[Federal Register Volume 71, Number 137 (Tuesday, July 18, 2006)]
[Rules and Regulations]
[Pages 40657-40674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6215]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH57


Endangered and Threatened Wildlife and Plants; Reclassification 
of the Gila Trout (Oncorhynchus gilae) From Endangered to Threatened; 
Special Rule for Gila Trout in New Mexico and Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reclassifying the federally endangered Gila trout (Oncorhynchus gilae) 
to threatened status under the authority of the Endangered Species Act 
of 1973, as amended (Act). We are also finalizing a special rule under 
section 4(d) of the Act that would apply to Gila trout found in New 
Mexico and Arizona. This special rule will enable the New Mexico 
Department of Game and Fish (NMDGF) and the Arizona Game and Fish 
Department (AGFD) to promulgate special regulations in collaboration 
with the Service, allowing recreational fishing of Gila trout.

DATES: This final rule is effective on August 17, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours, at the 
New Mexico Ecological Services Field Office, 2105 Osuna Road NE, 
Albuquerque, New Mexico 87113.
    You may obtain copies of this final rule from the New Mexico 
Ecological Services Field Office at the address provided above, by 
calling (505) 346-2525, or from our Web site at http://www.fws.gov/ifw2es/NewMexico/.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, New Mexico 
Ecological Services Field Office (see ADDRESSES) (telephone 505/346-
2525, facsimile 505/346-2542).

SUPPLEMENTARY INFORMATION:

Background

    The purposes of the Act (16 U.S.C. 1531 et seq.) are to provide a 
means whereby the ecosystems upon which endangered and threatened 
species depend may be conserved and to provide a program for the 
conservation of those species. A species can be listed as threatened or 
endangered for any of the following factors: (1) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; and (5) other natural or manmade 
factors affecting its continued existence. When we determine that 
protection of a species under the Act is no longer warranted, we take 
steps to remove (delist) the species from the Federal list. If a 
species is listed as endangered, we may reclassify it to threatened 
status as an intermediate step before eventual delisting; however, 
reclassification to threatened status is not required in order to 
delist.
    Section 3 of the Act defines terms that are relevant to this final 
rule. An endangered species is any species that is in danger of 
extinction throughout all or a significant portion of its range. A 
threatened species is any species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. A species includes any subspecies of 
fish or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife that interbreeds when mature.

Previous Federal Action

    The Gila trout was originally recognized as endangered under the 
Federal Endangered Species Preservation Act of 1966 (March 11, 1967; 32 
FR 4001), and Federal designation of the species as endangered 
continued under the Act (1973). In 1987, the Service proposed to 
reclassify the Gila trout as threatened (October 6, 1987; 52 FR 37424). 
However, we withdrew our proposal for reclassification on September 12, 
1991 (56 FR 46400) (see ``Recovery Plans and Accomplishments'' section 
below for further information). On November 11, 1996, Mr. Gerald Burton 
submitted a petition to us to downlist the species from endangered to 
threatened. We acknowledged receipt of the petition by letter on 
January 13, 1997. On May 11, 2005, we published a proposed rule to 
downlist the species, which constituted our 90-day and 12-month 
findings on the November 11, 1996, petition (70 FR 24750).
    In the May 11, 2005, proposed rule (70 FR 24750), we requested all 
interested parties to submit comments or information concerning the 
proposed reclassification of the Gila trout from endangered to 
threatened. We published notices, announcing the proposal and inviting 
public comment, in the Albuquerque Journal and the Arizona Republic. In 
addition, we contacted interested parties (including elected officials, 
Federal and State agencies, local governments, scientific 
organizations, and interest groups) through a press release and related 
fact sheets, faxes, mailed announcements, telephone calls, and e-mails. 
The public comment period on the proposal closed on July 15, 2005.

Systematics

    The Gila trout is a member of the salmon and trout family 
(Salmonidae). Gila trout was not formally described until 1950, using 
fish collected in Main Diamond Creek in 1939 (Miller 1950). It is most 
closely related to Apache trout (Oncorhynchus apache), which is endemic 
to the upper Salt and Little Colorado River drainages in east-central 
Arizona. Gila trout and Apache trout are more closely related to 
rainbow trout (O. mykiss) than to cutthroat trout (O. clarki), 
suggesting that Gila and Apache

[[Page 40658]]

trouts were derived from an ancestral form that also gave rise to 
rainbow trout (Behnke 1992, 2002; Dowling and Childs 1992; Utter and 
Allendorf 1994; Nielsen et al. 1998; Riddle et al. 1998).

Biological Information

    Biological information (i.e., physical description, distribution 
and threats, life history, and habitat characteristics) on the Gila 
trout can be found in our proposal for reclassification of the Gila 
trout with a special rule, published in the Federal Register on May 11, 
2005 (70 FR 24750), and in the Gila Trout Recovery Plan (USFWS 2003). 
That information is incorporated by reference into this final rule.

Recovery Plans and Accomplishments

    The original Recovery Plan for Gila trout was completed in 1979. 
The main objective of this Recovery Plan was ``To improve the status of 
Gila trout to the point that its survival is secured and viable 
populations of all morphotypes are maintained in the wild'' (Service 
1979). The Gila Trout Recovery Plan was revised in 1984, with the same 
objective as the original plan. Downlisting criteria in the plan stated 
that ``The species could be considered for downlisting from its present 
endangered status to a threatened status when survival of the four 
original ancestral populations is secured and when all morphotypes are 
successfully replicated or their status otherwise appreciably 
improved'' (Service 1984). Replication involves either moving 
individuals from a successfully reproducing original pure or replicated 
population or taking hatchery-propagated fish and releasing them into a 
renovated stream. On October 6, 1987, we proposed that Gila trout be 
reclassified from endangered to threatened with a special rule to allow 
sport fishing (52 FR 37424). At that time, Gila trout populations were 
deemed sufficiently secure to meet criteria for reclassification to 
threatened as identified in the Recovery Plan (October 6, 1987; 52 FR 
37424). However, the proposed rule to downlist Gila trout was withdrawn 
on September 12, 1991 (56 FR 46400), for the following reasons:
    (1) Severe flooding in 1988 reduced the Gila trout populations in 
McKnight Creek by about 80 percent;
    (2) Wild fires in 1989 eliminated Gila trout from Main Diamond 
Creek and all of the South Diamond drainage except Burnt Canyon, a 
small headwater stream;
    (3) Propagation activities at hatcheries had not proceeded as 
planned, and fish were not available to replenish wild stocks; and
    (4) Brown trout, a predator, was present in Iron Creek, which at 
the time was thought to harbor one of the original pure populations of 
Gila trout.
    The Gila Trout Recovery Plan was revised in 1993, to incorporate 
new information about ecology of the species and recovery methods. 
Criteria for downlisting remained essentially the same as in the 1984 
revision but were more specific. The 1993 plan specified that 
downlisting would be considered ``when all known indigenous lineages 
are replicated in the wild'' and when Gila trout were ``established in 
a sufficient number of drainages such that no natural or human-caused 
event may eliminate a lineage.'' The Act only protects species (i.e., 
Gila trout is the listed entity). The lineages identified in the 
Recovery Plan do not have separate listed status under the Act. 
However, by conserving these lineages and their associated genetic 
diversity, we provide for the conservation of the listed species, Gila 
trout.
    The Recovery Plan was revised again in 2003 (Service 2003). The 
criteria for downlisting in the 2003 Recovery Plan include the 
following: (1) The four known non-hybridized indigenous lineages are 
protected and replicated in the wild in at least 85 kilometers (km) (53 
miles (mi)) of streams; (2) each known non-hybridized lineage is 
replicated in a stream geographically separate from its remnant 
population such that no natural or human-caused event may eliminate a 
lineage; and (3) an Emergency Evacuation Procedures Plan for Gila Trout 
(Emergency Evacuation Plan) to address wildfire impacts and discovery 
of nonnative salmonid invasion in Gila trout streams has been developed 
and implemented.
    Today all four original pure populations (Main Diamond, South 
Diamond, Spruce, and Whiskey Creeks) are replicated at least once. Main 
Diamond has been replicated four times, South Diamond and Whiskey once, 
and Spruce Creek three times. The Service believes three of the four 
replicated populations are secure (Main Diamond, South Diamond, and 
Spruce Creek), and the viability of the Gila trout is sufficiently 
protected through these populations. The species is no longer in danger 
of extinction. Whiskey Creek, the fourth pure population, had not been 
replicated at the time of the proposed rule. The Service completed the 
replication of the Whiskey Creek population into Langstroth Canyon on 
June 21, 2006, and will continue to monitor that population. A 
broodstock management plan and an Emergency Evacuation Plan have been 
completed (Kincaid and Reisenbichler 2002; Service 2004). Recovery 
actions have included chemically treating streams within the historic 
range of the species to remove nonnative fish species, removing 
nonnative trout by electrofishing, and constructing physical barriers 
to prevent movement of nonnatives into renovated reaches (Service 
2003).
    Surveys of the 12 existing populations (excluding the recent 
replicate; Langstroth Canyon) indicate that the recovery efforts to 
remove nonnative fish and prevent their return to the renovated areas 
have been successful (Service 2003). Replicated populations in New 
Mexico are successfully reproducing, indicating that suitable spawning 
and rearing habitats are available. Replicated populations in Arizona 
exist in Raspberry Creek. Young of the year were planted in Raspberry 
Creek in Arizona in 2000. In 2004, Gila trout in Raspberry Creek were 
found in mixed size classes, indicating that the fish spawned and 
successfully recruited. Although some fish were removed from Raspberry 
Creek due to the threat of wildfire, some of these fish were restocked 
in November 2004 into the uppermost portions of Raspberry Creek, which 
survived the impacts caused by the fire and which still support Gila 
trout. Spawning was not documented in Raspberry Creek in 2005. Young of 
the year were planted in Dude Creek in 1999; however, due to a lack of 
recruitment, Dude Creek is no longer considered a viable population.
    Overall, there has been an increase in the total wild population of 
Gila trout. In 1992, the wild populations of Gila trout were estimated 
to be less than 10,000 fish greater than age 1. In 2001, the population 
in New Mexico was estimated to be 37,000 fish (Brown et. al. 2001). As 
noted above, Gila trout were more recently replicated in Arizona; as 
such, we do not have estimated numbers of fish at this time. The stream 
renovation and transplantation efforts have been accomplished jointly 
by the Service, Forest Service, NMDGF, AGFD, and New Mexico State 
University. Original pure populations and their replicates are 
summarized in Table 1.

[[Page 40659]]



               Table 1.--Summary and Status of Streams Inhabited by Gila Trout as of January 2001
                           [Original pure population (i.e., relict) lineages in bold]
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                                                                                 km (mi) of
    State               County              Stream name          Drainage          stream            Origin
                                                                                  inhabited
----------------------------------------------------------------------------------------------------------------
NM...........  Sierra..................  Main Diamond       East Fork Gila               6.1   Relict Lineage
                                          Creek.             River.                     (3.8)   Eliminated in
                                                                                                1989, re-
                                                                                                established in
                                                                                                1994.
NM...........  Grant...................  McKnight Creek...  Mimbres River....            8.5   Replicate of Main
                                                                                        (5.3)   Diamond, est.
                                                                                                1970.
NM...........  Grant...................  Black Canyon.....  East Fork Gila              18.2   Replicate of Main
                                                             River.                    (11.3)   Diamond, est.
                                                                                                1998.
NM...........  Catron..................  Lower Little       West Fork Gila               6.0   Replicate of Main
                                          Creek.             River.                     (3.7)   Diamond, est.
                                                                                                2000.
NM...........  Catron..................  Upper White Creek  West Fork Gila               8.8   Replicate of Main
                                                             River.                     (5.5)   Diamond, est.
                                                                                                2000.
NM...........  Sierra..................  South Diamond      East Fork Gila               6.7   Relict Lineage
                                          Creek \1\.         River.                     (4.2)   Eliminated in
                                                                                                1995, re-
                                                                                                established in
                                                                                                1997.
NM...........  Catron (Grant)..........  Mogollon Creek     Gila River.......           28.8   Replicate of
                                          \2\.                                         (17.9)   South Diamond
                                                                                                Creek, est.
                                                                                                1987.
NM...........  Catron..................  Spruce Creek.....  San Francisco                3.7   Relict Lineage.
                                                             River.                     (2.3)
NM...........  Catron..................  Big Dry Creek....  San Francisco                1.9   Replicate of
                                                             River.                     (1.2)   Spruce Creek,
                                                                                                est. 1985.
AZ...........  Gila....................  Dude Creek.......  Verde River......            3.2   Replicate of
                                                                                        (2.0)   Spruce Creek,
                                                                                                est. 1999.
AZ...........  Greenlee................  Raspberry Creek..  Blue River.......            6.0   Replicate of
                                                                                        (3.7)   Spruce Creek,
                                                                                                est. 2000.
NM...........  Catron..................  Whiskey Creek....  West Fork Gila               2.6   Relict Lineage.
                                                             River.                     (1.6)
NM...........  Catron..................  Langstroth Canyon  West Fork Gila               9.0   Replicate of
                                                             River.                     (5.6)   Whiskey Creek
                                                                                                est. 2006.
----------------------------------------------------------------------------------------------------------------
\1\ South Diamond Creek includes Burnt Canyon.
\2\ Mogollon Creek includes Trail Canyon, Woodrow Canyon, Corral Canyon, and South Fork Mogollon Creek. Portions
  of the drainage are in Grant County, New Mexico.

