[Federal Register Volume 72, Number 54 (Wednesday, March 21, 2007)]
[Rules and Regulations]
[Pages 13356-13422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1218]
[[Page 13355]]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Spikedace (Meda fulgida) and the Loach Minnow (Tiaroga
cobitis); Final Rule
Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 /
Rules and Regulations
[[Page 13356]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU33
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Spikedace (Meda fulgida) and the Loach Minnow
(Tiaroga cobitis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the spikedace (Meda fulgida) and loach
minnow (Tiaroga cobitis) pursuant to the Endangered Species Act of
1973, as amended (Act). In total, approximately 522.2 river miles (mi)
(840.4 kilometers (km)) are designated as critical habitat. Critical
habitat is located in Catron, Grant, and Hidalgo Counties in New
Mexico, and Apache, Graham, Greenlee, Pinal, and Yavapai Counties in
Arizona.
DATES: This final rule is effective April 20, 2007.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours at
the U.S. Fish and Wildlife Service, Arizona Ecological Services Field
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951.
The final rule, economic analysis, environmental assessment, and more-
detailed color maps of the critical habitat designation are also
available via the Internet at http://www.fws.gov/arizonaes/. Geographic
Information System (GIS) files of the critical habitat maps are also
available via the Internet at http://criticalhabitat.fws.gov/.
FOR FURTHER INFORMATION CONTACT: Steven L. Spangle, Field Supervisor,
U.S. Fish and Wildlife Service, Arizona Ecological Services Field
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951
(telephone 602-242-0210; facsimile 602-242-2513). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339, 7 days a week and 24
hours a day.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
designation of critical habitat in this rule. For more information on
the spikedace or the loach minnow, refer to the previous final critical
habitat designation for the spikedace and loach minnow published in the
Federal Register on April 25, 2000 (65 FR 24328).
Spikedace
Description and taxonomy. The spikedace is a member of the minnow
family Cyprinidae. The spikedace was first collected in 1851 from the
Rio San Pedro in Arizona and was described from those specimens in 1856
by Girard. It is the only species in the genus Meda. The spikedace is a
small, slim fish less than 3 inches (in) (75 millimeters (mm) in length
(Sublette et al. 1990, p. 136). It is characterized by an olive gray to
brownish back and silvery sides with vertically elongated black specks.
Spikedace have spines in the dorsal fin (Minckley 1973, pp. 82, 112,
115).
Distribution and Habitat. Spikedace are found in moderate to large
perennial streams, where they inhabit shallow riffles (shallow areas in
a streambed causing ripples) with sand, gravel, and rubble substrates
(Barber and Minckley 1966, p. 321; Propst et al. 1986, p. 12; Rinne and
Kroeger 1988, p. 1). Recurrent flooding and a natural hydrograph
(physical conditions, boundaries, flow, and related characteristics of
water) are very important in maintaining the habitat of spikedace and
in helping the species maintain a competitive edge over invading
nonnative aquatic species (Minckley and Meffe 1987, p. 103-104; Propst
et al. 1986, pp. 3, 81, 85).
The spikedace was once common throughout much of the Gila River
basin, including the mainstem Gila River upstream of Phoenix, and the
Verde, Agua Fria, Salt, San Pedro, and San Francisco subbasins. It
occupies suitable habitat in both the mainstem reaches and moderate-
gradient tributaries, up to approximately 6,500 feet (ft) (2,000 meters
(m)) in elevation (Chamberlain 1904, p. 8; Cope and Yarrow 1875, pp.
641-642; Gilbert and Scofield 1898, pp. 487, 497; Miller 1960 and
Hubbs, pp. 32-33).
Habitat destruction and competition and predation by nonnative
aquatic species have severely reduced its range and abundance. It is
now restricted to portions of the upper Gila River and the East, West,
and Middle Forks of the Gila River in New Mexico and the middle Gila
River, lower San Pedro River, Aravaipa Creek, Eagle Creek, and the
Verde River in Arizona (Anderson 1978, pp. 14-17, 61-62; Bestgen 1985,
p. 6; Jakle 1992, p. 6; Marsh et al. 1989, pp. 2-3; Paroz et al. 2006,
pp. 26, 37-41, 62-67; Propst et al. 1986, p. 1; Sublette et al. 1990,
pp. 138-139), and is only commonly found in surveys of Aravaipa Creek
and some parts of the upper Gila River in New Mexico (Arizona Game and
Fish Department (AGFD) 2004; Arizona State University 2002; Propst
2002, pp. 4, 16-33, Appendix II--Table 2; Propst et al. 1986, p. iv;
Rienthal 2006, p. 2). Based on the available maps and survey
information, we estimate its present range to be approximately 10 to 15
percent or less of its historical range, and the status of the species
within occupied areas ranges from common to very rare. Recent data
indicate the population in New Mexico has declined in recent years
(Paroz et al. 2006, p. 56). Table 1 summarizes critical habitat areas
designated as critical habitat in this final rule for spikedace, as
well as potential threats and records of spikedace within those areas.
Loach Minnow
Description and taxonomy. The loach minnow is a member of the
minnow family Cyprinidae. The loach minnow was first collected in 1851
from the Rio San Pedro in Arizona and was described from those
specimens in 1865 by Girard (pp. 191-192). The loach minnow is a small,
slender, elongated fish less than 3 in (80 mm) in length. It is olive
colored overall, with black mottling or splotches. Breeding males have
vivid red to red-orange markings on the bases of fins and adjacent
body, on the mouth and lower head, and often on the abdomen (Minckley
1973, p. 134; Sublette et al. 1990, p. 186).
Distribution and Habitat. Loach minnow are found in small to large
perennial streams, and use shallow, turbulent riffles with primarily
cobble on the bottom in areas of swift currents (Minckley 1973, p. 134;
Propst and Bestgen 1991, p. 32; Propst et al. 1988, pp. 36-43; Rinne
1989, p. 111). The loach minnow uses the space between, and in the lee
(sheltered) side of rocks for resting and spawning. It is rare or
absent from habitats where fine sediments fill the interstitial spaces
(small, narrow spaces between rocks or other substrate) (Propst and
Bestgen 1991; p. 33). Recurrent flooding and a natural hydrograph are
very important in maintaining the habitat of loach minnow and in
helping the species maintain a competitive edge over invading nonnative
aquatic species (Propst and Bestgen 1991, pp. 33, 37).
The loach minnow was once locally common throughout much of the
Gila River basin, including the mainstem Gila River upstream of
Phoenix, and the Verde, Salt, San Pedro, and San Francisco subbasins
(Minckley 1973, p. 133-134; Lee et al. 1980, p. 365). It
[[Page 13357]]
occupies suitable habitat in both the mainstem reaches and moderate-
gradient tributaries, up to about 8,200 ft (2,500 m) in elevation.
Habitat destruction and competition and predation by nonnative aquatic
species have severely reduced its range and abundance (Carlson and Muth
1989, pp. 232-233; Fuller et al. 1990, p. 1; Lachner et al. 1970, p.
22; Miller 1961, pp. 365, 377, 397-398; Minckley 1973, p. 135; Moyle
1986, pp. 28-34; Moyle et al. 1986, pp. 416-423; Ono et al. 1983, p.
90; Propst et al. 1988, p. 2, 64). It is now restricted to portions of
the upper Gila, the San Francisco, and Tularosa rivers in New Mexico;
and the Blue River and its tributaries Dry Blue, Campbell Blue, Little
Blue, Pace, and Frieborn creeks; Aravaipa Creek and its tributaries
Turkey and Deer creeks; Eagle Creek; East Fork White River; and the
Black River and the North Fork East Fork Black River in Arizona (Bagley
et al. 1998, pp. 3-6, 8; Bagley et al. 1995, multiple survey records;
Barber and Minckley 1966, p. 321; Britt 1982, pp. 6-7; Leon 1989, p. 1;
Marsh et al. 1989, pp. 7-8; Paroz et al. 2006, pp. 26, 37-41, 62-67;
Propst et al. 1988, pp. 12-17; Propst and Bestgen 1991, p. 29; Propst
1996, multiple survey records; Springer 1995, pp. 6-7, 9-10), and is
only common in Aravaipa Creek and the Blue River in Arizona, and
limited portions of the upper San Francisco River, the upper Gila
River, and Tularosa River in New Mexico (Paroz et al. 2006, pp. 55-60;
Propst and Bestgen 1991, pp. 29, 37). The present range of the loach
minnow is estimated at 10 percent of its historical range (Propst et
al. 1988, p. 12), and the status of the species within occupied areas
ranges from common to very rare. Table 1 summarizes critical habitat
areas designated for loach minnow, as well as potential threats and
records of loach minnow within those areas.
Table 1.--Locations of Spikedace and Loach Minnow Stream Segments Designated as Critical Habitat, Threats to the
Species, Last Year of Documented Occupancy, and Source of Occupancy Information
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Last year Critical habitat
Spikedace and/or loach minnow Threats occupancy distance in mi Source
critical habitat areas confirmed (km)
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Complex 1--Verde River
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Verde River--Spikedace Nonnative fish 1999.............. 43.0 mi (69.2 km). AGFD 2004; ASU
species, grazing, 2002; Brouder
water diversions. 2002, p. 1.
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Complex 2--Black River Complex
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Boneyard Creek--Loach minnow.... Recreational 1996.............. 1.4 mi (2.3 km)... AGFD 2004; ASU
pressures, 2002.
nonnative fish
species, recent
fire and related
retardant
application, ash,
and sediment.
East Fork Black--Loach minnow... Recreational 2004.............. 12.2 mi (19.7 km). AGFD 2004; ASU
pressures, 2002.
nonnative fish
species, recent
fire and related
retardant
application, ash,
and sediment.
North Fork East Fork Black-- Recreational 2004.............. 4.4 mi (7.1 km)... AGFD 2004; ASU
Loach minnow. pressures, 2002; Bagley et
nonnative fish al. 1995,
species, recent multiple surveys;
fire and related Lopez 2000, p. 1.
retardant
application, ash,
and sediment.
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Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek
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Aravaipa Creek--Spikedace and Fire, some 2005.............. 28.1 mi (45.3 km). ADEQ 2006; AGFD
Loach minnow. recreational 2004; ASU 2002;
pressure, Rienthal 2006,
nonnative pp. 2-3.
pressures, water
diversion,
contaminants.
Deer Creek--Loach minnow........ Fire, some 2005.............. 2.3 mi (3.6 km)... AGFD 2004; ASU
recreational 2002; Rienthal
pressure, low 2006, p. 2.
nonnative
pressures.
Turkey Creek--Loach minnow...... Fire, some 2005.............. 2.7 mi (4.3 km)... AGFD 2004; ASU
recreational 2002; Rienthal
pressure, 2006, p. 2.
nonnative
pressures.
Gila River--Ashurst-Hayden Dam
to San Pedro
Spikedace................... Water diversions, 1991.............. 39.0 mi (62.8 km). AGFD 2004; ASU
grazing, 2002; Jakle 1992,
nonnative fish p. 6.
species.
San Pedro River (lower)-- Water diversions, 1966 (directly 13.4 mi (21.5 km). AGFD 2004; ASU
Spikedace. grazing, connected to 2002.
nonnative fish Aravaipa Creek,
species, mining. with records from
2005).
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Complex 4--San Francisco and Blue Rivers
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Eagle Creek--Loach minnow....... Grazing, nonnative 1997.............. 17.7 mi (28.5 km). AGFD 2004; ASU
fish species, 2002; Bagley and
water diversions, Marsh 1997, pp. 1-
mining. 2; Knowles 1994,
pp. 1-2, 5; Marsh
et al. 2003, pp.
666-668.
[[Page 13358]]
San Francisco River--Loach Grazing, water 2005.............. 126.5 mi (203.5 AGFD 2004; ASU
minnow. diversions, km). 2002; Paroz et
nonnative fish al. 2006, p. 67;
species, road Propst 2002, p.
construction and 13; Propst 2005,
maintenance, p. 10; Propst
channelization. 2006, p. 2.
Tularosa River--Loach minnow.... Grazing, watershed 2002.............. 18.6 mi (30.0 km). ASU 2002; Propst
disturbances. 2002, p. 9;
Propst 2005, p.
6.
Frieborn Creek--Loach minnow.... Dispersed 1998.............. 1.1 mi (1.8 km)... ASU 2002.
livestock grazing.
Negrito Creek--Loach minnow..... Grazing, watershed 1998.............. 4.2 mi (6.8 km)... Miller 1998, pp. 4-
disturbances. 5.
Whitewater Creek--Loach minnow.. Grazing, watershed 1984 (directly 1.1 mi (1.8 km)... ASU 2002; Propst
disturbances. connected to the et al. 1988,
San Francisco p.15.
River, with
records from
2005).
Blue River--Loach minnow........ Water diversions, 2004.............. 51.1 mi (82.2 km). AGFD 2004; ASU
nonnative fish 2002; Carter
species, 2005; Propst
livestock 2002, p. 4.
grazing, road
construction.
Campbell Blue Creek--Loach Grazing, nonnative 2004.............. 8.1 mi (13.1 km).. AGFD 2004; ASU
minnow. fish species. 2002; Carter
2005.
Little Blue Creek--Loach minnow. Grazing, nonnative 1981 (directly 2.8 mi (4.5 km)... AGFD 2004; ASU
fish species. connected to the 2002.
Blue River, with
records from
2004).
Dry Blue Creek--Loach minnow.... Grazing........... 2001.............. 3.0 mi (4.8 km)... ASU 2002; Propst
2006, p. 2.
Pace Creek--Loach minnow........ Grazing, nonnative 1998.............. 0.8 mi (1.2 km)... ASU 2002.
fish species.
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Complex 5--Upper Gila River
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East Fork Gila River--Spikedace Grazing, nonnative 2000, 1998........ 26.1 mi (42.0 km). ASU 2002; Propst
and Loach minnow fish species, ash 2002, p. 27;
flows from Propst et al.
wildfires. 1998, p.14-15;
Propst 2006, pp.
2.
