[Federal Register Volume 70, Number 243 (Tuesday, December 20, 2005)]
[Proposed Rules]
[Pages 75546-75590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23999]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Rule to 
Designate Critical Habitat for the Spikedace (Meda fulgida) and the 
Loach Minnow (Tiaroga cobitis); Proposed Rule

  Federal Register / Vol. 70, No. 243 / Tuesday, December 20, 2005 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU33


Endangered and Threatened Wildlife and Plants; Proposed Rule to 
Designate Critical Habitat for the Spikedace (Meda fulgida) and the 
Loach Minnow (Tiaroga cobitis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate a total of approximately 633 river miles (mi) (1018.7 
kilometers (km)) of critical habitat for spikedace and loach minnow. 
Proposed critical habitat is located in New Mexico and Arizona. We 
hereby solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation. We may revise this proposal prior to final designation to 
incorporate or address new information received during public comment 
periods.

DATES: We will accept comments from all interested parties until 
February 21, 2006. We must receive requests for public hearings in 
writing at the address shown in the ADDRESSES section by February 3, 
2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal, identified by RIN number 1018-AU33, 
by any one of several methods:
    1. You may submit written comments and information to Steve 
Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona 
Ecological Services Office, 2321 West Royal Palm Road, Suite 103, 
Phoenix, Arizona, 85021.
    2. You may hand-deliver written comments and information to our 
Arizona Ecological Services Office, or fax your comments to 602/242-
2513.
    3. You may send your comments by electronic mail (e-mail) to [email protected]. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section.
    (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office (telephone 602/242-0210; facsimile 
602/242-2513).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate and effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. On the basis of public comment, 
during the development of the final rule we may find that areas 
proposed do not contain features essential to the conservation of the 
species, are appropriate for exclusion under section 4(b)(2), or not 
appropriate for exclusion, and in all of these cases, this information 
would be incorporated into the final designation. We particularly seek 
comments concerning:
    (1) The reasons why any areas should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh the benefits of 
excluding areas from the designation.
    (2) Specific information on the distribution and abundance of 
spikedace and loach minnow and their habitats, and which habitat 
contains the primary constituent elements essential to the conservation 
of these species and why.
    (3) Land-use designations and current or planned activities in or 
adjacent to the areas proposed and their possible impacts on proposed 
critical habitat.
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation, in particular, any 
impacts on small entities.
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (6) In addition, please consider the following: We specifically 
solicit the delivery of spikedace- and loach minnow-specific management 
plans including implementation schedules for areas included in this 
proposed designation, and comment on: (a) Whether these areas are 
occupied and contain the primary constituent elements that are 
essential to the conservation of the species; (b) whether these areas 
warrant exclusion; and (c) the basis for excluding these areas from 
critical habitat pursuant to section 4(b)(2) of the Act.
    (7) We are not proposing the upper portion of the San Pedro River 
as critical habitat because of the presence of nonnative fish species 
and the absence of both spikedace and loach minnow. We seek comment on 
whether this area is essential to the conservation of the species and 
whether it should be included as critical habitat.
    (8) Some of the lands we have identified as containing features 
essential to the conservation of the spikedace and loach minnow are 
being considered for exclusion from the final designation of critical 
habitat. We specifically solicit comment on the possible inclusion or 
exclusion of such areas;
    (a) Whether these areas are occupied and contain the features 
essential to the conservation of the species and;
    (b) Whether these, or other areas proposed but not specifically 
addressed in this proposal, warrant exclusion and;
    (9) We are not proposing Fossil Creek as critical habitat because 
it is currently unoccupied. However, we seek comment on whether this 
area is essential to the conservation of the species and whether it 
should be included as critical habitat.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section above). Please submit electronic comments in ASCII file format 
and avoid the use of special characters or any form of encryption. 
Please also include ``Attn: spikedace/loach minnow'' in your e-mail 
subject header and your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your Internet message, contact us directly by calling our 
Arizona Ecological Services Office at 602/242-0210. Please note that 
the e-mail address, [email protected], will be closed at the 
termination of the public comment period.
    Our practice is to make comments, including names and addresses of 
respondents, available for public review during regular business hours. 
Individual respondents may request that we withhold their home 
addresses from the administrative record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the rulemaking record a respondent's identity, as 
allowable by law. If you wish us to withhold your name and/or address, 
you must state this

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prominently at the beginning of your comments. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of conservation resources. The Service's present system for designating 
critical habitat is driven by litigation rather than biology, limits 
our ability to fully evaluate the science involved, consumes enormous 
agency resources, and imposes huge social and economic costs. The 
Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species, or 38 
percent, of the 1,253 listed species in the United States under the 
jurisdiction of the Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the states, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that the August 6, 2004 Ninth Circuit judicial 
opinion, (Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service) found our definition of adverse modification was invalid. In 
response to the decision, the Director has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the 9th Circuit's ruling and the Director's guidance.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides little additional 
protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the spikedace and loach minnow, refer to the final 
designation of critical habitat for the spikedace and loach minnow 
published in the Federal Register on April 25, 2000 (65 FR 24328).

Previous Federal Actions

    On September 20, 1999, the United States District Court for the 
District of New Mexico, Southwest Center for Biological Diversity v. 
Clark, CIV 98-0769 M/JHG, ordered us to finalize a designation of 
critical habitat for the spikedace and loach minnow by February 17, 
2000. On October 6, 1999, the court amended the order to require us to 
propose a critical habitat determination rather than requiring a final 
designation. We published our proposed rule to designate critical 
habitat in the Federal Register on December 10, 1999 (64 FR 69324). On 
December 22, 1999, the court extended the deadline to complete our 
determination until April 21, 2000. We published a final critical 
habitat designation on April 25, 2000 (65 FR 24329).
    In New Mexico Cattle Growers' Association and Coalition of Arizona/
New Mexico Counties for Stable Economic Growth v. United States Fish 
and Wildlife Service, CIV 02-0199 JB/LCS (D.N.M), the Plaintiffs 
challenged the April 25, 2000, critical habitat designation for the 
spikedace and loach minnow because the economic analysis had been 
prepared using the same methods which the Tenth Circuit had held to be 
invalid. The Center for Biological Diversity joined the lawsuit as a 
Defendant-Intervenor. The Service agreed to a voluntary vacatur of the 
critical habitat designation, except for the Tonto Creek Complex. On 
August 31, 2004, the United States District Court for the District of 
New Mexico set aside the April 25, 2000, critical habitat designation 
in its entirety and remanded it to the Service for preparation of a new 
proposed and final designation.

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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 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known, using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features therein may require special 
management or protection. When the best available scientific data do 
not demonstrate that the conservation needs of the species so require, 
we will not designate critical habitat in areas outside the 
geographical area occupied by the species at the time of listing. An 
area currently occupied by the species but that was not known to be 
occupied at the time of listing will likely be essential to the 
conservation of the species and, therefore, included in the critical 
habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the Service 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific data 
available. They require Service biologists to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information is 
generally the listing package for the species. Additional information 
sources include the recovery plan for the species, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    In determining areas that contain features essential to the 
conservation of spikedace and the loach minnow, we used the best 
scientific data available. We have reviewed the overall approach to the 
conservation of these species compiled in their respective recovery 
plans (USFWS 1991a, 1991b) and undertaken by local, State, Federal, and 
Tribal agencies, and private and non-governmental organizations 
operating within the species' range since their listing in 1986.
    We have also reviewed available information that pertains to the 
habitat requirements of these species. The material included data in 
reports submitted during section 7 consultations and by biologists 
holding section 10(a)(1)(A) recovery permits; research published in 
peer-reviewed articles, agency reports, and databases; and regional 
Geographic Information System (GIS) coverages and habitat models.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific data available and to consider those physical and 
biological features (i.e., primary constituent elements (PCEs)) that 
are essential to the conservation of the species and that may require 
special management considerations or protection. These features include 
but are not limited to: Space for individual and population growth and 
for normal behavior; food, water, air, light, minerals or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, or rearing of offspring; and habitats that are 
protected from disturbance or are representative of the historical, 
geographical, and ecological distributions of a species.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of spikedace or loach minnow. In some cases, the PCEs exist 
as a result of ongoing Federal actions. As a result, ongoing Federal 
actions at the time of designation will be included in the baseline in 
any consultation conducted subsequent to this designation.

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    We determined the primary constituent elements for spikedace and 
loach minnow from studies on their habitat requirements and population 
biology including, but not limited to, Barber et al. 1970, Minckley 
1973, Anderson 1978, Barber and Minckley 1983, Turner and Taffanelli 
1983, Barrett et al. 1985, Propst et al. 1986, Service 1989, Hardy et 
al. 1990, Douglas et al. 1994, Stefferud and Rinne 1996, and Velasco 
1997.

Lateral Extent

    The areas proposed for designation as critical habitat are designed 
to provide sufficient riverine and associated floodplain area for 
breeding, non-breeding, and dispersing adult spikedace and loach 
minnow, as well as for the habitat needs of juvenile and larval stages 
of these fishes. In general, the constituent elements of critical 
habitat for spikedace and loach minnow include the riverine ecosystem 
formed by the wetted channel and the adjacent floodplains within 300 
lateral feet on either side of bankfull stage. Spikedace and loach 
minnow use the riverine ecosystem for feeding, sheltering, and cover 
while breeding and migrating. This proposal takes into account the 
naturally dynamic nature of riverine systems and floodplains (including 
riparian and adjacent upland areas) that are an integral part of the 
stream ecosystem. For example, riparian areas are seasonally flooded 
habitats (i.e., wetlands) that are major contributors to a variety of 
vital functions within the associated stream channel (Federal 
Interagency Stream Restoration Working Group 1998, Brinson et al. 
1981). They are responsible for energy and nutrient cycling, filtering 
runoff, absorbing and gradually releasing floodwaters, recharging 
groundwater, maintaining streamflows, protecting stream banks from 
erosion, and providing shade and cover for fish and other aquatic 
species. Healthy riparian and adjacent upland areas help ensure water 
courses maintain the habitat components essential to aquatic species 
(e.g., see FS 1979; Middle Rio Grande Biological Interagency Team 1993; 
Briggs 1996), including the spikedace and loach minnow. Habitat quality 
within the mainstem river channels in the historical range of the 
spikedace and loach minnow is intrinsically related to the character of 
the floodplain and the associated tributaries, side channels, and 
backwater habitats that contribute to the key habitat features (e.g., 
substrate, water quality, and water quantity) in these reaches. We 
believe a relatively intact riparian area, along with periodic flooding 
in a relatively natural pattern, is important in maintaining the stream 
conditions necessary for long-term conservation of the spikedace and 
loach minnow.
    The lateral extent of streams was set at 300 ft (91.4 m) to either 
side of bankfull stage to accommodate stream meandering and high flows, 
and in order to ensure adequate protection of riparian zones adjacent 
to stream channels. Bankfull stage is defined as the discharge at which 
channel maintenance is the most effective, or the upper level of the 
range of channel-forming flows which transport the bulk of the 
available sediment over time. Bankfull stage is generally considered to 
be that level of stream discharge reached just before flows spill out 
onto the adjacent floodplain. The discharge that occurs at bankfull 
stage, in combination with the range of flows that occur over a length 
of time, govern the shape and size of the river channel (Rosgen 1996, 
Leopold 1997).
    The use of bankfull stage and 300 ft (91.4 m) on either side 
recognizes the naturally dynamic nature of riverine systems and 
recognizes that floodplains are an integral part of the stream 
ecosystem. The use of bankfull stage and 300 ft (91.4 m) on either side 
of a tributary also is an area that contains the features essential to 
the conservation of the species. A relatively intact floodplain, along 
with the periodic flooding in a relatively natural pattern, is an 
important element in the long-term survival and recovery of spikedace 
and loach minnow. The riparian areas encompassed in the 300 lateral 
feet (91.4 m) to either side of bankfull stage play an important role 
in overall stream health, in that they function as the floodplain and 
dissipate stream energies associated with high flows (BLM 1990). This 
is further discussed below in the ``Proposed Critical Habitat'' section 
of the rule.

Spikedace

    The specific primary constituent elements required of spikedace 
habitat are derived from the biological needs of the spikedace as 
described below.

Space for Individual and Population Growth and Normal Behavior

    Streams in the Southwestern United States have a wide fluctuation 
in flows and resulting habitat conditions at different times of the 
year. Spikedace persist in these varying conditions and, as discussed 
below, several studies have documented habitat conditions at occupied 
sites.

Habitat Preferences

    Spikedace have differing habitat requirements through their various 
life stages. Generally, adult spikedace prefer intermediate-sized 
streams with moderate to swift currents over sand, gravel, and cobble 
substrates (i.e. stream bottoms). Preferred water depths are less than 
11.8 in (30 cm) (Barber and Minckley 1966, Minckley 1973, Anderson 
1978, Rinne and Kroeger 1988, Hardy 1990, Sublette et al. 1990, Rinne 
1991, Rinne 1999a). As discussed below, larval and juvenile spikedace 
occupy different habitats than adults.
    Flow Velocities. Studies have been completed on the Gila River, 
Aravaipa Creek, and the Verde River. Measured flows in habitat occupied 
by adult spikedace ranged from 23.3 to 59.5 cm/second (9.2-23.4 in/
second) (Barber and Minckley 1966, Hardy 1990, Propst et al. 1986, 
Rinne 1991, Rinne 1991a, Rinne and Kroeger 1988, Schreiber 1978). 
Studies on the Gila River indicated that juvenile spikedace occupy 
areas with velocities of approximately 16.8 cm/second (6.6 in/second) 
while larval spikedace were found in velocities of 8.4 cm/second (3.3 
in/second) (Propst et al. 1986).
    Flow velocities in occupied habitats vary by season as well. During 
the warm season (June-November), spikedace on the Gila River occupied 
areas with mean flow velocities of 19.3 in/second (49.1 cm/second) at 
one site, and 7.4 in/second (18.8 cm/second) at the second site. During 
the cold season (December-May), mean flow velocities at these same 
sites were 15.5 in/second (39.4 cm/second) and 8.4 in/second (21.4 cm/
second). It is believed that spikedace seek areas in the stream that 
offer protection during periods of cooler temperatures to offset their 
decreased metabolic rates. Where water depth remains fairly constant 
throughout the year as at the first site, slower velocities provided 
habitats in portions of the stream with warmer temperatures. Where flow 
velocity remains fairly constant throughout the year, such as at the 
second site, shallower water provided habitats in portions of the 
stream with warmer temperatures (Propst et al. 1986).
    Larval and juvenile spikedace occupy different habitats than 
adults, tending to occupy shallow, peripheral portions of streams in 
areas with slower currents (Anderson 1978, Propst et al. 1986). Once 
they emerge from the gravel of the spawning riffles, spikedace larvae 
disperse to stream margins where water velocity is very slow or still. 
Slightly larger larvae were most commonly associated with slow-velocity 
water near