    The four original pure population lineages are currently protected 
and replicated in 109 km (67 mi) of stream. Each replicate is 
geographically separate from its original pure population with one 
exception. The Spruce Creek replicate in Big Dry Creek is proximal; 
however, the additional replicate in Raspberry Creek is located more 
than 75 km (47 mi) to the northwest. An Emergency Evacuation Plan has 
been developed and it has been successfully implemented twice. The plan 
addresses emergency-related impacts (including floods) and discovery of 
nonnative salmonid invasions (Service 2004). In 2002, the Emergency 
Evacuation Plan (Service 2004) was implemented during the Cub Fire to 
evacuate fish from Whiskey Creek (Brooks 2002), and in 2003, the plan 
was implemented during the Dry Lakes Fire to remove fish from Mogollon 
Creek (J. Brooks, U.S. Fish and Wildlife Service, in litt. 2003b).

Summary of Comments and Responses

Peer Review

    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited the expert opinions of seven 
appropriate and independent experts following publication of the 
proposed rule. We received responses from three of these reviewers. Two 
of the reviewers were in support of the reclassification with special 
rule and provided no further comments. One of the reviewers did not 
support the proposal. His comments are included in the summary below.
    (1) Comment: Dude and Raspberry Creeks in Arizona do not qualify as 
successful transplants because there is no Gila trout reproduction in 
the former and not enough time has passed to determine the 
establishment of a self-sustaining population in the latter. Thus, the 
plan criterion of 85 stream km of occupied habitat has not been met.
    Our Response: Dude Creek (replicate of Spruce Creek) is no longer 
considered a viable population due to lack of recruitment. However, 
there was documentation of reproduction and successful recruitment in 
Raspberry Creek (also a replicate of Spruce Creek) in 2004. In 
addition, the Raspberry Creek population survived a fire in 2004, and 
evacuated fish were returned to the upper portion of the creek later in 
the year. The four original pure population lineages are currently 
protected and replicated in 109 km (67 mi) of stream. Thus, we have 
exceeded the recovery criteria of establishing 85 stream km (53 mi) of 
occupied habitat. We completed the replication of Whiskey Creek into 
Langstroth Canyon on June 21, 2006. Subsequent monitoring will be done 
to ensure the viability of the replicate.
    (2) Comment: The proposed reclassification and special rule should 
be rejected on the basis that they do not meet the intent of the Act, 
and do not promote recovery of Gila trout.
    Our Response: We believe that the special rule promotes the 
conservation and recovery of Gila trout by relieving population 
pressures as described under the ``Description of Special Rule'' 
section below. More specifically, we anticipate that implementation of 
the special rule will benefit the Gila trout by providing a means 
whereby excess Gila trout from captive rearing may be placed in streams 
for recreational benefit rather than destroyed. Furthermore, 
recreational management for Gila trout will be consistent with the 
goals of the Recovery Plan for the species (Service 2003).
    Additionally, the special rule contributes to the conservation of 
the Gila trout through: (1) Eligibility for

[[Page 40660]]

Federal sport fishing funds; (2) increase in the number of wild 
populations; (3) enhanced ability to monitor populations (e.g., creel 
censuses) for use in future management strategies; and (4) creation of 
goodwill and support in the local community. Each of these topics is 
discussed in detail in the ``Description of Special Rule'' section 
below.
    (3) Comment: Replicates of Main Diamond Creek are less than 10 
years old and do not have enough generations to determine whether they 
can support self-sustaining populations of Gila trout. South Diamond 
Creek and its replicate Mogollon Creek also have a history of less than 
10 years.
    Our Response: The Main Diamond Creek lineage is the most replicated 
of all the lineages (see Table 1 above). The Mogollon Creek population 
was established in 1998, and is well established. Currently it supports 
more than five different age classes (Jim Brooks, NMFRO, pers. comm. 
2006). Self-sustaining populations are a component of the criteria for 
delisting, not a component of the criteria for downlisting. See our 
response to Comment 11 below.
    (4) Comment: McKnight Creek is in the Mimbres River drainage and 
not within the historical range of the Gila trout, and should not be 
considered as contributing to recovery.
    Our Response: While McKnight Creek is not within the historical 
range of Gila trout, it has played an important role in the improved 
status of the species. The McKnight Creek population was established in 
1972, when there was no direction for conservation and recovery actions 
in the native range of species. When a fire burned through Main Diamond 
Creek in 1989, McKnight Creek maintained the Main Diamond Creek 
lineage. Currently, due to its large population size, it is used to 
provide and maintain genetic variability of the captive broodstock at 
the Mora Fish Hatchery and Technology Center.
    (5) Comment: Dry Creek is not geographically separate from Spruce 
Creek and has extremely limited habitat.
    Our Response: It is true that Dry Creek is not geographically 
separate from Spruce Creek. However, Spruce Creek is also replicated by 
Raspberry Creek, which is geographically separate.
    (6) Comment: Although Gila trout may be rescued from a stream 
threatened by wildfire, it takes years to many decades for a stream 
ravaged by wildfire to recover to a point that it can sustain a trout 
population.
    Our Response: Although it may take decades for a stream to recover 
from a devastating wildfire, not all wildfires are devastating, and 
recovery for less intense fires can occur within a few years. The 
effects to the streams can range anywhere from mild to extreme, and 
likewise the timeline for returning fish to those streams can be of 
short or long duration. Emergency evacuated fish are held at the Mora 
Fish Hatchery until a post-fire evaluation determines that the fish can 
be returned to the stream. Gila trout evacuated from Raspberry Creek in 
2004 were returned within the same season after an evaluation 
determined the effects of the fire on the upper portions of the stream 
were minimal. In addition, Gila trout evacuated from Mogollon Creek 
were used to supplement the captive broodstock for additional recovery 
efforts.
    (7) Comment: There is no provision in the Emergency Evacuation Plan 
to rescue Gila trout populations threatened by flood or drought. The 
proposed reclassification and Emergency Evacuation Plan address the 
threat of predation from brown trout but do not address the threat of 
hybridization with rainbow trout.
    Our Response: The Emergency Evacuation Plan specifically addresses 
the rescue of Gila trout due to wildfire, flooding, drought, and 
invasion by nonnative salmonids. Both the proposed rule and the 
Emergency Evacuation Plan refer to nonnative salmonids, which include 
rainbow trout.
    (8) Comment: The proposed rule dismisses whirling disease as a 
potential threat to Gila trout because the species is found only in 
high elevation streams with low water temperatures. However, Gila trout 
occur in streams as low as 6,500 feet (ft) and in water temperature 
between 60 to 70 degrees Fahrenheit ([deg]F). In addition, you do not 
address the threat of bacterial kidney disease (BKD), which occurs in 
Gila trout streams.
    Our Response: Whirling disease and BKD are minor potential threats 
to Gila trout. Whirling disease is unlikely to threaten Gila trout 
because: (1) There has never been a detection of the intermediate host 
(Tubifex tubifex) from the many benthic samples taken; (2) there is no 
source for infection (rainbow trout have not been stocked in the Gila 
Basin since the early 1970s, and the NMDGF no longer stocks brown 
trout); and (3) despite many years of monitoring and sampling of Gila 
trout populations, the disease has never been detected.
    Gila trout from Whiskey Creek tested positive for antigens of BKD, 
indicating that there was past exposure to BKD, but fish in Whiskey 
Creek developed an antibody to resist the disease. However, we have no 
information documenting that BKD is currently present in Whiskey Creek 
or other streams where Gila trout are extant. We believe that the 
Whiskey Creek population was exposed to BKD prior to the listing of the 
Gila trout (Jim Brooks, NMFRO, pers. comm 2006). Please refer to 
discussion under ``Factor C. Disease and Predation'' below.
    (9) Comment: Considering recent events (wildfires, drought, floods, 
and invasion by nonnative trout), most recovery actions have been 
undertaken to replace or rescue populations that were lost rather than 
establish new ones. The present proposal assumes that history will not 
repeat itself.
    Our Response: The threats from wildfire, drought, flood, and 
invasion by nonnative trout exist, but we have successfully used our 
Emergency Evacuation Plan to minimize those threats. We have a highly 
successful collaborative recovery program with participation from the 
Forest Service, Service, NMDGF, and AGFD. Cooperative recovery actions 
have increased the number of populations from 4 at the time of listing 
to 13 today. In addition, the West Fork Gila River Restoration Project 
is ongoing and will add a total of 34 km (21 mi) to occupied range 
including the Whiskey Creek replication.
    (10) Comment: The Emergency Evacuation Plan has been invoked three 
times in three years, indicating that extraordinary efforts must 
continue to prevent extirpation of the species from a significant 
portion of its range. Therefore, the reclassification is premature.
    Our Response: The Emergency Evacuation Plan has been used several 
times in the past few years to rescue populations that may otherwise be 
lost. The plan was developed specifically for the purpose of minimizing 
threats from natural events. These examples demonstrate the usefulness 
and success of the emergency response process. Please refer to Comment 
6 above.
    (11) Comment: The benefit to Gila trout from implementation of the 
special rule is speculative. There is no guarantee that sport fish 
money will be spent on Gila trout. The number of wild populations of 
Gila trout will not increase because hatchery fish will be stocked into 
streams containing nonnative trout, where a few will be removed by 
anglers or predation and the rest will hybridize with the nonnatives. 
Creel census will add nothing to information regarding the viability of 
the populations. Demographic monitoring is already in place and being 
accomplished.
    Our Response: Funds generated by sport fishing activity are already 
being

[[Page 40661]]

spent on Gila trout for conservation. Although there is no guarantee 
that additional monies will be spent on Gila trout, allowing for 
angling would contribute to sport fish money. This would create an 
opportunity for generating revenue from Gila trout angling and then 
using that revenue to supplement Gila trout conservation activities.
    Although increases in the number of wild populations of Gila trout 
will not be immediate, we believe that over time, stocking of nonnative 
trout would be discontinued in favor of efforts to restore Gila trout. 
In addition, we will have the ability to utilize Gila trout derived 
from the large numbers of fish produced under the genetic broodstock 
management guidelines and excess to recovery needs. Currently, the 
hatchery is producing fish beyond what we are using for recovery. These 
excess fish can be used to support angling programs in non-recovery 
streams and lakes.
    Although the details of the creel survey programs have yet to be 
worked out by the States, the programs will likely include monitoring 
of angling impacts on Gila trout by gathering information such as 
population data (size of fish, number caught, and released), data 
concerning the survival of released fish, and angler-related data.