Upper Gila River--Spikedace and Recreation, roads, 2005.............. 94.9 mi (152.7 km) ASU 2002; Propst
Loach minnow. grazing, 2002, pp. 4, 31.
nonnative fish
species, water
diversion.
Middle Fork Gila River-- Nonnative fish 1995, 1998........ 7.7 mi (12.3 km), ASU 2002; Paroz et
Spikedace and Loach minnow. species, Grazing, 11.9 mi (19.1 km). al. 2006, p. 63;
ash flows from Propst 2002, p.
wildfires. 22; Propst, 2006,
p. 2.
West Fork Gila River--Spikedace Nonnative fish 2005, 2002........ 7.7 mi (12.4 km).. ASU 2002; Paroz et
and Loach minnow. species, roads, al. 2006, p. 64;
ash flows from Propst 2002, p.
wildfires. 18; Propst 2006,
p. 2.
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Previous Federal Actions
We previously published a final critical habitat designation on
April 25, 2000 (65 FR 24328). In New Mexico Cattle Growers' Association
and Coalition of Arizona/New Mexico Counties for Stable Economic Growth
v. United States Fish and Wildlife Service, CIV 02-0199 JB/LCS (D.N.M),
the plaintiffs challenged the April 25, 2000, critical habitat
designation for the spikedace and loach minnow because the economic
analysis had been prepared using the same methods which the Tenth
Circuit had held to be invalid. The Center for Biological Diversity
joined the lawsuit as a Defendant-Intervenor. The Service agreed to a
voluntary vacatur of the critical habitat designation, except for the
Tonto Creek Complex. On August 31, 2004, the United States District
Court for the District of New Mexico set aside the April 25, 2000,
critical habitat designation in its entirety and remanded it to the
Service for preparation of a new proposed and final designation. On
December 20, 2005, we published a proposed critical habitat designation
(70 FR 75546).
For more information on previous Federal actions concerning the
spikedace and loach minnow, including listing documents published in
1985 and 1986 (50 FR 25380, June 18, 1985; 51 FR 39468, October 28,
1986; 51 FR 23769, July 1, 1986) as well as the first critical habitat
designation in 1994 (59 FR 10898, March 8, 1994; 59 FR 10906, March 8,
1994), refer to the critical habitat designation published in the
Federal Register on April 25, 2000 (65 FR 24328).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the spikedace and loach minnow on
December 20, 2005 (70 FR 75546), and in two notices to reopen the
comment period on June 6, 2006 (71 FR 32496) and October 4, 2006 (71 FR
58574). We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule. We requested information
on the current status, distribution, and threats
[[Page 13359]]
to the spikedace and loach minnow, as well as information on the status
of other aquatic species in the historical range of the spikedace and
loach minnow. We requested this information in order to make a final
critical habitat determination based on the best available scientific
and commercial data. We also requested information on proposed
exclusions of various areas from the final critical habitat
designation. In addition, we held public hearings on June 13 and 20,
2006, in Silver City, NM, and Camp Verde, AZ, respectively, to solicit
comments on the proposed rule. We published newspaper articles inviting
public comment and announcing these public hearings in the Arizona
Republic, Arizona Daily Star, Camp Verde Bugle, Sierra Vista Herald,
Tucson Citizen, Verde Independent, and White Mountain Independent in
Arizona, and the Albuquerque Journal, Albuquerque Tribune, and Silver
City Daily Press in New Mexico.
During the first public comment period, which opened on December
20, 2005, and closed on February 21, 2006, we received 23 comments
directly addressing the proposed critical habitat designation (e-mails,
letters, and faxes). Of these, we received two comments from peer
reviewers, three from Federal agencies, five from Tribes, one from a
State agency, seven from organizations, and five from individuals. We
also received two requests for public hearings. During the second
comment period, which opened on June 6, 2006, and closed on July 6,
2006, we received 39 comments. Of these latter comments, 2 were from
Federal agencies, 3 from State agencies, and 34 from organizations or
individuals. During the third comment period, which opened on October
4, 2006, and closed on October 16, 2006, we received 11 comment
letters. Of these comments, three were from Federal agencies and eight
from organizations and individuals.
Of the written comments received during the first comment period,
four supported, eight were opposed, and six included comments or
information but did not express support for or opposition to the
proposed critical habitat designation. Of the written comments received
during the second comment period, nine supported, 23 were opposed, and
seven included comments or information but did not express support for
or opposition to the proposed listing and critical habitat designation.
Written comments received during the third comment period were specific
to the proposals to exclude portions of various streams due to receipt
of management plans for those streams. Of these written comments, two
supported exclusions in Eagle Creek and the upper Gila River, three
opposed these exclusions, four proposed additional exclusions in other
areas, and three included comments or information but did not express
support for or opposition to the proposed exclusions.
We also received numerous comments on the content and soundness of
the environmental assessment and economic analysis. For the
environmental assessment, comments focused on the adequacy of
completing an environmental assessment rather than an environmental
impact statement, the inadequacy of the comment period and
opportunities for public participation, the use of the 300-foot buffer
for the lateral extent of the designation, the application of the
destruction or adverse modification language, the adequacy of the
discussion of impacts of the proposed action to water use and water
rights, the range of alternatives covered, and the economic information
provided in the environmental assessment.
Comments on the economic analysis included the suggestion that we
failed to estimate benefits of the proposed designation; the adequacy
and scope of the analysis; impacts to small business entities, ranching
and farming communities, and water use and water rights; the Regulatory
Flexibility Act; the Verde River and estimated costs and benefits of
including it in the final designation; and Tribal lands and impacts to
Tribes.
Responses to comments were grouped into three categories below.
Peer review comments are listed first, followed by comments received
from the States. Comments received from the public are listed last.
Because staff from the New Mexico Department of Game and Fish (NMDGF)
responded as peer reviewers, their comments are listed in the peer
review section, while those of the AGFD are listed under State
comments.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from 13 knowledgeable individuals
with scientific expertise that included familiarity with the species,
the geographic region in which the species occurs, and conservation
biology principles. These individuals represented Federal agencies,
State agencies, university researchers, or themselves as private
individuals. We received responses from two of the peer reviewers, one
as a private individual and the other in the capacity of an individual
who works for the New Mexico Department of Game and Fish. Peer review
comments focused on the reduction in the proposed critical habitat
designation from previous designations, the area encompassed by
critical habitat, and potential threats to the species, including the
need to expand ``nonnative fish'' to include ``nonnative aquatic
species.''
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the spikedace and loach minnow, and addressed them in the
following summary.
Peer Reviewer Comments
(1) Comment: The reduction in stream miles of critical habitat
proposed for designation from that previously designated for the
spikedace and loach minnow provides no incentive for land and resource
management agencies to launch projects that would restore conditions
for the enhancement of spikedace and loach minnow. All of the major
stream course and complexes, and many of the smaller tributaries, have
potential to provide elements necessary for the recovery of these
species and should be included in critical habitat.
Our response: The Service's process for designating critical
habitat has evolved since prior designations of critical habitat for
the spikedace and loach minnow. As required by section 4(b)(1)(A) of
the Act, we used the best scientific and commercial data available in
determining areas for designation as critical habitat.
(2) Comment: In primary constituent element (PCE) 4, ``nonnative
fish'' should be modified to include any and all nonnative aquatic
species, including the current component of nonnative fishes and those
that may become established in the future, as well as crayfishes,
macroinvertebrates, parasites, and disease-causing pathogens.
Our response: We agree and we have changed ``nonnative aquatic
fishes'' in the final rule to ``nonnative aquatic species.'' In
addition, language has been added addressing additional nonnatives and
their sources, as well as their potential effects on the native fish
community.
(3) Comment: Designating critical habitat serves positive purposes.
The prohibition against adverse modification is a powerful tool to
protect unoccupied seasonal or migratory habitat and unoccupied habitat
for population expansion as part of recovery. The most effective
benefit from designating critical habitat is the impetus it provides to
agencies and people to initiate conservation activities for the target
[[Page 13360]]
species and voluntarily curtail adverse impacts. No evidence is
provided concluding that the (1) jeopardy standard is sufficient to
protect habitat better than a critical habitat designation, (2) that
critical habitat designation provides no education benefits better
obtained otherwise, or (3) that conservation can be better achieved
through implementing management plans rather than through implementing
section 7 and other provisions of the Act.
Our response: Designation of critical habitat is one tool for
managing listed species habitat. In addition to the designation of
critical habitat, we have determined that other conservation mechanisms
including the recovery planning process, section 6 funding to States,
section 7 consultations, management plans, Safe Harbor agreements, and
other on-the-ground strategies contribute to species conservation. We
believe these other conservation measures provide greater incentives
and often greater conservation. Please see ``Exclusions under Section
4(b)(2) of the Act'' for additional discussion.
(4) Comment: The Service should reclassify both species to
endangered status, as a warranted but precluded finding was published
in 1994. Both species have experienced significant reductions in range
and abundance since that time, and their status in the wild continues
to deteriorate. Reclassification would recognize the precarious status
of the species and give higher priority for recovery actions.
Our response: We agree and in the 2006 Candidate Notice of Review
(CNOR) (71 FR 53756; September 12, 2006) we resubmit our 12-month
finding where we determine that reclassification of both the spikedace
and loach minnow is warranted but precluded by other higher priority
listing actions. The 2006 CNOR provides a detailed discussion of why
these listing actions are precluded by other higher priority listing
actions. We note that Federal and State agencies and other cooperators
are continuing with recovery actions for the spikedace and loach minnow
in a concerted effort to improve the status of these two fish.
(5) Comment: No information is presented on effects of wildfire on
habitats (PCEs) each species occupies. Since 2000, wildfires have
burned much of the West Fork Gila River watershed, fine sediment
deposition has increased noticeably, and abundance of both spikedace
and loach minnow have declined substantially at a permanent site on
West Fork Gila River that is annually sampled.
Our response: We have added wildfire to the threats discussion
within the unit descriptions below and within Table 1 as a threat to
the West Fork Gila River.
(6) Comment: The lateral extent of the areas proposed for critical
habitat is logical considering the dynamic nature of streams in the
Gila River basin, and the scientific understanding of the role flood
plains play in stream course functioning. Defining a measurable width
that is wide enough to incorporate flood flows beyond the bankfull
width is reasonable.
Our response: We agree with the commenter on this point.
State Comments
(7) Comment: We suggest a rewording of the statement regarding
water quality in the PCE section for both spikedace and loach minnow to
not require low levels of pollutants in the water. As written, these
statements could be interpreted to mean that low levels of pollutants
are needed.
Our response: We agree with this comment, and have revised the
wording in the discussion of PCEs in the final rule to indicate that
suitable water quality for spikedace and loach minnow will contain no
or only minimal pollutant levels.
(8) Comment: The Arizona Department of Transportation requests that
the Service provide estimated acreages of proposed critical habitat for
each habitat complex. The total mileage figures are inconsistent and
total miles should be provided for spikedace and loach minnow. The
total mileages in Table 3 for New Mexico and Arizona are reversed.
Our response: Because fishes occupy stream habitat, we have
determined it is more appropriate to quantify the delineation in terms
of stream miles rather than total acres. All mileage figures throughout
the rule and in the tables have been checked for consistency and
adjusted where necessary.
General Comments Issue 1: Biological Concerns
(9) Some commentors have noted that we have misinterpreted or over-
extrapolated information from various sources, in particular the
proposed rule did not appear to include any studies that specifically
define ranges for ``fine sediment'' or ``substrate embeddedness'';
therefore, the phrase ``low or moderate amounts'' appears open to
subjective interpretation.
Our response: For purposes of critical habitat designation, low to
moderate amount of substrate embeddedness means embeddedness that does
not preclude deposition of eggs among sand and gravel for spikedace, or
on the undersurfaces of large rocks for loach minnow. Please see the
discussion under ``Substrates'' for both spikedace and loach minnow for
additional information.
(10) Comment: The statement within the proposed rule that
``Flooding, as part of a natural hydrograph, temporarily removes
nonnative fish species, which are not adapted to flooding'' is an over-
generalization. Minckley and Meffe (1987) concluded that nonnative
fishes fared poorly in canyon reaches by noting that some nonnative
species like green sunfish and smallmouth bass rebounded quickly from
floods because they were stream-adapted. Flooding may also kill or
displace native fishes. Some native fishes exhibit the potential to
reproduce quickly after flooding, which could account for some of the
effects reported by Minckley and Meffe (1987).
Our response: We have adjusted the text to better reflect Minckley
and Meffe (1987).
(11) Comment: The most thriving populations of these fishes tend to
be in flood blasted, warm, shallow, braided channel refugia and at
places where vehicles splashed through streams, inside corrals (through
which streams flowed), and in river channels within mine sites which
are regularly bulldozed. The loach minnow is thriving on private land
at a mine where heavy trucks cross the road several times a day,
resulting in an area that is shallow and full of sediment.
Our response: We disagree with this conclusion. While spikedace
and/or loach minnow are sometimes found in association with low water
crossings, and while flooding is an important component of habitat
maintenance for these species, we are not aware of any locations where
they occur in streams flowing through corrals or within mine sites
which are regularly bulldozed. We currently have survey records dating
from the late 1800s to the present for these species, as well as
numerous studies that detail the habitat requirements for the species,
all of which indicate that they occur in habitat different than that
described by the commenter.
(12) Comment: The Gila River is not critical habitat for the
minnows because extreme flood waters may kill small fish. Small streams
are better suited for small fish, because large fish will predate on
the smaller fish.
Our response: Please refer to the discussion on ``Flooding'' below
under the PCE discussion for spikedace. As noted in that discussion,
Minckley and
[[Page 13361]]
Meffe (1987, p. 99-100) studied the differential responses of native
and nonnative fishes in seven unregulated and three regulated streams
or stream reaches that were sampled before and after major flooding.
They noted that fish faunas of canyon-bound reaches of unregulated
streams invariably shifted from a mixture of native and nonnative fish
species to predominantly, and in some cases exclusively, native forms
after large floods.
(13) Comment: One commenter notes that many of these minnows can be
seen in the Gila River.