[[Page 75550]]

stream margins in areas where water depth was less than 12.6 inches 
(32.0 cm) (Propst et al. 1986). Juvenile spikedace (those fish 1.0 to 
1.4 in (25.4-35.6 mm) in length) occurred over a greater range of water 
velocities than larvae, but still in water depths of less than 12.6 in 
(32.0 cm). Juveniles and larvae are also occasionally found in quiet 
pools or backwaters lacking streamflow (Sublette et al. 1990).
    Outside of the breeding season, adult spikedace primarily use 
riffle habitat (a shallow area in a streambed causing ripples) or quiet 
eddies (where the water moves in the opposite direction of water in the 
main channel or in circular patterns) downstream of those riffles. 
Eighty percent of the spikedace collected in a Verde River study used 
run and glide habitat. For this study, a glide was defined as a portion 
of the stream with a lower gradient (0.3 percent), versus a run which 
had a slightly steeper gradient (0.3-0.5 percent) (Rinne and Stefferud 
1996). Spikedace on the Gila River were most commonly found in riffle 
areas of the stream with moderate to swift currents (Anderson 1978) and 
some run habitats (J.M. Montgomery 1985), as were spikedace in Aravaipa 
Creek (Barber and Minckley 1966).
    Seasonal differences in habitats utilized have been noted in the 
upper Gila drainage, for both the winter and breeding seasons. For 
example, the spikedace was found to use shallower habitats at 6.6 in 
(<16.8 cm) in the winter, and deeper water at 6.6 to 12.6 in (16.8-32.0 
cm) during warmer months (Propst et al. 1986, Sublette et al. 1990). 
During the breeding season, female and male spikedace become 
segregated, with females occupying deeper pools and eddies and males 
occupying riffles flowing over sand and gravel beds in water 
approximately 3.1 to 5.9 inches (7.9-15.0 cm) deep. Females then enter 
the riffles occupied by the males before ova are released into the 
water column (Barber et al. 1970).
    As noted above, streams in the Southwestern United States have a 
wide fluctuation in flows and are periodically dewatered. While 
portions of stream segments included in this designation may experience 
dry periods, they are still considered essential because the spikedace 
is adapted to this environment and will use these areas as connective 
corridors between occupied or seasonally occupied habitat when they are 
wetted.
    Substrates. Spikedace are known to occur in areas with low to 
moderate amounts of fine sediment and substrate embeddedness (filling 
in of spaces by fine sediments), which is essential for healthy 
development of eggs. Spawning has been observed in areas with sand and 
gravel beds and not in areas with fine sediment or substrate 
embeddedness, as described above. Additionally, low to moderate fine 
sediments ensure that eggs remain well-oxygenated and will not 
suffocate due to sediment deposition (Propst et al. 1986).
    In the Verde River study, spikedace glide-run habitats were 
characterized by approximately 29 percent sand or fines (silty sand) 
(Rinne 2001). Spikedace numbers in the Verde River increased almost 
three times (from 18 to 52 individuals) when the fine component of the 
substrate decreased from about 27 percent down to 7 percent (Neary et 
al. 1996), indicating that spikedace prefer habitats with lower amounts 
of fines. Sand content in all glide-run spikedace habitats in the Verde 
and Gila Rivers in 2000 was 18 and 20 percent (Rinne 2001).
    Larval spikedace substrate preferences are similar to those of 
adults. Sixty percent of spikedace larvae in the Gila River were found 
over sand-dominated substrates, while 18 percent were found over gravel 
and an additional 18 percent found over cobble-dominated substrates 
(Propst et al. 1986). While 45 percent of juvenile spikedace were found 
over sand substrates, an additional 45 percent of the juveniles were 
found over gravel substrates, with the remaining 9 percent associated 
with cobble-dominated substrates (Propst et al. 1986).
    The degree of substrate embeddedness may also affect the prey base 
for spikedace. As discussed below, mayflies constitute a significant 
portion of the spikedace diet. Suitable habitat for the type of 
mayflies found in Aravaipa Creek includes pebbles or gravel for 
clinging. Excess sedimentation would cover or blanket smaller pebbles 
and gravel, resulting in a lack of suitable habitat for mayflies, and a 
subsequent decrease in available prey items for spikedace.
    Flooding. Rainfall in the southwest is generally characterized as 
bimodal, with winter rains of longer duration and less intensity and 
summer rains of shorter duration and higher intensity. Periodic 
flooding appear to benefit spikedace in three ways: (1) Removing excess 
sediment from some portions of the stream; (2) removing nonnative fish 
species from a given area; and (3) increasing prey species diversity.
    Flooding in Aravaipa Creek has resulted in the transport of heavier 
loads of sediments such as cobble, gravel, and sand that deposited 
where the stream widens, gradient flattens, and velocity and turbulence 
decrease. Dams formed by such deposition can temporarily cause water to 
back up and break into braids downstream of the dam. The braided areas 
provide excellent nurseries for larval and juvenile fishes (Velasco 
1997).
    On the Gila River in New Mexico, flows fluctuate seasonally with 
snowmelt causing spring pulses and occasional floods, and late-summer 
or monsoonal rains producing floods of varying intensity and duration. 
These high flows benefit essential spikedace spawning and foraging 
habitat (Propst et al. 1986) as described above. Peak floods can modify 
channel morphology and sort and rearrange stream bed materials 
(Stefferud and Rinne 1996).
    Floods likely also benefit native fish by breaking up embedded 
bottom materials (Mueller 1984). A study of the Verde River analyzed 
the effects of flooding in 1993 and 1995, finding that these floods had 
notable effects on both native and nonnative fish species. Among other 
effects, the floods either stimulated spawning or enhanced recruitment 
of three of the native species, and may have eliminated one of the 
nonnative fish species (Rinne and Stefferud 1997).
    Flooding, as part of a natural hydrograph, temporarily removes 
nonnative fish species, which are not adapted to flooding. Thus 
flooding consequently removes the competitive pressures of nonnative 
fish species on native fish species which persist following the flood. 
A study on the differential responses of native and nonnative fishes in 
seven unregulated and three regulated streams or stream reaches that 
were sampled before and after major flooding noted that fish faunas of 
canyon-bound reaches of unregulated streams invariably shifted from a 
mixture of native and nonnative fish species to predominantly, and in 
some cases exclusively, native forms after large floods. Samples from 
regulated systems indicated relatively few or no changes in species 
composition due to releases from upstream dams at low, controlled 
volumes. However, during emergency releases, effects to nonnative fish 
species were similar to those seen with flooding on unregulated systems 
(Minckley and Meffe 1987).
    The onset of flooding also corresponds with an increased diversity 
of food items for spikedace. Reductions in the mainstream 
invertebrates, such as mayflies, cause the fish to expand its food base 
in an opportunistic manner. In addition, inflowing flood waters carry 
terrestrial invertebrates, such as ants, bees, and wasps 
(Hymenopterans), into

[[Page 75551]]

aquatic areas (Barber and Minckley 1983).
    Stream Gradient. Spikedace occupy streams with low to moderate 
gradients (Propst et al. 1986, Stefferud and Rinne 1996, Sublette et 
al. 1999). Specific gradient data are generally lacking, but the 
gradient of occupied portions of Aravaipa Creek varied between 
approximately 0.3 to < 1.0 percent (Barber et al. 1970, Rinne and 
Kroeger 1988, Rinne and Stefferud 1996). Smaller, younger spikedace are 
generally found in quiet water along pool margins over soft, fine-
grained bottoms (USFWS 1991a). Juveniles and larvae tend to occupy the 
margins of the stream adjacent to riffle habitats (Propst et al. 1986), 
and are also known to use backwater areas (Sublette et al. 1990).

Habitat Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distribution of a Species

    Nonnative fish species. One of the primary reasons for the decline 
of native species is the presence of nonnative fishes introduced 
accidentally or for sport, forage, or bait. Fish evolution in the arid 
American west is linked to disruptive geologic and climatic events 
which acted in concert over evolutionary time to decrease the 
availability and reliability of aquatic ecosystems. The fragmentation 
and reduction of aquatic ecosystems resulted in a fish fauna that was 
both diminished and restricted to the arid west. Lacking exposure to a 
wider range of species, western species seem to lack the competitive 
abilities and predator defenses developed by fishes from regions where 
more species are present (Douglas et al. 1994).
    The effects of nonnative fish competition on spikedace can be 
classified as either interference or exploitive. Interference 
competition occurs when individuals directly affect others, such as by 
fighting or preying upon them. Exploitive competition occurs when 
individuals affect others indirectly, such as through use of common 
resources (Douglas et al. 1994). Competition with regards to actual 
space is generally considered interference competition (Schoener 1983).
    The effects of nonnative fish preying on natives such as spikedace 
would be classified as interference competition. There is 
circumstantial evidence of the negative impacts of nonnative predators 
on native fishes for several stream reaches. Channel catfish, flathead 
catfish, and smallmouth bass all prey on native fishes, as evidenced by 
prey remains of native fishes in the stomachs of these predatory 
species (Propst et al. 1986). Smallmouth bass, rainbow trout, brown 
trout, and channel catfish became common in the Gila River above Turkey 
Creek and the three forks of the Gila River. In 1949, 52 spikedace were 
collected at Red Rock while channel catfish composed only 1.65 percent 
of the 607 fish collected. However, in 1977, only six spikedace were 
located at the same site, and the percentage of channel catfish had 
risen to 14.5 percent of 169 fish collected. The decline of spikedace 
and the increase of channel catfish is likely related (Anderson 1978).
    Similar interactions between native and nonnative fishes were 
observed for the upper reaches of the East Fork of the Gila River. In 
this system, native fish were limited, with spikedace being rare or 
absent, while nonnative channel catfish and smallmouth bass were 
moderately common prior to 1983 and 1984 floods. Post-1983 flooding, 
adult nonnative predators were generally absent and spikedace were 
collected in moderate numbers in 1985 (Propst et al. 1986).
    Interference competition occurs with species such as red shiner. 
Red shiner appear to be particularly detrimental to spikedace because 
although spikedace and shiners are separated geographically (i.e., 
allopatric), they occupy essentially the same habitat types. Where the 
two species are overlapping (i.e., sympatric), there is evidence of 
displacement of spikedace to less suitable habitats (USFWS 1991a). This 
means that if red shiners are present, suitable habitat for spikedace 
is reduced. Range expansion and species recovery may then be curtailed.
    One study focused on three stream reaches on the Gila River and 
Aravaipa Creek having only spikedace; one reach on the Verde River 
where spikedace and red shiner have co-occurred for three decades; and 
one reach on the Gila River where red shiner recently invaded areas and 
where spikedace had never been recorded. The study indicated that, for 
reaches where only spikedace were present, spikedace showed a 
preference for slower currents and smaller particles in the substrate 
than were generally available throughout the Gila River and Aravaipa 
Creek systems. For red shiner in the Verde River, the study showed that 
red shiner occupied waters that were generally slower and with smaller 
particle size in the substrate than were, on average, available in the 
system. The study concluded that, where the two species were caught 
together, habitats of spikedace were statistically indistinguishable 
from those occupied by red shiner. The study further concludes that 
spikedace, where co-occurring with red shiner, move into currents 
swifter than those selected when in isolation, while red shiner occupy 
the slower habitat, whether they are alone or with spikedace (Douglas 
et al. 1994).

Food

    Food Items. Spikedace are active, highly mobile fish that visually 
inspect drifting materials both at the surface and within the water 
column. Gustatory inspection, or taking potential prey items into the 
mouth before either swallowing or rejecting it, is also common (Barber 
and Minckley 1983). Prey body size is small, typically ranging from 
0.08 to 0.20 inches (2 to 5 mm) long (Anderson 1978).
    Stomach content analysis of spikedace determined that mayflies, 
caddisflies, true flies, stoneflies, and dragonflies are all prey items 
for spikedace. In one Gila River study, the frequency of occurrence was 
71 percent for mayflies, 34 percent for true flies, and 25 percent for 
caddisflies (Propst et al. 1986). A second Gila River study of five 
samples determined that the frequency of occurrence was 80 to 100 
percent for mayflies, 23.1 and 56.8 percent for true flies, and 48 to 
69.2 percent for caddisflies (Anderson 1978). At Aravaipa Creek, 
mayflies, caddisflies, true flies, stoneflies, and dragonflies were all 
prey items for spikedace, as were some winged insects and plant 
materials (Schreiber 1978).
    At Aravaipa Creek, spikedace consumed a total of 36 different prey 
items (Barber and Minckley 1983). Mayflies constituted the majority of 
prey items, followed by true flies. Of the mayflies consumed, 36.5 
percent were adults, while 33.3 percent were nymphs. Terrestrial 
invertebrates, including ants, wasps, and spiders, were also consumed, 
as were beetles, true bugs, caddisflies, and water fleas.
    Spikedace diet varies seasonally (Barber and Minckley 1983). 
Mayflies dominated stomach contents in July, but declined in August and 
September, increasing in importance again between October and June. 
When mayflies were available in lower numbers, spikedace consumed a 
greater variety of foods, including true bugs, true flies, beetles, and 
spiders.
    Spikedace diet varies with age class as well. Young spikedace, 
classified as < 0.9 in (22.9 mm) fed on a diversity of small-bodied 
invertebrates occurring in and on sediments along the margins of the 
creek. True flies were found most frequently, but water fleas and 
aerial adults of aquatic and terrestrial insects also provide 
significant parts of the diet. As juveniles grow and migrate into the

[[Page 75552]]

swifter currents of the channel, mayfly nymphs and adults increase in 
importance (Barber and Minckley 1983).
    Spikedace are very dependent on aquatic insects for sustenance, and 
production of the aquatic insects consumed by spikedace occurs mainly 
in riffle habitats (Propst et al. 1986). As a result, habitat selection 
influences food items found in stomach content analyses. Spikedace in 
pools had eaten the least diverse foods while those from riffles 
contained a greater variety of taxa, indicating that the presence of 
riffles is essential to the survival of spikedace as riffles in good 
condition and abundance help to ensure that a sufficient number and 
variety of prey items will continue to be available (Barber and 
Minckley 1983).
    Aquatic invertebrates that constitute the bulk of the spikedace 
diet have specific habitat parameters of their own. Mayflies, which 
constituted the largest percentage of prey items, spend their immature 
stages in fresh water. Mayfly nymphs occur in all types of fresh 
waters, wherever there is an abundance of oxygen, but they are most 
characteristic of shallow water. Mayflies found in spikedace stomach 
content analyses consisted of individuals from several genera, with 
individuals from the genus Baetidae constituting the highest percentage 
of prey from the mayfly order in the study by Schreiber (1978). 
Baetidae are free-ranging species of rapid waters that maintain 
themselves in currents by clinging to pebbles. Spikedace also consumed 
individuals from two other mayfly genera (Heptageniidae and 
Ephemerellidae), which are considered ``clinging species'' as they 
cling tightly to stones and other objects and may be found in greatest 
abundance in crevices and on the undersides of stones (Pennak 1978). 
The importance of gravel and cobble substrates is illustrated by the 
fact that these prey species, which make up the bulk of the spikedace 
diet, require these surfaces to persist.

Water Quality

    Pollutants. Water with low levels of pollutants is essential for 
the maintenance of spikedace. Spikedace occur in areas where mining, 
agriculture, livestock operations, and road construction and use are 
prevalent. Various pollutants are associated with these types of 
activities. For spikedace, waters should have low levels of pollutants 
such as copper, arsenic, mercury and cadmium; human and animal waste 
products; pesticides; suspended sediments; and gasoline or diesel fuels 
(D. Baker, USFWS, pers. comm. 2005). In addition, dissolved oxygen 
should be greater than 3 parts per million (ppm). If levels of 
dissolved oxygen are below 3 ppm, some stress may occur.
    Fish kills have been documented in the San Francisco River (Rathbun 
1969) and the San Pedro River (Eberhardt 1981), both of which are 
within the species' historical range. In both instances, leaching ponds 
associated with copper mines released waters into the streams, 
resulting in elevated levels of toxic chemicals. For the San Pedro 
River, this included elevated levels of iron, copper, manganese, and 
zinc. Both incidents resulted in die-offs of species inhabiting the 
streams. Eberhardt (1981) notes that no bottom-dwelling aquatic 
insects, live fish, or aquatic vegetation of any kind were found for a 
60 mi (97 km) stretch of river in the area affected by the spill. 
Rathbun (1969) reported similar results for the San Francisco River. 
The possibility for similar accidents, or pollution from other sources, 
exists throughout these species ranges due to their proximity to mines, 
communities, agricultural areas, and major transportation routes.
    Temperature. Temperatures of occupied spikedace habitat vary with 
time of year. In May, temperatures at Aravaipa Creek were uniformly 
66.2 [deg]F (19 [deg] C) (Barber et al. 1970). Summer temperatures 
remained at no more than 80.6 [deg]F (27 [deg]C) at Aravaipa Creek 
(Barber et al. 1970), and at a mean of 66.7 [deg]F (19.3 [deg]C) 
between June and November on the Gila River in the Forks area (at the 
Middle, West, and East Forks) and were at 69.4 [deg]F (20.8 [deg]C) in 
the Cliff-Gila Valley (Propst et al. 1986). Winter temperatures ranged 
between 69.1 [deg]F (20.6 [deg]C) in November down to 48.0 [deg]F (8.9 
[deg]C) in December at Aravaipa Creek (Barber and Minckley 1966). The 
overall range represented by these measures is between 35-85 [deg]F 
(1.7-29.4 [deg]C).

Reproduction and Rearing of Offspring

    As discussed above under flow velocities, spikedace use a variety 
of habitat types within the channel during their reproductive cycle and 
at various life stages. Although not typically associated with pools 
(Anderson 1978), pools are used by female spikedace during the breeding 
season while males remained in riffle habitats. Females leave the 
pools, generally on the downstream end of the riffle, and swim upstream 
to males in riffle habitat (Barber et al. 1970). Unlike loach minnow 
that deposit their eggs in a hole or depression, spikedace spawn in 
shallow riffles and broadcast their gametes (reproductive cells) into 
the water column. Spikedace eggs are adhesive and develop among the 
gravel and cobble of the riffles following spawning. Spawning in riffle 
habitat ensures that the eggs are well oxygenated and are not normally 
subject to suffocation by sediment deposition due to the swifter flows 
found in riffle habitats. However, after the eggs have adhered to the 
gravel and cobble substrate, excessive sedimentation could cause 
suffocation of the eggs (Propst et al. 1986 and Marsh 1991).

Primary Constituent Elements for the Spikedace

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the primary constituent elements essential to the conservation of 
the spikedace are:
    1. Permanent, flowing, water with low levels of pollutants, 
including:
    a. Living areas for adult spikedace with slow to swift flow 
velocities between 20 and 60 cm/second (8-24 inches/second) in shallow 
water between approximately 10 cm (4 inches) to one meter (40 inches) 
with shear zones where rapid flow borders slower flow, areas of sheet 
flow (or smoother, less turbulent flow) at the upper ends of mid-
channel sand/gravel bars, and eddies at downstream riffle edges;
    b. Living areas for juvenile spikedace with slow to moderate water 
velocities of approximately 18 cm/second (8 inches/second) or higher in 
shallow water between approximately 3 cm (1.2 inches) to one meter (40 
inches);
    c. Living areas for larval spikedace with slow to moderate flow 
velocities of approximately 10 cm/second (4 inches/second) or higher in 
shallow water approximately 3 cm (1.2 inches) to one meter (40 inches).
    d. Water with low levels of pollutants such as copper, arsenic, 
mercury and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels and with dissolved 
oxygen levels greater than 3 parts per million (ppm).
    2. Sand, gravel, and cobble substrates with low or moderate amounts 
of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    3. Streams that have:
    a. Low gradients of less than approximately 1.0 percent;

[[Page 75553]]

    b. Water temperatures in the approximate range of 35-85[deg] 
Fahrenheit (F) (1.7-29.4 [deg]C) (with natural diurnal and seasonal 
variation);
    c. Pool, riffle, run, and backwater components, and;
    d. An abundant aquatic insect food base consisting of mayflies, 
true flies, and caddisflies, stoneflies, and dragonflies.
    4. Habitat devoid of nonnative fish species detrimental to 
spikedace, or habitat in which detrimental nonnative fish are at levels 
which allow persistence of spikedace.
    5. Areas within perennial, interrupted stream courses which are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the spikedace. In some cases, the PCEs exist as a result 
of ongoing Federal actions. As a result, ongoing Federal actions at the 
time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.