Public Comments

    In the proposal to reclassify the Gila trout from endangered to 
threatened with a special rule, we requested that all interested 
parties submit comments on the proposed reclassification and special 
4(d) rule enabling NMDGF and AGFD to promulgate special regulations in 
collaboration with the Service allowing recreational fishing for Gila 
trout. In addition, we also requested information concerning angling 
opportunities that may be affected by this action in New Mexico or 
Arizona and how the special rule might affect these uses and further 
the conservation of the Gila trout beyond what we have discussed. We 
requested this information in order to make a final listing 
determination based on the best scientific and commercial data 
currently available. During the public comment period, we received 16 
written comments (2 written comments were identical, in the form of 
automatically generated letters), and 7 speakers gave verbal comments 
at the public hearings. All substantive information provided during the 
public comment period, written and verbal, either has been incorporated 
directly into this final determination or is addressed below. Similar 
comments are grouped together by issue.
Issue 1: Procedural and Legal Compliance
    (12) Comment: It is premature to downlist the Gila trout from 
endangered to threatened at this time. The Service has not yet met its 
own Emergency Recovery Plan standard of replicating the Gila trout's 
four original genetic lineages, inclusive of Whiskey Creek. Given the 
fact that the Gila trout population remains small and fragile, and the 
long-term recovery strategy for the Gila trout is still problematic due 
to fire, flood, drought, or other natural disaster dangers, a 
downlisting could severely endanger or even destroy the species. The 
Service is setting a precedent by downlisting a species that has not 
met current recovery criteria and relying on future anticipated 
progress as a basis for reclassification.
    Our Response: We have met every component of the downlisting 
criteria recommended in the Recovery Plan, with the replication of all 
of the four known, non-hybridized lineages. The replication of the 
Whiskey Creek lineage into Langstroth Canyon was completed on June 21, 
2006. Additional efforts will be pursued to expand the Whiskey Creek 
population to its confluence with the upper West Fork Gila River in 
2007. The Forest Service has evaluated the effects of this action under 
the National Environmental Policy Act (42 U.S.C. 4321-4347) and section 
7 of the Act. The New Mexico Game Commission approved the use of 
Antimycin to remove nonnatives in the renovation of Langstroth Canyon. 
With the completion of the Whiskey Creek replication into Langstroth 
Canyon, we currently have Gila trout in 109 km (67 mi) of stream. Thus, 
we have exceeded the recovery criteria of establishing 85 stream km (53 
mi) of occupied habitat.
    We also have an Emergency Evacuation Plan in place that has proven 
to be successful to minimize impacts on Gila trout that are threatened 
by wildfire and other potential threats such as floods and drought. The 
plan can be implemented through the emergency consultation provisions 
under section 7 of the Act during emergency events (e.g., flood, fire, 
drought).
    Recovery plans are not regulatory documents and are instead 
intended to provide guidance to the Service, States, and other partners 
on methods of minimizing threats to listed species and on criteria that 
may be used to determine when recovery is achieved. There are many 
paths to accomplishing recovery of a species and recovery may be 
achieved without all criteria being fully met. For example, one or more 
criteria may have been exceeded while other criteria may not have been 
accomplished. In that instance, the Service may judge that over all 
criteria, the threats have been minimized sufficiently, and the species 
is robust enough, to reclassify the species from endangered to 
threatened or perhaps delist the species. In other cases, recovery 
opportunities may have be recognized that were not known at the time 
the recovery plan was finalized. These opportunities may be used 
instead of methods identified in the recovery plan. Likewise, 
information on the species may be learned that was not known at the 
time the recovery plan was finalized. The new information may change 
the extent that criteria need to be met for recognizing recovery of the 
species. Overall, recovery of species is a dynamic process requiring 
adaptive management and judging the degree of recovery of a species is 
also an adaptive management process that may, or may not, fully follow 
the guidance provided in a recovery plan.
    Endangered status is no longer appropriate because we have 
increased the number of Gila trout populations from 4 at the time of 
listing to 13 today. In addition, abundance has increased significantly 
over the last 10 years (Brown et al. 2001). Major threats to Gila trout 
have been reduced (e.g., nonnative salmonids are not in the streams 
that currently support Gila trout), and we have measures in place to 
minimize remaining threats (see discussion in ``Summary of Factors 
Affecting the Species'' below). Additionally, reclassifying Gila trout 
as a threatened species does not diminish any of the protections it 
currently receives as an endangered species, except that the special 
rule will allow take in accordance with fishing regulations enacted by 
New Mexico and Arizona.
    (13) Comment: Some forms of recreational fishing for Gila trout are 
not yet appropriate because populations remain fragile. Not all of the 
genetic strains in Gila trout streams are recovered or are self-
sustaining and able to withstand fishing pressure. Despite the fact 
that there has been no fishing of Gila trout for more than 50 years in 
New Mexico, the population is still limited. This action could threaten 
the fish and reverse years of trout preservation.
    Our Response: We do not expect a high level of angling pressure on 
Gila trout streams because: (1) Not every stream occupied by Gila trout 
will be opened to fishing, e.g., as stated elsewhere in this rule, the 
four relict populations will not be opened for angling; (2) these 
streams are high

[[Page 40662]]

elevation, remote, and difficult to access; and (3) it is likely that 
additional ``non-recovery'' or ``enhancement'' streams will be stocked 
with surplus hatchery-raised fish. We expect that the State agencies, 
in collaboration with the Service, will determine which streams will be 
opened to fishing, to what degree, and the types of angling that will 
be allowed (e.g., catch and release using artificial flies and lures 
with single barbless hooks). In general, establishment of recreational 
opportunities can be developed in recovery waters that have stable or 
increasing numbers of individuals (as measured by population surveys) 
and where habitat conditions are of sufficient quality to support 
viable populations of Gila trout (populations having annual 
recruitment, size structure indicating multiple ages, and individuals 
attaining sufficient sizes to indicate 3 to 7 years of survival). In 
addition, recreational opportunities may be developed in non-recovery 
or enhancement waters. According to NMDGF, the process by which a 
stream is designated a fishery involves: (1) Carefully evaluating the 
Gila trout population (e.g., size structure, density, distribution, and 
recruitment) in each stream; (2) determining whether the stream can 
sustain angling and how much (this evaluates a suite of different 
angling pressures); (3) making a recommendation to designate the stream 
a fishery; and (4) monitoring to insure there are no detrimental 
effects to the population from angling. If monitoring indicates a 
negative effect on the conservation of Gila trout, the fishing 
regulations can be amended, and the stream withdrawn as a fishery. The 
process by which AGFD designates a fishery is very similar and can be 
found on the AGFD Web site at http://www.azgfd.gov/inside_azgfd/rulemaking_process.shtml.
    (14) Comment: The Emergency Evacuation Plan should be fully 
implemented before there is any discussion of removal of the Gila trout 
from the Endangered Species list. Although there has been an increase 
in the number of Gila trout populations, those populations are still 
not capable of fishing pressure since the Gila Trout Emergency Plan has 
not been complied with by the Service and the Service concedes that 
``drought, wildfire, and floods remain as threats'' to stable fish 
populations.
    Our Response: The Emergency Evacuation Plan is in place and has 
been implemented in 2002, 2003, and 2004, and will continue to be 
implemented as needed. The Emergency Evacuation Plan was developed to 
protect against losses of Gila trout populations due to wildfire-
related effects (including floods), nonnative salmonid invasion, and 
drought. In addition, the plan is currently under review to update 
personnel contact information and, where appropriate, revise and 
improve evacuation procedures.
    (15) Comment: Gila trout is a critically imperiled species whose 
future is not secure and for which the conservation benefits of sport 
fish designation are unclear. Individual Gila trout of suitable size to 
interest anglers are a small proportion of existing populations. From a 
population dynamics perspective, these larger fish are among the most 
important. Their intentional or inadvertent removal (via angling stress 
and mortality) would be detrimental, especially where populations are 
small. This was the case for the roundtail chub (Gila robusta) in 
Arizona that was designated a sport fish in lieu of listing. The 
roundtail chub's status continued to deteriorate despite the 
accompanying assurances that sport fish dollars would provide a 
conservation benefit. In addition, Gila trout fishing regulations have 
yet to be developed, thus there is no opportunity to assess what 
protections will actually be provided.
    Our Response: Sport fishing for Gila trout will only be allowed 
through the 4(d) rule and subsequent State regulations promulgated by 
Arizona and New Mexico in collaboration with the Service. The Gila 
trout will be considered a threatened species under the Act and 
continue to receive recovery funding. Therefore it will not rely solely 
on monies generated through the Federal Aid in Sport Fish Restoration 
Act (Dingell-Johnson Act) (16 U.S.C 777-777l of 1950, as amended) or 
other sport fish-related revenue. Contributions from the Dingell-
Johnson Act have been used in the past and are currently being used to 
fund conservation actions for this species, and therefore it is 
anticipated that those monies and any other sport fish-related revenue 
will continue to be utilized in the future. As noted, individual 
streams will only be opened to sport fishing after each State conducts 
a thorough analysis and determines that a fishery is supportable. We 
anticipate that the State Game Commission's meetings to amend the 
fishing regulations to allow sportfishing of Gila trout will be open to 
the public and comments will be solicited. Thus, we expect the public 
will have ample opportunity to evaluate proposals from the States. It 
is likely that most of the angling opportunities would be offered in 
non-recovery streams stocked with surplus hatchery fish.
    The roundtail chub is not a federally-listed species and as such 
cannot be compared to the Gila trout, which still receives the Act's 
protection and associated funding.
    (16) Comment: Substantial take is occurring from illegal fishing 
activities.
    Our Response: We did not receive any information during the public 
comment period that documents illegal fishing as a widespread threat to 
the species. There is limited evidence that illegal fishing activity 
has taken place (e.g., fishing tackle has been found on a few 
occasions). Still, we believe the amount of take is small. Please refer 
to our discussion below under ``Factor B. Overutilization for 
commercial, recreational, scientific, or educational purposes.''
    (17) Comment: The Service issues too many research permits 
resulting in a negative effect to fish species.
    Our Response: We have only issued 13 recovery permits for Gila 
trout since August 2002. The majority of these permits are issued to 
the Forest Service, the State Game and Fish Agencies, and the Service 
for survey and monitoring work. In addition, to minimize potential 
impacts, the Service insures that permits issued for research purposes 
do not overlap.
    (18) Comment: In the current proposal, there are no restrictions on 
the States to prevent opening of streams that contain relict or 
replicated populations to angling. A draft of proposed State 
regulations should be included in the proposal for public analysis.
    Our Response: As stated in the ``Description of Special Rule'' 
section, this final rule will allow recreational fishing of Gila trout 
only in specified waters. Areas open to fishing would not include the 
four relict populations identified in Table 1.
    The States need the flexibility to adjust how a fishery is 
regulated on a case-by-case basis. The States can amend their fishing 
regulations in a manner of months, whereas the Federal rulemaking 
process typically takes much longer. The general process to amend 
fishing regulations includes a State Game and Fish Agency (NMDGF or 
AGFD) making a recommendation to their State Game Commission. The State 
Game Commission considers the recommendations and can either finalize 
the proposed regulations or postpone a final action until a future 
date. We anticipate that the State Game Commission's meetings to amend 
the fishing regulations to allow sportfishing of Gila trout will be 
open to the public and comments will be solicited. Thus, we expect the 
public will have ample opportunity to evaluate proposals from

[[Page 40663]]