Our response: While spikedace and loach minnow do occur in the Gila
River, it is important to note that the ``minnows'' seen in the Gila
River may or may not be spikedace or loach minnow. There are
approximately 235 species of fishes that are within the minnow family,
Cyprinidae, in North America (Bond 1979, p. 170). Spikedace and loach
minnow are members of this family. Other small-bodied, native minnows
which are more commonly found within the Gila River include longfin
dace (Agosia chrysogaster) and speckled dace (Rhinichthys osculus).
These fish, even as adults, can be confused with spikedace and loach
minnow. There are several other species which are technically minnows
and may be confused with spikedace and loach minnow when young. These
include native roundtail chub (Gila robusta) and nonnative common carp
(Cyrpinus carpio), goldfish (Carassius auratus), and fathead minnow
(Pimephales promelas) (Lee et al. 1980, pp. 140-367).
(14) Comment: Spikedace were last seen in the Verde River in 1999.
They may already be extinct.
Our response: Because the last record for spikedace on the Verde
River was from 1999, this area still meets the 10-year occupancy
criteria used in developing the critical habitat. We are also aware of
gaps in the survey record in which spikedace were not found for greater
than 10 years, but then reappeared. Surveys do not allow for 100
percent detection of a species, particularly for species such as
spikedace that are hard to detect.
General Comments Issue 2: Procedural and Legal Compliance
(15) Comment: Several commenters requested a 60-day extension of
the comment period, or indicated that two public hearings and the
comment periods provided were inadequate to provide comment on the
proposed rule, draft economic analysis, and the draft environmental
assessment.
Our response: We believe the three comment periods allowed for
adequate opportunity for public comment. A total of 100 days was
provided for document review and the public to submit comments.
(16) Comment: Reintroduction of the spikedace and loach minnow to
the Verde River will result in killing and poisoning of the non-native
fish, leaving the public with a non-fishable river. The general public
will be banned from setting foot or paddling on the river area or using
the Verde River for recreation.
Our response: The designation of critical habitat does not entail
reintroduction efforts of spikedace or loach minnow. In addition,
designation of critical habitat does not set up wildlife refuges or
preserves, or require the exclusion of all other uses. Critical habitat
was designated previously on the Verde River for spikedace and loach
minnow from 2000 to 2004, during which time recreation and use of this
area by the public continued.
(17) Comment: The Service appears inconsistent in their critical
habitat designations in terms of the lateral extent of the critical
habitat designation. There is no reference for best scientific evidence
in the determination of 300 ft (91.4 m) as lateral extent. Prior
rulings for razorback sucker, Colorado pikeminnow, humpback chub, and
bonytail chub define the lateral extent of critical habitat as the 100-
year floodplain where PCEs occur, with the caveat that potential areas
of critical habitat should be evaluated on a case by case basis. The
final ruling for woundfin and Virgin River chub use the 100-year
floodplain.
Our response: Although we considered using the 100-year floodplain,
as defined by the Federal Emergency Management Agency (FEMA), we found
that it was not included on standard topographic maps, and the
information was not readily available from FEMA or from the U.S. Army
Corps of Engineers for the areas designated as critical habitat,
possibly due to the remoteness of various stream reaches. Therefore, we
selected the 300-foot lateral extent, rather than some other
delineation, for three reasons: (1) The biological integrity and
natural dynamics of the river system are maintained within this area
(i.e., the floodplain and its riparian vegetation provide space for
natural flooding patterns and latitude for necessary natural channel
adjustments to maintain appropriate channel morphology and geometry,
store water for slow release to maintain base flows, provide protected
side channels and other protected areas, and allow the river to meander
within its main channel in response to large flow events); (2)
conservation of the adjacent riparian area also helps provide nutrient
recharge and protection from sediment and pollutants; and (3) vegetated
lateral zones are widely recognized as providing a variety of aquatic
habitat functions and values (e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water temperature changes, and
detritus for aquatic food webs) and help improve or maintain local
water quality (see U.S. Army Corps of Engineers' final notice
concerning Issuance and Modification of Nationwide Permits, March 9,
2000, 65 FR 12818-12899). Please see the section entitled ``Lateral
Extent'' below for more information. In addition, in more recent rules
we have used the 300 ft (91.4 m) width to define the lateral extent of
critical habitat for the Rio Grande silvery minnow (February 19, 2003;
68 FR 8088), the Gila chub (November 2, 2005; 70 FR 66664), and the
Arkansas River shiner (October 13, 2005; 70 FR 59808).
(18) Comment: A designation of 300 ft (91.4 m) may impact roads or
facilities. Roads or facilities impacted by flooding may require
periodic maintenance. Additionally, if a river shifts in response to
flooding, critical habitat would have to shift and potentially affect
the rebuilding of diversion structures. The proposed rule does not
address what happens when a river channel moves.
Our response: Prior critical habitat designations for spikedace and
loach minnow from 2000 to 2004 did not prevent maintenance or
rebuilding of structures damaged by flooding nor will this final
designation. Where critical habitat is designated, activities funded,
authorized, or carried out in these areas by Federal action agencies
that may affect the PCEs of the critical habitat, may require
consultation pursuant to section 7 of the Act. The purpose of the
consultation is not to stop activities from occurring, but to ensure
that such activities do not result in jeopardy to listed species or
adverse modification of critical habitat. When determining final
critical habitat map boundaries, we made every effort to avoid
including developed areas such as buildings, paved areas, and other
structures that lack any PCEs for the spikedace and loach minnow. Any
such structures and the land under them inadvertently left inside
critical habitat boundaries of this final rule are excluded by text and
are not designated as critical habitat. Specifically, lands located
within the boundaries of the critical habitat designation, but that do
not contain any of the PCEs essential to the conservation of the
spikedace and loach minnow
[[Page 13362]]
include: Existing paved roads; bridges; parking lots; railroad tracks;
railroad trestles; water diversion and irrigation canals outside
natural stream channels; active sand and gravel pits; regularly
cultivated agricultural land; and residential, commercial, and
industrial developments.
Critical habitat includes the area of bankfull width plus 300 ft
(91.4 m) on either side of the banks. Should the active channel meander
or shift we anticipate that it would still be contained within the 300
foot (91.4 m) lateral extent of the designation (i.e. our current
critical habitat boundary); thus we do not find that critical habitat
will shift as a result.
(19) Comment: The 300 ft (91.4 m) lateral extent likely represents
an expansion of critical habitat to areas that are not necessarily
riparian habitat, particularly on small streams.
Our response: Although the spikedace and loach minnow cannot be
found in the riparian areas when they are dry, these areas are
periodically flooded and provide habitat during high-water periods.
These areas also contribute to PCEs 1 and 2 and contain PCEs 3 and 5.
As noted in response to 18 above, vegetated lateral zones are widely
recognized as providing a variety of aquatic habitat for fish and other
aquatic organisms, moderation of water temperature changes, and
detritus for aquatic food webs, and help improve or maintain local
water quality.
(20) Comment: The 300 ft (91.4 m) designation needs additional
defining. It is unclear if it is to be measured up to the slope of the
bank or horizontally on a map. In many reaches of the specific rivers
and streams in the designation, the flowing channels are confined
within narrow canyon bottoms, and a 300 ft (91.4 m) buffer in some
cases extends several hundred feet vertically up the side of the
canyon. In addition, bankfull width, while scientifically valid and
useful, may be hard to determine in the field.
Our response: Critical habitat includes the area of bankfull width
plus 300 ft (91.4 m) on either side of the banks, except where bordered
by a canyon wall. Since a canyon wall is not defined as a PCE for the
spikedace and loach minnow it would not be considered critical habitat.
The 300 foot lateral extent is not for the purpose of creating a
``buffer zone.'' Rather, it defines the lateral extent of those areas
we have determined contain or contribute to the features (PCEs 3 and 5)
that are essential to the conservation of these species (e.g., water
quality, food source, etc.).
(21) Comment: The Service is inconsistent in its treatment of, and
fails to properly analyze the impacts of, groundwater wells and other
potential detrimental activities that are located outside the 300 ft
(91.4 m) lateral extent of critical habitat.
Our response: Activities funded, authorized, or carried out by
Federal action agencies that may affect the PCEs of the critical
habitat, may require consultation pursuant to section 7 of the Act.
Thus, groundwater pumping activities may require consultation pursuant
to section 7 of the Act if the action agency determines that the
activity may affect the PCEs for the spikedace or loach minnow,
regardless of whether the activity is occurring within or outside the
critical habitat designation.
(22) Comment: The Service should designate the areas within the
active floodplain that are necessary to support the PCEs of spikedace
and loach minnow critical habitat for the recovery of the species, as
demonstrated by the best available science. We suggest that the Service
look at hydrogeomorphic and biological features to determine the width
along each segment where the PCEs are likely to exist. Such information
may include specific return intervals (5-, 10-, 50-year events),
floodplain features (ordinary high water mark), or floodplain
vegetation as indicators of important habitat, which can be mapped in
the field along with bankfull flow width.
Our response: As noted in our response to comment 17 above, we do
not have this type of information available to us and thus we selected
the 300 ft (91.4 m) lateral extent as the best available science to map
the areas that contain or contribute to the features that are essential
to the conservation of these species.
(23) Comment: The best scientific information currently available
recognizes that for most native fish species, conservation cannot be
achieved without eliminating or greatly suppressing nonnative fishes
(Clarkson et al. 2005). The common nonnative fish occupying the same or
overlapping geographic areas with spikedace and loach minnow are known
to compete with or prey on all life stages of native fish (Pacey and
Marsh 1998). Thus, where nonnative fishes have high abundance, and
where there is limited opportunity or ability for the Service to manage
these nonnative species due to physical constraints of the river system
or political/social constraints, these segments are unlikely to provide
important habitat for any of the spikedace and loach minnow life stages
regardless of the condition of other PCEs. Nonnatives are especially a
problem for the San Francisco River, Gila River, and Eagle Creek.
Our response: Critical habitat designation is not the process
through which we rule out habitat suitability due to threats, but the
process through which we identify habitat that provides for one or more
of the life history functions of the species. As defined in section
3(5)(A) of the Act, critical habitat means ``(i) the specific areas
within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of section 4 of the Act, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protection.'' During the designation
process, the Service identifies threats to the best of our ability
where they exist. Identification of a threat within an area does not
mean that that area is no longer suitable, rather that special
management or protections may be required. If an area contains
sufficient PCEs to provide for one or more of the life history
functions of spikedace or loach minnow, and if it was occupied at the
time the species was listed and is currently occupied, it is reasonable
to include it within a proposed critical habitat designation. The need
to address a particular threat, such as nonnative fishes, in a portion
of the critical habitat designation may or may not arise in the future.
Further, describing both the areas which support PCEs and the threats
to those areas assists resource managers in their conservation planning
efforts for threatened and endangered species like spikedace and loach
minnow.
(24) Comment: Absent clear scientific evidence that intermittent
stream reaches are used by spikedace or loach minnow to move between
occupied habitats, and are critical to their recovery, the fifth PCE
should not be included as part of the final designation.
Our response: It was not our intent to imply that spikedace or
loach minnow occupy intermittent reaches when water is not present. We
included interconnected waters because spikedace and loach minnow have
the ability to move between populated, wetted areas, at least during
certain flow regimes or seasons. Because streams provide continuous
habitat when connected, and because fish are mobile, it is reasonable
to conclude that intermittent areas, when wetted, may be used during
fish movement. In addition, some complexes include stream reaches that
play a role in the overall health of
[[Page 13363]]
the aquatic ecosystem, and therefore, the integrity of upstream and
downstream spikedace and loach minnow habitat. Again, because stream
habitat is continuous, actions taking place in an intermittent portion
of the channel can have effects in upstream and downstream areas.
Inclusion of these intervening areas assures protection of adjacent,
perennial reaches.
(25) Comment: There is no record or document that summarizes or
describes in detail the PCE conditions that the Service used as a
decision-making tool to select reaches.
Our response: As stated under the ``Critical Habitat'' subheading
in the final rule, the areas included within the proposed critical
habitat designation are based not only on PCE conditions, but also on
whether or not an area was occupied at listing and may require special
management considerations or protections. There is no single record or
document that summarizes this information. Instead, the Service looked
at various databases and survey records to determine occupancy, as well
as habitat descriptions at various locations. We relied on information
provided in survey reports and research documents to describe
conditions at various locations. This information was then synthesized
to develop the proposed critical habitat designation.
(26) Comment: As a final step before the issuance of the proposed
rule, the Service should have ranked the suitable habitat to determine
which areas possess the highest quality of PCEs. Based on this ranking,
the Service would then have published the proposed rule designating the
portions of suitable habitat needed to achieve recovery goals. The
proposed rule would have also described areas of suitable habitat
identified by the Service but not included in the proposed rule.
Our response: The regulations governing critical habitat
designations do not require ranking of suitable habitat. With species
such as spikedace and loach minnow, whose current distribution is
severely reduced compared to historical distribution, determining the
highest quality of PCEs is not a useful tool in developing a
recommendation, and inclusion of only the highest ranking areas would
not be sufficient for recovery of these species. The Service has
developed a rule set that we have determined identifies those areas to
be included as final critical habitat. We have coupled that rule set
with the best scientific and commercial information available regarding
species distribution, habitat parameters, and life history, and have
included those areas within the designation.
(27) Comment: The preamble articulates the following important
concept: ``Where a subset of PCEs are present (e.g., water temperature
during spawning), only those PCEs present at designation will be
protected.'' This concept should be reflected in the rule language
itself. The proposal is not always clear as to what PCEs are present in
each stretch of river. For example, with respect to the 39 mile stretch
of the Gila River included in the proposal, the preamble states only
that it contains ``one or more'' of four PCEs. This creates uncertainty
about what PCEs are present in which segments, which could in turn
cause difficulties in future section 7 consultations regarding possible
adverse effects on critical habitat.
Our response: Within the discussion immediately following Table 1,
PCEs are described for each complex. For example, for the 39 mile
stretch of the Gila River addressed in this comment, the proposed rule
states that ``Those portions of the Gila River proposed for designation
contain one or more of the PCEs, including sufficient flow velocities
and appropriate gradients, substrates, depths, and habitat types (i.e.,
pools, riffles).'' This information should be useful in future section
7 consultations.