Loach Minnow

    The specific primary constituent elements essential to the 
conservation of the loach minnow are derived from the biological 
requirements of the loach minnow, as described below.

Space for Individual and Population Growth and Normal Behavior

    As noted for the spikedace above, streams in the Southwestern 
United States have a wide fluctuation in flows and resulting habitat 
conditions at different times of the year. Loach minnow persist in 
these varying conditions and, as discussed below, several studies have 
documented habitat conditions at occupied sites.

Habitat Preferences

    Flow Velocities. Loach minnow live on the bottom of small to large 
rivers, preferring shallow, swift, and turbulent riffles, living and 
feeding among clean, loose, gravel-to-cobble substrates (Anderson and 
Turner 1977, Barber and Minckley 1966, Britt 1982, Lee et al. 1980, 
Marsh et al. 2003, Minckley 1981, USFWS 1991b, Velasco 1997). Loach 
minnow are sometimes associated with filamentous (threadlike) algae 
(Anderson and Turner 1977, Lee et al. 1980, Minckley 1981). Specific 
habitat usage varies with the life stage of the fish, as well as 
geographically. As noted below, researchers have documented a range of 
flows in occupied areas.
    Flow rate studies have been completed on the Gila River, Tularosa 
River, San Francisco River, Aravaipa Creek, Deer Creek. Measured flows 
in habitat occupied by adult loach minnow ranged from 9.6 to 31.2 in/
second (24.4 to 79.2 cm/second) (Barber and Minckley 1966, Propst et 
al. 1988, Propst and Bestgen 1991, Rinne 1989). There is geographic 
variation in flow velocities used by adult loach minnow. Adult loach 
minnow in the Gila River preferred velocities of 1.2 to 14.4 in/second 
(3.0 to 36.6 cm/second), while those in Aravaipa Creek preferred 
velocities of 15.6 to 20.4 in/second (39.6 to 51.8 cm/second). This may 
be due to the fact that there was considerably more water at slower 
velocities available to loach minnow in the Gila River, and that there 
was more and larger cobble substrate in the Gila River, which creates 
more habitat of slower velocities for loach minnow use (Turner and 
Tafanelli 1983).
    Juvenile loach minnow generally occurred in areas where velocities 
were similar to those used by adults, but faster than those used by 
larvae. In the Gila, San Francisco, and Tularosa rivers, juveniles 
occupied areas with mean velocities ranging between 1.2-33.6 in/second 
(3.0 to 85.3 cm/second) (Propst et al. 1988, Propst and Bestgen 1991, 
Rinne 1989, Turner and Tafanelli 1983). Larval loach minnow move from 
spawning rocks to slower-velocity nursery areas after emergence, 
typically occupying areas with significantly slower velocities than 
juveniles and adults. Larval loach minnow in the Gila, San Francisco, 
and Tularosa rivers occupied areas that were shallower and 
significantly slower than areas where eggs were found (Propst et al. 
1988, Propst and Bestgen 1991). In the Gila, San Francisco, and 
Tularosa rivers, and Aravaipa Creek, larval loach minnow occupied areas 
with flow velocities ranging from 3.6 to 19.2 in/second (9.1 to 48.8 
cm/second).
    Loach minnow prefer shallow, swift, and turbulent riffles. The use 
of riffle habitat has been documented in Aravaipa Creek (Barber and 
Minckley 1966, Rinne 1989, Velasco 1997, Vives and Minckley 1990), 
Eagle Creek (Marsh et al. 2003), Tularosa River (Propst et al. 1984), 
and the Gila and San Francisco rivers (Britt 1982, Propst and Bestgen 
1991, Propst et al. 1984, Propst et al. 1988). Loach minnow also occur 
in stream segments that contain pool, riffle, and run habitats on the 
Blue, upper Gila, and San Francisco rivers (AGFD 1994, Bagley et al. 
1995, Montgomery 1985).
    The availability of pool and run habitats affects availability of 
prey species. While most of the food items of loach minnow are riffle 
species, two are not, including mayfly nymphs which, at times, made up 
17% of the total food volume of loach minnow in a study at Aravaipa 
Creek (Schreiber 1978). The presence of a variety of habitat types is 
therefore important to the persistence of loach minnow in a stream, 
even while they are typically associated with riffles.
    Substrates. Loach minnow in Aravaipa Creek occurred over a gravel-
pebble substrate with materials between 3 to 16 mm (0.12 to 0.63 in) 
and, except in the summer, were associated with the larger sizes of 
available substrate. The use of larger substrates was 
disproportionately greater than expected based on overall availability 
of substrate size in the stream, indicating that loach minnow have a 
preference for the larger substrate and tend to use areas with that 
substrate over areas with smaller substrate (Rinne 1989). For portions 
of the upper Gila River occupied by loach minnow in 1999 and 2000, 
substrates were characterized by gravel-pebble and cobble substrates, 
with 70 percent of the sites having a gravel-pebble substrate, and 14 
percent of the sites having cobble substrate (Rinne 2001).
    Loach minnow in Aravaipa Creek and the Gila River appeared to 
prefer cobble and gravel, avoiding areas dominated by sand or finer 
gravel. This may be due to the fact that loach minnow maintain a 
relatively stationary position on the bottom of a stream in flowing 
water. An irregular bottom, such as that created by cobble or larger 
gravels, creates pockets of lower water velocities around larger rocks 
where loach minnow can remain stationary with less energy expenditure 
(Turner and Tafanelli 1983). In the Gila and San Francisco rivers, the 
majority of loach minnow captured occurred in the upstream portion of a 
riffle rather than in the central and lower depositional sections of 
the riffle. This is likely due to the availability of interstitial 
spaces in the cobble-rubble substrate, which became filled with 
sediment more quickly in the central and lower sections of a riffle 
section as suspended sediment begins to drop out (Propst et al. 1984).
    Loach minnow use different substrates during different life stages. 
Embryos occurred primarily on large gravel to rubble, while larvae were 
found where substrate particles were smaller than that used by embryos. 
Juvenile fish occupy areas with substrates of larger particle size than 
larvae. Adults exhibited a narrower preference for substrates than did 
juveniles, and were most commonly

[[Page 75554]]

associated with gravel to cobble substrates (Propst and Bestgen 1991).
    As noted above, streams in the Southwestern United States have a 
wide fluctuation in flows and are periodically dewatered. While 
portions of stream segments included in this designation may experience 
dry periods, they are still considered essential because the loach 
minnow is adapted to this changing environment and will use these areas 
as connective corridors between occupied or seasonally occupied habitat 
when they are wetted.
    Flooding. Natural flows, including flooding, are part of an 
unregulated hydrograph and are important in maintaining loach minnow 
habitat. In areas where substantial diversions or impoundments have 
been constructed, loach minnow are less likely to occur. This is in 
part due to habitat changes caused by the construction, and in part due 
to the reduction of beneficial effects of flooding on loach minnow 
habitat. Flooding appears to positively affect loach minnow population 
dynamics by resulting in higher recruitment (reproduction and survival 
of young) and by decreasing the abundance of nonnative fishes.
    The construction of water diversions, by increasing water depth, 
has reduced or eliminated riffle habitat in many stream reaches. In 
addition, loach minnow are generally absent in stream reaches affected 
by impoundments. While the specific factor responsible for this is not 
known, it is likely related to modification of thermal regimes, 
habitat, food base, or discharge patterns. Flooding also cleans, 
rearranges, and rehabilitates important riffle habitat (Propst et al. 
1988).
    Flooding allows for the scouring of sand and gravel in riffle 
areas, which reduces the degree of embeddedness of cobble and boulder 
substrates (Britt 1982). Prior to flooding, excessive sediment in the 
bedload is typically deposited at the downstream undersurfaces of 
cobble and boulder substrate components where flow velocities are 
lowest, and can result in a higher degree of embeddedness (Rinne 2001). 
Following flooding, cavities created under cobbles by scouring action 
of the flood waters provides enhanced spawning habitat for loach 
minnow.
    Studies on the Gila, Tularosa, and San Francisco rivers, found that 
flooding is primarily a positive influence on native fish, and 
apparently had a positive influence on the relative abundance of loach 
minnow. Rather than following a typical pattern of winter mortality and 
population decline, high levels of recruitment occurred after the 
flood, and loach minnow relative abundance remained high through the 
next spring. Flooding has enhanced and enlarged loach minnow habitat, 
resulting in a greater survivorship of individuals through winter and 
spring (Propst et al. 1988). Similar results were observed on the Gila 
and San Francisco rivers following flooding in 1978 (Britt 1982).
    Natural flooding may also reduce the negative impacts of nonnative 
fish species on loach minnow. During significant floods, nonnative 
species were either displaced or destroyed, while native species were 
able to maintain their position in or adjacent to channel habitats, 
persist in micro refuges or recolonize should they be displaced (Britt 
1982, Minckley and Meffe 1987).
    Stream Gradient. In addition to the availability of riffle habitat, 
gradient may influence the distribution and abundance of loach minnow. 
In studies of the San Francisco River, Gila River, Aravaipa Creek, and 
the Blue River found loach minnow occurred in stream reaches where the 
gradient was generally shallow, ranging from 0.3 to 2.2 percent (Bagley 
et al. 1995, Rinne 1989, Rinne 2001).

Habitat Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distribution of a Species

    Nonnative fish species. As noted under the discussion of nonnative 
fish species in the spikedace primary constituent elements section 
above, nonnative fishes have been introduced for a variety of reasons, 
resulting in interference or exploitive competition. Interference 
competition, such as predation, may result from interactions between 
loach minnow and nonnative channel and flathead catfish. Omnivorous 
channel catfish of all sizes move into riffles to feed, preying on the 
same animals most important to loach minnows. Juvenile flathead catfish 
also feed in riffles in darkness. Flathead catfish are piscivorous, 
even when small. Loach minnow remains were found in the digestive 
tracts of channel catfish (Propst and Bestgen 1991, USFWS 1991b).
    Interference competition, such as competition for actual resources 
(Schoener 1983), may occur between loach minnow and red shiner, as red 
shiner is the nonnative fish species most likely to occur along stream 
margins in places occupied by small loach minnow. Red shiners occur in 
all places known to be formerly occupied by loach minnow, and are 
absent or rare in places where loach minnow persists. Because of this, 
red shiner has often been implicated in the decline of loach minnow, as 
well as other native fishes. Loach minnow habitat is markedly different 
from that of the red shiner, so that interaction between the two 
species was unlikely to cause shifts in habitat use by loach minnow 
(Marsh et al. 1989). Studies indicate that, instead, red shiner move 
into voids left when native fishes such as loach minnow are extirpated 
due to habitat degradation in the area (Bestgen and Propst 1986).
    Prior to 1960, the Glenwood-Pleasanton reach of the Gila River 
supported a native fish community of eight different species. Post-
1960, four of these species became uncommon, and ultimately three of 
them were extirpated. In studies completed between 1961 and 1980, it 
was determined that loach minnow was less common than it had been, 
while diversity of the nonnative fish community had increased in 
comparison to the pre-1960 period. Following 1980, red shiner, fathead 
minnow, and channel catfish were all regularly collected. Drought and 
diversions for irrigation resulted in a decline in habitat quality, 
with canyon reaches retaining habitat components for native species. 
However, establishment of nonnative fishes in the canyon reaches then 
reduced the utility of these areas for native species (Propst et al. 
1988).

Food

    Food Items. Loach minnow are opportunistic, benthic insectivores 
that obtain their food from riffle-dwelling larval mayflies, black 
flies, and true flies, as well as from larvae of other aquatic insect 
groups such as caddisflies and stoneflies (USFWS 1991b). Loach minnow 
in the Gila, Tularosa, and San Francisco rivers consumed primarily true 
flies and mayflies, with mayfly nymphs being an important food item 
throughout the year. Mayfly naiads constituted the most important food 
item throughout the year for adults studied on the Gila and San 
Francisco Rivers, while true fly larvae were most common in the winter 
months (Propst et al. 1988, Propst and Bestgen 1991). In Aravaipa 
Creek, loach minnow consumed 11 different prey items, including 
mayflies, stoneflies, caddisflies, and true flies. Mayflies constituted 
the largest percentage of their diet during this study except in 
January, when true flies made up 54.3 percent of the total food volume 
(Schreiber 1978).
    Loach minnow consume different prey items during their various life 
stages. Both larvae and juveniles primarily consumed true flies, which

[[Page 75555]]

constituted approximately 7 percent of their food items in one year, 
and 49 percent the following year. Mayfly nymphs were also an important 
dietary element at 14 percent and 31 percent in two different years. 
Few other aquatic macroinvertebrates (i.e. an invertebrate large enough 
to be seen) were consumed (Propst et al. 1988). In a second study, true 
fly larvae and mayfly naiads constituted the primary food of larval and 
juvenile loach minnow (Propst and Bestgen 1991).

Water Quality

    Pollutants. Water with low levels of pollutants is essential for 
the maintenance of loach minnow. As with spikedace, loach minnow occur 
in areas where mining, agriculture, livestock operations, and road 
construction and use are prevalent. Various pollutants are associated 
with these types of activities. For loach minnow, waters should have 
low levels of pollutants such as copper, arsenic, mercury, and cadmium; 
human and animal waste products; pesticides; suspended sediments; and 
gasoline or diesel fuels (D. Baker, USFWS, pers. comm. 2005). In 
addition, dissolved oxygen should be greater than 3 ppm.
    Fish kills associated with previous mining accidents are detailed 
under the spikedace PCEs above. These incidents occurred within the 
historical range of the loach minnow.
    Temperatures. Loach minnow have a fairly narrow temperature 
tolerance, and their upstream distributional limits in some areas may 
be linked to low winter temperature (Propst et al. 1988). Suitable 
temperature regimes appear to be fairly consistent across geographic 
areas. Studies of Aravaipa Creek, East Fork White River, the San 
Francisco River and the Gila River determined that loach minnow were 
present in areas with water temperatures in the range of 48.2 to 71.6 
[deg]F (9 to 22 [deg]C) (Britt 1982, Leon 1989, Propst et al. 1988, 
Propst and Bestgen 1991, Vives and Minckley 1990).

Reproduction and Rearing of Offspring

    Habitat conditions needed for reproduction and rearing of offspring 
include appropriate flow velocities, substrates, sediment levels, and 
riffle availability. Loach minnow place eggs in areas with mean 
velocities ranging between 2.4 to 15.6 in/second (3.0 to 39.6 cm/
second) in the Gila, San Francisco, and East Fork Gila rivers (Britt 
1982, Propst et al. 1988, Propst and Bestgen 1991). Fungal infections 
developed on egg masses placed in slow-velocity waters of less than 2.4 
in/second (6.2 cm/second) (Propst et al. 1988, Propst and Bestgen 
1991). Once hatched, areas of slower flows appear important to larval 
loach minnow as they have been found in slower-velocity stream margins 
(Propst et al. 1988).
    Substrate type is important to spawning as well. While loach minnow 
spawning occurs in the same riffle habitat that adults occupy, it is 
the substrate that determines its suitability for spawning. Eggs are 
deposited on the undersurface of rocks or cobbles. Rocks are generally 
flattened, have smooth surfaces, and are angular. Rocks which have eggs 
attached are generally embedded on their upstream side in the 
substrate. Eggs placed under rocks in the Gila River, San Francisco 
River, and Aravaipa Creek were placed on the underside of rocks in nest 
cavities formed by rocks of varying sizes (Britt 1982, Propst et al. 
1988, Vives and Minckley 1990).
    Loach minnow spawning is the life history stage most affected by 
sediment or fines (Vives and Minckley 1990). Because deposition of eggs 
occurs on the downstream undersurfaces of cobble and boulder substrate 
components, excessive fines in the bedload of a system can fill in the 
areas where eggs would otherwise be deposited, especially in areas of 
slower velocities.

Primary Constituent Elements for the Loach Minnow

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the primary constituent elements essential to the conservation of 
the loach minnow are:
    1. Permanent, flowing, water with low levels of pollutants, 
including:
    a. Living areas for adult loach minnow with moderate to swift flow 
velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in 
shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with 
gravel, cobble, and rubble substrates;
    b. Living areas for juvenile loach minnow with moderate to swift 
flow velocities between 1.0 to 34 in/second (3.0 to 85.0 cm/second ) in 
shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with 
sand, gravel, cobble, and rubble substrates;
    c. Living areas for larval loach minnow with slow to moderate 
velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in 
shallow water with sand, gravel, and cobble substrates and;
    d. Spawning areas with slow to swift flow velocities in shallow 
water where cobble and rubble and the spaces between them are not 
filled in by fine dirt or sand.
    e. Water with low levels of pollutants such as copper, arsenic, 
mercury and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels and with dissolved 
oxygen levels greater than 3 parts per million (ppm).
    2. Sand, gravel, and cobble substrates with low or moderate amounts 
of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    3. Streams that have:
    a. Low gradients of less than approximately 2.5 percent;
    b. Water temperatures in the approximate range of 35-85[deg] 
Fahrenheit (F) (1.7-29.4 [deg]C) (with natural diurnal and seasonal 
variation);
    c. Pool, riffle, run, and backwater components, and;
    d. An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddisflies, stoneflies, and dragonflies.
    4. Habitat devoid of nonnative fish species detrimental to loach 
minnow or habitat in which detrimental nonnative fish species are at 
levels which allow persistence of loach minnow.
    5. Areas within perennial, interrupted stream courses which are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the loach minnow. In some cases, the PCEs exist as a 
result of ongoing Federal actions. As a result, ongoing Federal actions 
at the time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.

