduced game fish have lower numbers of
pupfish than sinkholes without game fish (Echelle and Echelle 1978). As
the Pecos pupfish population is impacted by habitat loss and
degradation and refugia become scarce, predation may become a more
important threat.

D. The Inadequacy of Existing Regulatory Mechanisms

New Mexico State law provides limited protection for the Pecos
pupfish. The State of New Mexico lists the Pecos pupfish as a
threatened species. Threatened species, as defined by the State of New
Mexico, are those species ``* * * whose prospects of survival or
recruitment within the State are likely to be in jeopardy within the
foreseeable future.'' This designation provides the protection of the
New Mexico Wildlife Conservation Act (sections 17-2-37 through 17-2-46)
and prohibits taking of such species except under the issuance of a
scientific collecting permit. The State also has a limited ability to
protect the habitat of the species through the Habitat Protection Act
(sections 17-6-1 through 17-6-11) and through water quality statutes
and regulations. The species' habitat is also protected tangentially
through a provision of the Habitat Protection Act (section 17-4-14)
which makes it illegal to de-water areas used by game fish.
New Mexico water law does not include provisions for the
acquisition of instream water rights for protection of fish and
wildlife and their habitat. Thus, there are no opportunities for
protection of Pecos pupfish habitat in New Mexico through acquisition
of water rights to maintain instream flows.
The Pecos pupfish was listed as threatened by the State of Texas on
March 1, 1987. The State prohibits taking, possessing, and transporting
State-listed species or goods made from such species (Texas Parks and
Wildlife Code, section 68.015 (1975)). However, State-listing in Texas
provides no protection for the habitat of listed species.
State regulations in New Mexico and Texas allow for the use of live
bait in the Pecos River in areas containing the Pecos pupfish. This has
encouraged the spread of detrimental species, specifically the
sheepshead minnow, which replaces and/or hybridizes with the Pecos
pupfish (see factor E).
Although both New Mexico and Texas provide protection against
taking of the Pecos pupfish by virtue of State listing of the species,
neither State provides sufficient protection to the aquatic habitat of
the Pecos pupfish, and neither prohibits the introduction or spread of

[[Page 4610]]

such detrimental species as the sheepshead minnow.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