(28) Comment: Page 75556 of the proposed rule states ``Where a
subset of the PCEs are present (e.g., water temperature during
spawning), only those PCEs present at the time of designation will be
protected.'' Implementation of this misguided approach negates the
conservation value of the critical habitat designation because lack of
perennial water, appropriate stream habitat, or high abundance of
predatory nonnative fish precludes the survival or recovery of
spikedace or loach minnow. We believe the Service needs to fully
consider the implication of this language in the Proposed Rule, and
reevaluate the proposed reaches in light of the need to contain all
PCEs at the time of designation, especially those reaches that contain
high numbers of nonnative fish species.
Our response: Stream complexes as part of this final rule making
were designated based on sufficient PCEs being present to support
spikedace and loach minnow life processes. Some complexes contain all
PCEs and support multiple life processes. Some segments contain only a
portion of the PCEs necessary to support the spikedace and loach
minnow's particular use of that habitat. Where a subset of the PCEs are
present (such as water temperature during migration flows), it has been
noted that only PCEs present at designation will be protected.
(29) Comment: With respect to the PCEs, an additional quantitative
value that should be measured is the large wood present in a system.
Our response: We agree that large wood is an important factor to
analyze in assessing riparian ecosystem health; however, we are not
aware of any data at this time that illustrates what amount of large
woody debris within a system would constitute ideal conditions for
spikedace and loach minnow. Should such information be developed in the
future, it would be another useful factor in evaluating river system
health and habitat suitability for spikedace and loach minnow.
(30) Comment: Flow velocity values should be in feet per second,
which is a more appropriate field estimate and ensures greater accuracy
between readings and reader. These values can also be better correlated
with historical and stream gauge data.
Our response: While it may be more useful to report flow velocity
values in feet per second, it is our practice to use values and units
of measurement as they were reported by the author of the research
summarized.
(31) Microhabitat flows are highly related to habitat complexity.
Though it is appropriate to define these flows, there should be more
emphasis on habitat complexity and the functions needed to create it
such as floodplain interaction, riparian condition, and large wood
recruitment.
Our response: We believe the final rule accomplishes both of these
objectives. We have chosen to consider overall riparian health, as well
as floodplain interaction and stream health, by including riparian
vegetation and floodplain areas within the critical habitat
designation, as encompassed by the 300 foot lateral zone. In addition,
we have attempted to define key components of occupied habitat, as
defined in the PCEs. One of those components relates to flow
velocities. We have incorporated the information we have relevant to
spikedace and loach minnow within the rule.
(32) Comment: Because microhabitat is variable and transient,
gradient values should be more generalized and at the geomorphic reach
level.
Our response: We are required to use the best scientific and
commercial information available. At this time, no assessment of
gradient values at a geomorphic reach level has been completed for
occupied or suitable spikedace and loach minnow habitat.
[[Page 13364]]
(33) Comment: In evaluating riparian habitat, there should be two
or more native, riparian-obligate woody species and two or more
riparian-obligate herbaceous species present and vigorous (Winward
2000). In terms of species diversity, all four age classes of native,
riparian-obligate woody species must be present and vigorous. These
classes are seedling/sprout, young/sapling, mature/decadent, and dead
(Winward 2000).
Our response: We agree that a diversity of composition leads to
healthier riparian habitat; however, we do not have sufficient
information of this type tied to occupied spikedace and loach minnow
critical habitat to use in developing an individual PCE. The individual
PCEs represent the actual physical and biological parameters of habitat
used by the fish.
(34) Comment: Conflicting comments were received on the temperature
ranges listed within the PCEs for spikedace and loach minnow. In
summary, we received comments that the PCE temperature range is broader
(35 to 85 [deg]F) than the literature indicates (48.2 and 71.6 [deg]F),
with the potential net effect being an extension of stream reaches both
upstream and downstream from areas actually likely to support the
species. A second commenter noted that the Bonar et al. (2005) study
found 100 percent survival of loach minnow at 28 [deg]C (82 [deg]F) and
100 percent survival of spikedace at 30 [deg]C (86 [deg]F) corresponded
quite well with upper limits in the proposed rule PCEs. A third
commenter noted that appropriate values should be a maximum seven day
average.
Our response: We have reviewed the study completed by the
University of Arizona (Bonar et al. 2005) and incorporated its findings
into discussions of temperature tolerances within the final rule. The
PCEs serve as guidelines to resource managers in evaluating the
suitability of areas for spikedace and loach minnow. Temperature ranges
provided are based on the studies completed at various occupied
locations, and adequately represent the habitat most suitable for
spikedace and loach minnow. In most instances, resource managers do not
have the ability to develop seven day averages. With respect to
broadening the range of the species by incorporating too wide a range
of suitable temperatures, we note that we are using the Act's standard
of best available scientific information, and should temperatures at
these sites be found at the high point of the range provided in this
PCE, it would already be within an area occupied by the species, so the
species' range would not be broadened.
(35) Comment: Water depths of 1 to 30 inches are specified as a PCE
for adult, juvenile, and larval loach minnow. No data or references are
cited to support any specific range of depths. Additionally, pools
aren't appropriate for spikedace and loach minnow, but are suitable for
predatory non-natives that are significantly detrimental.
Our response: Water depths are known for all occupied spikedace and
loach minnow sites, as discussed below. Therefore, the range described
in the PCEs reflects the range considered to provide suitable habitat
for these fishes by biologists familiar with the species.
Spikedace and loach minnow are less likely to use pool habitat than
other types of habitat, however, Sublette et al. (1990, p. 138) and
Propst et al. (1986, p. 40) note that spikedace juveniles and larvae
are occasionally found in quiet pools or backwaters lacking streamflow
(Sublette et al. 1990, p. 138). Barber et al. (1970, pp. 11-12) also
noted that female spikedace occupy deeper pools and eddies during
portions of the breeding season. In addition, Schreiber (1978, pp. 40-
41) found that the availability of pool and run habitats affects
availability of prey species consumed by loach minnow.
(36) Comment: Virtually any perennial stream above 3,000 feet
elevation in Arizona displays the characteristics cited by the Service
in its PCEs and thus they are not particularly helpful in identifying
the areas necessary for the conservation of the spikedace and loach
minnow.
Our response: The PCEs are based on the range of criteria developed
following review of research conducted at occupied spikedace and loach
minnow sites. Use of the PCEs alone may result in the inclusion of most
streams above 3,000 feet in elevation. However, coupled with occupancy
information and the geographic range of the species, we are able to
identify final critical habitat for the spikedace and loach minnow.
(37) Comment: Flood magnitude and frequency deserve careful
consideration and incorporation as part of a ``flood frequency and
magnitude'' PCE. The Service has failed to include important hydrologic
features in the analysis of current habitat for spikedace and loach
minnow.
Our response: We agree that flooding is a key process in
maintaining suitable habitat components for spikedace and loach minnow,
and have addressed this in PCE 2. A PCE focused strictly on flooding
would be difficult to define, as there is considerable variability in
the flood magnitude and frequency of different systems. More
importantly, flooding itself would be inappropriate as a PCE as
flooding is a process that maintains the necessary components of
occupied habitat, whereas PCEs are the features essential to the
conservation of the species. We determine those physical and biological
features that are essential to the conservation of a given species and
that may require special management considerations or protection,
rather than looking at the processes that aid in developing those
features 50 CFR 424.12(b).
(38) Comment: Although the five PCEs appear to be generally
correct, they are describing fine-grained characteristics applicable to
a square-meter by square-meter assessment. Only two PCEs are coarse-
grained; (1) reaches devoid of nonnative fish, and (2) stream reaches
that flow sporadically and provide connective corridors between
occupied and seasonally occupied reaches. The other PCEs are focused on
the biological requirements for individual fish, rather than the
population or the species to which it belongs.
Our response: We disagree with the commenter on this point. It is
true that the PCEs focus on the biological needs of the individual
fish, but collectively, the biological needs of the fish represent the
biological needs of the species. As previously noted, critical habitat,
as stated in the Act, is defined as ``* * * specific areas * * * on
which are found the physical or biological features (I) essential to
the conservation of the species * * *.'' The Service has determined
that the PCEs, as defined by studies in occupied areas, define the
features essential to the conservation of the species.
(39) Comment: We request exclusion of all areas within roadway
right-of-ways or easement limits because section 7 is required in these
areas for projects affecting threatened and endangered species.
Designation within right-of-ways would have no additional benefit.
Our response: Developed lands, including roadway right-of-ways, do
not contain the PCEs essential to the conservation of the spikedace and
loach minnow. Federal action agencies are only required to consult on
activities they authorize, fund, or carry out that may affect the
physical or biological features determined in this rule to be essential
to conservation of these fish. See also response to comment 18 above.
(40) Comment: The Bureau of Reclamation lands are on the lower San
Pedro River and not the Gila River. This mistake is also continued in
the regulation promulgation section.
Our response: According to GIS landownership layers from the
Arizona
[[Page 13365]]
Land Resource Information System of the Arizona State Land Department,
the Bureau of Reclamation lands referenced by the commenter are on the
Gila River beginning at Township 4 South, Range 13 West, section 3.
(41) Comment: The critical habitat designation allows for
exclusions when special management considerations are not required
based on management plans. This policy should allow for land management
agencies to adopt species management plans.
Our response: In this final rule, our exclusion of areas covered by
management plans was made pursuant to section 4(b)(2) of the Act, where
we determined that the benefits of exclusion outweighed the benefits of
inclusion. These determinations were not hindered by landownership.
(42) Ten years is insufficient to determine presence or absence of
spikedace and loach minnow given the elusiveness of the species, the
difficulty of obtaining a thorough sampling of remote streams with
difficult access, and the low efficiency of sampling techniques. There
is greater biological support to use a period of 20 to 40 years as the
standard for determining ``occupancy.''
Our response: We believe a period of 10 years is reasonable to
determine occupancy based on the fact that both species are difficult
to detect in surveys, surveys have been infrequent or inconsistent
because many of the areas where they occur are remote, and we have
areas where these species were not detected for long periods of time
(44 years) and then detected again. Specifically, the methodology used
considers a stream segment occupied if the spikedace or loach minnow
has been detected in the last 10 years or if the stream segment is
connected to a stream segment with spikedace or loach minnow records
within the last 10 years. For example, we consider the lower San Pedro
River and the Gila River ``occupied'' due to their connections with
Aravaipa Creek, an area where we have documented records of these fish
from within the last 10 years. We have determined our methodology is
reasonable to determine areas that meet the definition of critical
habitat.
(43) Comment: With respect to occupancy, we do question the
assumption that all stream segments with a ``direct connection'' to
occupied areas are themselves occupied. There is little scientific
basis for this assumption.
Our response: The language within the rule states ``We consider an
area to be occupied by the spikedace or loach minnow if we have records
to support occupancy within the last 10 years, or where the stream
segment is directly connected to a segment with occupancy records from
within the last 10 years.'' While we do not have occupancy records for
these connected areas within the last 10 years, we believe it is
reasonable to consider these connected areas to be occupied for the
purposes of critical habitat as they are part of a larger contiguous
complex with documented occupancy within the last 10 years. We consider
it reasonable because of the elusiveness of the species, the difficulty
of obtaining a thorough sampling of remote streams with difficult
access, and the low efficiency of sampling techniques.
(44) Comment: The North Fork of the White River and the mainstem
White River downstream of the confluence of the North and East Forks
should be included in the designation. Records of loach minnow within
the last 10 years exist for both streams.
Our response: These stream segments occur on Tribal lands and we
have no information available to us to conclude that these areas meet
the definition of critical habitat for the loach minnow. Please see
``Relationship of Critical Habitat to Tribal Lands'' below for
additional discussion of Tribal management plan and protections that
exist for these fish on those lands.
(45) Comment: The Service should use wording similar to that used
in the 2000 critical habitat designation which states ``We have
determined the primary constituent elements essential to the
conservation of spikedace include, but are not limited to * * *.'' This
provides for inclusion of new scientific information without the need
for cumbersome and expensive reproposal of critical habitat.
Our response: We have determined the revised language provides more
specifics and certainty about the PCEs, and any revisions to a
regulation as a result of new information may only be made through a
new rulemaking process.
(46) Comment: The proposed rule incorrectly paraphrases the
regulatory definition of destruction or adverse modification of
critical habitat. The paraphrased definition limits analysis of
destruction or adverse modification to ``those physical or biological
features that were the basis for determining the habitat to be
critical'', a limitation not found in the regulatory definition.
Instead, the regulatory definition directly addresses effects to the
critical habitat rather than a surrogate. The paraphrased definition
also omits the regulatory definition's inclusion of diminution of the
values of ``both the survival and recovery of a listed species.''
Our response: The Service no longer relies on the regulatory
definition of adverse modification of critical habitat. Instead the
Service relies on the statutory provision of the Act to complete the
analysis on critical habitat. Please see ``General Principles of
Section 7 Consultations Used in the 4(b)(2) Balancing Process'' below
for additional information.
(47) Comment: There is no ``sufficiently unregulated hydrograph''
on the Gila River below its confluence with the San Pedro River. We do
not believe the PCEs identified by the Service in the proposal are
present in this stretch. This section of the Gila River (below the San
Pedro) should be removed from the critical habitat designation.
Our response: While it may not contain all of the PCEs, we have
determined it currently supports one or more of them (i.e., low
gradient, appropriate water temperatures, and pool, riffle, run, and
backwater components), and because of this and its proximity to
occupied areas, it remains in the designation.
(48) Comment: We dispute the claim that spikedace occupancy of the
Verde River was confirmed as recently as 1999. No spikedace have been
confirmed from the Verde River since at least 1995. Thus, the Verde
River does not meet the Service's own criteria for critical habitat
because there are no records within the last 10 years.
Our response: The 1999 record is considered by the Service as a
confirmed record. The spikedace in question was captured and identified
by a qualified AGFD fisheries biologist (AGFD 2004).
(49) Comment: The large amount of privately owned land that is
included in the proposal is too great of a restriction of use.