the States. For these reasons, we believe it is prudent to allow the 
States to develop Gila trout regulations apart from the Federal 
rulemaking process.
    (19) Comment: Critical habitat for Gila trout should be designated 
for at least those streams containing relict populations and, ideally, 
all those streams that contribute to recovery of the species.
    Our Response: The Gila trout was originally recognized as 
endangered under the Federal Endangered Species Preservation Act of 
1966 (March 11, 1967; 32 FR 4001), prior to critical habitat being 
formalized in the 1978 and 1982 amendments to the Act. One of the 
applicability provisions in the 1982 amendments to the Act indicates 
that the provision for designating critical habitat, section 4(a)(3)(A) 
of the Act, shall not apply with respect to any species which was 
listed as an endangered species or a threatened species before November 
10, 1978 (section 4(b)(6)(A)(i)(II) of the Endangered Species Act of 
1973, as amended, (16 U.S.C. 1533(b)(6)(A)(i)(II)), Pub. L. 95-632, at 
2(2), 92 Stat. 3751 (November 10, 1978), and Pub. L. 97-304, at 
2(b)(2), 2(b)(4), 96 Stat. 1411, 1416 (October 13, 1982). Therefore, we 
are not required to designate critical habitat for the Gila trout.
    Furthermore, we do not believe it is necessary to designate 
critical habitat for the Gila trout due to existing protections and the 
progress being made towards species recovery (as discussed throughout 
this rule). For example, 10 of 11 populations in New Mexico exist in 
the Aldo Leopold Wilderness or Gila Wilderness, and the population in 
Raspberry Creek in Arizona occurs in the Blue Range Primitive Area. 
Thus, a majority of the extant populations are protected by these 
special designations on Forest Service lands. We provide a further 
discussion of the existing regulatory protections for the Gila trout in 
``Factor D: The inadequacy of existing regulatory mechanisms'' below.
    (20) Comment: Because the Recovery Plan criteria have not been met, 
the size and diversity of Gila trout populations remain inadequate, and 
significant risks to the species are still present. Seven populations 
have been lost to fire since 1989. The Iron and McKenna Creek 
populations are hybridized with rainbow trout, indicating they cannot 
be used for recovery. The abundance of Gila trout numbers in the Spruce 
Creek population remains low.
    Our Response: We agree that fire is still one of the most 
significant threats to Gila trout. The Emergency Evacuation Plan was 
developed to allow for the emergency removal of Gila trout from a 
stream that is immediately threatened and for the transport of removed 
Gila trout to a facility where they will be held until conditions allow 
the fish to be successfully placed back into the original stream. We 
have utilized the plan in the last several years and it has been 
successful. (Please refer to ``Recovery Plans and Accomplishments'' 
section above.)
    In 1998, it was determined that the McKenna and Iron Creek 
populations had hybridized with rainbow trout and, therefore, did not 
contribute to the recovery of the species because they are not pure 
(Leary and Allendorf 1998; Service 2003). In 2002, three age classes 
(age 0 to age 3) of Gila trout were abundant in Spruce Creek (USFWS 
2003).
    (21) Comment: How will the 4(d) rule be implemented? What will be 
the role of the States in conserving Gila Trout?
    Our Response: As noted in response to Comment 13 above, the States, 
in collaboration with the Service, will determine whether a Gila trout 
stream will be designated as a fishery. See also our response to 
Comment 19 above for further information.
    (22) Comment: Only when the Gila trout population is self-
sustaining in the wild should the Service consider reclassification.
    Our Response: We have evaluated the threats to the Gila trout (see 
``Summary of Factors Affecting the Species'' section), and are 
reclassifying this animal as threatened (i.e., one that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range). Based on the information 
available, we believe the Gila trout is no longer in danger of 
extinction throughout all or a significant portion of its range (i.e., 
it does not meet the definition of an endangered species). The criteria 
for downlisting the Gila trout to a threatened species, outlined above 
in the ``Recovery Plans and Accomplishments'' section, refers, in part, 
to replicating the indigenous lineages in 85 km (53 mi) of stream. The 
reference to establishment of self-sustaining populations is only 
discussed in the Recovery Plan criteria for delisting (i.e., fully 
recovered and removed from the list of endangered species). Thus, since 
we are not proposing to ``delist'' the Gila trout at this time, the 
reference to self-sustaining populations is not pertinent to our 
current action.
    (23) Comment: If fishing for Gila trout is allowed, it will be 
abused, and there will be no chance for the population to recover.
    Our Response: Both States have a long and successful history in the 
management of recreational fisheries. Regulations implemented for Gila 
trout along with increased law enforcement attention will insure that 
protections are adequate for the conservation of the species. In 
addition, as stated previously, the populations will be monitored to 
ensure that they can withstand fishing pressure while contributing to 
the conservation of the species. If monitoring indicates that a Gila 
trout population is being adversely affected, the fishery may be 
closed. See also our responses to Comments 12 and 15 above.
Issue 2: Biological Concerns
    (24) Comment: Factors that threaten the security of Gila trout have 
not been removed and remain so severe that the species could be 
eliminated from a significant portion of the remnant habitat it now 
occupies within its historic range. These factors include, but are not 
limited to, hybridization with other fish species, stream flooding or 
desiccation, direct or indirect effects of fire, disease, parasites, 
and predation. Many of these threats cannot be eliminated but their 
impacts can be mitigated by ensuring that viable Gila trout populations 
occupy a suite of suitable streams across a broad regional landscape, 
which currently is not the case. For example, recent fires that have 
resulted in emergency evacuations or eliminated Gila trout from several 
streams demonstrate that the species is in a precarious state and 
deserves the continued protection afforded by endangered status.
    Our Response: As discussed in the ``Summary of Factors Affecting 
the Species'' section below, we recognize that some threats to Gila 
trout still exist. However, based upon our analysis, threatened status 
is the appropriate classification for the Gila trout. For this reason, 
we are reclassifying the species from endangered to threatened. Refer 
to the ``Available Conservation Measures'' section below for a 
discussion of the protections afforded the Gila trout as a threatened 
species. In addition we have an Emergency Evacuation Plan in place to 
minimize effects from fire, drought, floods, and nonnative salmonid 
invasion.
    (25) Comment: Given the current ban on piscicide use by the New 
Mexico Game Commission, it is unlikely that the Whiskey Creek Gila 
trout population can be securely replicated.
    Our Response: The replication of Whiskey Creek was completed on 
June 21, 2006. The New Mexico Game Commission recently gave their

[[Page 40664]]

approval to use Antimycin on the West Fork Gila River once they 
concluded that the use of Antimycin would aid in the downlisting of 
Gila trout (New Mexico Game Commission 2005).
    (26) Comment: Federal agencies routinely use pesticides, 
herbicides, and other chemicals that are lethal to macroinvertebrates, 
thereby depleting the food supply for Gila trout. Grazing is 
detrimental to Gila trout. Moreover, prescribed burning is a threat to 
Gila trout because the fine particulate matter from prescribed burning 
suffocates fish.
    Our Response: We acknowledge that these are all potential threats 
to the Gila trout. However, Federal agencies considering an action that 
may affect a threatened or endangered species are subject to section 7 
of the Act. Under section 7, Federal agencies must consult with the 
Service to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of any endangered or 
threatened species or adversely modify its habitat. Please see Comment 
27 below for discussion of piscicides and macroinvertebrates. As 
discussed in the ``Factor A. The present or threatened destruction, 
modification, or curtailment of its habitat or range'' section below, 
livestock grazing is carefully managed now, and on creeks occupied by 
Gila trout, grazing has either been suspended or cattle are excluded.
    Also described under ``Factor A'' below, prescribed fire is closely 
managed and analyzed under section 7 of the Act to minimize adverse 
effects to the Gila trout and its habitat. Threats of wide-scale 
habitat loss due to wildfire are real and immediate on many public 
lands. Reducing fuels in these areas may help to protect habitat for 
threatened and endangered species. Forest thinning, often in 
conjunction with prescribed fires, is extremely important as a 
management tool needed to enhance, and often to restore, many of the 
ecosystem functions and processes. These types of projects may result 
in long-term benefits to listed species, including the Gila trout, but 
may also contribute, in the short term, to certain adverse effects to 
the species. Nevertheless, we believe it is important to address 
adverse impacts by minimizing, to the greatest extent practical, those 
short-term adverse effects and move forward with proactive land 
management to restore ecosystem functions and community dynamics.
    (27) Comment: Using piscicides to remove nonnative fish ultimately 
hurts all fish species and ruins water quality.
    Our Response: At the levels used to kill trout, Antimycin has been 
demonstrated to have no effect on amphibians, mammals, and birds, and 
only minimal effects on some insects (Finlayson et al. 2002). In 
addition, Antimycin alone appears to have little short-term effect on 
invertebrates in high elevation streams (Cerreto et al. 2003). 
Antimycin breaks down rapidly, and can be contained easily because it 
naturally detoxifies quickly. Numerous researchers have found that 
organic substances in a streambed act as a filter to naturally detoxify 
Antimycin-treated water. Additionally, it can be neutralized by 20 
minutes of contact with potassium permanganate (Q&A Fact Sheet, 
Westslope Cutthroat Trout Conservation Program).

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations issued to implement the 
listing provisions of the Act (50 CFR part 424) set forth the 
procedures for listing, reclassifying, and delisting species. Species 
may be listed as threatened or endangered if one or more of the five 
factors described in section 4(a)(1) of the Act threaten the continued 
existence of the species. A species may be reclassified, according to 
50 CFR 424.11(c), if the best scientific and commercial data available 
provide a basis for determining that the species' current status is no 
longer correct. This analysis must be based upon the five categories of 
threats specified in section 4(a)(1).
    For species that are already listed as threatened or endangered, 
this analysis of threats is primarily an evaluation of the threats that 
could potentially affect the species in the foreseeable future 
following the delisting or downlisting, and the associated removal or 
reduction of the Act's protections. Our evaluation of the future 
threats to the Gila trout that would occur after reclassification to 
threatened status is partially based on the protection provided by the 
Gila and Aldo Leopold Wilderness areas, the Emergency Evacuation Plan, 
and the broodstock management plan, and on limitations on take that 
would be determined by the States in collaboration with us.
    Discussion of the five listing factors and their application to 
reclassification of the Gila trout are as follows:

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

    In the past, Gila trout populations were threatened by habitat 
degradation and watershed disturbances (52 FR 37424). These factors 
compounded the threats posed by nonnative salmonids (see Factors C and 
E below for discussions of nonnative salmonids). We discuss habitat 
degradation from livestock grazing, timber harvest, and wildfires 
below.
Livestock Grazing
    Intensive livestock grazing has been shown to increase soil 
compaction, decrease infiltration rates, increase runoff, change 
vegetative species composition, decrease riparian vegetation, increase 
stream sedimentation, increase stream water temperature, decrease fish 
populations, and change channel form (Meehan and Platts 1978; Kaufman 
and Kruger 1984; Schulz and Leininger 1990; Platts 1991; Fleischner 
1994; Ohmart 1996). Although direct impacts to the riparian zone and 
stream can be the most obvious sign of intensive livestock grazing, 
upland watershed condition is also important because changes in soil 
compaction, percent cover, and vegetative type influence the timing and 
amount of water delivered to stream channels (Platts 1991). Increased 
soil compaction, decreased vegetative cover, and a decrease in 
grasslands lead to faster delivery of water to stream channels, 
increased peak flows, and lower summer base flow (Platts 1991; Ohmart 
1996; Belsky and Blumenthal 1997). As a consequence, streams are more 
likely to experience flood events during monsoons (water runs off 
quickly instead of soaking into the ground) that negatively affect the 
riparian and aquatic habitats and are more likely to become 
intermittent or dry in September and October (groundwater recharge is 
less when water runs off quickly) (Platts 1991; Ohmart 1996).
    Livestock grazing practices that degrade riparian and aquatic 
habitats generally cause decreased production of trout (Platts 1991). 
Livestock affect riparian vegetation directly by eating grasses, 
shrubs, and trees; by trampling the vegetation; and by compacting the 
soil. Riparian vegetation benefits streams and trout by providing 
insulation (cooler summer water temperatures, warmer winter water 
temperatures), by filtering sediments so that they do not enter the 
stream (sediment clogs spawning gravel and reduces the survival of 
salmonid eggs), by providing a source of nutrients to the stream from 
leaf litter (increases stream productivity), and by providing root 
wads, large woody debris, and small woody debris to the stream 
(provides cover for the fish) (Kauffman and Krueger 1984; Platts 1991; 
Ohmart 1996). Poor livestock grazing practices can increase 
sedimentation through

[[Page 40665]]