The primary cause for the recent (post 1980) range reduction of
Pecos pupfish is the introduction of the sheepshead minnow, a species
once confined to shallow, brackish, coastal waters of the Gulf and
Atlantic coasts of the continental United States. The two Cyprinodon
species appear to have little in the way of premating isolating
mechanisms and readily hybridize (Cokendolpher 1980). Hybridization
with and/or replacement by the sheepshead minnow poses a major threat
to the Pecos pupfish. The sheepshead minnow was introduced into the
Pecos River, probably in the vicinity of Pecos, Texas, sometime between
1980 and 1984. Sheepshead minnow x Pecos pupfish hybrids have since
moved upstream and downstream at a rapid pace despite the presence of
six irrigation diversion dams. The spread of hybrids has occurred both
naturally and presumably through ``bait bucket'' introductions.
By 1984, surveys at four sites along the Pecos River below Red
Bluff Reservoir, Texas, revealed evidence of hybridization between the
Pecos pupfish and sheepshead minnow (Echelle 1985). In the vicinity of
Pecos, Texas, the Pecos pupfish had been entirely replaced by
sheepshead minnow x Pecos pupfish hybrids. At sites ranging from 50 km
(31 mi) further upstream to 250 km (156 mi) downstream, evidence of
hybridization was still apparent, though less pronounced (Echelle and
Connor 1989).
Surveys in 1986 found the presence of genetic markers for
sheepshead minnows in pupfish from Red Bluff Reservoir, New Mexico
(Wilde and Echelle 1992). The introduction of sheepshead minnows into
Red Bluff Reservoir means that genetically pure populations of Pecos
pupfish south of Malaga, New Mexico (including the entire Texas
population in the Pecos River), have been or probably will be
eliminated except in areas not connected to the river or where
effective fish barriers prevent access to habitat now occupied by the
pupfish. In 1995, hybrids were taken from the Pecos River near the
Loving Bridge (Eddy County), New Mexico, which is upstream of the pure
pupfish population at Malaga Bend (Hoagstrom and Brooks, 1995).
The purity of the pupfish populations in Salt Creek, Texas, and in
the abandoned gravel pits near Grandfalls, Texas, is unknown. Both
populations occur on privately owned lands, and surveys have not been
conducted on these lands since 1989. Because the gravel pits are close
to the Pecos River and because hybrids occur in that portion of the
river, the gravel pit populations may not be genetically pure.
The northward expansion of sheepshead minnow x Pecos pupfish
hybrids had reduced the range of the Pecos pupfish by approximately 60
percent by the late 1980's (Wilde and Echelle 1992). Subsequent
expansion of the hybrids into the Pecos River upstream from Red Bluff
Reservoir has further constricted the range of the pupfish. Genetically
pure populations of Pecos pupfish may now occur only in off-channel
habitats. The river populations are most susceptible to replacement by
and/or hybridization with sheepshead minnow. However, the sinkhole
populations are also considered vulnerable to hybridization due to the
possibility of anglers releasing sheepshead minnows into sinkholes.
Sinkhole, lake, and spring populations may also be susceptible to
introductions of exotic fish species during periods of river flooding.
Flood waters have inundated sinkholes and springs and could allow
exotic species, including the sheepshead minnow, to access these
otherwise isolated sites.
Large scale fish kills caused by algal blooms occurred in the Pecos
River, Texas, in 1985 and 1986 (Rhodes and Hubbs 1992). Such algal
blooms may affect the Pecos pupfish (Rhodes and Hubbs 1992).
Other threats to the Pecos pupfish include nonnative fish
introductions and piscicide applications. Anglers interested in
developing sport fisheries in sinkholes apply piscicides to remove
unwanted fish species prior to introducing sport fish. Such
manipulation, although conducted in compliance with State laws, can
adversely affect or eliminate Pecos pupfish populations.
Oil spills from pipelines into Salt Creek in Texas have occurred
and represent an ongoing threat to water quality and Pecos pupfish
habitats.
The Service has carefully reviewed the status of the species and
assessed the best scientific and commercial information available
regarding the past, present, and future threats faced by this species
in determining to propose this rule. Based on this evaluation, the
preferred action is to list the Pecos pupfish as endangered. The
species has experienced a large population decline and great reduction
of its range. This species is in danger of becoming extinct throughout
all or a significant portion of its range. Threatened status would not
accurately reflect the population decline, vulnerability, and imminent
threats to this species. Critical habitat is not being proposed for the
reasons discussed below.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
needed to bring the species to the point at which listing under the Act
is no longer necessary.
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
the Secretary designate critical habitat at the time the species is
determined to be endangered or threatened. The Service finds that
designation of critical habitat is not prudent for the Pecos pupfish at
this time. Service regulations (50 CFR 424.12(a)(1)) state that
designation of critical habitat is not prudent when one or both of the
following situations exist--(1) The species is threatened by taking or
other human activity, and identification of critical habitat can be
expected to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
Critical habitat receives consideration under section 7 of the Act
with regard to actions carried out, authorized, or funded by a Federal
agency (see Available Conservation Measures section). As such,
designation of critical habitat may affect activities on Federal lands
and may affect activities on non-Federal lands where such a Federal
nexus exists. Under section 7 of the Act, Federal agencies are required
to ensure that their actions do not jeopardize the continued existence
of a species or result in destruction or adverse modification of
critical habitat. However, both jeopardizing the continued existence of
a species and adverse modification of critical habitat have similar
standards and thus similar thresholds for violation of section 7 of the
Act. In fact, biological opinions that conclude that a Federal agency
action is