Our response: Critical habitat does not affect private actions on
private lands. A designation of critical habitat requires that Federal
action agencies consult with the Service on activities that they fund,
authorize, or carry out that may affect critical habitat. We note that
the designated 105 mi (170 km) for spikedace and the 126 mi (203 km)
for loach minnow of private lands is part of, not in addition to, the
total 522 mi (840 km).
(50) Comment: The adverse impacts of critical habitat on non-
Federal rights and interests were exacerbated under Gifford Pinchot,
which increases the impact of a critical habitat designation on water
and land uses by creating a heightened standard for the
[[Page 13366]]
``destruction or adverse modification'' of critical habitat. More
activities that require a Federal permit or other approval will violate
section 7(a)(2) of the Act and will require formal consultation. When
combined with the Service's use of section 7(a)(2) to ``Federalize''
and control non-Federal projects, Gifford Pinchot will dramatically
increase the economic impacts caused by the critical habitat
designation.
Our response: We recognize that under the Gifford Pinchot decision,
critical habitat designations may provide greater benefits to the
recovery of a species. This relates to the court's ruling that the two
standards (e.g. jeopardy and adverse modification) are distinct and
that adverse modification evaluations require consideration of impacts
on the recovery of species. As such, where appropriate, we analyze or
consider the effects of the Gifford Pinchot decision in this rule, the
economic analysis, and the environmental assessment. For example, in
light of the uncertainty concerning the regulatory definition of
adverse modification, our current methodological approach to conducting
economic analyses of our critical habitat designations is to consider
all conservation-related costs. This approach would include costs
related to sections 4, 7, 9, and 10 of the Act, and should encompass
costs that would be considered and evaluated in light of the Gifford
Pinchot ruling. Additionally, in this critical habitat designation, we
are designating areas that are occupied, as defined elsewhere in this
rule, by one or both species; thus, there is already a requirement for
consultation with the Service over any water and land use actions that
may affect these species. The purpose of the consultation process is
not to ``Federalize'' private projects, but to ensure that federally-
sponsored activities do not jeopardize listed species or adversely
modify or destroy designated critical habitat.
(51) Comment: The Gila Settlement and associated agreements allow
the State of New Mexico to divert for consumptive use 14,000 acre feet
of water originally set aside under the Central Arizona Project
authorizing legislation. The diversion of this additional 14,000 acre-
feet of water almost doubles current adjudicated withdrawal from the
Gila and San Francisco rivers and could significantly impair river
function and riparian conditions and threaten native species such as
the loach minnow and spikedace.
Our response: The Service is an active partner on the Gila and San
Francisco Rivers Technical Subcommittee, which is evaluating the
environmental impacts of these water diversions from the upper Gila and
San Francisco rivers. Considerations for spikedace and loach minnow are
prominent in those discussions. We have identified water diversions as
a threat for spikedace and loach minnow within this complex.
(52) Comment: The Upper Eagle Creek Watershed Association has
developed a watershed plan in collaboration with the Forest Service and
the Arizona Department of Environmental Quality. This plan has
addressed the loach minnow and spikedace as endangered fish that may
occupy areas covered by the plan. The plan guides the community,
permittees, and agencies in developing the Upper Eagle Creek Watershed
into its greatest potential for all species. On the basis of this plan
and the partnership with the people on the land with all agencies, it
would be best to exclude Eagle Creek from the critical habitat
designation.
Our response: We appreciate the efforts the Upper Eagle Creek
Watershed Association has taken to work collaboratively with the Forest
Service, cooperators, and the Service. Unfortunately, the Upper Eagle
Creek Watershed Management Plan was received on the last day of the
third comment period, and was still in draft form. For these reasons,
we are not able to consider the plan as a basis for excluding Eagle
Creek at this time. We understand it is the intention of the
Association to finalize and implement the plan, and we look forward to
working cooperatively with the Association in these efforts. Once the
plan has been finalized and implemented, we have the option of
excluding those portions of Eagle Creek covered by the plan. As
discussed in ``Exclusions under Section 4(b)(2) of the Act'' below, we
have excluded other portions of Eagle Creek from critical habitat based
on other information available to us.
(53) Comment: The Blue River should be excluded from critical
habitat in order to ensure that the ongoing coordination between the
Service and the Blue River Native Fisheries, Research and Education
Center is unencumbered.
Our response: At this time we have no documentation, such as a
management plan, to evaluate in terms of a potential exclusion of the
Blue River from the critical habitat designation. Additionally, the
majority of property along the Blue River is under Forest Service
management and management activities for the conservation of the
spikedace and loach minnow would require coordination with the Forest
Service. We fully intend to continue our ongoing coordination with the
Blue River Native Fisheries, Research and Education Center. The
designation of critical habitat is a separate process which will not
hinder these efforts and we commend the Center for their interest in
conserving the Blue River.
(54) Comment: The Service should remove the Middle Verde River from
the final rule and retain the Upper Verde River segment as critical
habitat based on: (1) The current biological conditions within each
river segment to conserve the spikedace; (2) the existing physical
barrier (i.e., Allen Ditch Diversion) between the Upper and Middle
Verde River, which likely precludes movement and connectivity between
reaches; (3) the prevailing technical feasibility and fisheries
management emphasis of each river segment; and (4) the high potential
economic burden to groundwater and surface water users in the Middle
Verde River (i.e., Verde Valley) compared to the Upper Verde River.
Our response: Pursuant to section 4(b)(2) of the Act we have
excluded the lower portion of the Verde River based on economic costs.
See exclusion discussion below.
(55) Comment: One of the requirements of critical habitat is that
these areas should be ``protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species (50 CFR Sec. 424.12(b)(1)-(5); 70 FR 75551;
December 20, 2005).'' In other words, if suitable locations are
available elsewhere, it does not make sense to designate critical
habitat along stream reaches that are already impacted by land or water
use activities or will soon be impacted by those activities. The
Service applied this criterion in some places (e.g., the upper San
Pedro River, p. 75546) and portions of the Black River complex (p.
75560) that were found to have too high an abundance of nonnative fish
to be important habitat), but did not apply it in others (i.e., middle
Verde River, Gila River, and lower San Pedro River). The Service should
apply this criteria and standards consistently to evaluate each PCE
among all potentially suitable habitats in a transparent process.
Our response: We do not agree that critical habitat should not be
designated in areas that have experienced some level of impact to the
habitat. As previously stated, designation of critical habitat focuses
on the areas that contain the PCEs and provide for the conservation of
the species, rather than the threats that may be present in an area.
Thus, our methodology focuses on
[[Page 13367]]
occupied areas that contain the PCEs and not on the type or level of
threat that occur in these areas. In addition, we note that we have
limited suitable habitat remaining for these species such that
additional suitable locations are not available elsewhere. See also our
response to comment 58 below.
(56) Comment: Bear Creek should be designated as loach minnow
critical habitat from its junction with the Gila River upstream to the
junction with its tributaries Cherry Creek and Little Cherry Creek.
Our response: As noted in the notice to reopen the comment period
published on June 6, 2006 (71 FR 32498, p. 32496), we did not propose
Bear Creek because of the timeframe for completion of the final rule
and associated documents. Information on occupancy of Bear Creek was
received late in the process. Should critical habitat be revised in the
future, Bear Creek would be considered for inclusion.
(57) Comment: Due to seasonal lack of water flows, Eagle Creek is
unsuitable habitat for designation below the Gila and Salt River base
line to the confluence with Willow Creek. Additionally, from Willow
Creek to the Phelps Dodge diversion dam, flows are augmented to provide
fresh water for mining operations and for potable use at the Morenci
and Clifton townsites. This portion of Eagle Creek does not qualify for
designation because: (1) These augmented flows do not provide a
natural, unregulated hydrograph that allow for adequate river
functions; (2) flow velocities are frequently higher than those
required for these native fish; (3) pool, riffle, run, and backwater
components are not present; and (4) non-native fish dominate this reach
to an extent detrimental to natives and prevents the persistence or
even occupancy of loach minnow or spikedace.
Our response: We do not agree with this comment. While this portion
of Eagle Creek has been modified by both addition of flows and by the
diversion structure, suitable habitat still exists. As stated
previously, we consider those areas that meet our definition of
occupancy and support one or more of the PCEs as areas the meet the
definition of critical habitat. Eagle Creek met these criteria. As
discussed below, we have excluded portions of Eagle Creek pursuant to
section 4(b)(2) of the Act.
(58) Comment: Areas without threats such as the San Francisco and
the middle reach of the mainstem Gila River do not require special
management considerations or protection and thus can not be designated
as critical habitat under the Act. The critical habitat designation
will not protect the loach minnow from the threat of nonnatives and
therefore special management is not required.
Our response: The Act does not require that critical habitat
alleviate threats to the species. We have determined that various
threats are present in all the rivers we proposed as critical habitat,
as identified in Table 1. As required by the Act and the definition of
critical habitat, we provide a discussion of known threats for each
area to indicate that the biological and physical features essential to
the conservation for these fish may require special management
considerations or protection.
(59) Comment: Habitat requirements for both of the species are
different and the Service should recognize this and not combine them.
Our response: We agree that there are differences in the habitat
requirements of both species and we have distinguished this in our PCEs
for each of the fish. We note that it is not unusual for streams to
support habitat types for both the spikedace and loach minnow, often
within the same reach, and some streams are occupied by both species
(e.g., the Gila River and Aravaipa Creek).
(60) Comment: The proposed rule states that ``individual streams
are not isolated, but are connected with others to form areas or
complexes.'' This statement does not hold true for Complex 4. Eagle
Creek is currently isolated from the San Francisco and Blue River
complexes by a diversion dam. The Blue River will become inaccessible
to upstream migration from the rest of the complex if a proposed fish
barrier is constructed on the Blue River.
Our response: We have clarified the language in this final rule to
indicate that collections of streams in proximity to each other were
grouped together to form a category called ``complexes.'' Streams need
not be hydrologically connected in order to be grouped together.
(61) Comment: No spikedace have been observed in Eagle Creek for 17
years, thus the segment does not meet the criteria for occupancy.
Our response: We agree, as the last record for spikedace in Eagle
Creek was in 1989. Thus, critical habitat for spikedace in Eagle Creek
has been removed from the final rule. However, Eagle Creek is
considered critical habitat for the loach minnow. As discussed in the
exclusion section below, portions of Eagle Creek have been excluded
from the final rule.
(62) Comment: For spikedace, the Verde River from Tapco Diversion
Dam down to Fossil Creek should be excluded. Although spikedace were
found in 1999 in areas upstream, they have not been found downstream of
the Sycamore Creek confluence in over 20 years. Although this area is
connected to the occupied areas upstream, the Tapco Dam and numerous
nonnative fishes occupy this reach and may serve to disconnect it from
the upstream areas.
Our response: We believe the Verde River meets the definition of
critical habitat for spikedace as we consider this area occupied based
on occupancy records from 1999. Additionally, the Verde contains one or
more of the PCEs including appropriate flow velocities, gradients,
temperatures, habitat components (pool, riffle, run and backwater), and
an abundant aquatic insect food base, and it requires special
management or protection. However, pursuant to section 4(b)(2) of the
Act, we have excluded the lower portion of the Verde River (see
``Exclusions under Section 4(b)(2) of the Act'' below).
(63) Comment: Regarding definition of adverse modification, the
Service's definition erroneously eliminates congressional intent that
critical habitat designations provide protection not just to survival
of a species but to its recovery as well. It was the opinion of the
court that ``the purpose of establishing `critical habitat' is for
government to carve out territory that is not only necessary for the
species' survival but also important for the species' recovery.''
(Sierra Club v. USFWS, 245 F.3d 434 (5th Cir. 2001). The proposed rule
for spikedace and loach minnow rejects that approach and relies on
Service policy limiting critical habitat to only those areas occupied
by the species.
Our response: The Act states, at section 3(5)(c), that except in
particular circumstances determined by the Secretary, critical habitat
shall not include the entire geographical area which can be occupied by
the threatened or endangered species. Thus, it is not the intent of the
Act that we designate critical habitat in all areas that have the
potential to become suitable habitat or in all areas of historic
habitat. We have determined that our methodology for determining those
areas containing features essential to the conservation of the
spikedace and loach minnow complies with the intent of the Act and does
not include all areas which can be occupied. Our methodology resulted
in areas being proposed as critical habitat that are within the
geographical range occupied by the spikedace and loach minnow and
[[Page 13368]]
that contain the biological or physical features essential to their
conservation and that may require special management.
(64) Comment: The approach proposed by the Service for determining
whether to exclude Tribal lands from the final rule places undue weight
on the argument that inclusion of Tribal lands will compromise
government-to-government relations, to the potential detriment of
species conservation goals. Additionally, under relevant Federal court
precedent in Arizona, the Service is not permitted to rely upon
assurances by the tribes that habitat will be ``adequately managed''
through the implementation of Tribal management plans as a basis for
exclusion.
Our response: We disagree. See below for our analyses of the
exclusion of Tribal lands pursuant to section 4(b)(2) of the Act.
(65) Comment: Ten days is not enough time to review all of these
new documents. There should be a delay in designating critical habitat
until the information can be properly reviewed.
Our response: We agree that the last comment period was shorter
than we would have preferred. However, we have an obligation to submit
for publication a final rule on December 20, 2005, and thus we were not
able to accommodate a longer comment period. In addition, we believe
the three comment periods allowed for adequate opportunity for public
comment. A total of 100 days was provided for document review and the
public to submit comments.
(66) Comment: The Phelps Dodge plans should undergo peer review and
revision before being considered as sufficient conservation management.
Our response: Although formal peer review of management plans is
not conducted or required, the documents are available for public
review and comment during the open comment period.
(67) Comment: Phelps Dodge's Management Plan does not assure the
maintenance of the PCEs for the spikedace and loach minnow.
Our response: We have determined the formation of this working
relationship will promote the conservation of the loach minnow and
spikedace and their PCEs on Phelps Dodge's property. See exclusion
section below for a more detailed discussion of their management plans
and analysis of this exclusion.