trampling of the stream banks (loss of vegetative cover), by removal of 
riparian vegetation (filters sediment), and through soil compaction 
(decreases infiltration rates, increases runoff, causes increased 
erosion). Sediment is detrimental to trout because it decreases the 
survival of their eggs (Bjornn and Reiser 1991), and because of its 
negative impact on aquatic invertebrates, a food source for trout 
(Wiederholm 1984).
    In the late 1800s and early 1900s, livestock grazing was 
uncontrolled and unmanaged over many of the watersheds that contain 
Gila trout, and much of the landscape was denuded of vegetation (Rixon 
1905; Duce 1918; Leopold 1921; Leopold 1924; Ohmart 1996). Livestock 
grazing is more carefully managed now, which has resulted in less 
impact to streams occupied by Gila trout. Improved grazing management 
practices (e.g., fencing) have reduced livestock access to streams. Six 
of the 12 streams currently occupied by Gila trout are within Forest 
Service grazing allotments. However, as described below, on the six 
creeks occupied by Gila trout within Forest Service lands, grazing has 
either been suspended or cattle are typically excluded.
    Mogollon Creek is within the Rain Creek/74 Mountain Allotment. This 
allotment receives only winter use, and much of the riparian habitat is 
inaccessible to livestock. Riparian vegetation along Mogollon Creek is 
in good condition (A. Telles, U.S. Forest Service, Gila National 
Forest, in litt. 2003c). Main Diamond Creek and the adjacent riparian 
zone, located in the South Fork Allotment, are excluded from grazing. 
The Forest Service is implementing a fencing project along Turkey Run 
Creek to prevent livestock trespass into Main Diamond Creek (A. Telles, 
U.S. Forest Service, Gila National Forest, in litt. 2003c).
    Spruce Creek and Big Dry Creek are within the northern portion of 
the Dry Creek Allotment within the Gila Wilderness and have not been 
grazed in several years. Although the allotment is not closed to 
grazing, topography essentially excludes livestock from grazing in the 
Spruce Creek Drainage and within the occupied reach of Big Dry Creek 
(J. Monzingo, U.S. Forest Service, Gila National Forest, pers. comm 
2006). McKnight Creek is within the Powder Horn Allotment managed by 
the Headwaters Ranch. The Headwaters Ranch is a partnership that 
includes The Nature Conservancy and other partners. Grazing has been 
excluded upstream of occupied habitat as well as from the entire 
occupied reach of McKnight Creek (J. Monzingo, U.S. Forest Service, 
Gila National Forest, pers. comm 2006).
    South Diamond Creek and Black Canyon are within the Diamond Bar 
Allotment, where grazing was suspended in 1996. This has resulted in 
marked improvements in the condition of riparian and aquatic habitat in 
these areas (A. Telles, U.S. Forest Service, Gila National Forest, in 
litt. 2003c).
    Lower Little Creek, Upper White Creek, and Whiskey Creek do not 
occur within grazing allotments. The area of the Gila Wilderness where 
these streams are located was closed to grazing in the 1950s when the 
NMDGF acquired the private property associated with the Glenn 
Allotment, which included these streams (J. Monzingo, U.S. Forest 
Service, Gila National Forest, pers. comm 2006). The NMDGF and FS have 
since signed an agreement excluding livestock from the area and 
allowing the State to utilize the area for elk introduction (J. 
Monzingo, U.S. Forest Service, Gila National Forest, pers. comm 2006).
    In Arizona on the Apache-Sitgreaves National Forest, Raspberry 
Creek, which is located in the Blue Range Primitive Area, includes two 
grazing allotments, Strayhorse and Raspberry. The Strayhorse Allotment 
includes about 75 percent of the watershed above the fish barrier. The 
allotment was evaluated in July 1998, and determined to be in ``Proper 
Functioning Condition'' (D. Bills, U.S. Fish and Wildlife Service, in 
litt. 2003d). It has a well-developed riparian plant community and no 
adverse impacts from ongoing livestock grazing (Service 2000). 
Evaluation of the Raspberry Allotment occurred twice in 1998, and 
concluded that the allotment was ``Functional--At Risk'' and in a 
``Downward'' trend (Service 2000). The report noted an incised channel 
(eroded downward), and concluded that upland watershed conditions were 
contributing to the riparian degradation. Significant changes were made 
to the Raspberry Allotment in 2000 (Service 2000). Specifically, the 
Forest Service required a reduction in livestock numbers to 46 cattle 
from November 1 to June 14 (or removal of cattle prior to June 14 if 
utilization standards are reached). Prior to this, 225 cattle were 
permitted on the Allotment yearlong, and 160 cattle were permitted from 
January 1 to May 15.
    Dude Creek, on the Tonto National Forest, is within the East Verde 
Pasture of the Cross V Allotment. Current management techniques are 
designed to protect the stream banks and riparian vegetation, thereby 
reducing sedimentation and increasing river insulation (and thereby 
maintaining cooler summer and warmer winter water temperatures). 
Riparian conditions on Dude Creek continue to improve; however, the 
Gila trout population has not done well. This is most likely to due to 
other stressors such as drought.
Timber Harvest
    Logging activities in the early to mid 1900s likely caused major 
changes in watershed characteristics and stream morphology (Chamberlin 
et al. 1991). Rixon (1905) reported the occurrence of small timber 
mills in numerous canyons of the upper Gila River drainage. Early 
logging efforts were concentrated along canyon bottoms, often those 
with perennial streams. Tree removal along perennial streams within the 
historical range of Gila trout likely altered water temperature 
regimes, sediment loading, bank stability, and availability of large 
woody debris (Chamberlin et al. 1991). Nine of 10 populations in New 
Mexico exist in the Aldo Leopold Wilderness or Gila Wilderness. Of the 
two populations in Arizona, Raspberry Creek occurs in the Blue Range 
Primitive Area. Timber harvest is not allowed in wilderness or 
primitive areas. There are no plans for timber harvest near the other 
streams that have Gila trout (A. Telles, U.S. Forest Service, Gila 
National Forest, in litt. 2003c). If timber harvest were to be proposed 
in the future in the two areas located outside of a wilderness or 
primitive area, the Forest Service would need to consider the effects 
of the proposed action under section 7 of the Act.
Fire
    High-severity wildfires, and subsequent floods and ash flows, have 
caused the extirpation of three populations of Gila trout since 1989: 
Main Diamond (1989), South Diamond including Burnt Canyon (1995), and 
Upper Little Creek (2003). In addition, Trail Canyon and Woodrow Canyon 
(both subpopulations of the Mogollon Creek population) were lost in 
1996. In addition, Sacaton Creek was lost in 1996. However, Sacaton 
Creek was a replicate of Iron Creek, which was determined to be a 
hybridized population and is no longer considered a legitimate 
replicate (Propst et al. 1992; Brown et al. 2001; J. Brooks, Service, 
pers. comm. 2003). Lesser impacts were experienced in 2002, when ash 
flows following the Cub Fire affected the lower reach of Whiskey Creek. 
However, lower Whiskey Creek is frequently intermittent and typically 
contains few fish (Brooks 2002). Upper Whiskey Creek, where the 
majority of the fish occur, was not affected by the Cub Fire. The Cub 
Fire also impacted the upper

[[Page 40666]]

West Fork Gila and may have eliminated nonnative trout from the 
watershed upstream of Turkey Feather Creek (Brooks 2002). In 2003, fire 
retardant was dropped on Black Canyon, affecting approximately 200 
meters (m) (218 yards) of stream (J. Monzingo, U.S. Forest Service, 
Gila National Forest, in litt. 2003e). Although some Gila trout were 
killed, the number of mortalities is unknown (J. Monzingo, U.S. Forest 
Service, Gila National Forest, in litt. 2003e) because dead fish were 
carried by the current out of the area by the time fire crews arrived. 
However, a week after the retardant drop, live Gila trout were observed 
about 400 m (438 yards) below the drop site (J. Monzingo, U.S. Forest 
Service, Gila National Forest, in litt. 2003e).
    Severe wildfires capable of extirpating or decimating fish 
populations are a relatively recent phenomenon. They result from the 
cumulative effects of historical or overly intensive grazing (can 
result in the removal of fine fuels needed to carry fire) and fire 
suppression (Madany and West 1983; Savage and Swetnam 1990; Swetnam 
1990; Touchan et al. 1995; Swetnam and Baisan 1996; Belsky and 
Blumenthal 1997; Gresswell 1999), as well as the failure to use good 
forestry management practices to reduce fuel loads. Historic wildfires 
were primarily cool-burning understory fires with return intervals of 3 
to 7 years in ponderosa pine and 5 to 20 years in mixed conifer 
(Swetnam and Dieterich 1985). Cooper (1960) concluded that prior to the 
1950s, crown fires were extremely rare or nonexistent in the region. In 
2003, over 200,000 acres burned in the Gila National Forest (S. 
Gonzales, U.S. Fish and Wildlife Service, in litt. 2004). The 
watersheds of Little Creek, Black Canyon, White Creek, and Mogollon 
Creek were affected. Because Gila trout are found primarily in 
isolated, small streams, avoidance of ash flows is impossible, and 
opportunities for natural recolonization usually do not exist (Brown et 
al. 2001). Persistence of Gila trout in streams affected by fire and 
subsequent ash flows is problematic. In some instances, evacuation of 
Gila trout from streams in watersheds that have burned is necessary 
(Service 2004).
    Effects of fire may be direct and immediate or indirect and 
sustained over time (Gresswell 1999). The cause of direct fire-related 
fish mortalities has not been clearly established (Gresswell 1999). 
Fatalities are most likely during intense fires in small, headwater 
streams with low flows (less insulation and less water for dilution). 
In these situations, water temperatures can become elevated or changes 
in pH may cause immediate death (Cushing and Olson 1963). Spencer and 
Hauer (1991) documented 40-fold increases in ammonium concentrations 
during an intense fire in Montana. Ammonia is very toxic to fish 
(Wetzel 1975). The inadvertent dropping of fire retardant in streams is 
another source of direct mortality during fires (J. Monzingo, U.S. 
Forest Service, Gila National Forest, in litt. 2003e).
    Indirect effects of fire include ash and debris flows, increases in 
water temperature, increased nutrient inputs, and sedimentation 
(Swanston 1991; Bozek and Young 1994; Gresswell 1999). Ash and debris 
flows can cause mortality months after fires occur when barren soils 
are eroded during monsoonal rain storms (Bozek and Young 1994; Brown et 
al. 2001). Fish suffocate when their gills are coated with fine 
particulate matter, they can be physically injured by rocks and debris, 
or they can be displaced downstream below impassable barriers into 
habitat occupied by nonnative trout. Ash and debris flows or severe 
flash flooding can also decimate aquatic invertebrate populations that 
the fish depend on for food (Molles 1985; Rinne 1996; Lytle 2000). In 
larger streams, refugia are typically available where fish can 
withstand the short-term adverse conditions; small headwater streams 
are usually more confined, concentrating the force of water and debris 
(Pearsons et al. 1992; Brown et al. 2001).
    Increases in water temperature occur when the riparian canopy is 
eliminated by fire and the stream is directly exposed to sunlight. 
After fires in Yellowstone National Park, Minshall et al. (1997) 
reported that maximum water temperatures were significantly higher in 
headwater streams affected by fire than temperatures in reference 
(unburned) streams; these maximum temperatures often exceeded tolerance 
levels of salmonids. Warm water is stressful for salmonids and can lead 
to increases in disease and lowered reproductive potential (Bjornn and 
Reiser 1991). Salmonids need clean, loose gravel for spawning sites 
(Bjornn and Reiser 1991). Ash and fine particulate matter created by 
fire can fill the interstitial spaces between gravel particles and 
eliminate spawning habitat or, depending on the timing, suffocate eggs 
that are in the gravel. Increases in water temperature and 
sedimentation can also impact aquatic invertebrates, changing species 
composition and reducing population numbers (Minshall 1984; Wiederholm 
1984; Roy et al. 2003), consequently affecting the food supply of 
trout.
    As discussed above, in the ``Timber harvest'' and ``Livestock 
grazing'' sections, we have determined that the threats to Gila trout 
habitat from livestock grazing and timber harvest have been greatly 
reduced over time. It is expected that the livestock management 
practices (e.g., exclusion from riparian zones, reduction in numbers, 
suspension of grazing in some allotments) that have been implemented 
will remain in place (A. Telles, U.S. Forest Service, Gila National 
Forest, in litt. 2003c). Additionally, the Forest Service will continue 
to consider the effects of grazing on Gila trout under section 7 of the 
Act. Presently, 9 of the 10 streams that contain Gila trout occur in 
the Aldo Leopold Wilderness Area or the Gila Wilderness within the Gila 
National Forest, New Mexico. Timber harvest, roads, and mechanized 
vehicles are not allowed in wilderness areas, providing further 
protection to the habitat of Gila trout. Dispersed recreation does 
occur in wilderness areas but because of the inaccessibility of most of 
the streams (not near roads, hiking or backpacking is required), 
dispersed recreation has very little impact on the habitat. By 
practice, the NMDGF and AGFD do not stock nonnative trout within 
wilderness areas or above any barrier that protects a population of 
Gila trout. The NMDGF has not stocked nonnative fish in wilderness 
areas for more than 20 years (Mike Sloan, NMDGF, pers. comm. 2004). 
AGFD seasonally stock the East Verde River, within 3 miles of Dude 
Creek, with rainbow trout. Dude Creek has one manmade and at least one 
natural barrier separating it from the East Verde River (K. Young, 
AGFD, pers. comm. 2006). Downlisting of the Gila trout with the special 
4(d) rule will allow AGFD to stock Gila trout into the East Verde River 
instead of rainbow trout (K. Young, AGFD, pers. comm. 2006). Rainbow 
trout have not been stocked into the Blue River (Raspberry is a 
tributary) since 1990 (K. Young, AGFD, pers. comm. 2006).
    High-severity forest fires remain a threat to isolated populations 
because natural repopulation is not possible. However, populations have 
been reestablished after forest fires (Main Diamond and South Diamond 
creeks), there is an Emergency Evacuation Plan (Service 2004) that 
outlines procedures to be taken in case of a high-severity forest fire, 
and most populations are sufficiently disjunct (e.g., separated by 
mountain ridges), thereby ensuring that one fire would not affect all 
populations simultaneously. Additionally, as discussed in this rule, 
fires have

[[Page 40667]]

occurred in recent times in many areas occupied by Gila trout. Thus, 
the risk of fire in these areas, especially one that would affect all 
populations, is reduced due to an overall reduction in fuel loads. 
Populations may still be extirpated because of forest fires, but 
through management activities (rescue of fish, reestablishment of 
populations, hatchery management) populations can be, and have been, 
reestablished successfully once the habitat recovers.

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

    All stream reaches that contain Gila trout have been closed to 
sport fishing since the fish was listed in 1967. Main Diamond Creek was 
closed to angling in the 1930s for the protection of an undescribed 
fish species, later identified as Gila trout (Dave Propst, NMDGF, pers. 
comm. 2006). While some illegal fishing may take place, we believe that 
the amount of take is small. These are remote high-elevation streams 
located away from roads and difficult to access. NMDGF usually visits 
the recovery streams annually and has found limited evidence of illegal 
fishing activity (e.g., fishing tackle has been found on a few 
occasions). Also, because NMDGF makes periodic visits to these streams, 
we believe their possible presence at unpredictable times serves as a 
deterrent to illegal angling activities.
    The special rule (see ``Description of Special Rule'' section 
below) being finalized with this reclassification will enable NMDGF and 
the AGFD to promulgate special regulations allowing recreational 
fishing of Gila trout in specified waters, not including the four 
relict populations identified in Table 1 above. Any changes to the 
recreational fishing regulations will be made by the States in 
collaboration with the Service. Management as a recreational species 
will be conducted similar to Apache trout, with angling allowed only in 
selected waters. Recreational management for Gila trout will be 
consistent with the goals of the Recovery Plan for the species (Service 
2003). It is anticipated that implementation of the special rule will 
benefit the Gila trout by providing a means whereby Gila trout excess 
to recovery needs may be placed in non-recovery streams, thereby 
avoiding a choice between potential overcrowding in the designated 
recovery streams or euthanizing of excess fish. Additionally, the 
special rule contributes to the conservation of the Gila trout through: 
(1) Eligibility for Federal sport fishing funds; (2) increase in the 
number of wild populations; (3) enhanced ability to monitor populations 
(e.g., creel surveys) for use in future management strategies; and (4) 
creation of goodwill and support in the local community. Each of these 
topics is discussed in detail in the ``Description of Special Rule'' 
section below.
    A few Gila trout are removed from the wild for propagation, and 
some are taken for scientific or educational purposes, but the take is 
small and controlled through Federal and State permitting. Federal and 
State permitting will continue. Because of the remoteness of current 
and proposed recovery streams, the special regulations that will be 
imposed on angling, and the small amount of Gila trout collected for 
scientific and educational purposes, we determine that overutilization 
for commercial, recreational, scientific, or educational purposes is 
not a threat to Gila trout.