[[Page 4611]]

likely to adversely modify critical habitat but not jeopardize the
species for which the critical habitat has been designated are
extremely rare. Also, the designation of critical habitat for the
purpose of informing Federal agencies of the locations of occupied
Pecos pupfish habitat is not necessary because the Service can inform
Federal agencies through other means. For these reasons, the
designation of critical habitat for the Pecos pupfish would provide no
additional benefit to the species beyond that conferred by listing, and
therefore, such designation is not prudent.
Occupied habitat for the Pecos pupfish occurs adjacent to and on
the Bitter Lake National Wildlife Refuge and the Bureau of Land
Management's (BLM) Bottomless Lakes Waterfowl Management Area. Because
these occupied habitats are well known to the managers of these Federal
lands, no adverse modification of this habitat is likely to occur
without consultation under section 7 of the Act. Because of the small
size of the species' current range, any adverse modification of the
species' critical habitat would also likely jeopardize the species'
continued existence. Designation of critical habitat for the Pecos
pupfish on Federal land, therefore, is not prudent because it would
provide no additional benefit to the species beyond that conferred by
listing.
Because the aquatic habitat of the Pecos pupfish is considered
``waters of the United States'' under section 404 of the Clean Water
Act, alteration of this habitat on private land may be regulated by the
Army Corps of Engineers (COE) and may require consultation under
section 7 of the Act. Certain other activities causing direct or
indirect effects to habitat on private lands also may involve a Federal
agency action. Although there may be COE or other Federal involvement
requiring consultation for activities occurring in the species' habitat
on private lands, because of the small size of the species' current
range, any consultation which would result in a finding that the
activity causes adverse modification of the species' critical habitat
would also likely result in a finding that the activity jeopardizes the
species' continued existence. Designation of critical habitat for the
Pecos pupfish on private land, therefore, is not prudent because it
would provide no additional benefit to the species beyond that
conferred by listing.
Protection of the habitat of the Pecos pupfish will be addressed
through the section 4 recovery process and the section 7 consultation
process. The Service believes that activities involving a Federal
action which may affect the Pecos pupfish can be identified without
designating critical habitat by providing Federal agencies with
information on the locations of occupied habitats and information on
the kinds of activities which could affect the species. For the reasons
discussed above, the Service finds that the designation of critical
habitat for the Pecos pupfish is not prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against taking and harm are
discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in destruction
or adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Activities which may involve a Federal agency action and which may
require conference and/or consultation as described in the preceding
paragraph include: ground water pumping which can lower the water level
in occupied sinkholes and springs; water diversion which dries streams;
and other activities which cause habitat destruction or degradation
including water quality degradation.
Lands along the Pecos River and tributaries are primarily privately
owned. However, small areas of BLM land exist along the Pecos River
between Fort Sumner and Roswell, New Mexico, and a short segment of the
Pecos River flows through the Bitter Lake National Wildlife Refuge.
Activities on private lands which may affect the Pecos pupfish or its
habitat and which involve a Federal agency action require conference
and/or consultation. Activities on BLM, Service, or other Federal lands
which may affect the Pecos pupfish or its habitat also require
conference and/or consultation.
Water use in the Pecos River basin is regulated by the States of
New Mexico and Texas in accordance with the Pecos River Compact
(Compact), a Congressionally approved agreement addressing allocation
of water between New Mexico and Texas. The U.S. Bureau of Reclamation
(BR) and the COE operate dams on the river, and thereby regulate flows,
in accordance with the Compact. The operation of dams by the BR and COE
requires conference and/or consultation.
Additionally, other Federal agency actions along the Pecos River
that may require conference and/or consultation include: Environmental
Protection Agency authorization of discharges under the National
Pollutant Discharge Elimination System (NPDES) and registration and
regulation of pesticides; Federal Highway Administration involvement in
road and bridge construction and maintenance; BLM issuance of grazing
permits and oil and gas leases; COE authorization of discharges of
dredged or fill material into waters of the United States under section
404 of the Clean Water Act (e.g., authorization of oil, gas, and water
pipeline construction); U.S. Department of Agriculture (USDA) Animal
and Plant Health Inspection Service programs (e.g., Rangeland
Grasshopper Cooperative Management); USDA Natural Resources
Conservation Service projects and technical assistance programs; USDA
Farm Service Agency programs (e.g., financial assistance for certain
irrigation projects); and the Department of Housing and Urban
Development's Small Cities Community Development Block Grant program.
The Act and its implementing regulations found at 50 CFR 17.21 set
forth a series of general trade prohibitions and exceptions that apply
to all endangered wildlife. These prohibitions, in part, make it
illegal for any person subject to the jurisdiction of the United States
to take (includes harass, harm, pursue, hunt, shoot,