(68) Comment: The proposed rule is an inappropriate venue for
changing the regulatory definition of section 7 consultation
``baseline.'' Section 7 regulations (51 FR 19958) define environmental
baseline to include the past and present impacts of all Federal, State,
or private actions and other human activities in the action area, the
anticipated impacts of all proposed Federal projects in the action area
that have already undergone formal or early section 7 consultation, and
the impact of State or private actions which are contemporaneous with
the consultation in process. The proposed rule would expand that
definition to include ``ongoing Federal actions at the time of
designation'' regardless of whether they have already undergone formal
or early section 7 consultation.
Our response: The language referenced above has been removed from
this final rule.
General Comments Issue 3: National Environmental Policy Act Compliance
(69) Comment: We believe the analysis in the draft environmental
assessment to be simplistic and conclusory (See Middle Rio Grande
Conservancy Dist. v. Norton). The impacts on the environment will be
significant and controversial. The critical habitat designation as
proposed is likely to result in adverse impacts on riparian areas, not
only within the critical habitat itself, but also in the areas located
upstream and downstream. The impacts on water use and management are
significant and controversial.
Our response: We determined through the EA that the overall
environmental effects of this action are insignificant. An EIS is
required only if we find that the proposed action is expected to have a
significant impact on the human environment. The completed studies,
evaluations, and public outreach conducted by the Service have not
identified impacts resulting from the proposed designation of critical
habitat that are clearly significant. The Service has afforded
substantial public input and involvement, with two public hearings and
open houses. Each of these events had a small participation level by
the public (less than 10 in Arizona, less than 20 in New Mexico, and
less than 30 written comments on the draft environmental assessment).
Based on our analysis and comments received from the public, we
prepared a final EA and made a Finding of No Significant Impact
(FONSI), negating the need for preparation of an EIS. We have
determined our EA is consistent with the spirit and intent of NEPA. The
final EA, FONSI, and final economic analysis provide our rationale for
determining that critical habitat designation would not have a
significant effect on the human environment. Those documents are
available for public review (see ADDRESSES section).
(70) Comment: The draft EA fails to consider the impacts of
critical habitat on the Arizona Water Settlements Act of 2004, which
authorizes the exchange of Central Arizona Project (CAP) water diverted
from the Colorado River into New Mexico from the Gila River. The
project is reasonably foreseeable because New Mexico recently
negotiated and executed an exchange agreement. The draft EA (p. 45)
acknowledges the project but fails to discuss the impacts.
Our response: Page 49 of the EA states that the San Carlos Apache
Tribe is concerned that the designation of critical habitat for the
spikedace and loach minnow would further complicate the procedure for
getting the CAP project approved. The Bureau of Reclamation states that
this project would be reevaluated before an exchange could occur and a
new consultation is likely.
(71) Comment: The Service failed to consider a reasonable range of
alternatives to the proposed action in its EA.
Our response: We disagree. The draft EA considered a no-action
alternative and several action alternatives and analyzed the adverse
and beneficial environmental impacts of each.
(72) Comment: One alternative that seems worthy of consideration is
the designation of known occupied habitat, rather than the designation
of an entire stream based upon limited sightings in a limited area
(e.g., Eagle Creek) or consideration of designating only Federal lands.
The Service's failure to ``rigorously explore'' and evaluate reasonable
alternatives is per se arbitrary and capricious.
Our response: We disagree. The alternatives considered are
consistent with the purpose and need of the action of designating
critical habitat. In compliance with the Act, we must propose for
designation those areas that we have determined are essential, as well
as those areas containing features essential, to the conservation of
the spikedace and loach minnow. Only considering Federal lands for
designation would not, in this case, comply with the intent of the Act.
As discussed elsewhere in this rule, the areas proposed for designation
were based on our definition of occupancy. See also response to comment
71 above.
(73) Comments: In the NEPA analysis, it should be recognized that
there are positive aspects that have been observed from human culture
and interaction. That analysis is required by law.
[[Page 13369]]
Our response: The purpose of a NEPA analysis is to determine the
potential impacts of a proposed set of alternative actions on the human
environment. It is not the purpose of NEPA to evaluate the positive
aspects of humans and their environment.
General Comments Issue 4: Economic Analysis
General Methodology
(74) Comment: Two commenters recommend that the Economic Analysis
discuss impact estimates for the Verde River unit as two separate
subunits: An Upper Verde reach from Sullivan Dam to the Allen Diversion
and a Lower Verde reach from the Allen Diversion to Fossil Creek.
Our response: The Final Economic Analysis (FEA) incorporates new
information received, and separates costs associated with the Upper
Verde and Lower Verde River segments where possible. This distinction
is made most apparent in sections 7 and 8, and Appendix B of the FEA.
(75) Comment: One commenter states that the economic analysis fails
to quantify the benefits associated with critical habitat designation.
The commenter further states that although the Verde Valley Complex is
singled out as the reach where the largest impacts will occur, there is
no basis for this conclusion without exploring the ``net impacts''
through incorporation of benefit estimates and comparisons to baseline.
Our response: Section 4(b)(2) of the Act requires the Secretary to
designate critical habitat based on the best scientific data available
after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical habitat.
The Service believes that society places a value on conserving any and
all threatened and endangered species and the habitats upon which they
depend. In our 4(b)(2) analysis below, we discuss the economic benefits
of excluding portions of the Verde River and the conservation benefits
related to the inclusion of this stream segment. Although, in this
case, we are not able to quantify the monetary value of critical
habitat benefits in the Verde Valley Complex, we did consider the
benefits that may be derived from a critical habitat designation when
considering an exclusion pursuant to section 4(b)(2).
The Service's approach for estimating economic impacts includes
both economic efficiency and distributional effects. The measurement of
economic efficiency is based on the concept of opportunity costs, which
reflect the value of goods and services foregone in order to comply
with the effects of the designation (e.g., lost economic opportunity
associated with restrictions on land use). Where data are available,
the economic analysis does attempt to measure the net economic impact.
For example, if the fencing of spikedace and loach minnow habitat to
restrict riparian access for cattle is expected to result in an
increase in the number of individuals visiting the site for wildlife
viewing, then the analysis would attempt to net out the positive,
offsetting economic impacts associated with their visits (e.g., impacts
that would be associated with an increase in tourism spending).
However, no data were found that would allow for the measurement of
such an impact, nor was such information submitted during the public
comment period.
(76) Comment: One commenter states that many of the economic
impacts attributed to spikedace and loach minnow critical habitat in
the Verde Valley could be attributed to razorback sucker critical
habitat.
Our response: To the extent possible, the FEA distinguishes costs
related specifically to spikedace and loach minnow conservation where
multiple species are the subject of a single conservation effort or
section 7 consultation. In the case that another species clearly drives
a project modification or conservation effort, the associated costs are
appropriately not attributed to the spikedace and loach minnow. In
Section 6, the FEA includes language that clarifies that the Verde
River is designated as critical habitat for the razorback sucker.
Recreational Activities
(77) Comment: One commenter expressed concern that the designation
of critical habitat will cause a loss of recreational activities on
units such as the Verde River.
Our response: Potential changes to recreational activities are
discussed in Section 6 of the FEA. Potential impacts on recreational
fishing losses are specifically discussed and estimated in Section
6.4.2 of the FEA. Potential costs associated with lost recreational
fishing activity on the two stream segments where non-native fish
stocking currently occurs are estimated to be $0 to $8.6 million, using
a discount rate of seven percent. As noted in Section 6.1.2, the future
impact of proposed critical habitat on the stocking regimes in affected
reaches is unknown, as is the reduction in fishing activity that would
occur if stocking is curtailed. Further, it is unknown whether non-
native trout may be replaced with stocked native fish (e.g. Gila
trout). Thus, this analysis estimates the value of angler days at risk
if sportfish stocking were discontinued on these reaches as part of the
high end estimates.
(78) Comment: One commenter states concerns that the Economic
Analysis does not take into consideration the past effects of fishing
closures on the Blue River and Eagle Creek on local businesses. The
comment states that one store in Greenlee County closed as a result of
reduced fishing activity.
Our response: Section 6.1.1 of the FEA states that ``the AZGFD
ceased stocking of sportfish in Eagle Creek and the Blue River in
Apache-Sitgreaves National Forest due to native fish considerations in
the late 1990s and began stocking endangered Gila trout in these
reaches instead. Spikedace and loach minnow were among numerous species
considered when these stocking cessations were put in place. Although
several citizens at a public hearing held in Thatcher, Arizona, in 1999
voiced disappointment that the sites are no longer stocked, these
changes in stocking have not affected the overall number of fish
stocked in Arizona. However, there may have been consumer surplus
losses associated with these closures because anglers may now take
trips to less preferred sites. It should be noted that any past impacts
would have occurred prior to this critical habitat rule taking
effect.'' Section 6 and Appendix B of the FEA now highlight that the
curtailment of stocking in these reaches has caused some economic
impacts on local businesses.
Water Use and Grazing Issues
(79) Comment: One commenter states that exclusion of livestock from
riparian areas using fencing has actually had an adverse effect on the
spikedace and loach minnow.
Our response: The Economic Analysis recognizes that some
controversy surrounds the issue of the impacts of livestock on native
fish species. Section 4.1 of the FEA now states that ``in public
comments, private ranchers have suggested that current management has
been successful at mitigating the negative effects of grazing on
spikedace and loach minnow habitat and that further limitation of
grazing would create conditions conducive to non-native species. Some
commenters have also suggested that fencing may be detrimental to the
species.''
(80) Comment: One commenter stated that estimates of riparian
fencing and maintenance costs in the Economic Analysis are low.
[[Page 13370]]
Our response: As presented in Section 4.4 of the FEA, fencing and
maintenance costs were developed using numerous published sources, as
well as through discussions with both Forest Service and BLM. Fencing
costs are presented as a range between $1,500 and $15,000 per river
mile of fence construction, with an additional $110 to $2,600 in fence
maintenance.
(81) Comment: One commenter suggests that data in the Economic
Analysis on agricultural establishments in Greenlee County are
incorrect. The commenter provides information on ranching operations on
Eagle Creek. The comment states that the Four Drag Ranch, Seven Cross A
Ranch, Anchor Ranch, Double Circle Ranch, and Tule Ranch are located on
Eagle Creek.
Our response: Appendix B, Exhibits B-2, B-3, and B-4 provide data
on the number of farm operations, number of ranching operations, and
annual sales by county, as reported by the National Agricultural
Statistics Survey. Section 2 presents the number of establishments and
employees in the Agriculture, Forestry, Hunting, and Fishing Support
industries, as reported by the U.S. Census. A note was added to Exhibit
2-7 that clarifies the source of the data used and also refers readers
to Appendix B, Exhibits B-2 through B-4. Although specific ranches are
not named, Section 4 estimates that impacts on grazing activities on
Eagle Creek may range from $5,000 to $126,000 over the next 20 years
(discounted at seven percent).
(82) Comment: One commenter states that the potential loss of the
ability to divert surface water and possibly groundwater is the most
important economic, social, and environmental consideration in the
Verde River unit, and that the cost associated with such a loss of
water is not calculated into the examples provided in Chapter 7 of the
Draft Economic Analysis.
Our response: Chapter 7 of the FEA focuses on potential impacts to
residential and commercial development construction activities in
critical habitat areas. Issues related to water use are discussed in
Chapter 3 of the analysis. Section 3.5.1 specifically discusses water
use in the Verde Valley, and provides estimates of the number of
potentially affected surface water users and groundwater wells.
Potentially affected agricultural lands within the Verde River Complex
are valued at between $3.1 million and $30.3 million.
(83) Comment: One commenter states that the Economic Analysis did
not discuss decreed water rights associated with surface water
diversion ditches and how those decreed rights will be adversely
impacted by the critical habitat designation, or what data will be
relied upon in determining subflow.
Our response: Section 3 of the Economic Analysis states that future
impacts on water users are possible due to spikedace and loach minnow
conservation efforts if less water is made available for diversion to
accommodate the spikedace and loach minnow. The analysis also states
that there are currently no data that indicate whether existing or
future diversions of water (including groundwater use) reduce stream
flow or modify hydrologic conditions to a degree that adversely impact
the spikedace and loach minnow or their habitat. In addition,
hydrologic models are unavailable to assess the role of any specific
groundwater pumping activity or surface water diversion in determining
stream flow or other hydrologic conditions within critical habitat. As
such, this analysis does not quantify the probability or extent to
which water use would need to be curtailed or modified to remedy
impacts on spikedace and loach minnow. It does, however, provide
information on the potential scale of the economic impacts that could
occur if requirements associated with spikedace and loach minnow
conservation result in changes in water diversions or conveyance.
Specifically, the analysis addresses potential impacts on water
used for irrigated agriculture. The analysis states that it is possible
that irrigation activities could be affected if farmers make efforts to
maintain adequate water quantity and flow for the spikedace and loach
minnow in the future. Because agricultural water use comprises 98
percent of surface water use and 81 percent of groundwater use in
counties that contain critical habitat, it appears most likely that, if
additional water supplies are needed for these species, they would come
from current agricultural water use. Thus, the analysis assumes that to
accommodate spikedace and loach minnow, farmers may give up water and
cease to farm, resulting in losses of agricultural land value. Should
irrigated agriculture be curtailed to accommodate spikedace and loach
minnow, approximately 830 acres within proposed critical habitat, or
6,310 acres that fall in the vicinity of critical habitat that are
currently irrigated for cropland agriculture could be retired from
production. The irrigated crop production at risk of being lost is
valued at approximately $4.5 million ($2005) within proposed critical
habitat areas, or approximately $38.5 million ($2005) including lands
that rely on water diverted from proposed critical habitat. Thus, the
total cropland value potentially foregone ($38.5 million in $2005) is
included in high end estimates of impacts on water use.
(84) Comment: One commenter states that nothing was included on the
costs to retire farm and ranchland along the San Pedro River.
Our response: Section 3 of the Economic Analysis identifies, to the
extent possible, water users potentially affected by spikedace and
loach minnow conservation efforts. Exhibit 3-7 includes a description
of 64 acres of cropland that fall within the San Pedro River segment,
and 720 acres of cropland that fall within the vicinity of proposed
critical habitat. These acres are valued at $394,000 to $4.5 million
(2005 dollars).