C. Disease or Predation

    The carrier of bacterial kidney disease (BKD) is known to occur in 
trout in the upper West Fork drainage. The carrier, a bacterium 
(Renibacterium salmoninarum), occurs in very low amounts in brown trout 
populations in the upper West Fork Gila River drainage and in the 
Whiskey Creek population of Gila trout. The bacterium was also detected 
in rainbow x Gila trout hybrid populations in Iron, McKenna, and White 
creeks. Although the carrier bacterium is present, there were no signs 
of BKD in any Gila trout populations (Service 2003). Trout populations 
in the Mogollon Creek drainage, McKnight Creek, and Spruce Creek tested 
negative for BKD.
    Whirling disease (WD) was first detected in Pennsylvania in 1956, 
and was transmitted here from fish brought from Europe (Thompson et al. 
1995). Myxobolus cerebralis is a parasite that penetrates through the 
skin or digestive tract of young fish and migrates to the spinal 
cartilage, where it multiplies very rapidly, putting pressure on the 
organ of equilibrium. This causes the fish to swim erratically (whirl) 
and have difficulty feeding and avoiding predators. In severe 
infections, the disease can cause high rates of mortality in young-of-
the-year fish. Water temperature, fish species and age, and dose of 
exposure are critical factors influencing whether infection will occur 
and its severity (Hedrick et al. 1999). Fish that survive until the 
cartilage hardens to bone can live a normal life span, but have 
skeletal deformities. Once a fish reaches 3 to 4 inches in length, 
cartilage forms into bone, and the fish is no longer susceptible to 
effects from whirling disease. Fish can reproduce without passing the 
parasite to their offspring; however, when an infected fish dies, many 
thousands to millions of the parasite spores are released into the 
water. The spores can withstand freezing, desiccation, and passage 
through the gut of mallard ducks, and they can survive in a stream for 
many years (El-Matbouli and Hoffmann 1991). Eventually, the spore is 
ingested by its alternate host, the common aquatic worm, Tubifex 
tubifex. After about 3.5 months in the gut of the worms, the spores 
transform into a Triactinomyon (TAM). The TAMs leave the worm and 
attach to the fish, or they are ingested when the fish eats the worm. 
The spores are easily transported by animals, birds, and humans.
    Salmonids native to the United States did not evolve with WD. 
Consequently, most native species have little or no natural resistance. 
Colorado River cutthroat trout and rainbow trout are very susceptible 
to the disease, with 85 percent mortality within 4 months of exposure 
to ambient levels of infectivity in the Colorado River (Thompson et al. 
1999). Brown trout, native to Europe, evolved with M. cerebralis, and 
they become infected but rarely suffer clinical disease. At the study 
site on the Colorado River, brown trout thrive, but there has been 
little survival beyond 1 year of age of rainbow trout since 1992 
(Thompson et al. 1999). Gila trout are also vulnerable to WD (D. 
Shroufe, Arizona Game and Fish Department, in litt. 2003a)
    There have been no documented cases of WD in the Gila River 
drainage in New Mexico or Arizona. Wild and hatchery populations of 
Gila trout tested have been negative for WD (Service 2003). Although WD 
is a potential threat to Gila trout, high infection rates would 
probably only occur where water temperatures are relatively warm and 
where T. tubifex is abundant. T. tubifex is the secondary host for the 
parasite; when T. tubifex numbers are low, the number of TAMs produced 
will be low, and consequently, the infection rate of Gila trout will be 
low. T. tubifiex is a ubiquitous aquatic oligochaete (worm); however, 
it is most abundant in degraded aquatic habitats, particularly in areas 
with high sedimentation, warm water temperatures, and low dissolved 
oxygen. In clear coldwater streams (typical Gila trout habitat), it is 
present but seldom abundant. Infection rate is low at temperatures less 
than 10 [deg]C (50 [deg]F) (Thompson et al. 1999).
    We determine that BKD is not a likely threat to the 4 original pure 
populations nor to the 11 replicated populations because of its limited 
distribution, low occurrence within trout populations,

[[Page 40668]]

and lack of any clinical evidence of the disease in Gila trout. 
Likewise, we determine that WD is not a likely threat to Gila trout 
because most Gila trout are located in high-elevation headwater streams 
that typically have cold water and low levels of sedimentation, which 
limit T. tubifex populations and infection rates from TAMs. T. tubifex 
has never been detected in benthic samples collected. Although Gila 
trout may be susceptible to infection, there has not been a documented 
occurrence of WD in a wild Gila trout population. Mora National Fish 
Hatchery and Technology Center, where Gila trout have been held, has 
tested negative for WD. In addition, NMDGF and AGFD are educating the 
public about how to prevent the spread of WD (e.g., through educational 
brochures and information provided with fishing regulations). In 
summary, no hatchery that stocks Gila trout has a history of whirling 
disease. In such hatcheries, we control the stocking, source fish, and 
fish health testing. Further, there will be no stocking of trout in 
private waters in proximity to Gila trout. Therefore, it is unlikely 
that Gila trout populations would be exposed to whirling disease.
    Predation of Gila trout by brown trout has been a serious problem, 
and continues to be a problem for fish below stream barriers. Brown 
trout, a nonnative salmonid, prey on Gila trout and are able to 
severely depress Gila trout populations. Predation threats have been 
addressed by chemically removing all nonnative fish and reintroducing 
only native species. The specific locations and timing of the potential 
use of chemicals in any future stream restoration projects would be 
made by the States, in coordination with the Gila Trout Recovery Team, 
and with the approval of their State Game Commissions. Additionally, 
the Gila Trout Recovery Plan provides a list of potential stream 
reaches that may be used for recovery purposes. Physical stream 
barriers, either natural waterfalls or constructed waterfalls (e.g., 
either composite concrete/rock or basket-type gabion) built by 
cooperating agencies, prevent brown trout from moving upstream and 
preying on Gila trout. Barrier failure is generally not considered a 
threat to existing Gila trout populations in New Mexico because most 
existing barriers are natural waterfalls. However, human-made barriers 
exist on lower Little Creek, McKnight Creek, and Black Canyon. Failure 
of human-made barriers would most likely result from catastrophic 
flooding and include scouring around barriers, undercutting, or 
complete removal. Brown trout and other nonnative species downstream 
from these barriers remain a threat.
    The threat of predation by brown trout has been reduced by 
eliminating brown trout from streams with Gila trout populations, and 
by creating barriers that prevent the upstream dispersal of brown trout 
into areas occupied by Gila trout. Field monitoring by the Service, 
Forest Service, AGFD, and the NMDGF of Gila trout provides a means to 
detect the introduction of brown trout into a Gila trout population, 
and, once detected, the nonnatives are removed (Service 2004). Each 
population is monitored at least once every 3 years. Monitoring may 
occur more often depending upon the situation, including additional 
surveys due to the occurrence of wildfire. Annual monitoring using 
electrofishing is not undertaken due to potential sampling impacts from 
electrofishing. The Emergency Evacuation Plan provides further 
information on the procedures for detecting and addressing the threat 
of nonnatives (Service 2004).

D. The Inadequacy of Existing Regulatory Mechanisms

    Before the Gila trout was federally listed as endangered (1967), 
the species was protected by New Mexico. NMDGF had closed angling to 
all streams known to contain pure populations of Gila trout. Upon being 
listed under the Act, the Gila trout immediately benefited from a 
Federal regulatory framework that provided protection and enhancement 
of the populations in three ways. First, take was prohibited. Take is 
defined under the Act to include killing, harassing, harming, pursuing, 
hunting, shooting, wounding, trapping, capturing, or collecting 
individuals, or attempting to do any of these things. Habitat 
destruction or degradation is also prohibited if such activities harm 
individuals of the species. Second, section 7 of the Act requires that 
Federal agencies consult with the Service to ensure that actions they 
carry out, fund, or authorize will not likely jeopardize the continued 
existence of the species or adversely modify its habitat. Third, once a 
species is listed, the Service is required to complete a recovery plan 
and make timely revisions, if needed. Thus, listing the species 
provided recognition, protection, and prohibitions against certain 
practices (such as take), facilitated habitat protection, and 
stimulated recovery actions.
    Subsequent to the Federal listing action, the States of New Mexico 
and Arizona officially recognized the declining status of the species. 
In 1988, Arizona designated the Gila trout as an endangered species, 
which includes species that are known or suspected to have been 
extirpated from Arizona but that still exist elsewhere. New Mexico 
designated the Gila trout as an endangered species (Group 1) on January 
24, 1975 (NM State Game Commission Regulation No. 663) under authority 
of the Wildlife Conservation Act. Group 1 species are those whose 
prospects of survival or recruitment in New Mexico are in jeopardy. The 
designation provides the protection of the New Mexico Wildlife 
Conservation Act (Sections 17-2-37 through 17-2-18, NMSA 1978) and 
prohibits taking of such species except under a scientific collecting 
permit. In 1989, New Mexico downlisted Gila trout to threatened in 
response to a petition to downlist Gila trout in the ESA. Although the 
Service did not proceed to downlist the species at that time, the State 
went forward with the downlisting. New Mexico also has a limited 
ability to protect the species' habitat through the Habitat Protection 
Act (Sections 17-3-1 through 17-3-11) through water pollution 
legislation, and tangentially through a provision that makes it illegal 
to dewater areas used by game fish (Section 17-1-14). Take of Gila 
trout in Arizona is prohibited through State statute (Arizona Revised 
Statute Title 17) and Commission Order (Commission Order 40). With the 
promulgation of the special rule, we expect that the States of Arizona 
and New Mexico will likely adopt regulations to allow for recreational 
fishing as described in the ``Description of Special Rule'' section 
below.
    We determine that because of the protection that would be provided 
from Federal listing as a threatened species, along with the special 
rule, State regulatory protection, and habitat protection provided by 
the National Forests, there are adequate regulatory mechanisms to 
protect and enhance Gila trout populations and their habitat. Many of 
these protective regulations, conservation measures, and recovery 
actions have substantially improved the status of the Gila trout.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    When the Gila trout was listed as endangered, the most important 
reason for the species' decline was hybridization and competition with 
and/or predation by nonnative salmonids (52 FR 37424). Uncontrolled 
angling depleted some populations of Gila trout, which in turn 
encouraged stocking of hatchery-raised, nonnative species (Miller 1950; 
Propst 1994). Due to declining native fish populations, the

[[Page 40669]]

NMDGF propagated and stocked Gila trout, rainbow trout, cutthroat 
trout, and brown trout during the early 1900s to improve angler 
success. Gila trout were propagated from 1923 to 1935 at the Jenks 
Cabin Hatchery in the Gila Wilderness, and through 1947 at the Glenwood 
Hatchery, but these programs were abandoned because of the hatcheries' 
poor accessibility and low productivity (Service 1984). After early 
stocking programs were discontinued, the nonnative trout species 
persisted and seriously threatened the genetic purity and survival of 
the few remaining populations of Gila trout. Recent efforts to recover 
the species have included eliminating nonnative salmonids from the 
species' historic habitat through piscicide (fish-killing), mechanical 
removal, and construction of waterfall barriers to prevent nonnative 
reinvasion. Currently, 12 viable populations of Gila trout exist in the 
absence of nonnative salmonids.
    We have determined that the threats posed by nonnative fish are 
reduced because nonnative trout are not present in the streams with 
original pure or replicated populations of Gila trout. Barriers are 
present to prevent nonnative trout from dispersing into areas occupied 
by pure Gila trout populations. Drought, wildfire, and floods remain as 
threats. However, conditions are monitored, and fish can be rescued 
from streams threatened by drying, fires, floods, or barrier failure, 
if necessary (Service 2004). As explained in the Emergency Evacuation 
Plan, these remote areas may be accessed through helicopter or use of 
horses and mules, depending upon the urgency of the situation. Flooding 
that occurs in an undisturbed watershed is not considered a threat to 
Gila trout. However, flooding that occurs after a severe fire is a 
threat. In a multi-agency effort, Forest Service personnel monitor 
fires and the potential for flooding in coordination with NMDGF and 
Service personnel, and then a decision is made whether to rescue fish 
from streams that are in danger of flash floods (Service 2004). Rescued 
fish may be used in broodstock development, introduced into other 
suitable streams, or placed back into their stream of origin once the 
habitat conditions are suitable. However, it may take many years for 
the habitat to recover to the point that it is again suitable for 
trout.