[[Page 4612]]

wound, kill, trap, or collect; or to attempt any of these), import or
export, ship in interstate commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any listed species. It also is illegal to possess, sell, deliver,
carry, transport, or ship any such wildlife that has been taken
illegally. Certain exceptions apply to agents of the Service and State
conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.
It is the policy of the Service (July 1, 1994, 59 FR 34272) to
identify to the maximum extent practicable those activities that would
or would not constitute a violation of section 9 of the Act at the time
of listing. The intent of this policy is to increase public awareness
of the effect of listing on proposed or ongoing activities. The Service
believes that, based on the best available information, the following
actions will not result in a violation of section 9, provided these
activities are carried out in accordance with any existing regulations
and permit requirements:
1. Livestock grazing which does not destroy or significantly
degrade occupied Pecos pupfish habitat.
2. Groundwater pumping in areas where the groundwater is not
connected to riverine or sinkhole habitats occupied by Pecos pupfish.
3. Oil and gas exploration and drilling in areas where surface or
groundwater is not connected to habitats occupied by Pecos pupfish.
The following activities would likely violate section 9 of the Act:
1. Livestock grazing which causes destruction or significant
degradation of occupied Pecos pupfish habitat.
2. Stocking of piscivorous fish or introduction of sheepshead
minnows into habitat occupied by Pecos pupfish or into waters which are
connected to, or which during high flows become connected to, habitat
occupied by Pecos pupfish.
3. Pumping of groundwater which causes a significant reduction in
the quantity or quality of water in areas occupied by Pecos pupfish.
4. Channelization or other activities which cause dewatering of
habitats occupied by the Pecos pupfish.
5. Activities which cause significant degradation of surface water
or groundwater quality of habitat occupied by the Pecos pupfish.
The term ``significant degradation of habitat'' as used in the
descriptions of activities above, is that amount of degradation which
causes ``take'' of Pecos pupfish. Not all of the activities mentioned
above will result in violation of section 9 of the Act; only those
activities which result in ``take'' of Pecos pupfish are considered
violations of section 9. Contacts have been identified to assist the
public in determining whether a particular activity would be prohibited
under section 9 of the Act. In New Mexico, contact the Field
Supervisor, Ecological Services Field Office (Albuquerque) (see
ADDRESSES section). In Texas, contact the Field Supervisor, Ecological
Services Field Office, 10711 Bernet Road, Suite 200, Hartland Bank
Building, Austin, Texas 78758, (512/490-0057).

Public Comments Solicited

The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to this species;
(2) The location of any additional populations of this species and
the reasons why any habitat should or should not be determined to be
critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species;
(4) Current or planned activities in the subject area and their
possible impacts on this species, and;
(5) Any other information related to the status of, or threats to,
the Pecos pupfish.
Final promulgation of the regulation on this species will take into
consideration the comments and any additional information received by
the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days of the
date of publication of the proposal. Such requests must be made in
writing and addressed to the Field Supervisor, Ecological Services
Field Office (Albuquerque) (see ADDRESSES section).

National Environmental Policy Act

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

Required Determinations

This rule does not contain collections of information that require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.

References Cited

A complete list of all references cited herein, as well as others,
is available upon request from the Service's Ecological Services Field
Office (Albuquerque) (see ADDRESSES section).

Author: The primary author of this proposed rule is Jennifer
Fowler-Propst (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

2. Amend section 17.11(h) by adding the following, in alphabetical
order under ``Fishes,'' to the List of Endangered and Threatened
Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 4613]]

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Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishes

* * * * * * *
Pupfish, Pecos................... Cyprinodon USA (NM, TX)....... Entire............. E ........... NA NA
pecosensis.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: January 21, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-2273 Filed 1-29-98; 8:45 am]
BILLING CODE 4310-55-P