(85) Comment: Two commenters state that the Economic Analysis fails
to consider impacts of the rule on the Arizona Water Settlements Act of
2004, Public Law 108-451.
Our response: Section 3.5.5 of the FEA provides additional detail
provided by the commenters about the 2004 Arizona Water Settlements Act
(Pub. L. 108-451) as it relates to the proposed stretch of the Gila
River in New Mexico.
(86) Comment: One commenter states that the Economic Analysis makes
no attempt to quantify the impacts to farming activities in the Gila
Valley. The commenter further states that the Service cannot simply
declare that, due to data and model limitations, the analysis is not
able to answer the question of whether impacts to water users are
likely.
Our response: Section 3.5.3 of the FEA discusses potential impacts
of spikedace and loach minnow conservation activities on the Middle
Gila/Lower San Pedro/Aravaipa Creek Complex (Complex 3). As stated in
the analysis, ``approximately 135 acres of lands used for cropland
irrigation are located within Complex 3, and 1,220 acres are located in
the valley that contains proposed critical habitat. The value of
croplands in proposed critical habitat is approximately $11,000, while
lands in the vicinity of proposed critical habitat are valued at
approximately $7.5 million. Approximately $15,000 in Natural Resource
Conservation Service funding was allocated to farms in proposed
critical habitat areas on these segments in 2005.'' The value of these
at-risk agricultural lands are included in impact estimates for this
unit. Thus, while the Economic Analysis does not identify the
likelihood of these impacts, it does quantify them and include them in
potential future cost estimates.
(87) Comment: One commenter states that the projected project
modification costs are estimated at $13,500 per water
[[Page 13371]]
project resulting from the critical habitat designation, and that this
estimate is based on estimates of costs at Fort Huachuca. The commenter
states that project modification costs at Fort Huachuca are costing
``tens-of-millions of dollars.'' The commenter states that Phelps Dodge
has recently incurred costs in excess of one million dollars for
southwestern willow flycatcher mitigation, and thus water project cost
estimates for spikedace and loach minnow critical habitat are low.
Our response: The FEA includes specific cost estimates for
particular water projects expected to occur within proposed critical
habitat areas in Chapter 3 of the FEA. Typical project modifications
for water projects in the past have included minimizing activities
within the wetted channel, ensuring no pollutants enter surface waters,
replanting riparian vegetation, monitoring for up to ten years, and
conducting research studies. Future project modifications are assumed
to be similar to those associated with a low-flow gauge installation to
measure flow in the Verde River that occurred as part of a section 404
permit from U.S. Army Corps of Engineers, or $13,500 per project. Costs
associated with the past consultation on Fort Huachuca are not included
as part of these estimates, nor are they included in the analysis, as
Fort Huachuca falls well outside the boundaries of proposed critical
habitat, and downstream of proposed habitat areas. Quantified costs
associated with water-related projects also include potential costs
associated with costs of retiring agricultural cropland in order to
provide sufficient water for the species. Potential costs to municipal,
industrial and Tribal water use are also discussed, but not quantified.
Expenditures made on behalf of the southwestern willow flycatcher are
not relevant to this analysis.
Mining Impacts
(88) Comment: One commenter states that the Economic Analysis
failed to adequately evaluate impacts to mining operations and water
use in the arid southwest as a result of the proposed designation,
resulting in a dramatic understatement of economic impacts. The
commenter commissioned a report that estimates economic impacts to
Phelps's Dodge's operations at the Tyrone Mine alone to exceed $100
million.
Our response: Section 5 of the FEA evaluates potential impacts to
mining operations. Section 3 of the analysis addresses impacts to water
use that may occur in order to protect the spikedace and loach minnow.
Specifically, the analysis states that:
``While few active mineral mining activities occur within the
proposed critical habitat, the mining industry has expressed concern
that water use by existing or potential mining operations could be
affected by endangered species conservation activities, particularly
the designation of critical habitat. Critical to an understanding of
the potential for impacts on water diversions or conveyance is an
understanding of the probability and magnitude of any such changes.
As detailed in this section, there is currently no data that
indicates whether existing or future diversions of water for mining
activities (including groundwater use) reduces stream flow or
modifies hydrologic conditions to a degree that adversely impacts
the spikedace and loach minnow or their habitat. In addition,
hydrologic models are unavailable to assess the role of any specific
mining facility's groundwater pumping or surface water diversions in
determining stream flow or other hydrologic conditions within
critical habitat. As such, this analysis does not quantify the
probability or extent to which water use for mining purposes would
need to be curtailed or modified to remedy impacts on spikedace and
loach minnow.
Given these data and model limitations, this analysis does not
answer the question of whether impacts to mining operations are
likely (i.e., the probability of such impacts), or define the
expected magnitude of these impacts. It does, however, provide
information on the potential scale of the economic impact that could
occur if requirements associated with spikedace and loach minnow
conservation result in changes in water diversions or conveyance.
Specifically, to allow for an understanding of the economic
activities that could be at risk if modifications to water use or
conveyance are required, this analysis provides data on the location
of mining activities potentially associated with CHD (critical
habitat designation) areas, as well as data on the regional economic
importance of these operations.''
The commenter provides hypothetical situations in which water
currently used by mining operations may be lost to mining activities,
and calculates a value of the lost water rights and associated
replacement costs. While we do not disagree that, should the water be
lost to mining activities, such costs could occur, there remains
considerable uncertainty as to the likelihood of such events.
Nonetheless, the revised analysis includes estimates of potential
losses provided by the commenter in Section 5 of the analysis, to
provide additional context for understanding the potential magnitude of
impacts, should they occur.
(89) Comment: One commenter states that the Economic Analysis does
not identify all of the Phelps Dodge mines that may be affected by
critical habitat designation. Potentially affected mines include
Morenci Mine, Tyrone Mine, Christmas Mine, and United Verde Mine. The
commenter further states that the Economic Analysis does not consider
potential effects to Phelps Dodge grazing and agricultural activities
related to proposed critical habitat.
Our response: Section 5 of the Draft Economic Analysis identified
the Morenci Mine, the Tyrone Mine, and the Christmas Mine as being
potentially affected by proposed critical habitat. Because the United
Verde Mine falls outside of proposed critical habitat and has been
inactive since 1953, it was not specifically described in the Draft
Economic Analysis. The FEA now includes a discussion of impacts to
United Verde Mine along with the other mines. As described by the
commenter, current activities at the United Verde Mine area primarily
include leasing water to agricultural activities. Potential impacts of
proposed critical habitat on agricultural water use are addressed in
Section 3 of the FEA. Potential impacts of proposed critical habitat on
ranching activities, for all landowners, are addressed in Section 4 of
the FEA.
(90) Comment: One commenter states that the Economic Analysis fails
to consider the replacement costs associated with water users that may
be impacted by the critical habitat designation. These costs are
extremely high because water supplies in the west are scarce and not
easily replaceable. Other costs relating to impacts on water use not
considered include search, infrastructure, and lost profits from
curtailed operations at mining facilities.
Our response: The revised analysis includes estimates of potential
losses provided by the commenter in Section 5 of the analysis. As
stated in Response 87, it is not contested that, should water be lost
to mining activities as a result of conservation activities for the
spikedace and loach minnow, costs to the mining industry would be
incurred. However, considerable uncertainty exists as to the
likelihood, magnitude, and specific costs of water losses.
Small Business Impacts
(91) Comment: One commenter states that the Economic Analysis would
be clearer if it reported the number of developers that are likely to
be affected in the small business analysis.
Our response: Appendix B, Small Business and Energy Impacts
Analyses, considers the extent to which the analytic results presented
in the main body of the FEA reflect potential future impacts to small
businesses. Appendix B has been revised to provide additional details
about the number of developers
[[Page 13372]]
potentially affected by proposed critical habitat designation.
(92) Comment: One commenter states that the Economic Analysis would
be stronger if it provided data on the impact of critical habitat on
small entities that thrive on the area's recreational activities. To
collect such information, the commenter suggests that the Service seek
public input on the reduction of fishing activity if stocking is
curtailed.
Our response: Appendix B considers the extent to which the analytic
results presented in the main body of the FEA reflect potential future
impacts to small businesses. As stated in the Appendix, ``the future
impact of proposed CHD on the stocking regimes in these reaches is
unknown, as is the reduction in fishing activity that would occur if
stocking is curtailed. Further, it is unknown whether non-native fish
stocking may be replaced with catchable native fish stocking (e.g.
Apache trout). Thus, this analysis estimates the value of angler days
at risk if sportfish stocking were discontinued on these reaches as
part of the high end estimates. Angling trips are valued at
approximately $8.6 million over 20 years (or $816,000 annually),
assuming a discount rate of 7 percent. It should be noted that because
State fish managers typically identify alternative sites for stocked
fish when areas are closed to stocking, these angler days are likely to
be redistributed to other areas rather than lost altogether. Thus, the
high-end estimate does not consider the possibility that rather than
not fishing at all, recreators will visit alternative, less desirable
fishing sites. Existing models of angler behavior in these areas were
not available to refine this estimate.'' The Appendix further states
that ``if, as in the high-end estimate of impacts, angler trips to the
two stream reaches that currently stock non-native fish are not
undertaken, localized impacts on anglers and, in turn, small businesses
that rely on fishing activities could occur. These impacts would be
spread across a variety of industries including food and beverage
stores, food service and drinking places, accommodations,
transportation, and sporting goods.'' To conduct a survey of specific
potential effects of closures is beyond the scope of this analysis. The
revised Appendix does, however, include a reference to public comment
received regarding a past store closure that occurred due to past area
closures.
(93) Comment: One commenter states that the average number of acres
in farms applied in the small business analysis is skewed due to the
inclusion of a few very large (non small-business) farms. The commenter
suggests that using the median farm size would improve results. The
commenter also states that, because the Economic Analysis does not
provide data on the impacts on beef cattle ranching operations, it is
difficult to determine whether there will be a significant impact on
this industry. The commenter also states that using the average
revenues of all ranching operations, including both large and small
business, likely skews the average to the upper end by including a few
large ranches.
Our response: Appendix B considers the extent to which the analytic
results presented in the main body of the FEA reflect potential future
impacts to small businesses. Appendix B has been revised to estimate
the number of affected farms using average revenues as well as using
median revenues. Appendix B does provide data on the impact to beef
cattle ranching operations, including revenue data for beef cattle
ranching operations, the number of ranches in each county, and the
expected impact of the proposed rule on these entities. While specific
revenue data for affected small beef cattle ranches is not readily
available, a proxy for this is developed in the revised Appendix by
eliminating the revenue outlier (Pinal County) from the average revenue
estimates. This results in an estimate of average revenues for small
ranches in the region of $42,500. The analysis therefore estimates that
approximately 72 small ranching operations may experience a reduction
in revenues of between 0.9 and 22 percent of annual revenues annually.
These ranches represent 4.7 percent of ranches in affected counties, or
one percent of ranches in New Mexico and Arizona.
(94) Comment: One commenter states that estimated average revenue
for ranchers in Greenlee County of $133,000 is incorrect, and that,
given the current drought, it is likely to be too high.
Our response: Appendix B of the FEA lists the average revenues for
cattle and calf ranches in Greenlee County as $19,100. We have
incorporated an acknowledgement that revenue is dependent on, and may
fluctuate with, natural conditions such as drought.
(95) Comment: One commenter states that there is no attempt to
define baseline conditions in order to conduct a ``with'' and
``without'' analysis as prescribed by Executive Order 12866.
Our response: The economic analysis estimates the total cost of
species conservation activities without subtracting the impact of pre-
existing baseline regulations (i.e., the cost estimates are fully co-
extensive). In 2001, the U.S. 10th Circuit Court of Appeals instructed
the Service to conduct a full analysis of all of the economic impacts
of proposed critical habitat designation, regardless of whether those
impacts are attributable co-extensively to other causes (New Mexico
Cattle Growers Ass'n v. U.S.F.W.S., 248 F.3d 1277 (10th Cir. 2001)).
The economic analysis complies with direction from the U.S. 10th
Circuit Court of Appeals.
Summary of Changes From Proposed Rule
Based upon our review of the public comments, economic analysis,
environmental assessment, issues addressed at the public hearings, and
any new relevant information that may have become available since the
publication of the proposal, we reevaluated our proposed critical
habitat designation and made changes as appropriate. Other than minor
clarifications and incorporation of additional information on the
species' biology, status, and threats, this final rule differs from the
proposal by the following:
(1) We excluded lands of the San Carlos Apache, White Mountain
Apache, and Yavapai-Apache Tribes pursuant to section 4(b)(2) of the
Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section
below).
(2) We excluded lands owned by the Phelps Dodge Corporation on the
Gila River and Eagle Creek pursuant to section 4(b)(2) of the Act (see
``Exclusion Under Section 4(b)(2) of the Act'' section below.)
(3) We excluded a portion of the Verde River pursuant to section
4(b)(2) of the Act (see ``Exclusion Under Section 4(b)(2) of the Act''
section below.)
(4) We modified the primary constituent elements for clarity and to
reflect additional information received during the public comment
period.
(5) We made technical corrections to township, range, section legal
descriptions, the confluence point of the East Fork Black and North
Fork East Fork Black rivers, and the upstream endpoint on Eagle Creek.
Overall mileage from the proposed to the final designation was slightly
reduced by approximately 0.5 river miles as a result of these
corrections.
(6) Eagle Creek is no longer included in the designation of
critical habitat for the spikedace, as further review of the available
information shows this area does not meet our definition of occupied,
and therefore does not meet
[[Page 13373]]
our criteria for defining critical habitat for the spikedace.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act, means
to use and the use of all methods and procedures necessary that 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, regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known, using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the features essential to the conservation of the
species therein may require special management or protection. Thus, we
do not include areas where existing management is sufficient to
conserve the species. (As discussed below, such areas may also be
excluded from critical habitat pursuant to section 4(b)(2).)