Criteria for Defining Critical Habitat

    In proposing critical habitat for the spikedace and loach minnow, 
we reviewed historical and current occurrence data, information 
pertaining to habitat features for these species, rangewide recovery 
considerations such as genetic diversity and representation of all 
major portions of the species' historical ranges, scientific 
information on the biology and ecology of the two species, general 
conservation biology

[[Page 75556]]

principles, and information cited in the Recovery Plans for these two 
species. Of particular importance, we reviewed databases, published 
literature, and field notes to determine the historical and current 
occurrence data for the two species. The SONFishes Database (Arizona 
State University 2002) details occurrence records from the 1800s 
through 1999. The Heritage Database Management System (HDMS) (AGFD 
2004) contains information for Arizona with some overlap of SONFishes 
records, as well as records from 1999 through 2004. Agency and 
researcher field notes and published literature contain additional 
information on completed surveys and species detections.
    We are designating critical habitat on lands that we have 
determined are within the geographical range occupied by either, or in 
some cases both, the spikedace and loach minnow. We consider an area to 
be occupied by the spikedace or loach minnow if we have records to 
support occupancy within the last 10 years, or where the stream segment 
is directly connected to a segment with occupancy records from within 
the last 10 years (this is described within each unit description 
below). We chose 10 years because this would encompass three to four 
generations for both of these species. We believe this is a reasonable 
number based on the fact that both species are difficult to detect in 
surveys and many of the areas where they occur are remote and as a 
result there is not a high level of survey effort. All areas proposed 
have the features that are essential to the conservation of spikedace 
or loach minnow and are within the area historically occupied by these 
species and require special management consideration and protection.
    We divided the overall historical range into five river complexes, 
and each critical habitat stream segment was derived from within these 
larger complexes. In this way, populations in mainstem tributaries may 
access a wider geographic area by moving into smaller tributaries, 
while populations in tributaries are afforded the ability to disperse 
to other tributaries via the mainstem river within that complex. 
Overall, the complexes proposed herein provide coverage throughout the 
historical range of the species, with exceptions for areas that were 
excluded for specific reasons, as detailed below (see ``Proposed 
Exclusions under Section 4(b)(2) of the Act'' section below). The 
proposed critical habitat designation constitutes our best assessment 
of areas that contain the features (PCEs) essential to the conservation 
of spikedace and loach minnow and that require special management or 
protection.
    Segments were designated based on sufficient PCEs being present to 
support spikedace or loach minnow life processes. Some segments contain 
all PCEs and support multiple life processes, while other segments 
contain only a portion of the PCEs necessary to support the particular 
use of that habitat by spikedace or loach minnow. Where a subset of the 
PCEs are present (e.g., water temperature during spawning), only those 
PCEs present at designation will be protected.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning these areas is contained in our supporting 
record for this rulemaking.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and occupied after 
listing, contain the primary constituent elements essential to the 
conservation of the species that may require special management 
considerations or protection. We believe each area included in this 
final designation requires special management and protections as 
described in our unit descriptions and Table 1.
    Special management considerations for each area will depend on the 
threats to the spikedace and/or loach minnow in that critical habitat 
area. For example, special management that addresses the threat of 
nonnative fish species could include efforts to remove nonnative fish 
species from a creek, via chemical compounds that kill fish (e.g. 
rhotenone) but otherwise do not harm the environment, and construction 
of fish barriers that prevent the upstream movement of nonnative fishes 
into spikedace or loach minnow habitat. Special management that 
addresses the threat of fire could include using prescribed fire to 
reduce fuel loads and prevent catastrophic wildfires, protecting the 
area from retardant application during the fire, salvaging individuals 
from populations that are threatened by wildfire, and protecting the 
stream from excessive ash and sediment through re-seeding or other 
means following the fire. On-going livestock grazing is only a threat 
to spikedace and loach minnow if not properly managed. Proper 
management may include the use of fencing, appropriate grazing systems, 
appropriate seasons of use, and other improvements to allotments such 
as new water tanks. With regard to water use, maintaining high quality 
and adequate quantities of water for all life stages of spikedace and 
loach minnow may involve special management actions such as retaining 
an adequate buffer of riparian vegetation to help filter out sediment 
and contaminants, and maintaining streamflow via sustainable levels of 
ground and surface water use. The construction of water diversions, by 
increasing water depth, has reduced or eliminated riffle habitat in 
many stream reaches. In addition, loach minnow are generally absent in 
stream reaches affected by impoundments. While the specific factor 
responsible for this is not known, it is likely related to modification 
of thermal regimes, habitat, food base, or discharge patterns. We have 
included below in our description of each of the critical habitat areas 
for the spikedace and loach minnow a description of the threats 
occurring in that area requiring special management or protections.

Proposed Critical Habitat Designation

    We are proposing five complexes as critical habitat for the 
spikedace and loach minnow. Historically, the range of the spikedace 
included most of the Gila River Basin. The spikedace now occupies 
approximately 10 percent of its historical range. Current populations 
of spikedace are found in Graham, Pinal, and Yavapai counties in 
Arizona, and Grant, Catron, and Hidalgo counties, in New Mexico. 
Critical habitat vital to the conservation of loach minnow includes 
small to large perennial streams with shallow, turbulent riffles, 
primarily cobble substrate, and swift currents (Minckley 1973, Propst 
and Bestgen 1991, Rinne 1989, Propst et al. 1988). As with spikedace, 
the historical range of loach minnow encompassed most of the Gila River 
Basin. The loach minnow now occupies approximately 15 percent of its 
historical range, and is found in Graham, Greenlee, and Pinal counties 
in Arizona and Catron, Grant, and Hidalgo counties in New Mexico.
    For each stream reach, the upstream and downstream boundaries are 
described below. Additionally, critical habitat includes the stream 
channels within the identified stream reaches and areas within these 
reaches potentially inundated during high flow events. As described in 
the ``Primary Constituent Elements'' section above, critical habitat 
includes the area of bankfull width plus 300 feet on either side of the 
banks. This 300-foot width defines the lateral extent of each area of 
critical habitat that contains sufficient PCEs to provide for

[[Page 75557]]

one or more of the life history functions of the spikedace and loach 
minnow.
    We determined the 300-foot lateral extent for several reasons. 
First, the implementing regulations of the Act require that critical 
habitat be defined by reference points and lines as found on standard 
topographic maps of the area (50 CFR 424.12). Although we considered 
using the 100-year floodplain, as defined by the Federal Emergency 
Management Agency (FEMA), we found that it was not included on standard 
topographic maps, and the information was not readily available from 
FEMA or from the Army Corps of Engineers for the areas we are proposing 
to designate. We suspect this is related to the remoteness of many of 
the stream reaches where these species occur. Therefore, we selected 
the 300-foot lateral extent, rather than some other delineation, for 
three biological reasons: (1) The biological integrity and natural 
dynamics of the river system are maintained within this area (i.e., the 
floodplain and its riparian vegetation provide space for natural 
flooding patterns and latitude for necessary natural channel 
adjustments to maintain appropriate channel morphology and geometry, 
store water for slow release to maintain base flows, provide protected 
side channels and other protected areas, and allow the river to meander 
within its main channel in response to large flow events); (2) 
conservation of the adjacent riparian area also helps provide essential 
nutrient recharge and protection from sediment and pollutants; and (3) 
vegetated lateral zones are widely recognized as providing a variety of 
aquatic habitat functions and values (e.g., aquatic habitat for fish 
and other aquatic organisms, moderation of water temperature changes, 
and detritus for aquatic food webs) and help improve or maintain local 
water quality (see U.S. Army Corps of Engineers' final notice 
concerning Issuance and Modification of Nationwide Permits, March 9, 
2000, 65 FR 12818-12899).
    Among other things, the floodplain provides space for natural 
flooding patterns and latitude for necessary natural channel 
adjustments to maintain channel morphology and geometry. We believe a 
relatively intact riparian area, along with periodic flooding in a 
relatively natural pattern, are important in maintaining the stream 
conditions necessary for long-term survival and recovery of the 
spikedace and loach minnow.
    Conservation of the river channel alone is not sufficient to ensure 
the survival and recovery of the spikedace and loach minnow. For the 
reasons discussed above, we believe the riparian corridors adjacent to 
the river channel provide an important function within the areas 
proposed for designation of critical habitat.
    The proposed designation of critical habitat for both spikedace and 
loach minnow includes five complexes totaling approximately 803 miles 
(1024.7 km) of stream reaches (see Tables 1 and 2 below). The proposed 
critical habitat areas described below constitute our best assessment 
at this time of areas determined to be occupied at the time of listing, 
are considered to be within the geographical range occupied by either 
the spikedace or loach minnow, or have been determined to be occupied 
following the listing and are considered to contain features essential 
to the conservation of the spikedace or loach minnow. All areas 
proposed as critical habitat and areas proposed for exclusion contain 
sufficient PCEs to support one or more of the life history functions of 
the spikedace or loach minnow and are areas that may require special 
management and protection. Unless otherwise indicated, the following 
areas identified in Table 1 and in the unit descriptions below, are 
proposed for designation as critical habitat for both spikedace and 
loach minnow (see the ``Proposed Regulation Promulgation'' section of 
this rule below for exact descriptions and distances of boundaries). 
The proposal includes portions of 10 streams for spikedace and 23 
streams for loach minnow; however, individual streams are not isolated, 
but are connected with others to form areas or ``complexes.''

 Table 1.--Locations of Spikedace and Loach Minnow Stream Segments Proposed for Critical Habitat, Threats to the
  Species, Stream Segments Proposed for Exclusion From Critical Habitat (i.e., Eagle Creek and East Fork White
                 River), Last Year of Documented Occupancy, and Source of Occupancy Information
----------------------------------------------------------------------------------------------------------------
                                                           Last year       Critical habitat
  Spikedace and/or loach minnow         Threats            occupancy       distance in miles        Source
     critical habitat areas                                confirmed             (km)
----------------------------------------------------------------------------------------------------------------
                                             Complex 1--Verde River
----------------------------------------------------------------------------------------------------------------
Verde River:
    Spikedace...................  Nonnative fish      1999..............  106.5 mi (171.4     HDMS, Rinne 2002,
                                   species, grazing,                       km).                SONFishes.
                                   water diversions.
---------------------------------
                                         Complex 2--Black River Complex
----------------------------------------------------------------------------------------------------------------
Boneyard Creek:
    Loach minnow................  Recreational        1996..............  1.4 mi (2.3 km)...  Service files,
                                   pressures,                                                  HDMS, SONFishes.
                                   nonnative fish
                                   species, recent
                                   fire and related
                                   retardant
                                   application, ash,
                                   and sediment.
East Fork Black:
    Loach minnow................  Recreational        1996..............  5.5 mi (8.8 km)...  Service files,
                                   pressures,                                                  HDMS, SONFishes.
                                   nonnative fish
                                   species, recent
                                   fire and related
                                   retardant
                                   application, ash,
                                   and sediment.
North Fork East Fork Black:

[[Page 75558]]

 
    Loach minnow................  Recreational        2004..............  11.2 mi (18.0 km).  Bagley et al.
                                   pressures,                                                  1996, HDMS,
                                   nonnative fish                                              SONFishes, M.
                                   species, recent                                             Richardson, USFWS
                                   fire and related                                            pers. comm. 2004.
                                   retardant
                                   application, ash,
                                   and sediment.
East Fork White River:
    Loach minnow................  Water diversions,   Currently occupied  12.5 mi (20.1 km).  HDMS, SONFishes.
                                   recreation.         (proposed for
                                                       exclusion).
---------------------------------
                              Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek
----------------------------------------------------------------------------------------------------------------
Aravaipa Creek:
    Spikedace...................  Fire, some          2005..............  28.1 mi (45.3 km).  Rienthal 2005;
    Loach minnow................   recreational       2005..............                       HDMS, SONFishes,
                                   pressure, low                                               Service Files.
                                   nonnative
                                   pressures, water
                                   diversion.
Deer Creek:
    Loach minnow................  Fire, some          2005..............  2.3 mi (3.6 km)...  Rienthal 2005;
                                   recreational                                                HDMS, SONFishes,
                                   pressure, low                                               Service Files.
                                   nonnative
                                   pressures.
Turkey Creek:
    Loach minnow................  Fire, some          2005..............  2.7 mi (4.3 km)...  Rienthal 2005;
                                   recreational                                                HDMS, SONFishes,
                                   pressure, low                                               Service Files.
                                   nonnative
                                   pressures.
Gila River--Ashurst-Hayden Dam
 to San Pedro:
    Spikedace...................  Water diversions,   1991..............  39.0 mi (62.8 km).  HDMS, Jakle 1992,
                                   grazing,                                                    SONFishes.
                                   nonnative fish
                                   species.
San Pedro River: (lower):
    Spikedace...................  Water diversions,   1996..............  13.4 mi (21.5 km).  Service files,
                                   grazing,                                                    HDMS, SONFishes.
                                   nonnative fish
                                   species, mining.
---------------------------------
                                    Complex 4--San Francisco and Blue Rivers
----------------------------------------------------------------------------------------------------------------
Eagle Creek:
    Spikedace...................  Grazing, nonnative  1989..............  45.3 mi (72.9 km).  Bagley and Marsh
    Loach minnow................   fish species,      1997 (a portion of                       1997, HDMS,
                                   water diversions,   Eagle Creek is                          Knowles 1994,
                                   mining.             proposed for                            Marsh et al.
                                                       exclusion).                             2003, SONFishes,
                                                                                               Service Files.
San Francisco River:
    Loach minnow................  Grazing, water      2001..............  126.5 mi (203.5     HDMS, SONFishes,
                                   diversions,                             km).                Propst 2002.
                                   nonnative fish
                                   species, road
                                   construction.
Tularosas River:
    Loach minnow................  Grazing, watershed  2001..............  18.6 mi (30.0 km).  SONFishes, Propst
                                   disturbances.                                               2002, USFWS 1983.
Frieborn Creek:
    Loach minnow................  Unknown...........  1998..............  1.1 mi (1.8 km)...  SONFishes.
Negrito Creek:
    Loach minnow................  Grazing; watershed  1998..............  4.2 miles (6.8 km)  D. Propst pers.
                                   disturbances.                                               com. 2005.
Whitewater Creek:
    Loach minnow................  Grazing, watershed  1984..............  1.1 mi (1.8 km)...  Propst et al.
                                   disturbances.                                               1988, SONFishes.
Blue River:
    Loach minnow................  Water diversions;   2004..............  51.1 miles (82.2    Carter 2004, HDMS,
                                   nonnative fish                          km).                SONFishes, Propst
                                   species,                                                    2002, USFWS 1983.
                                   livestock
                                   grazing, road
                                   construction.
Campbell Blue Creek:
    Loach minnow................  Grazing, nonnative  2004..............  8.1 mi (13.1 km)..  Carter 2004, HDMS,
                                   fish species.                                               SONFishes.
Little Blue Creek:
    Loach minnow................  Grazing, nonnative  1981..............  2.8 mi (4.5 km)...  HDMS, SONFishes.
                                   fish species.

[[Page 75559]]

 
Dry Blue Creek:
    Loach minnow................  Grazing...........  1948..............  3.0 mi (4.8 km)...  SONFishes.
Pace Creek:
    Loach minnow................  Grazing, nonnative  1998..............  0.8 mi (1.2 km)...  SONFishes.
                                   fish species.
---------------------------------
                                           Complex 5--Upper Gila River
----------------------------------------------------------------------------------------------------------------
East Fork Gila River:
    Spikedace...................  Grazing, nonnative  2001..............  26.1 mi (42.0 km).  Propst 2002,
    Loach minnow................   fish species.      2001..............                       Propst et al.
                                                                                               1998, SONFishes.
Upper Gila River:
    Spikedace...................  Recreation, roads,  2005..............  102.1 mi (164.3     Propst 2002,
    Loach minnow................   grazing,           2005..............   km).                Service 1983,
                                   nonnative fish                                              SONFishes,
                                   species, water                                              Unpubl. data
                                   diversion.                                                  2005.
Middle Fork Gila River:
    Spikedace...................  Nonnative fish      1995..............  7.7 mi (12.3 km)..  Propst 2002,
    Loach minnow................   species, Grazing.  1998..............  11.9 mi (19.1 km).   SONFishes.
West Fork Gila River:
    Spikedace...................  Nonnative fish      2005..............  7.7 miles (12.4     Propst 2002,
    Loach minnow................   species, grazing,  2002..............   km).                SONFishes,
                                   roads.                                                      Unpubl. data
                                                                                               2005.
----------------------------------------------------------------------------------------------------------------

    Table 2 below provides approximate area (mi/km) determined to meet 
the definition of critical habitat for the spikedace and loach minnow 
and the areas proposed for exclusion from the final critical habitat 
designation by State.