Summary

    We believe that reclassifying the Gila trout from endangered to 
threatened status with a special rule is consistent with the Act, and 
that the special rule will further the conservation and recovery of 
this species. See the ``Description of Special Rule'' section below for 
an explanation of the conservation benefits of the special rule. 
Threatened status is appropriate because the number of populations has 
increased from 4 to 12 since recovery efforts began, and all of the 
threats affecting the species have been reduced and some have been 
eliminated. Additionally, as noted above, the wild populations of Gila 
trout were estimated to be fewer than 10,000 fish greater than age 1 in 
1992. In 2001, almost 10 years later, the population in New Mexico had 
increased significantly and was estimated to be 37,000 fish (Brown et 
al. 2001). The four remnant, genetically pure, populations are 
protected and replicated in 109 km (67 mi) of stream, and each 
replicate is geographically separate from its remnant population, 
thereby exceeding the mileage recommended in the Recovery Plan. The 
Service recently completed the replication of the Whiskey Creek lineage 
into Langstroth Canyon on June 21, 2006. An Emergency Evacuation Plan 
was developed and has been implemented in 2002 and 2003 (Service 2004), 
and will continue to be implemented as necessary. A copy of the 
Emergency Evacuation Plan is available by contacting the New Mexico 
Ecological Services Field Office (see ADDRESSES section). We have 
determined that the Gila trout is no longer in danger of extinction 
throughout all or a significant portion of its range and therefore no 
longer meets the Act's definition of endangered.
    Threatened status is appropriate for the Gila trout because 
although the major threats have been reduced by recovery efforts and 
its status has improved, threats to the species still exist. Nonnative 
salmonids, which were the major threat to the species, do not occur in 
the 13 Gila trout recovery streams. We will continue to work with the 
States to manage nonnative salmonids. Current State and Federal 
regulations prohibit the take of Gila trout and few Gila trout are 
taken for scientific or educational purposes, in accordance with State 
and Federal permits under section 10(a)(1)(A) of the Act. State and 
Federal regulations governing take will continue after downlisting 
because the special rule prohibits take, except for take related to 
recreational fishing activities in accordance with State law. Threats 
due to natural disasters remain, but are mitigated by the Emergency 
Evacuation Plan that addresses wildfire- and drought-related impacts 
and discovery of nonnative salmonid invasions (Service 2004) (see 
``Recovery Plans and Accomplishments'' section for a discussion of past 
successes). Therefore, we believe that given continued careful 
management, reclassification to a threatened status is appropriate.

Description of Special Rule

    While the Gila trout was listed as endangered, the prohibitions 
described in section 9(a)(1) of the Act applied. Upon reclassification 
to threatened status, we have the opportunity to use the special 
regulations provisions of section 4(d) of the Act. When we establish a 
special regulation (alternatively known as a special rule), the general 
prohibitions in 50 CFR 17.31 for threatened species do not apply to the 
subject species, and the special rule contains all the prohibitions and 
exceptions that do apply. Typically, such special rules incorporate 
some of the prohibitions contained in 50 CFR 17.31, with exceptions for 
certain activities.
    In 1978, we finalized regulations applying most of the take 
prohibition provisions to threatened wildlife (50 CFR 17.31). These 
procedures were established on April 28, 1978 (43 FR 18181), and 
amended on May 31, 1979 (44 FR 31580) and on March 4, 2005 (70 FR 
10493). Reclassifying the species will have no effect on the 
regulations regarding protection and recovery of Gila trout, except for 
take related to recreational fishing as provided in the special rule. 
Beginning on the effective date of this reclassification rule, the 
special rule will enable the States of Arizona and New Mexico to 
promulgate regulations to allow recreational fishing for Gila trout; 
however, actual angling for Gila trout will not be allowed until those 
State regulations are in effect.
    The special rule will apply to Gila trout found in New Mexico and 
Arizona and will allow recreational fishing of Gila trout in specified 
waters, not including the four remnant populations identified in Table 
1 above. As noted elsewhere, changes to the recreational fishing 
regulations will be made by the States in collaboration with the 
Service. Management as a recreational species will be conducted similar 
to Apache trout and consistent with the goals of the Recovery Plan for 
the species (Service 2003). For the reasons explained herein, it is no 
longer necessary or advisable for the conservation of the Gila trout to 
prohibit take caused by regulated fishing. In general, establishment of 
recreational opportunities can be developed in recovery waters that 
have stable or increasing numbers of individuals (as measured by 
population surveys) and

[[Page 40670]]

where habitat conditions are of sufficient quality to support viable 
populations of Gila trout (populations having annual recruitment, size 
structure indicating multiple ages, and individuals attaining 
sufficient sizes to indicate 3 to 7 years of survival). In addition, 
recreational opportunities may be developed in non-recovery waters. 
According to NMDGF the process by which a stream is designated a 
fishery involves: (1) Carefully evaluating each stream; (2) determining 
whether the stream can sustain angling and how much (this evaluates a 
suite of different angling pressures); (3) making a recommendation to 
designate the stream a fishery; and (4) monitoring to insure there are 
no detrimental effects to the population from angling. If monitoring 
indicates a negative effect on the conservation of Gila trout, the 
fishing regulations can be amended or the fishery can be closed. The 
process by which AGFD designates a fishery is very similar and can be 
found on the AGFD Web site at http://www.azgfd.gov/inside_azgfd/rulemaking_process.shtml. The principal effect of the special rule is 
to allow take in accordance with fishing regulations enacted by New 
Mexico and Arizona. We will collaborate with the States to develop 
fishing regulations that are adequate to protect and conserve Gila 
trout. We anticipate New Mexico and Arizona will institute special 
regulations to allow recreational fishing of Gila trout in certain 
waters.
    This rule is not an irreversible action on our part. Reclassifying 
the Gila trout back to endangered status is possible and may be done 
through an emergency rule if a significant risk to the well-being of 
the Gila trout is determined to exist, or through a proposed rule 
should changes occur that alter the species' status or significantly 
increase the threats to its survival. Because changes in status or 
increases in threats (e.g., wildland fire effects, nonnative salmonid 
invasion, barrier failure, drought) might occur in a number of ways, 
criteria that would trigger another reclassification proposal cannot be 
specified at this time.
    The special 4(d) rule for recreational fishing is based on the best 
available science. We anticipate that over time, as a result of 
additional studies and as the analyses of monitoring data become 
available, some changes to these regulations may be required (e.g., 
closure of areas previously permitted for fishing, or opening of new 
areas). Changes to the recreational fishing regulations will be made by 
the States in collaboration with the Service. Management of Gila trout 
as a recreational species will be consistent with the goals of the 
Recovery Plan for the species (Service 2003). These changes could 
result in an increase or decrease in restrictions on recreational 
fishing as determined by State and Service personnel in collaboration.

Conservation of the Gila Trout

    As noted above, a special rule for a threatened species shall be 
issued by the Secretary when it is deemed necessary and advisable to 
provide for the ``conservation'' of the species. The term conservation, 
as defined in section 3(3) of the Act, means to use and the use of all 
methods and procedures necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    The authority to take endangered or threatened species to relieve 
population pressures is applicable to our recovery efforts for Gila 
trout. We currently have active captive propagation of Gila trout at 
the Mora National Fish Hatchery and Technology Center, guided by a 
genetic broodstock management plan. Within the near future, recovery 
augmentation and broodstock management needs for these two lineages 
will likely require the production of up to 20,000 fish. Ensuring the 
genetic diversity of these 20,000 fish through implementation of the 
broodstock management plan will result in the simultaneous production 
of about 100,000 excess Gila trout. These excess Gila trout are 
produced as a result of the specific controlled propagation techniques 
required to ensure the genetic quality of the Gila trout needed for 
recovery. Currently, hatchery-reared and rescued Gila trout are stocked 
only in streams designated for recovery that are closed to angling. If 
the excess Gila trout were to be stocked into the designated recovery 
streams, this might cause overcrowding and attendant problems. The 
streams designated for recovery are small, high-elevation streams, 
which do not support great numbers of fish (i.e., they have a low 
carrying capacity). While the numbers of Gila trout stocked into 
recovery streams would vary each year, depending on circumstances such 
as wildfire, we expect that the number of Gila trout produced would 
greatly exceed the carrying capacity of the recovery streams. We 
believe that placing excess Gila trout in streams (e.g., lower West 
Fork Gila River downstream of the falls near White Creek confluence, 
and throughout the Middle Fork Gila River) and lakes (e.g., Bill Evans 
Lake, Lake Roberts, Snow Lake) that are currently not identified for 
use as part of the long-term Gila trout recovery strategy would avoid 
any potential overcrowding in the designated recovery streams. Without 
a 4(d) rule in place that allows for recreational fishing, Gila trout 
could not be stocked in nonrecovery streams that are open to angling 
due to the take prohibitions of the Act that apply to endangered and 
threatened species. In summary, this final 4(d) rule for Gila trout 
will avoid overcrowding in the designated recovery streams by allowing 
excess Gila trout to be placed in streams open to angling. If excess 
Gila trout are not used for stocking in nonrecovery streams, we would 
be required to euthanize all genetically pure, excess Gila trout 
because of limited space and resources to maintain them at captive 
propagation facilities.
    Below we provide additional reasons why the 4(d) rule provides for 
the conservation of the Gila trout beyond that of relieving potential 
population pressures due to overcrowding. Specifically, this special 
4(d) rule contributes to the conservation of the Gila trout through: 
(1) Providing eligibility for Federal sport fishing funds, (2) 
increasing the number of wild populations, (3) enhancing the ability to 
monitor populations, and (4) creating goodwill and support in the local 
community. Each of these topics is discussed in detail below.

Expansion of the Population

    There are several benefits to stocking fish in streams and lakes. 
First, having Gila trout in additional stream miles and lakes will 
increase the overall security of the species. If Gila trout are 
introduced into larger, higher order streams that are less subject to 
catastrophic events and where refugia are more abundant, these fish are 
likely to persist even if a large-scale disturbance, such as fire, were 
to occur. Despite these benefits, it is probable that some Gila x 
rainbow trout hybrids would be produced and that Gila trout might also 
be lost to predation by brown trout; however, the benefits far outweigh 
any potential negative aspects of this action. Second, areas directly 
below existing barriers could also be targeted for stocking. These 
reaches of stream would then act as ``buffers'' between

[[Page 40671]]

pure Gila trout populations and stream reaches contaminated with 
nonnative trout.
    Finally, if Gila trout were stocked in additional waters, the 
angling public would be exposed to, and become more familiar with, Gila 
trout's natural beauty and value as a sport fish, thereby increasing 
public support for the program. As noted above, there are several lakes 
(e.g., Bill Evans Lake, Lake Roberts, Snow Lake) and stream segments 
(e.g., lower West Fork Gila River downstream of the falls near White 
Creek confluence, and throughout the Middle Fork Gila River) that are 
not currently identified in long-term recovery strategies and that 
could provide quality angling opportunities for Gila trout. Within 
Arizona, Verde River, Oak Creek, Wet Beaver Creek, and West Clear Creek 
have potential for developing angling opportunities for Gila trout. 
Reservoirs include Watson, Willow, Mingus, and Deadhorse.

Eligibility for Funds

    Once a stream or lake occupied by Gila trout is opened to angling, 
the trout can be designated as a ``sport fish'' and the potential 
funding available to Gila trout restoration projects may increase. For 
example, as a sport fish, the Gila trout would be eligible for funding 
through the Sport Fish Restoration Program (SFRP) for management 
activities, including hatchery production associated with the Gila 
trout. In fiscal year 2004, NMDGF received $3,258,275, and AGFD 
received $3,556,597, through the SFRP. The specific amount that would 
be spent on the Gila trout using these funds would depend on the 
priorities of the NMDGF and the AGFD; however, with Gila trout 
recognized as a sport fish, the States would have this additional 
funding source available for restoration projects (P. Mullane, U.S. 
Fish and Wildlife Service, in litt. 2005). In contrast, the amount of 
Service money spent on Gila trout in 2004 is estimated at $137,500.
    In Arizona, approximately $2.1 million dollars (including matching 
dollars) are available to sport fishing projects (L. Riley, ADGF, pers. 
comm. 2004). In addition, about $1.7 million dollars are available for 
the culture (hatchery production) of sport fish (L. Riley, ADGF, pers. 
comm. 2004). With increased hatchery production and establishment of 
new populations in additional waters, recovery goals could be reached 
sooner and more angling opportunities could be provided to the public. 
An increase in the amount of money available for nonnative trout 
removal, barrier construction, habitat restoration, and hatchery 
production would aid in recovery and delisting of the Gila trout.