 Table 2.--Approximate Proposed Critical Habitat in Stream Kilometers (km) and Miles (mi) by State and Landowner
----------------------------------------------------------------------------------------------------------------
                  Land owner                     New Mexico  mi (km)    Arizona  mi (km)       Total  mi (km)
----------------------------------------------------------------------------------------------------------------
Federal.......................................       198.50 (319.45)       167.71 (269.90)       366.21 (589.35)
Tribal........................................         33.00 (53.11)                 0 (0)         33.00 (53.11)
State.........................................          8.32 (13.39)           1.32 (2.12)          9.64 (15.51)
County........................................             0.0 (0.0)             0.0 (0.0)             0.0 (0.0)
Private.......................................       134.44 (216.36)        89.73 (144.40)       224.17 (360.76)
                                               -----------------------
    Total.....................................       374.26 (602.32)       258.75 (416.42)      633.01 (1018.74)
----------------------------------------------------------------------------------------------------------------


  Table 3.--Areas Determined To Meet the Definition of Critical Habitat
 for the Spikedace and Loach Minnow and the Areas Proposed for Exclusion
      From the Final Critical Habitat Designation [ac (ha)/mi (km)]
------------------------------------------------------------------------
                                   Meeting the       Area proposed  for
                                  definition of      exclusion from the
  State or geographic area      critical habitat       final critical
                                  area  (miles/      habitat designation
                                   kilometers)        (acres/hectares)
------------------------------------------------------------------------
Arizona.....................       374.26 (602.32)         29.67 (47.76)
New Mexico..................       258.75 (416.42)                 0 (0)
                             -----------------------
    Total...................      633.01 (1018.74)         29.67 (47.76)
------------------------------------------------------------------------

    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 4.

[[Page 75560]]



  Table 4.--Critical Habitat Units Proposed for the Spikedace and Loach
                                 Minnow
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
             Critical habitat unit                   Mi           Km
------------------------------------------------------------------------
1. Verde River................................       106.53       171.44
2. Black River................................        30.58        49.21
3. Lower San Pedro/Gila River/Aravaipa Creek..        85.46       137.53
4. Gila Box/San Francisco River...............       262.58       422.58
5. Upper Gila River...........................       147.87       237.97
                                               --------------
    Total.....................................       633.01      1018.74
------------------------------------------------------------------------

Complex 1--Verde River Complex--Yavapai County, Arizona

    The Verde River Complex was occupied by spikedace at the time of 
listing, and is still considered to be occupied based on surveys 
documenting spikedace presence as recently as 1999. This complex was 
also historically occupied by loach minnow. At this time, the tributary 
streams of the Verde River are believed to be unoccupied by both 
species and are not being proposed as critical habitat. The Verde River 
Complex is unusual in that a relatively stable thermal and hydrologic 
regime is found in the upper river and in Fossil Creek, one of the 
tributaries to the Verde River. Also, spikedace in the Verde River are 
genetically (Tibbets 1993) and morphologically (Anderson and 
Hendrickson 1994) distinct from all other spikedace populations. The 
Verde River contains one or more of the primary constituent elements, 
including shear zones, sheet flow, and eddies, and an appropriate prey 
base. The continuing presence of spikedace and the existence of 
features that are essential to the conservation of the species create a 
high potential for restoration of loach minnow to the Verde River 
system. Threats to this critical habitat area requiring special 
management and protections include water diversions, grazing, and 
nonnative fish species (see Table 1 above).
    The landownership of this complex consists of large blocks of USFS 
lands in the upper and lower reaches, with significant areas of private 
ownership in the Verde Valley. There are also lands belonging to 
Arizona State Parks, Yavapai Apache Tribe, and the AGFD. The Verde 
River divides the west and east halves of the Prescott National Forest, 
and passes by or through the towns of Camp Verde, Middle Verde, 
Bridgeport, Cottonwood, and Clarkdale.
    Verde River Complex--Spikedace Only--106.5 miles (171.4 km) of 
river extending from the confluence with Fossil Creek upstream to 
Sullivan Dam at Township 17 North, Range 2 West, section 15, including 
lands belonging to the Yavapai Apache Tribe. Sullivan Dam is at the 
upstream limit of perennial flow in the mainstem of the Verde River. 
Perennial flow results from a series of river-channel springs and from 
Granite Creek. The Verde River contains features essential to the 
conservation of the spikedace between its headwaters and Fossil Creek. 
These portions of the Verde River provide a relatively stable thermal 
and hydrologic regime suitable for spikedace. Below Fossil Creek, the 
Verde River has a larger flow and is thought to offer little suitable 
habitat for spikedace or loach minnow. However, this is historical 
range for both species, and comments on previous critical habitat 
designations from the U.S. Forest Service (USFS) indicated this stretch 
of the river may offer substantial value for spikedace and loach minnow 
recovery. We will continue to seek further information regarding the 
Verde River and its role in conservation for these two species and may 
consider designation of the Verde River below Fossil Creek in future 
potential revisions of critical habitat. We are working with the 
Yavapai Apache Tribe on the development of a management plan for their 
lands. On the basis of our partnership with the Tribe, and in 
anticipation of completion of a native fishes management plan, the 
portion of the Verde River belonging to the Yavapai Apache Tribe may be 
excluded from final critical habitat pursuant to section 4(b)(2) of the 
Act (see ``Relationship of Critical Habitat to Tribal Lands'' section 
below for additional information).

Complex 2--Black River Complex--Apache and Greenlee Counties, Arizona

    The Salt River Sub-basin represents a significant portion of loach 
minnow historical range; however, loach minnow have been extirpated 
from all but a small portion of the Black and White Rivers. As the only 
remaining population of loach minnow on public lands in the Salt River 
Sub-basin, the Black River Complex is considered vital to the species.
    We propose streams within this complex as critical habitat for 
loach minnow only. At this time, spikedace are not known to 
historically occupy areas at this elevation; however, the data on 
maximum elevation for spikedace are not definitive and if information 
becomes available that differs from that currently available, the Black 
River complex may be reevaluated for spikedace critical habitat 
designation in a future revision. Portions of the sub-basin are 
unsuitable, either because of topography or because of the presence of 
reservoirs, stream channel alteration by humans, or overwhelming 
nonnative fish populations. However other areas within the sub-basin 
remain suitable. Threats in this complex requiring special management 
include grazing, nonnative fish, recreation, and sedimentation 
resulting from a recent fire that destroyed vegetation (see Table 1). 
The ownership of this complex is predominantly USFS, with a few small 
areas of private land. All streams within the complex are within the 
boundaries of the Apache-Sitgreaves National Forest and include lands 
of the White Mountain Apache Tribe.
    (1) East Fork Black River--Loach Minnow Only--5.5 miles (8.8 km) of 
river extending from the confluence with the West Fork Black River 
upstream to the confluence with Deer Creek. This area is considered 
occupied based on records from 1996, it is connected to the North Fork 
East Fork Black River with documented loach minnow records from 2004, 
and contains one or more of the primary constituent elements including 
sufficient flow velocities and appropriate gradients, substrates, 
depths, and habitat types (i.e., pools, riffles).
    (2) North Fork East Fork Black River--Loach Minnow Only--11.2 miles 
(18.0 km) of river extending from the confluence with Deer Creek 
upstream to the confluence with an unnamed tributary. This area is 
occupied by loach minnow based on surveys documenting presence of loach 
minnow as recently as 2004. Above the unnamed tributary, the

[[Page 75561]]

river has finer substrate and lacks riffle habitat, making it 
unsuitable for loach minnow.
    (3) Boneyard Creek--Loach Minnow Only--1.4 miles (2.3 km) of creek 
extending from the confluence with the East Fork Black River upstream 
to the confluence with an unnamed tributary. Boneyard Creek contains 
one or more of the primary constituent elements, including sufficient 
flow velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., pools, riffles). This area is considered to be 
occupied based on records from 1996; it is also connected to the North 
Fork East Fork Black River which has documented loach minnow records 
from 2004. This area represents part of the only occupied complex in 
the Salt River basin.
    (4) East Fork White River--Loach Minnow Only--12.5 miles (20.1 km) 
of the East Fork White River extending from the confluence with the 
North Fork White River and the East Fork White River at Township 5 
North, Range 22 East, section 35 upstream to Township 5 North, Range 23 
East, southeast quarter of section 13. This area was occupied by loach 
minnow at the time of listing and is still considered occupied. This 
segment of the East Fork White River contains sufficient features to 
support one or more of the life history functions of the loach minnow. 
Threats in this segment requiring special management include water 
diversions and recreation. The entirety of this reach is located on 
lands belonging to the White Mountain Apache Tribe. A management plan 
for loach minnow has been in place on these lands since 2000. On the 
basis of this plan and our partnership with the White Mountain Apache 
Tribe, we are proposing to exclude this area from final critical 
habitat pursuant to section 4(b)(2) of the Act (see ``Relationship of 
Critical Habitat to Tribal Lands'' section below for additional 
information).

Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek Complex--Pinal 
and Graham Counties, Arizona

    The portions of this complex being proposed for critical habitat 
are within the geographical range occupied by both spikedace and loach 
minnow and contain the features essential to the conservation of these 
species. Aravaipa Creek supports the largest remaining spikedace and 
loach minnow populations in Arizona. Threats in this complex requiring 
special management include water diversions, grazing, nonnative fish, 
recreation, and mining (see Table 1). This area includes extensive BLM 
land as well as extensive private land, some State of Arizona lands, 
and a small area of allotted land, used by the San Carlos Apache Tribe. 
The lower portions of the Gila River are BOR lands.
    (1) Gila River--Spikedace Only--39.0 miles (62.8 km) of river 
extending from the Ashurst-Hayden Dam upstream to the confluence with 
the San Pedro River. Spikedace were located in the Gila River in 1991 
(Jakle 1992), and the Gila River is connected with Araviapa Creek, 
which supports the largest remaining spikedace population. Those 
portions of the Gila River proposed for designation contain one or more 
of the primary constituent elements, including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., pools, riffles). Above the confluence with the San Pedro 
River, flow in the Gila River is highly regulated by the San Carlos Dam 
and does not contain the features essential to the conservation of 
either species. Below the confluence, the input of the San Pedro 
provides a sufficiently unregulated hydrograph, which is a feature 
essential to the conservation of the spikedace. Threats in this area 
requiring special management include water diversions, grazing, and 
nonnative fish species. This river is part of the complex that contains 
the largest remaining population of spikedace and loach minnow and 
contains the features essential to the conservation of the species.
    (2) Lower San Pedro River--Spikedace Only--13.4 miles (21.5 km) of 
river extending from the confluence with the Gila River upstream to the 
confluence with Aravaipa Creek. This area was occupied at the time of 
listing and is connected with Araviapa Creek, which supports the 
largest remaining spikedace population. This portion of the San Pedro 
River contains one or more of the primary constituent elements, 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Existing 
flow in the river comes from surface and subsurface contributions from 
Aravaipa Creek. Threats in this area requiring special management 
include water diversions, nonnative fish, grazing, and mining. This 
river is part of the complex that contains the largest remaining 
population of spikedace and loach minnow and contains the features 
essential to the conservation of the species.
    (3) Aravaipa Creek--28.1 miles (45.3 km) of creek extending from 
the confluence with the San Pedro River upstream to the confluence with 
Stowe Gulch, which is where the upstream limit of sufficient perennial 
flow ends for either species. Aravaipa Creek was occupied by both 
spikedace and loach minnow at the time of listing, and continues to 
support a substantial population of both species (Service files 2005). 
Aravaipa Creek contains one or more of the primary constituent 
elements, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., pools, 
riffles). Threats in this area requiring special management include 
water diversions, nonnative fish, and recreational pressures (see Table 
1).
    (4) Turkey Creek--Loach Minnow Only--2.7 miles (4.3 km) of creek 
extending from the confluence with Aravaipa Creek upstream to the 
confluence with Oak Grove Canyon. This creek was occupied at the time 
of listing and is currently occupied by loach minnow (Rienthal, 
University of Arizona, pers. comm. 2004). Turkey Creek contains one or 
more of the primary constituent elements, including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., pools, riffles). Threats to this area requiring special 
management are generally the same for Aravaipa Creek, and include water 
diversions, nonnative fish, and recreational pressure (see Table 1). 
This creek is part of the complex that contains the largest remaining 
population of spikedace and loach minnow and contains the features 
essential to the conservation of the species.
    (5) Deer Creek--Loach Minnow Only--2.3 miles (3.6 km) of creek 
extending from the confluence with Aravaipa Creek upstream to the 
boundary of the Aravaipa Wilderness. This stream was occupied at the 
time of listing and is currently occupied by loach minnow (Rienthal, 
University of Arizona, pers. comm. 2004). Deer Creek contains one or 
more of the primary constituent elements important to loach minnow, 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). The 
threats to loach minnow in this area are similar to those for Aravaipa 
Creek, including water diversions, nonnative fish, and recreation. This 
creek is part of the complex that contains the largest remaining 
population of spikedace and loach minnow and contains the features 
essential to the conservation of the species.

[[Page 75562]]

Complex 4--San Francisco and Blue Rivers Complex--Graham and Greenlee 
Counties, Arizona and Catron County, New Mexico

    The streams in this complex are within the geographical range 
occupied by the loach minnow and/or the spikedace. The Blue River 
system and adjacent portions of the San Francisco River constitute the 
longest stretch of occupied loach minnow habitat unbroken by large 
areas of unsuitable habitat. Threats in this complex are described in 
the individual stream reaches below. This complex contains extensive 
USFS land, some BLM land, and scattered private, State of Arizona, and 
New Mexico Department of Game and Fish (NMDGF) lands.
    (1) Eagle Creek--45.3 miles (72.9 km) of creek extending from the 
Phelps-Dodge Diversion Dam upstream to the confluence of Dry Prong and 
East Eagle Creeks, including lands of the San Carlos Apache 
Reservation. Eagle Creek was occupied by spikedace and loach minnow at 
the time of listing. The most current records of occupancy in Eagle 
Creek are 1987 for spikedace and 1997 for loach minnow. Eagle Creek 
contains one or more of the primary constituent elements important to 
spikedace and loach minnow, including sufficient flow velocities and 
appropriate gradients, substrates, depths, and habitat types (i.e., 
pools, riffles). Threats within this area that require special 
management include water diversions, grazing, nonnative fish, and 
mining (see Table 1).
    A section of Eagle Creek approximately 17.2 miles (27.7 km) long 
occurs on the San Carlos Apache Reservation. We have received a 
management plan from the San Carlos Apache Tribe addressing native 
fishes. On the basis of this plan and our partnership with the San 
Carlos Apache Tribe, we are proposing to exclude this area from final 
critical habitat pursuant to section 4(b)(2) of the Act (see 
``Relationship of Critical Habitat to Tribal Lands'' section below for 
additional information).
    (2) San Francisco River--Loach Minnow Only--126.5 miles (203.5 km) 
of river extending from the confluence with the Gila River upstream to 
the mouth of The Box, a canyon above the town of Reserve. Loach minnow 
occupied the San Francisco River at the time of listing and still 
occupy it presently (Propst 2002). The San Francisco River contains one 
or more of the primary constituent elements important to loach minnow, 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Threats 
to this area requiring special management include water diversions, 
grazing, and nonnative fish species (see Table 1).
    (3) Tularosa River--Loach Minnow Only--18.6 miles (30.0 km) of 
river extending from the confluence with the San Francisco River 
upstream to the town of Cruzville. Above Cruzville, the river does not 
contain the features essential to the conservation of the species 
because of the small size of the stream and a predominance of fine 
substrates. This area includes one or more of the primary constituent 
elements important to loach minnow, including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., pools, riffles). The Tularosa River was occupied at the 
time of listing and is known to be currently occupied based on records 
as recent as 2001. Threats to the species and its habitat in this area 
that require special management include grazing and nonnative fish (see 
Table 1).
    (4) Negrito Creek--Loach Minnow Only--4.2 miles (6.8 km) of creek 
extending from the confluence with the San Francisco River upstream to 
the confluence with Cerco Canyon. Above this area, the creek does not 
contain the features essential to the conservation of the species 
because of gradient and channel morphology. Negrito Creek has been 
occupied since listing, with the most recent record from 1998 (Service 
Files 2005). This area contains one or more of the primary constituent 
elements important to loach minnow, including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., pools, riffles). Threats to this area requiring special 
management include grazing and nonnative fish (see Table 1). This 
stream contains the features essential to the conservation of the 
species and one of the few remaining populations of the species. The 
area is currently occupied, and it is directly connected to the 
Tularosa River, which is also occupied with records dating from 2001.
    (5) Whitewater Creek--Loach Minnow Only--1.1 miles (1.8 km) of 
creek extending from the confluence with the San Francisco River 
upstream to the confluence with the Little Whitewater Creek. Upstream 
of this area the river does not contain the features essential to the 
conservation of the species because of gradient and channel changes 
that make the portion above Little Whitewater Creek unsuitable for 
loach minnow. Whitewater Creek was occupied at the time of listing, and 
is currently occupied as it is within an area connected with the San 
Francisco River where loach minnow records exist from 2001. This area 
does support one or more primary constituent elements for loach minnow, 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Threats 
to this area include grazing and nonnative fish (see Table 1).
    (6) Blue River--Loach Minnow Only--51.1 miles (82.2 km) of river 
extending from the confluence with the San Francisco River upstream to 
the confluence of Campbell Blue and Dry Blue Creeks. The Blue River was 
occupied at the time of listing and continues to be occupied by loach 
minnow (Carter 2004). The Blue River contains one or more of the 
primary constituent elements required by loach minnow, including 
sufficient flow velocities and appropriate gradients, substrates, 
depths, and habitat types (i.e., pools, riffles). Planning is underway 
among several State and Federal agencies for reintroduction of native 
fishes, including spikedace, in the Blue River, and thus the Blue River 
may be considered for spikedace critical habitat in future revisions of 
the designation. Threats in this area include water diversions, 
grazing, nonnative fish, and roads (see Table 1).
    (7) Campbell Blue Creek--Loach Minnow Only--8.1 miles (13.1 km) of 
creek extending from the confluence of Dry Blue and Campbell Blue 
Creeks upstream to the confluence with Coleman Canyon. Areas above 
Coleman Canyon do not contain the features essential to the 
conservation of the species because the creek changes and becomes 
steeper and rockier, making it unsuitable for spikedace or loach 
minnow. Campbell Blue Creek is currently occupied (Carter 2004) and 
supports one or more of the velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Threats 
to this area include grazing and nonnative fish species (see Table 1).
    (8) Dry Blue Creek--Loach Minnow Only--3.0 miles (4.8 km) of creek 
extending from the confluence with Campbell Blue Creek upstream to the 
confluence with Pace Creek. Dry Blue Creek has been occupied by loach 
minnow since listing and is connected with Campbell Blue Creek, which 
has documented loach minnow records as recent as 2004. This area also 
contains one or more of the primary constituent elements required by 
loach minnow, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., pools, 
riffles). Threats to this area requiring

[[Page 75563]]

special management include grazing and nonnative fish species (see 
Table 1).
    (9) Pace Creek--Loach Minnow Only--0.8 miles (1.2 km) of creek 
extending from the confluence with Dry Blue Creek upstream to a barrier 
falls. Pace Creek has been occupied by loach minnow since listing with 
the most recent record from 1998. This area also contains one or more 
of the primary constituent elements required by loach minnow, including 
sufficient flow velocities and appropriate gradients, substrates, 
depths, and habitat types (i.e., pools, riffles). Threats to this area 
requiring special management include grazing and nonnative fish species 
(see Table 1).
    (10) Frieborn Creek--Loach Minnow Only--1.1 miles (1.8 km) of creek 
extending from the confluence with Dry Blue Creek upstream to an 
unnamed tributary. Frieborn Creek has been occupied by loach minnow 
since listing with the most recent record from 1998. This area also 
contains one or more of the primary constituent elements required by 
loach minnow, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., pools, 
riffles). Threats to this area requiring special management include 
grazing and nonnative fish species (see Table 1).
    (11) Little Blue Creek--Loach Minnow Only--2.8 miles (4.5 km) of 
creek extending from the confluence with the Blue River upstream to the 
mouth of a canyon. Little Blue Creek was occupied at the time of 
listing and is connected with the Blue River, which has documented 
loach minnow records as recent as 2004. This area also contains one or 
more of the primary constituent elements required by loach minnow and 
is connected to the Blue River. Threats requiring special management in 
this area include grazing and nonnative fish (see Table 1).

Complex 5--Upper Gila River Complex--Grant, Catron, and Hidalgo 
counties, New Mexico

    This complex is occupied by spikedace and loach minnow and contains 
the largest remaining populations of both species in New Mexico. It is 
considered to represent the ``core'' of what remains of these species. 
Threats requiring special management in this area are addressed in each 
of the individual stream segment descriptions below. The largest areas 
are on USFS land, with small private inholdings. There are large areas 
of private lands in the Cliff-Gila Valley, and the BLM administers 
significant stretches upstream of the Arizona/New Mexico border. There 
are also small areas of NMDGF, National Park Service, and State of New 
Mexico lands.
    (1) Upper Gila River--102.1 miles (164.3 km) of river extending 
from the confluence with Moore Canyon (near the Arizona/New Mexico 
border) upstream to the confluence of the East and West Forks of the 
Gila River. The Gila River was occupied by spikedace and loach minnow 
at the time of listing and continues to be occupied by both species 
(Propst 2002, Propst et al. 1988, Rinne 1999b). The Gila River from its 
confluence with the West Fork Gila and East Fork Gila contains one or 
more primary constituent elements for spikedace and loach minnow, 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Threats 
to this area requiring special management include water diversions, 
grazing, recreation, road construction, and nonnative fish species (see 
Table 1).
    (2) East Fork Gila River--26.1 miles (42.0 km) of river extending 
from the confluence with the West Fork Gila River upstream to the 
confluence of Beaver and Taylor creeks. This area was occupied by both 
species at the time of listing and both species have been found there 
as recently as 2001 (Propst 2002). In addition, this area is connected 
to habitat currently occupied by spikedace and loach minnow on the West 
Fork of the Gila River. Portions of the East Fork Gila River contain 
one or more of the primary constituent elements required by spikedace 
and loach minnow including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., pools, 
riffles). Threats to this area requiring special management include 
grazing and nonnative fish species (See Table 1).
    (3) Middle Fork Gila River--Spikedace Only--7.7 miles (12.3 km) of 
river extending from the confluence with the West Fork Gila River 
upstream to the confluence with Big Bear Canyon. This area is currently 
occupied, and is connected to currently occupied habitat on the West 
Fork of the Gila River (Propst 2002). The Middle Fork Gila River 
contains one or more of the primary constituent elements required by 
spikedace, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., pools, 
riffles). Threats to this area requiring special management include 
grazing and nonnative fish species (See Table 1).
    (4) Middle Fork Gila River--Loach Minnow Only--11.9 miles (19.1 km) 
of river extending from the confluence with the West Fork Gila River 
upstream to the confluence with Brothers West Canyon. This area is 
currently occupied and is connected to currently occupied habitat on 
the West Fork of the Gila River. Portions of the Middle Fork Gila River 
contain one or more primary constituent elements required by loach 
minnow, including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Threats 
to this area requiring special management include grazing and nonnative 
fish species (See Table 1).
    (5) West Fork Gila River--7.7 miles (12.4 km) of river extending 
from the confluence with the East Fork Gila River upstream to the 
confluence with EE Canyon. This lower portion of the West Fork was 
occupied by both spikedace and loach minnow at the time of listing and 
continues to be occupied by both species. This area contains one or 
more primary constituent elements required by spikedace and loach 
minnow, including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., pools, riffles). Above EE 
Canyon, the river does not contain the features essential to the 
conservation of the species due to gradient and channel morphology. 
Threats to this area requiring special management include grazing and 
nonnative fish species (See Table 1).

Proposed Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use the provision outlined 
in section 4(b)(2) of the Act to evaluate those specific areas that 
contain the features essential to the conservation of the species to 
determine which areas to propose and subsequently finalize (i.e., 
designate) as critical habitat. On the basis of our preliminary 
evaluation, discussed in detail below, we are proposing to exclude 
certain lands from the designation of critical habitat for the 
spikedace and loach minnow. In the development of our final 
designation, we will incorporate or address any new

[[Page 75564]]

information received during the public comment periods, or from our 
evaluation of the potential economic and environmental impacts of this 
proposal. As such, we may revise this proposal to address new 
information and/or to exclude additional areas that may warrant 
exclusion pursuant to section 4(b)(2).
    Areas excluded pursuant to section 4(b)(2) may include, but are not 
limited to, those covered by: (1) Legally operative Habitat 
Conservation Plans (HCPs) that cover the species and provide assurances 
that the conservation measures for the species will be implemented and 
effective; (2) draft HCPs that cover the species, have undergone public 
review and comment, and provide assurances that the conservation 
measures for the species will be implemented and effective (i.e., 
pending HCPs); (3) Tribal conservation plans that cover the species and 
provide assurances that the conservation measures for the species will 
be implemented and effective; (4) State conservation plans that provide 
assurances that the conservation measures for the species will be 
implemented and effective; and (5) National Wildlife Refuge System 
Comprehensive Conservation Plans (CCPs) that provide assurances that 
the conservation measures for the species will be implemented and 
effective.
    Within the areas containing the features essential to the 
conservation of the species for spikedace and loach minnow in Arizona 
and New Mexico, there are Tribal lands; however, there are no lands 
owned by the Department of Defense, National Wildlife Refuges, or 
private lands with legally operative HCPs or draft HCPs. We have 
determined that the following tribes have lands containing features 
essential to the conservation of the spikedace and loach minnow: 
Yavapai Apache, San Carlos Apache, and White Mountain Apache. In making 
our final decision with regard to tribal lands, we will be considering 
several factors including our relationship with the Tribe or Nation and 
whether a management plan has been developed for the conservation of 
the spikedace and loach minnow on their lands. The White Mountain 
Apache completed a final management plan in 2000 that we have in our 
records and we have also received a final management plan from the San 
Carlos Apache Tribe. We are proposing to exclude lands of the San 
Carlos Apache Tribe and lands of the White Mountain Apache Tribe, as 
discussed in further detail below. We will continue to work with the 
Yavapai-Apache Nation during the comment period on the development of a 
management plan for their lands. We note that lands of the Yavapai-
Apache Nation may be considered for exclusion in the final rule and 
that any exclusions made in the final rule will be the result of a 
reanalysis of any new information received.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species. However, we believe the 
conservation achieved through implementing management plans is 
typically greater than would be achieved through multiple site-by-site, 
project-by-project, section 7 consultations involving consideration of 
critical habitat. Management plans commit resources to implement long-
term management and protection to particular habitat for at least one 
and possibly other listed or sensitive species. Section 7 consultations 
only commit Federal agencies to prevent adverse modification to 
critical habitat caused by the particular project, and they are not 
committed to provide conservation or long-term benefits to areas not 
affected by the proposed project. Thus, any management plan which 
considers enhancement or recovery as the management standard will 
always provide as much or more benefit than a consultation for critical 
habitat designation conducted under the standards required by the Ninth 
Circuit in the Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the spikedace and loach minnow. In general the educational benefit 
of a critical habitat designation always exists, although in some cases 
it may be redundant with other educational effects. For example, 
habitat conservation plans have significant public input and may 
largely duplicate the educational benefit of a critical habitat 
designation. This benefit is

[[Page 75565]]

closely related to a second, more indirect benefit: that designation of 
critical habitat would inform State agencies and local governments 
about areas that could be conserved under State laws or local 
ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the proposed exclusions discussed in this rule because these areas 
are included in this proposed rule as having essential spikedace and/or 
loach minnow features. Consequently, we believe that the informational 
benefits are already provided even though these areas are not 
designated as critical habitat.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.

Relationship of Critical Habitat to American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act--
Proposed Exclusions Under Section 4(b)(2) of the Act

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); 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 relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in many cases, designation of tribal lands as critical habitat 
provides very little additional benefit to threatened and endangered 
species. Conversely, such designation is often viewed by tribes as an 
unwanted intrusion into tribal self governance, thus compromising the 
government-to-government relationship essential to achieving our mutual 
goals of managing for healthy ecosystems upon which the viability of 
threatened and endangered species populations depend.
San Carlos Apache Tribe
    The San Carlos Apache Tribe has one stream within its tribal lands, 
Eagle Creek, that is known to be currently occupied by the spikedace 
and loach minnow and its tribal lands contain features that are 
essential to the conservation of the spikedace and loach minnow. The 
Tribe has completed and is implementing a Fisheries Management Plan 
(FMP) that includes specific management actions for the spikedace and 
loach minnow. In this proposed exclusion, we considered several 
factors, including our relationship with San Carlos Apache Tribe, and 
the degree to which the Tribe's FMP provides specific management for 
the spikedace and loach minnow. Tribal governments protect and manage 
their resources in the manner that is most beneficial to them. The San 
Carlos Apache Tribe exercises legislative, administrative, and judicial 
control over activities within the boundaries of its lands. 
Additionally, the Tribe has natural resource programs and staff and has 
enacted the FMP. In addition, as trustee for land held in trust by the 
United States for Indian Tribes, the Bureau of Indian Affairs (BIA) 
provides technical assistance to the San Carlos Apache Tribe on 
management planning and oversees a variety of programs on their lands. 
Spikedace and loach minnow conservation activities have been ongoing on 
San Carlos Apache tribal lands, and, prior to the completion of their 
FMP, their natural resource management was consistent with management 
of habitat for this species. The development and implementation of the 
efforts formalized in the San Carlos Apache Tribes FMP will continue 
with or without critical habitat designation.
    The San Carlos Apache Tribe highly values its wildlife and natural 
resources, and is charged to preserve and protect these resources under 
the Tribal Constitution. Consequently, the Tribe has long worked to 
manage the habitat of wildlife on its tribal lands, including the 
habitat of endangered and threatened species. We understand that it is 
the Tribe's position that a designation of critical habitat on its 
lands improperly infringes upon its tribal sovereignty and the right to 
self-government.
    The San Carlos Apache Tribes FMP provides assurances and a 
conservation benefit to the spikedace and loach minnow. Implementation 
of the FMP will result in protecting all known spikedace and loach 
minnow habitat on San Carlos Tribal Land and assures no net habitat 
loss or permanent modification will occur in the future. The purpose of 
the FMP includes the long-term conservation of native fishes, including 
the spikedace and loach minnow, on tribal lands. The FMP outlines 
actions to conserve, enhance, and restore spikedace and loach minnow 
habitat, including efforts to eliminate nonnative fishes from spikedace 
and loach minnow habitat. All habitat restoration activities (whether 
it is to rehabilitate or restore native plants) will be conducted under 
reasonable coordination with the Service. All reasonable measures will 
be taken to ensure that recreational activities do not result in a net 
habitat loss or permanent modification of the habitat. All reasonable 
measures will be taken to conduct livestock grazing activities in a 
manner that will ensure the conservation of spikedace and loach minnow 
habitat. Within funding limitations and under confidentiality 
guidelines established by the Tribe, the Tribe will cooperate with the 
Service to monitor and survey spikedace and loach minnow habitat, 
conduct research, perform habitat restoration, remove nonnative fish 
species, or conduct other beneficial spikedace and loach minnow 
management activities.
White Mountain Apache Tribe
    The White Mountain Apache Tribe has one stream within its tribal 
lands, East Fork White River, that is known to be currently occupied by 
loach minnow and its tribal lands contain features that are essential 
to the conservation of the loach minnow. The White Mountain Apache 
Tribe currently has a management plan in place for loach minnow. The 
plan was completed in 2000 and provides for, among other conservation 
measures, inventory and monitoring, water quality protection ordinance, 
captive propagation, and relocation to minimize loss from catastrophic 
events such as fire and drought. Prior to and since the plan was 
developed, the Tribe has actively managed for loach minnow. In this 
proposed exclusion, we considered several factors, including our 
relationship with the White Mountain Apache Tribe, and the degree to 
which the Tribe's management plan provides specific management for the 
loach minnow. Tribal governments protect and manage their resources in 
the manner that is most beneficial to them. The White Mountain Apache 
Tribe exercises legislative, administrative, and judicial control over 
activities within the boundaries of its lands. Additionally, the Tribe 
has natural resource programs and staff and has been managing for the 
conservation of the loach minnow. In addition, as trustee for land held 
in trust by the United States for Indian Tribes, the Bureau of Indian 
Affairs (BIA) provides technical assistance to the White Mountain 
Apache Tribe on management