Monitoring and Education

    Monitoring is critical to the successful conservation of the Gila 
trout. We will work closely with the States of New Mexico and Arizona 
to develop evaluation and assessment programs to gather population data 
(e.g., size of fish caught, number caught and released), data on the 
survival of released fish, and angler-related data (e.g., time spent 
fishing, streams fished, catch rate, hooking and handling mortality) on 
streams and lakes. Our ability to evaluate these data is essential to 
the development of management strategies to ensure the long-term 
conservation of Gila trout. Using a population viability model that 
examined mortality from various sources, Brown et al. (2001) found that 
up to a 15 percent angling mortality of adult Gila trout per year had 
no effect on population viability. Although models never perfectly 
incorporate the complexity of natural systems and are only an 
approximation based on many assumptions (Schamberger and O'Neil 1986), 
they are useful tools that can be used by managers to improve recovery 
strategies. With information gathered from streams and lakes open to 
angling, the impact of angling on population dynamics could be tested 
directly, leading to better management of the populations, especially 
as the species moves closer to recovery.
    Education is also critical to the successful conservation of the 
Gila trout because once the Gila trout is recovered and delisted, it 
will need to be properly managed to maintain adequate populations. We 
will work with the States to develop public education programs and 
materials on proper handling and release of Gila trout to reduce 
hooking and handling mortality in catch-and-release areas, and on 
species identification for educational purposes. Educating the public 
on the uniqueness of the Gila trout, its limited distributional range, 
and its value as one of New Mexico and Arizona's few native trout is 
expected to build support for the conservation of the species.

Public Support

    As mentioned above, community support is essential to the recovery 
of Gila trout. Some members of the public have opposed Gila trout 
recovery efforts because of the loss of angling opportunities for 
nonnative trout through the renovation of streams (Brooks et al. 2000; 
Blue Earth Ecological Consultants 2001). As stated earlier, we believe 
that adequate regulatory mechanisms are in place; however, illegal 
angling has occurred in streams officially closed to angling (NMDGF 
1997a, b), and unauthorized stocking of nonnative salmonids into 
streams either currently occupied by Gila trout or proposed for 
reintroductions have been documented in recent years (NMDGF 1998; 
Brooks et al. 2000). It is likely that because Gila trout evolved in 
this ecosystem and are adapted to it, they will produce more stable 
populations and a more dependable fishery than nonnative trout (Turner 
1986). There is also a demonstrated high public interest in the future 
angling opportunities for Gila trout (NMDGF 1997a, b). Therefore, we 
believe that the availability of recreational fishing for Gila trout 
will increase public support for the conservation and recovery of the 
species (NMDGF 1997a).
    In the 1996 Policy for Conserving Species Listed or Proposed for 
Listing Under the Endangered Species Act While Providing and Enhancing 
Recreational Fisheries Opportunities (June 3, 1996; 61 FR 27978), we 
note that fishery resources and aquatic ecosystems are integral 
components of our heritage and play an important role in the Nation's 
social, cultural, and economic well being. Accordingly, and to 
implement Executive Order 12962, we are aggressively working to promote 
compatibility and reduce conflict between administration of the Act and 
recreational fisheries. Carefully regulated recreational fishing is not 
likely to impact Gila trout populations, and can promote awareness and 
conservation of the species by maintaining public support for 
conservation.
    In conclusion, Gila trout will continue to be protected under the 
Act, but reclassification from endangered to threatened with a special 
4(d) rule will allow recreational fishing opportunities to be developed 
in recovery streams, provide an outlet for fish excess to recovery 
needs, and increase public awareness and appreciation of Gila trout. 
Additionally, the 4(d) rule will provide New Mexico and Arizona greater 
flexibility in the management of Gila trout, increase the potential 
funding for population expansion and habitat restoration, allow for the 
expansion and greater security of populations, enhance our ability to 
monitor and manage populations, and increase the public's knowledge and 
appreciation of this native trout. On the basis of our experience with 
Gila trout recovery, we expect an increase in public acceptance and 
greater

[[Page 40672]]

opportunity for us to work with local agencies and the public to find 
innovative solutions to potential conflicts between endangered species' 
conservation and humans. We believe this special rule is consistent 
with the conservation of the species and that it will speed recovery of 
the Gila trout. Therefore, this special rule is necessary and advisable 
to provide for the conservation of the Gila trout.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, and 
groups and individuals. The Act provides for possible land acquisition 
and cooperation with the States and requires that recovery plans be 
developed and implemented for the conservation of the species, unless a 
finding is made that such a plan will not promote the conservation of 
the species. Most of these measures have already been successfully 
applied to Gila trout.
    Under this rule, the Act will continue to apply to the Gila trout. 
However, this rule would change the classification of the Gila trout 
from endangered to threatened, and allow New Mexico and Arizona to 
promulgate special regulations allowing recreational fishing of Gila 
trout in designated streams. The protection required of Federal 
agencies and the prohibitions against taking and harm are discussed 
above in the Summary of Factors Affecting the Species section, Factor 
D, the inadequacy of existing regulatory mechanisms.
    Section 7(a) of the Act requires Federal agencies to evaluate 
actions they fund, authorize, or carry out with respect to any species 
that is listed as endangered or threatened and with respect to its 
critical habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of any species listed as endangered 
or threatened, or to destroy or adversely modify its critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency must enter into consultation 
with us. If a Federal action is likely to jeopardize a species proposed 
to be listed as threatened or endangered or destroy or adversely modify 
proposed critical habitat, the responsible Federal agency must confer 
with us.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify to the maximum extent practicable at the 
time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of the listing on 
proposed and ongoing activities within the species' range. We believe 
that, based on the best available information, the following actions 
are not likely to result in a violation of section 9, provided these 
actions are carried out in accordance with existing regulations and 
permit requirements:
    (1) In accordance with section 9(b)(1) of the Act, the possession, 
delivery, or movement, including interstate transport and import into 
or export from the United States, involving no commercial activity, of 
specimens of this taxon that were collected prior to the listing of 
this species (December 28, 1973);
    (2) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, recreational trail or forest road 
development or use, road construction, prescribed burns, timber 
harvest, or piscicide application (fish-killing agent)), when such 
activities are conducted in accordance with a biological opinion from 
us on a proposed Federal action;
    (3) Activities that may result in take of Gila trout when the 
action is conducted in accordance with a valid permit issued by us 
pursuant to section 10 of the Act;
    (4) Recreational activities such as sightseeing, hiking, camping, 
and hunting in the vicinity of Gila trout populations that do not 
destroy or significantly degrade Gila trout habitat as further defined 
in the Forest Service and State management strategies for the occupied 
areas; and
    (5) Angling activities in accordance with authorized fishing 
regulations for Gila trout in New Mexico and Arizona.
    We believe that the following actions involving Gila trout could 
result in a violation of section 9; however, possible violations are 
not limited to these actions alone:
    (1) Take of Gila trout without a valid permit or other incidental 
take authorization issued by us pursuant to section 10 of the Act. Take 
includes harassing, harming, pursuing, hunting, shooting, wounding, 
killing, trapping, capturing, or collecting, or attempting any of these 
actions, except in accordance with applicable State fish and wildlife 
conservation laws and regulations;
    (2) Possessing, selling, delivering, carrying, transporting, or 
shipping illegally taken Gila trout;
    (3) Use of piscicides, pesticides, or herbicides that are not in 
accordance with a biological opinion issued by us pursuant to section 7 
of the Act, or a valid permit or other incidental take authorization 
issued by us pursuant to section 10 of the Act;
    (4) Intentional introduction of nonnative fish species (e.g., 
rainbow and brown trout) that compete or hybridize with or prey upon 
Gila trout;
    (5) Destruction or alteration of Gila trout habitat that results in 
the destruction or significant degradation of cover, channel stability, 
substrate composition, increased turbidity, or temperature that results 
in death of or injury to any life history stage of Gila trout through 
impairment of the species' essential breeding, foraging, sheltering, or 
other essential life functions; and
    (6) Destruction or alteration of riparian and adjoining uplands of 
waters supporting Gila trout by timber harvest, fire, poor livestock 
grazing practices, road development or maintenance, or other activities 
that result in the destruction or significant degradation of cover, 
channel stability, or substrate composition, or in increased turbidity 
or temperature, that results in death of or injury to any life history 
stage of Gila trout through impairment of the species' essential 
breeding, foraging, sheltering, or other essential life functions.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act should be directed to the Field 
Supervisor of the New Mexico Ecological Services Field Office (see 
ADDRESSES section).
    Requests for copies of the regulations concerning listed wildlife 
or inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Ecological Services, Endangered Species 
Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505/
248-6649; facsimile 505/248-6922).

Summary of Changes From the Proposed Rule

    The final rule includes two changes from the proposed rule to 
clarify some issues that were discussed in the preamble to the proposed 
rule but not included in the actual rule language. These clarify that 
the four relict populations will not be opened to fishing and any 
changes to State recreational fishing regulations will be

[[Page 40673]]

made by the States in collaboration with the Service.

Required Determinations

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

    The Office of Management and Budget has approved our information 
collection associated with the issuance of permits for the take of Gila 
trout, and assigned OMB Control Number 1018-0094, which expires 
September 30, 2007. This rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3501 et seq. This rule will not impose new 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We have analyzed this rule making in accordance with the criteria 
of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). 
We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4 of the Act. A notice 
outlining our reasons for this determination was published in the 
Federal Register on October 25, 1983 (48 FR 49244).

Section 7 Consultation

    The Service is not required to consult on this rule under section 
7(a)(2) of the Act. The development of protective regulations for a 
threatened species are an inherent part of the section 4 listing 
process. The Service must make this determination considering only the 
``best scientific and commercial data available.'' A necessary part of 
this listing decision is also determining what protective regulations 
are ``necessary and advisable to provide for the conservation of [the] 
species.'' Determining what prohibitions and authorizations are 
necessary to conserve the species, like the listing determination of 
whether the species meets the definition of threatened or endangered, 
is not a decision that Congress intended to undergo section 7 
consultation.

Government-to-Government Relationship With Indian Pueblos and Tribes

    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 
Department of the Interior's requirement at 512 DM 2, we understand 
that we must conduct relations with recognized Federal Indian Pueblos 
and Tribes on a Government-to-Government basis. There were no tribal 
lands affected by this rulemaking.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the New Mexico Ecological Services Field Office (see 
ADDRESSES section).

Authors

    The primary authors of this notice are the New Mexico Ecological 
Services Field Office staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations as follows:

PART 17--[AMENDED]

0
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.

0
2. Amend Sec.  17.11(h) by revising the entry for ``Trout, Gila'' under 
``FISHES'' in the List of Endangered and Threatened Wildlife to read as 
follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                                   Special
                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Fishes
 
                                                                      * * * * * * *
Trout, Gila.....................  Oncorhynchus gilae.  U.S.A. (AZ, NM)...  Entire............  T                    1,757  NA                   17.44(z)
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.44 by adding a new paragraph (z) to read as follows:


Sec.  17.44  Special rules--fishes.

* * * * *
    (z) Gila trout (Oncorhynchus gilae).
    (1) Except as noted in paragraph (z)(2) of this section, all 
prohibitions of 50 CFR 17.31 and exemptions of 50 CFR 17.32 apply to 
the Gila trout.
    (i) No person may possess, sell, deliver, carry, transport, ship, 
import, or export, by any means whatsoever, any such species taken in 
violation of this section or in violation of applicable fish and 
conservation laws and regulations promulgated by the States of New 
Mexico or Arizona.
    (ii) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed any offense listed in 
paragraph (z)(1)(i) of this section.
    (2) In the following instances you may take Gila trout in 
accordance with applicable State fish and wildlife conservation laws 
and regulations to protect this species in the States of New Mexico or 
Arizona:
    (i) Fishing activities authorized under New Mexico or Arizona laws 
and regulations; and
    (ii) Educational purposes, scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other

[[Page 40674]]

conservation purposes consistent with the Endangered Species Act.
    (3) The four relict populations of Gila trout (Main Diamond Creek, 
South Diamond Creek, Spruce Creek, and Whiskey Creek) will not be 
opened to fishing.
    (4) Any changes to State recreational fishing regulations will be 
made by the States in collaboration with the Service.
    (5) Any violation of State applicable fish and wildlife 
conservation laws or regulations with respect to the taking of this 
species is also a violation of the Endangered Species Act of 1973, as 
amended.

    Dated: July 6, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-6215 Filed 7-17-06; 8:45 am]
BILLING CODE 4310-55-P