[[Page 75566]]

planning and oversees a variety of programs on their lands. The 
development and implementation of the efforts formalized in the 
management plan will continue with or without critical habitat 
designation.
    The White Mountain Apache Tribe highly values its wildlife and 
natural resources, and is charged to preserve and protect these 
resources under the Tribal Constitution. Consequently, the Tribe has 
long worked to manage the habitat of wildlife on its tribal lands, 
including the habitat of endangered and threatened species. We 
understand that it is the Tribe's position that a designation of 
critical habitat on its lands improperly infringes upon its tribal 
sovereignty and the right to self-government.
    Below we provide our combined preliminary benefits analysis for the 
proposed exclusion of the tribal lands of the San Carlos Apache Nation 
and the White Mountain Apache Nation.
(1) Benefits of Inclusion
    Including lands of the San Carlos Apache Tribe and the White 
Mountain Apache Tribe in critical habitat would provide some additional 
benefit from section 7 consultation, because we could consult via the 
BIA on actions that could adversely affect critical habitat. Activities 
covered in previous consultations included livestock grazing, 
recreation, fish stocking, fire management, bank stabilization 
projects, and conservation measures that benefited spikedace and/or 
loach minnow. These included monitoring, fence repair (to exclude 
cattle from overusing and thereby damaging habitat), and education 
programs to inform the public of the need to avoid actions that damage 
habitat. However, we note that because the spikedace and loach minnow 
are listed species and are found on these Tribal lands, section 7 
consultation under the jeopardy standard will still be required if 
Tribal or BIA activities would affect spikedace or loach minnow, 
regardless of whether these lands are included in the final critical 
habitat designation. As a result, we expect that inclusion of San 
Carlos Apache and White Mountain Apache tribal lands in the critical 
habitat designation would provide only that additional habitat 
protection accorded by critical habitat as discussed by the Ninth 
Circuit Court of Appeals in the Gifford Pinchot ruling discussed above.
    Nevertheless, few additional benefits would be derived from 
including these Tribal Lands in a spikedace and loach minnow critical 
habitat designation beyond what will be achieved through the 
implementation of their management plans. As noted above, the primary 
regulatory benefit of any designated critical habitat is that federally 
funded or authorized activities in such habitat require consultation 
pursuant to section 7 of the Act. Such consultation would ensure that 
adequate protection is provided to avoid destruction or adverse 
modification of critical habitat. The Tribes of the San Carlos Apache 
and the White Mountain have already agreed under the terms of their 
management plans to protect spikedace and loach minnow habitat (PCEs), 
to ensure no net loss, to coordinate with the Service in order to 
prevent any habitat destruction, and to conduct activities consistent 
with the conservation of the spikedace and loach minnow and their PCEs.
    As discussed above, we expect that little additional educational 
benefit would be derived from designating lands of the Tribes of the 
San Carlos Apache and the White Mountain Apache as critical habitat. 
The additional educational benefits that might arise from critical 
habitat designation are largely accomplished through the multiple 
notice and comments which accompany the development of this proposed 
critical habitat designation, as evidenced by the Tribes working with 
the Service to address habitat and conservation needs for the loach 
minnow. Additionally, we anticipate that the Tribes will continue to 
actively participate in working groups, and provide for the timely 
exchange of management information. The educational benefits important 
for the long-term survival and conservation of the spikedace and loach 
minnow are being realized without designating this area as critical 
habitat. Educational benefits will continue on these lands whether or 
not critical habitat is designated because the Tribes already 
recognizes the importance of those habitat areas to the spikedace and 
loach minnow.
    Another possible benefit is the additional funding that may be 
generated for habitat restoration or improvement by having an area 
designated as critical habitat. In some instances, having an area 
designated as critical habitat may improve the ranking a project 
receives during evaluation for funding. The Tribes often require 
additional sources of funding in order to conduct wildlife-related 
activities. Therefore, having an area designated as critical habitat 
could improve the chances of the Tribes receiving funding for spikedace 
or loach minnow related projects. Additionally, occupancy by spikedace 
or loach minnow also provides benefits to be considered in evaluating 
funding proposals. Because there are areas of occupied habitat on these 
Tribal lands this may also help secure funding for management of these 
areas.
    For these reasons, then, we believe that designation of critical 
habitat would provide some additional benefits.
(2) Benefits of the Proposed Exclusion
    The benefits of excluding San Carlos Apache and White Mountain 
Apache Tribal lands from critical habitat include: (1) The advancement 
of our Federal Indian Trust obligations and our deference to Tribes to 
develop and implement tribal conservation and natural resource 
management plans for their lands and resources, which includes the 
spikedace and loach minnow and other Federal trust species; (2) the 
maintenance of effective working relationships to promote the 
conservation of the spikedace and loach minnow and their habitats; (3) 
the allowance for continued meaningful collaboration and cooperation on 
spikedace and loach minnow management and other resources of interest 
to the Federal government; and (4) the provision of conservation 
benefits to riparian ecosystems and a host of species, including the 
spikedace and loach minnow and their habitat, that might not otherwise 
occur.
    During the development of the spikedace and loach minnow critical 
habitat proposal (and coordination for other critical habitat 
proposals), and other efforts such as conservation of native fish 
species in general, we have met and communicated with each of these 
Tribes to discuss how they might be affected by the regulations 
associated with spikedace and loach minnow conservation and the 
designation of critical habitat. As such, we established relationships 
with the San Carlos Apache and White Mountain Apache Tribes specific to 
spikedace and loach minnow conservation. As part of our relationship, 
we provided technical assistance to the Tribes to develop measures to 
conserve the spikedace and loach minnow and their habitat on their 
lands. These measures are contained within their management plans that 
we have in our supporting record. This proactive action was conducted 
in accordance with Secretarial Order 3206, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act'' (June 5, 1997); 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 relevant 
provision of the Departmental

[[Page 75567]]

Manual of the Department of the Interior (512 DM 2). We believe that 
the San Carlos Apache and White Mountain Apache Tribes should be the 
governmental entity to manage and promote the conservation of the 
spikedace and loach minnow on their lands. During our communication 
with the Tribes, we recognized and endorsed their fundamental right to 
provide for tribal resource management activities, including those 
relating to riparian ecosystems.
    The designation of critical habitat on these Tribal lands would be 
expected to adversely impact our working relationship with them. In 
fact, during our discussions with the Tribes, we were informed that 
critical habitat would be viewed as an intrusion on their sovereign 
abilities to manage natural resources in accordance with their own 
policies, customs, and laws. To this end, we found that the Tribes 
would prefer to work with us on a government-to-government basis. We 
view this as a substantial benefit.
    In addition to management/conservation actions described for the 
conservation of the spikedace and loach minnow, we anticipate future 
management/conservation plans to include conservation efforts for other 
listed species and their habitat. We believe that many Tribes and 
Pueblos are willing to work cooperatively with us to benefit other 
listed species, but only if they view the relationship as mutually 
beneficial. Consequently, the development of future voluntary 
management actions for other listed species will likely be contingent 
upon whether the San Carlos Apache and White Mountain Apache Tribal 
lands are designated as critical habitat for the spikedace and loach 
minnow. Thus, the benefit of excluding these lands would be future 
conservation efforts that would benefit other listed species.
    Another benefit of excluding these Tribal lands from the critical 
habitat designation includes relieving additional regulatory burden and 
costs associated with the preparation of portions of section 7 
documents related to critical habitat. While the cost of adding these 
additional sections to assessments and consultations is relatively 
minor, there could be delays which can generate real costs to some 
project proponents. However, because in this case critical habitat is 
being proposed for exclusion in occupied areas already subject to 
section 7 consultation and a jeopardy analysis, it is anticipated this 
reduction would be minimal.
(3) Benefits of the Proposed Exclusion Outweigh the Benefits of 
Inclusion
    We anticipate that our final decision will make the following 
determination, unless information submitted in response to the proposal 
causes us to reach a different conclusion.
    We find that the benefits of designating critical habitat for the 
spikedace and loach minnow on these Tribals lands are small in 
comparison to the benefits of the proposed exclusion. Exclusion would 
enhance the partnership efforts focused on recovery of the spikedace 
and loach minnow within these river reaches. Excluding these areas also 
would reduce some of the administrative costs during consultation 
pursuant to section 7 of the Act.
(4) The Proposed Exclusion Will Not Result in Extinction of the Species
    We anticipate that our final decision will make the following 
determination, unless information submitted in response to the proposal 
causes us to reach a different conclusion.
    Because these river reaches on the tribal lands are occupied by the 
spikedace and loach minnow, which is protected from take under section 
9 of the Act, any actions that might kill spikedace or loach minnow, 
including habitat modification that would cause death of either 
species, must either undergo a consultation with the Service under the 
requirements of section 7 of the Act or receive a permit from us under 
section 10 of the Act. Additionally, we believe that the proposed 
exclusion of these lands from critical habitat would not result in the 
extinction of the spikedace or loach minnow because their management 
plans specifically addresses conservation of these species. The tribal 
management plans outline actions to conserve, enhance, and restore 
spikedace and loach minnow habitat, including efforts to eliminate 
nonnative fishes from their habitat. Such efforts provide greater 
conservation benefit than would result from a designation of critical 
habitat. This is because section 7 consultations for critical habitat 
only consider listed species in the project area evaluated and Federal 
agencies are only committed to prevent adverse modification to critical 
habitat caused by the particular project and are not committed to 
provide conservation or long-term benefits to areas not affected by the 
proposed project. Such efforts provide greater conservation benefit 
than would result for designation as critical habitat. As a result, 
there is no reason to believe that this proposed exclusion would result 
in extinction of the species.

Effect of Critical Habitat Designation

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are affected by the designation of critical habitat 
only if their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to insure that their actions are not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. This requirement 
is met through section 7 consultation under the Act. Our regulations 
define ``jeopardize the continued existence of'' as to engage in an 
action that reasonably would be expected, directly or indirectly, to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' for this species would 
include habitat alterations that appreciably diminish the value of 
critical habitat by significantly affecting any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us 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. Conference reports provide conservation 
recommendations to assist Federal agencies in eliminating conflicts 
that may be caused by their proposed actions. The conservation measures 
in a conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat

[[Page 75568]]

designated. We may adopt the formal conference report as the biological 
opinion when the species is listed or critical habitat designated, if 
no substantial new information or changes in the action alter the 
content of the opinion (50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
Federal action agency would ensure that the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Service's 
Regional Director believes would avoid the likelihood of jeopardizing 
the continued existence of listed species or resulting in the 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiating of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat, or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect spikedace or loach minnow or 
their critical habitat will require consultation under section 7. 
Activities on private, State, or county lands, or lands under local 
jurisdictions requiring a permit from a Federal agency, such as Federal 
Highway Administration or Federal Emergency Management Act funding, or 
a permit from the Corps under section 404 of the Clean Water Act, will 
continue to be subject to the section 7 consultation process. Federal 
actions not affecting listed species or critical habitat, and actions 
on non-Federal lands that are not federally funded, authorized, or 
permitted, do not require section 7 consultations.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of spikedace or loach minnow is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species. 
Each of the specific areas designated in this rule as critical habitat 
for spikedace and loach minnow have been determined to contain 
sufficient PCEs to provide for one or more of the life history 
functions of spikedace and/or loach minnow. In some cases, the PCEs 
exist as a result of ongoing Federal actions. As a result, ongoing 
Federal actions at the time of designation will be included in the 
baseline in any consultation pursuant to section 7 of the Act conducted 
subsequent to this designation. Activities that, when carried out, 
funded, or authorized by a Federal agency and appreciably reduce the 
value of critical habitat for the survival and recovery of the 
spikedace or loach minnow may directly or indirectly destroy or 
adversely modify critical habitat include, but are not limited to: (1) 
Channelization, impoundment, road and bridge construction, deprivation 
of substrate source, destruction and alteration of riparian vegetation, 
reduction of available floodplain, removal of gravel or floodplain 
terrace materials, and excessive sedimentation from mining, livestock 
grazing, road construction, timber harvest, off-road vehicle use, and 
other watershed and floodplain disturbances; (2) any Federal activity 
that would significantly and detrimentally alter the water chemistry in 
any of the stream segments listed above could destroy or adversely 
modify the critical habitat of either or both species. Such activities 
include, but are not limited to, release of chemical or biological 
pollutants into the surface water or connected groundwater at a point 
source or by dispersed release (non-point source); (3) any Federal 
activity that would introduce, spread, or augment nonnative fish 
species could destroy or adversely modify the critical habitat of 
either or both species. Such activities include, but are not limited 
to, stocking for sport, aesthetics, biological control, or other 
purposes; construction and operation of canals; and interbasin water 
transfers.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of spikedace and loach minnow. Federal activities outside 
of critical habitat are still subject to review under section 7 if they 
may affect spikedace or loach minnow. Prohibitions of Section 9 also 
continue to apply both inside and outside of designated critical 
habitat.
    All lands proposed as critical habitat are within the geographical 
area occupied by the species and are necessary for the conservation of 
spikedace and loach minnow. Federal agencies already consult with us on 
actions that may affect spikedace or loach minnow to ensure that their 
actions do not jeopardize the continued existence of the species. Thus, 
we do not anticipate substantial additional regulatory protection will 
result from critical habitat designation.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Supervisor of the appropriate Fish and Wildlife Service 
Ecological Services Office, as follows. For activities in Arizona, 
please contact the Arizona Ecological Services Office (see ADDRESSES 
section above). For activities in New Mexico, please contact the New 
Mexico Ecological Services Field Office at 2105 Osuna Road, NE, 
Albuquerque, New Mexico 87113 (telephone (505) 346-2525). Requests for 
copies of the regulations on listed wildlife and plants and inquiries 
about prohibitions and permits may be addressed to the U.S. Fish and 
Wildlife Service, Branch of Endangered Species, P.O. Box 1306, 
Albuquerque, New Mexico 87103-1306 (telephone (505) 248-6920; facsimile 
(505) 248-6922).

[[Page 75569]]

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for spikedace and loach minnow is being prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available online at 
http://www.fws.gov/arizonaes/ or by contacting the Arizona Ecological 
Services Fish and Wildlife Office directly (see ADDRESSES section 
above).

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert opinions of at least three 
appropriate and independent specialists regarding this proposed rule. 
The purpose of such review is to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We will send these peer reviewers copies of this proposed 
rule immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule as we prepare our final 
rulemaking. Accordingly, the final designation may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and be addressed to the Field Supervisor (see 
ADDRESSES section above). We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings in the Federal Register and local newspapers 
at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the notice in the SUPPLEMENTARY INFORMATION section of 
the preamble helpful in understanding the proposed rule? (5) What else 
could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or adversely affect the economy in a material way. 
Due to the timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action. We 
will use this analysis to meet the requirement of section 4(b)(2) of 
the Act to determine the economic consequences of designating the 
specific areas as critical habitat. This economic analysis will also be 
used to determine compliance with Executive Order 12866, Regulatory 
Flexibility Act, Small Business Regulatory Enforcement Fairness Act, 
and Executive Order 12630.
    This draft economic analysis will be made available for public 
review and comment before we finalize this designation. At that time, 
copies of the analysis will be available for downloading from the 
Arizona Ecological Services Office's Internet website at http://arizonaes.fws.gov or by contacting the Arizona Ecological Services 
Office directly (see ADDRESSES section).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation for an additional 60 
days. The Service will include with the notice of availability, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination. The Service has concluded that deferring 
the RFA finding until completion of the draft economic analysis is 
necessary to meet the purposes and requirements of the RFA. Deferring 
the RFA finding in this manner will ensure that the Service makes a 
sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for the spikedace and 
loach minnow is considered a significant regulatory action under 
Executive Order 12866 as it may raise novel legal and policy issues. 
However, this designation is not expected to significantly affect 
energy supplies, distribution, or use because there are no pipelines,

[[Page 75570]]

distribution facilities, power grid stations, etc. within the 
boundaries of proposed critical habitat. Therefore, this action is not 
a significant energy action and no Statement of Energy Effects is 
required. We will, however, further evaluate this issue as we conduct 
our economic analysis and, as appropriate, review and revise this 
assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    This rule will not produce a Federal mandate. In general, a Federal 
mandate is a provision in legislation, statute or regulation that would 
impose an enforceable duty upon State, local, tribal governments, or 
the private sector and includes both ``Federal intergovernmental 
mandates'' and ``Federal private sector mandates.'' These terms are 
defined in 2 U.S.C. 658(5)-(7). ``Federal intergovernmental mandate'' 
includes a regulation that ``would impose an enforceable duty upon 
State, local, or tribal governments'' with two exceptions. It excludes 
``a condition of federal assistance.'' It also excludes ``a duty 
arising from participation in a voluntary Federal program,'' unless the 
regulation ``relates to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and tribal 
governments under entitlement authority,'' if the provision would 
``increase the stringency of conditions of assistance'' or ``place caps 
upon, or otherwise decrease, the Federal Government's responsibility to 
provide funding'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. (At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement.) ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, or permits or who otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; additionally, 
critical habitat would not shift the costs of the large entitlement 
programs listed above on to State governments. We will further evaluate 
this issue as we conduct our economic analysis and, as appropriate, 
review and revise this assessment as warranted.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. A takings implication assessment is not required. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding, 
assistance, or require approval or authorization from a Federal agency 
for an action may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Due to current public knowledge of these species protections and the 
prohibition against take of these species both within and outside of 
the proposed areas, we do not anticipate that property values will be 
affected by the critical habitat designation. However, we have not yet 
completed the economic analysis for this proposed rule. Once the 
economic analysis is available, we will review and revise this 
preliminary assessment as warranted.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policies, we 
requested information from and coordinated development of this proposed 
critical habitat designation with appropriate State resource agencies 
in all affected states.
    The proposed designation of critical habitat in areas currently 
occupied by spikedace or loach minnow imposes no additional significant 
restrictions beyond those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The proposed designation of critical habitat may have some benefit to 
the State and local resource agencies in that the areas containing 
features essential to the conservation of this species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the conservation of this species are specifically identified. While 
this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate 
critical habitat in accordance with the provisions of the Endangered 
Species Act. The rule uses standard property descriptions and 
identifies the primary constituent elements within the designated areas 
to assist the public in understanding the habitat needs of spikedace 
and loach minnow.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. Information collections associated with certain Act 
permits are covered by an existing OMB approval and are assigned 
clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, with an 
expiration date of July 31, 2004. Detailed information for Act 
documentation appears at 50 CFR 17. This rule will not impose 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

[[Page 75571]]

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)). However, when the range of the species 
includes States within the Tenth Circuit, such as that of the spikedace 
and loach minnow, pursuant to the Tenth Circuit ruling in Catron County 
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 
(10th Cir. 1996), we will undertake a NEPA analysis for critical 
habitat designation and notify the public of the availability of the 
draft environmental assessment for this proposal when it is finished.

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. We have determined that 
there are Tribal lands containing features essential for the 
conservation of spikedace and loach minnow and have sought government-
to-government consultation with these Tribes. We will continue to seek 
consultation during the proposal portion of developing the final 
critical habitat designation.

References Cited

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

Author

    The primary authors of this notice are the Arizona Ecological 
Services Office staff (see ADDRESSES section above).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend section Sec.  17.95(e) by revising critical habitat for 
the loach minnow and the spikedace to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *

Loach Minnow (Tiaroga cobitis)

    (1) Critical habitat units are depicted for Apache, Graham, 
Greenlee, and Pinal Counties, Arizona; and Catron, Grant, and Hidalgo 
Counties, New Mexico, on the maps and as described below.
    (2) Within these areas, the primary constituent elements of 
critical habitat for loach minnow are the following:
    (i) Permanent, flowing, water with low levels of pollutants, 
including:
    (A) Living areas for adult loach minnow with moderate to swift flow 
velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in 
shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with 
gravel, cobble, and rubble substrates;
    (B) Living areas for juvenile loach minnow with moderate to swift 
flow velocities between 1.0 to 34 in/second (3.0 to 85.0 cm/second) in 
shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with 
sand, gravel, cobble, and rubble substrates;
    (C) Living areas for larval loach minnow with slow to moderate 
velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in 
shallow water with sand, gravel, and cobble substrates;
    (D) Spawning areas with slow to swift flow velocities in shallow 
water where cobble and rubble and the spaces between them are not 
filled in by fine dirt or sand; and
    (E) Water with low levels of pollutants such as copper, arsenic, 
mercury, and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels and with dissolved 
oxygen levels greater than 3 parts per million (ppm).
    (ii) Sand, gravel, and cobble substrates with low or moderate 
amounts of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    (iii) Streams that have:
    (A) Low gradients of approximately 2.5 percent or less;
    (B) Water temperatures in the approximate range of 35-85 
[deg]Fahrenheit (F) (1.7-29.4 [deg]C) (with natural diurnal and 
seasonal variation);
    (C) Pool, riffle, run, and backwater components; and
    (D) An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddisflies, stoneflies, and dragonflies.
    (iv) Habitat devoid of nonnative fish species detrimental to loach 
minnow or habitat in which detrimental nonnative fish species are at 
levels that allow persistence of loach minnow.
    (v) Areas within perennial, interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    (3) Each stream segment includes a lateral component that consists 
of 300 feet on either side of the stream channel measured from the 
stream edge at bank full discharge. This lateral component of critical 
habitat is intended as a surrogate for the 100-year floodplain.
    (4) Critical Habitat Map Areas. Data layers defining map areas, and 
mapping of critical habitat areas, was done using Arc GIS and verifying 
with USGS 7.5' quadrangles. Legal descriptions for New Mexico and 
Arizona are based on the Public Lands Survey System (PLSS). Within this 
system, all coordinates reported for New Mexico are in the New Mexico 
Principal Meridian (NMPM), while those in Arizona are in the Gila and 
Salt River Meridian (GSRM). Township has been abbreviated as ``T'', 
Range as ``R'', and section as ``sec.'' Where possible, the ending or 
starting points have been described to the nearest quarter-section, 
abbreviated as ``1/4''. Cardinal directions are also abbreviated (N = 
North, S = South, W = West, and E = East). All mileage calculations 
were performed using GIS.
    (5) Note: Index map of critical habitat units for loach minnow (Map 
1) follows:
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    (6) Complex 2--Black River, Apache and Greenlee Counties, Arizona.
    (i) East Fork Black River--5.5 miles (8.8 km) of river extending 
from the confluence with the West Fork Black River at Township 4 North, 
Range 28

[[Page 75573]]

East, section 11 upstream to the confluence with Deer Creek at Township 
5 North, Range 29 East, section 30. Land ownership: U.S. Forest Service 
(Apache-Sitgreaves National Forest).
    (ii) North Fork East Fork Black River--11.2 miles (18.0 km) of 
river extending from the confluence with Deer Creek at Township 5 
North, Range 29 East, section 30 upstream to the confluence with an 
unnamed tributary at Township 6 North, Range 29 East, section 30. Land 
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest).
    (iii) Boneyard Creek--1.4 miles (2.3 km) of creek extending from 
the confluence with the East Fork Black River at Township 5 North, 
Range 29 East, section 5 upstream to the confluence with an unnamed 
tributary at Township 6 North, Range 29 East, section 32. Land 
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest).
    (iv) Note: Map of Complex 2 of loach minnow critical habitat, Black 
River, (Map 2) follows:

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    (7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal 
and Graham counties, Arizona.
    (i) Aravaipa Creek--28.1 miles (45.3 km) of creek extending from 
the confluence with the San Pedro River at Township 7 South, Range 16 
East, section 9 upstream to the confluence with Stowe Gulch at Township 
6 South, Range 19 East, section 35. Land ownership: Bureau of Land 
Management, Tribal, and State lands.
    (ii) Turkey Creek--2.7 miles (4.3 km) of creek extending from the 
confluence with Aravaipa Creek at Township 6 North, Range 19 East, 
section 19 upstream to the confluence with Oak Grove Canyon at Township 
6 South, Range 19 East, section 32. Land ownership: Bureau of Land 
Management.
    (iii) Deer Creek--2.3 miles (3.6 km) of creek extending from the 
confluence with Aravaipa Creek at Township 6 South, Range 18 East, 
section 14 upstream to the boundary of the Aravaipa Wilderness at 
Township 6 South, Range 19 East, section 18. Land ownership: Bureau of 
Land Management.
    (iv) Note: Map of Complex 3 for loach minnow critical habitat, 
Aravaipa Creek, (Map 3) follows:

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    (8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham 
counties, Arizona and Catron County, New Mexico.

[[Page 75577]]

    (i) Eagle Creek--45.3 miles (72.9 km) of creek extending from the 
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section 
23 upstream to the confluence of Dry Prong and East Eagle Creeks at 
Township 1 North, Range 28 East, section 31. Land ownership: U.S. 
Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos) 
lands, and private.
    (ii) San Francisco River--126.5 miles (203.5 km) of river extending 
from the confluence with the Gila River at Township 5 South, Range 29 
East, section 28 upstream to the mouth of The Box, a canyon above the 
town of Reserve, at Township 6 South, Range 19 West, section 2. Land 
ownership: Bureau of Land Management, U.S. Forest Service (Apache-
Sitgreaves National Forest), State, and private in Arizona, and U.S. 
Forest Service (Gila National Forest) and private in New Mexico.
    (iii) Tularosa River--18.6 miles (30.0 km) of river extending from 
the confluence with the San Francisco River at Township 7 South, Range 
19 West, section 23 upstream to the town of Cruzville at Township 6 
South, Range 18 West, section 12. Land ownership: U.S. Forest Service 
(Gila National Forest) and private.
    (iv) Negrito Creek--4.2 miles (6.8 km) of creek extending from the 
confluence with the San Francisco River at Township 7 South, Range 18 
West, section 19 upstream to the confluence with Cerco Canyon at 
Township 7 South, Range 18 West, section 21. Land ownership: U.S. 
Forest Service (Gila National Forest), and private lands.
    (v) Whitewater Creek--1.1 miles (1.8 km) of creek extending from 
the confluence with the San Francisco River at Township 11 South, Range 
20 West, section 27 upstream to the confluence with the Little 
Whitewater Creek at Township 11 South, Range 20 West, section 23. Land 
ownership: private lands.
    (vi) Blue River--51.1 miles (82.2 km) of river extending from the 
confluence with the San Francisco River at Township 2 South, Range 31 
East, section 31upstream to the confluence of Campbell Blue and Dry 
Blue Creeks at Township 6 South, range 20 West, section 6. Land 
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and 
private lands in Arizona; U.S. Forest Service (Gila National Forest) in 
New Mexico.
    (vii) Campbell Blue Creek--8.1 miles (13.1 km) of creek extending 
from the confluence of Dry Blue and Campbell Blue Creeks at Township 6 
South, Range 20 West, section 6 in New Mexico upstream to the 
confluence with Coleman Canyon at Township 4 North, Range 31 East, 
section 32 in Arizona. Land ownership: U.S. Forest Service (Apache-
Sitgreaves National Forest) and private lands in Arizona; U.S. Forest 
Service (Gila National Forest) in New Mexico.
    (viii) Dry Blue Creek--3.0 mile (4.8 km) of creek extending from 
the confluence with Campbell Blue Creek at Township 6 South, Range 20 
West, section 6 upstream to the confluence with Pace Creek at Township 
6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service 
(Gila National Forest).
    (ix) Pace Creek--0.8 mile (1.2 km) of creek extending from the 
confluence with Dry Blue Creek at Township 6 South, Range 21 West, 
section 28 upstream to a barrier falls at Township 6 South, Range 21 
West, section 29. Land ownership: U.S. Forest Service (Gila National 
Forest).
    (x) Frieborn Creek--1.1 miles (1.8 km) of creek extending from the 
confluence with Dry Blue Creek at Township 6 South, Range 20 West, 
section 6 upstream to an unnamed tributary at Township 6 South, range 
20 West, section 8. Land ownership: U.S. Forest Service (Gila National 
Forest).
    (xi) Little Blue Creek--2.8 miles (4.5 km) of creek extending from 
the confluence with the Blue River at Township 1 South, range 31 East, 
section 5 upstream to the mouth of a canyon at Township 1 North, Range 
31 East, section 29. Land ownership: U.S. Forest Service (Apache-
Sitgreaves National Forest).
    (xii) Note: Map of Complex 4 for loach minnow critical habitat, San 
Francisco and Blue Rivers, (Map 4) follows:

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[[Page 75579]]


    (9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo 
counties, New Mexico
    (i) Upper Gila River--102.1 miles (164.3 km) of river extending 
from the confluence with Moore Canyon (near the Arizona/New Mexico 
border) at Township 18 South, Range 21 West, section 32 upstream to the 
confluence of the East and West Forks of the Gila River at Township 13 
South, Range 13 West, section 8. Land ownership: Bureau of Land 
Management, U.S. Forest Service (Gila National Forest), State, and 
private lands.
    (ii) East Fork Gila River--26.1 miles (42.0 km) of river extending 
from the confluence with the West Fork Gila River at Township 11 South, 
Range 12 West, section 17 upstream to the confluence of Beaver and 
Taylor creeks at Township 13 South, Range 13 West, section 8. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iii) Middle Fork Gila River--11.9 miles (19.1 km) of river 
extending from the confluence with the West Fork Gila River at Township 
12 South, Range 14 West, section 25 upstream to the confluence with 
Brothers West Canyon at Township 11 South, Range 14 West, section 33. 
Land ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iv) West Fork Gila River--7.7 miles (12.4 km) of river extending 
from the confluence with the East Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence with EE Canyon at 
Township 12 South, Range 14 West, section 22. Land ownership: U.S. 
Forest Service (Gila National Forest), National Park Service, and 
private lands.
    (v) Note: Map of Complex 5 of loach minnow critical habitat, Upper 
Gila River Complex, (Map 5) follows:

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[[Page 75581]]

* * * * *

Spikedace (Meda fulgida)

    (1) Critical habitat units are depicted for Graham, Greenlee, 
Pinal, and Yavapai Counties, Arizona; and Catron, Grant, and Hidalgo 
Counties, New Mexico, on the maps and as described below.
    (2) Within these areas, the primary constituent elements of 
critical habitat for spikedace are the following:
    (i) Permanent, flowing, water with low levels of pollutants, 
including:
    (A) Living areas for adult spikedace with slow to swift flow 
velocities between 20 and 60 cm/second (8-24 inches/second) in shallow 
water between approximately 10 cm (4 inches) to 1 meter (40 inches) 
with shear zones where rapid flow borders slower flow, areas of sheet 
flow (or smoother, less turbulent flow) at the upper ends of mid-
channel sand/gravel bars, and eddies at downstream riffle edges;
    (B) Living areas for juvenile spikedace with slow to moderate water 
velocities of approximately 18 cm/second (8 inches/second) or higher in 
shallow water between approximately 3 cm (1.2 inches) to 1 meter (40 
inches);
    (C) Living areas for larval spikedace with slow to moderate flow 
velocities of approximately 10 cm/second (4 inches/second) or higher in 
shallow water approximately 3 cm (1.2 inches) to 1 meter (40 inches) 
and;
    (D) Water with low levels of pollutants such as copper, arsenic, 
mercury and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels and with dissolved 
oxygen levels greater than 3 parts per million (ppm).
    (ii) Sand, gravel, and cobble substrates with low or moderate 
amounts of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    (iii) Streams that have:
    (A) Low gradients of approximately 1.0 percent or less;
    (B) Water temperatures in the approximate range of 35-85 
[deg]Fahrenheit (F) (1.7-29.4 [deg]C) (with natural diurnal and 
seasonal variation);
    (C) Pool, riffle, run, and backwater components; and
    (D) An abundant aquatic insect food base consisting of mayflies, 
true flies, caddisflies, stoneflies, and dragonflies.
    (iv) Habitat devoid of nonnative fish species detrimental to 
spikedace, or habitat in which detrimental nonnative fish species are 
at levels that allow persistence of spikedace.
    (v) Areas within perennial, interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    (3) Each stream segment includes a lateral component that consists 
of 300 feet on either side of the stream channel measured from the 
stream edge at bank full discharge. This lateral component of critical 
habitat is intended as a surrogate for the 100-year floodplain.
    (4) Critical Habitat Map Areas. Data layers defining map areas, and 
mapping of critical habitat areas, was done using Arc GIS and verifying 
with USGS 7.5' quadrangles. Legal descriptions for New Mexico and 
Arizona are based on the Public Lands Survey System (PLSS). Within this 
system, all coordinates reported for New Mexico are in the New Mexico 
Principal Meridian (NMPM), while those in Arizona are in the Gila and 
Salt River Meridian (GSRM). Township has been abbreviated as ``T'', 
Range as ``R'', and section as ``sec.'' Where possible, the ending or 
starting points have been described to the nearest quarter-section, 
abbreviated as ``\1/4\''. Cardinal directions are also abbreviated (N = 
North, S = South, W = West, and E = East). All mileage calculations 
were performed using GIS.
    (5) Note: Index map of critical habitat units for spikedace (Map 1) 
follows:

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[[Page 75583]]

    (6) Complex 1--Verde River, Yavapai County, Arizona.
    (i) Verde River--106.5 miles (171.4 km) of river extending from the 
confluence with Fossil Creek at Township 11 North, Range 6 East, 
section 25 upstream 106.9 miles to Sullivan Dam at Township 17 North, 
Range 2 West, section 15. Land ownership: U.S. Forest Service (Prescott 
National Forest), Yavapai Apache Nation, State, and private.
    (ii) Note: Map of Complex 1 of spikedace critical habitat, Verde 
River, (Map 2) follows:

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[[Page 75585]]

    (7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal 
and Graham counties, Arizona.
    (i) Gila River--39.0 miles (62.8 km) of river extending from the 
Ashurst-Hayden Dam at Township 4 South, Range 11 East, section 8 
upstream to the confluence with the San Pedro River at Township 5 
South, Range 15 East, section 23. Land ownership: Bureau of 
Reclamation, Bureau of Land Management, State, and private.
    (ii) Lower San Pedro River--13.4 miles (21.5 km) of river extending 
from the confluence with the Gila River at Township 5 South, Range 15 
East, section 23 upstream to the confluence with Aravaipa Creek at 
Township 7 South, Range 16 East, section 9. Land ownership: Bureau of 
Land Management, Tribal, State, and private.
    (iii) Aravaipa Creek--28.1 miles (45.3 km) of creek extending from 
the confluence with the San Pedro River at Township 7 South, Range 16 
East, section 9 upstream to the confluence with Stowe Gulch at Township 
6 South, Range 19 East, section 35. Land ownership: Bureau of Land 
Management, Tribal, and State lands.
    (iv) Note: Map of Complex 3 of spikedace critical habitat, Middle 
Gila/Lower San Pedro/Aravaipa Creek, (Map 3) follows:

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[[Page 75587]]

    (8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham 
counties, Arizona.
    (i) Eagle Creek--45.3 miles (72.9 km) of creek extending from the 
Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section 
23 upstream to the confluence of Dry Prong and East Eagle Creeks at 
Township 1 North, Range 28 East, section 31. Land ownership: U.S. 
Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos) 
lands, and private.
    (ii) Note: Map of Complex 4 of spikedace critical habitat, San 
Francisco and Blue Rivers, (Map 4) follows:

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[[Page 75589]]

    (9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo 
counties, New Mexico.
    (i) Upper Gila River--102.1 miles (164.3 km) of river extending 
from the confluence with Moore Canyon (near the Arizona/New Mexico 
border) at Township 18 South, Range 21 West, section 32 upstream to the 
confluence of the East and West Forks of the Gila River at Township 13 
South, Range 13 West, section 8. Land ownership: Bureau of Land 
Management, U.S. Forest Service (Gila National Forest), State, and 
private lands.
    (ii) East Fork Gila River--26.1 miles (42.0 km) of river extending 
from the confluence with the West Fork Gila River at Township 11 South, 
Range 12 West, section 17 upstream to the confluence of Beaver and 
Taylor creeks at Township 13 South, Range 13 West, section 8. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iii) Middle Fork Gila River--7.7 miles (12.3 km) of river 
extending from the confluence with the West Fork Gila River at Township 
11 South, Range 14 West, section 33 upstream to the confluence with Big 
Bear Canyon at Township 12 South, Range 14 West, section 25. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iv) West Fork Gila River--7.7 miles (12.4 km) of river extending 
from the confluence with the East Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence with EE Canyon at 
Township 12 South, Range 14 West, section 22. Land ownership: U.S. 
Forest Service (Gila National Forest), National Park Service, and 
private lands.
    (v) Note: Map of Complex 5 of spikedace critical habitat, Upper 
Gila River Complex, (Map 5) follows:

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    Dated: December 6, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23999 Filed 12-19-05; 8:45 am]
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