Accordingly, when the best available scientific data do not demonstrate
that the conservation needs of the species require additional areas, we
will not designate critical habitat in areas outside the geographical
area occupied by the species at the time of listing. An area currently
occupied by the species but that was not known to be occupied at the
time of listing will likely, but not always, be essential to the
conservation of the species and, therefore, included in the critical
habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), along with Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the Service
provide criteria and establish procedures to ensure that decisions made
by the Service represent the best scientific data available. They
require Service biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat. When determining which areas are critical
habitat, the Service generally uses the listing package as a primary
source of information. Additional information sources include the
recovery plan for the species, articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion or personal knowledge. All information is
used in accordance with the provisions of Section 515 of the Treasury
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available. Habitat
is often dynamic, and species may move from one area to another over
time. Furthermore, we recognize that designation of critical habitat
may not include all of the habitat areas that may eventually be
determined to be necessary for the recovery of the species. For these
reasons, critical habitat designations do not signal that habitat
outside the designation is unimportant or may not be required for
recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements (PCEs)) that are essential to the conservation of
the species, and within areas occupied by the species at the time of
listing, that may require special management considerations and
protection. These include, but are not limited to, space for individual
and population growth and for normal behavior; food, water, air, light,
minerals or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, or rearing of offspring; and
habitats that are protected from disturbance or are representative of
the historical, geographical, and ecological distributions of a
species.
We determined the primary constituent elements for spikedace and
loach minnow from studies on their habitat requirements and population
biology including, but not limited to, Barber et al. 1970, pp. 10-12;
Minckley 1973; Anderson 1978, p. 7, 17, 31-37, 41, 54; Barber and
Minckley 1983, pp. 34-39; Turner and Tafanelli 1983, pp. 15-20; Propst
et al. 1986, p. 40-72, 82-83; Hardy et al. 1990, pp. 19-20, 39; Douglas
et al. 1994, pp. 12-14; Rinne
[[Page 13374]]
and Stefferud 1996, p. 14-17; and Velasco 1997, pp. 5-6.
Spikedace
The specific primary constituent elements required for the
spikedace are derived from the biological needs of the species as
described in the Background section of this document and below.
Space for Individual and Population Growth and Normal Behavior
Habitat Preferences
Spikedace have differing habitat requirements through their various
life stages. Generally, adult spikedace prefer intermediate-sized
streams with moderate to swift currents over sand, gravel, and cobble
substrates (i.e., stream bottoms). Preferred water depths of adults are
less than 11.8 in (30 cm) (Barber and Minckley 1966, p. 321; Minckley
1973, p. 114; Anderson 1978, p. 17; Rinne and Kroeger 1988, p. 1; Hardy
1990, pp. 19-20, 39; Sublette et al. 1990, p. 138; Rinne 1991, pp. 8-
10; Rinne 1999, p. 6). As discussed below, larval and juvenile
spikedace occupy different habitats than adults.
Flow Velocities. Studies on flow velocity have been completed on
the Gila River, Aravaipa Creek, and the Verde River. In these studies,
flows measured in habitat occupied by adult spikedace ranged from 23.3
to 70.0 cm/second (9.2-27.6 in/second) (Barber and Minckley 1966, p.
321; Hardy 1990, pp. 19-20, 39; Propst et al. 1986, p. 41; Rinne 1991,
pp. 9-10; Rinne and Kroeger 1988, p. 1; Schreiber 1978, p. 4). Studies
on the Gila River indicated that juvenile spikedace occupy areas with
velocities of approximately 16.8 cm/second (6.6 in/second) while larval
spikedace were found in velocities of 8.4 cm/second (3.3 in/second)
(Propst et al. 1986, p. 41).
Propst et al. 1986 (pp. 47-49) examined flow velocities in occupied
spikedace habitats as they varied by season. During the warm season
(June-November), occupied spikedace habitats in the Gila River had mean
flow velocities of 19.3 in/second (49.1 cm/second) at one site and 7.4
in/second (18.8 cm/second) at the second site. During the cold season
(December-May), mean flow velocities at these same sites were 15.5 in/
second (39.4 cm/second) and 8.4 in/second (21.4 cm/second). It is
believed that spikedace seek areas in the stream that offer warmer
water temperatures during cooler seasons to offset their decreased
metabolic rates. Where water depth remains fairly constant throughout
the year (e.g., the first site), slower velocities provided pockets of
warmer water temperatures in the stream. In areas of fairly constant
flow velocities (e.g., the second site), warmer water temperatures were
found in those portions of the stream with shallower water (Propst et
al. 1986, pp. 47-49).
Larval and juvenile spikedace, which occupy different habitats than
adults, tend to occupy shallow, peripheral portions of streams that
have slower currents (Anderson 1978, p.17; Propst et al. 1986, pp. 40-
41). Once they emerge from the gravel of the spawning riffles,
spikedace larvae disperse to stream margins where water velocity is
very slow or still. Larger larval and juvenile spikedace (those fish
1.0 to 1.4 inches (25.4 to 35.6 mm) in length) occurred over a greater
range of water velocities than smaller larvae, but still occupied water
depths of less than 12.6 inches (32.0 cm) (Propst et al. 1986, p. 40).
Juveniles and larvae are also occasionally found in quiet pools or
backwaters (e.g., pools that are connected with, but out of, the main
river channel) lacking streamflow (Sublette et al. 1990, p. 138).
Outside of the breeding season, which occurs between April and
June, eighty percent of the spikedace collected in a Verde River study
used run and glide habitat. For this study, a glide was defined as a
portion of the stream with a lower gradient (0.3 percent), versus a run
which had a slightly steeper gradient (0.3-0.5 percent) (Rinne and
Stefferud 1996, p. 14). Spikedace in the Gila River were most commonly
found in riffle areas of the stream with moderate to swift currents
(Anderson 1978, p. 17) and some run habitats (J.M. Montgomery 1985, p.
21), as were spikedace in Aravaipa Creek (Barber and Minckley 1966, p.
321).
Seasonal differences in habitats utilized by spikedace have been
noted in the upper Gila drainage, for both the winter and breeding
seasons. For example, spikedace were found to use shallower habitats
(<6.6 inches, <16.8 cm) in the winter, and deeper habitats (6.6 to 12.6
inches, 16.8-32.0 cm) during warmer months (Propst et al. 1986, p. 47).
Specific habitat usage has been noted for the breeding season as
well. During the breeding season, female and male spikedace become
segregated, with females occupying deeper pools and eddies and males
occupying riffles flowing over sand and gravel beds in water
approximately 3.1 to 5.9 inches (7.9-15.0 cm) deep. Females then enter
the riffles occupied by the males before ova are released into the
water column (Barber et al. 1970, pp.11-12).
Streams in the southwestern United States have a wide fluctuation
in flows and some are periodically dewatered. While portions of stream
segments included in this designation may experience dry periods, they
are still considered important because the spikedace is adapted to
stream systems with fluctuating water levels. While they can not
persist in dewatered areas, spikedace will use these areas as
connective corridors between occupied or seasonally occupied habitat
when they are wetted.
Substrates. Spikedace are known to occur in areas with low to
moderate amounts of fine sediment and substrate embeddedness (filling
in of spaces by fine sediments), which are important features for
healthy development of eggs. Spawning has been observed in areas with
sand and gravel beds and not in areas where fine materials of a
particle size less than sand coats the sand or gravel substrate, as
described above. Additionally, low to moderate fine sediments ensure
that eggs remain well-oxygenated and will not suffocate due to sediment
deposition (Propst et al. 1986, p. 40).
Spikedace were found over sand and gravel substrates in the glide-
run and low-gradient riffle habitats in both the upper Verde (Rinne and
Stefferud 1996, p. 21) and the upper Gila (Propst et al. 1986, p. 40;
Rinne and Deason 2000, p. 106). In a study of a small portion of the
Verde River, spikedace were found in glide-run habitats where
substrates were characterized by approximately 29 percent sand or fines
(silty sand) (Rinne 2001, p. 68). In other studies of the Verde River
over a two-year period, spikedace were found in areas with a percentage
of fine content substrate that varied from 1 to 28 percent (Rinne 2001,
p. 68). Neary et al. (1996, p. 24) noted that spikedace were found in
habitats with substrates of less than 10 percent sand. While there is
some variability in the percent of sand or fine substrate in occupied
spikedace habitat, Neary et al. (1996, p. 24) concluded that, based on
the higher density of spikedace present in areas with lower percentages
of sand in the substrate, spikedace favored habitats with lower sand
content.
Substrates are, in part, a reflection of the gradients and
velocities of the streams in which they are found. Sand and gravel
typically decrease as gradient and velocity increase (Rinne and
Stefferud 1996, p. 14). Spikedace numbers in the Verde River increased
almost three times (from 18 to 52 individuals) when the fine component
of the substrate decreased from about 27 percent down to 7 percent
(Neary et al. 1996, p. 26), indicating that spikedace prefer habitats
with lower amounts of fines. Sand content in all glide-run
[[Page 13375]]
spikedace habitats in the Verde and Gila Rivers in 2000 was 18 and 20
percent (Rinne 2001, p. 68). However, because substrates are determined
in part by gradient and velocity of the stream, the type of substrate
should not be used alone in determining suitable spikedace habitat.
Sixty percent of spikedace larvae in the Gila River were found over
sand-dominated substrates, while 18 percent were found over gravel, and
an additional 18 percent found over cobble-dominated substrates. While
45 percent of juvenile spikedace were found over sand substrates, an
additional 45 percent of the juveniles were found over gravel
substrates, with the remaining 9 percent associated with cobble-
dominated substrates (Propst et al. 1986, p. 40).
The degree of substrate embeddedness may also affect the prey base
for spikedace. As discussed below, mayflies constitute a significant
portion of the spikedace diet. Suitable habitat for some mayflies
includes pebbles or gravel for clinging (Pennak 1978, p. 539). Excess
sedimentation would cover or blanket smaller pebbles and gravel,
resulting in a lack of suitable habitat for mayflies, and a subsequent
decrease in available prey items for spikedace.
Flooding. Rainfall in the southwest is generally characterized as
bimodal, with winter rains of longer duration and less intensity and
summer rains of shorter duration and higher intensity. As we discuss
below, periodic flooding appears to benefit spikedace in three ways:
(1) Removing excess sediment from some portions of the stream; (2)
removing nonnative fish species from a given area; and (3) increasing
prey species diversity.
Flooding in Aravaipa Creek has resulted in the transport of heavier
loads of sediments such as cobble, gravel, and sand that are deposited
where the stream widens, gradient flattens, and velocity and turbulence
decrease. Dams formed by such deposition can temporarily cause water to
back up and break into braids downstream of the dam. The braided areas
provide excellent nurseries for larval and juvenile fishes (Velasco
1997, pp. 28-29).
On the Gila River in New Mexico, flows fluctuate seasonally with
snowmelt, causing spring pulses and occasional floods, and late-summer
or monsoonal rains producing floods of varying intensity and duration.
These high flows benefit spikedace spawning and foraging habitat
(Propst et al. 1986, p. 3) as described above. Peak floods can modify
channel morphology and sort and rearrange stream bed materials
(Stefferud and Rinne 1996, p. 80).
Floods likely benefit native fish by breaking up embedded bottom
materials (Mueller 1984, p. 355). A study of the Verde River analyzed
the effects of flooding in 1993 and 1995, finding that these floods had
notable effects on both native and nonnative fish species. Among other
effects, these floods on the Verde River either stimulated spawning or
enhanced recruitment of three of the native species or may have
eliminated one of the nonnative fish species (Rinne and Stefferud 1997,
pp. 159, 162; Stefferud and Rinne 1996, p. 80).
Minckley and Meffe 1987 (pp. 99, 100) found that flooding, as part
of a natural hydrograph, may temporarily remove nonnative fish species,
which are not adapted to flooding. Thus flooding consequently removes
the competitive pressures of nonnative fish species on native fish
species which persist following the flood. Minckley and Meffe (1987, p.
99-100) studied the differential responses of native and nonnative
fishes in seven unregulated and three regulated streams or stream
reaches that were sampled before and after major flooding noted that
fish faunas of canyon-bound reaches of unregulated streams invariably
shifted from a mixture of native and nonnative fish species to
predominantly, and in some cases exclusively, native forms after large
floods. Samples from regulated systems indicated relatively few or no
changes in species composition due to releases from upstream dams at
low, controlled volumes. However, during emergency releases, effects to
nonnative fish species were similar to those seen with flooding on
unregulated systems.
There is some variability in fish response to flooding. Some
nonnative species, such as smallmouth bass (Micropterus dolomieui) and
green sunfish (Lepomis cyanellus), appear to be partially adapted to
flooding, and often reappear in a few weeks (Minckley and Meffe, p.
100). In addition, Stefferud and Rinne (1996, p. 75) found that late-
winter flooding affected the entire fish community, either stimulating
reproduction or promoting recruitment (at least among the larger-size
fishes), and possibly eliminating some nonnative species.
The onset of flooding also corresponds with an increased diversity
of food items for spikedace. Reductions in the mainstream
invertebrates, such as mayflies, cause the fish to expand its food base
in an opportunistic manner. In addition, inflowing flood waters carry
terrestrial invertebrates, such as ants, bees, and wasps
(Hymenopterans), into aquatic areas (Barber and Minckley 1983, p.39).
Stream Gradient. Spikedace occupy streams with low to moderate
gradients (Propst et al. 1986, p. 3; Rinne and Stefferud 1996, p. 14;
Stefferud and Rinne 1996, p. 21; Sublette et al. 1990, p. 138).
Specific gradient data are generally lacking, but the gradient of
occupied portions of Aravaipa Creek and the Verde River varied between
approximately 0.3 to <1.0 percent (Barber et al. 1970, p. 10; Rinne and
Kroeger 1988, p. 2; Rinne and Stefferud 1996, p. 14).
Habitat Protected From Disturbance or Representative of the Historic
Geographical and Ecological Distribution of a Species
Nonnative aquatic species. One of the primary reasons for the
decline of native species is the presence of nonnative fishes. Fish
evolution in the arid American west is linked to disruptive geologic
and climatic events that acted in concert over evolutionary time to
decrease the availability and reliability of aquatic ecosystems. The
fragmentation and reduction of aquatic ecosystems resulted in a fish
fauna that was both diminished and restricted in the arid west. Lacking
exposure to a wider range of species, western species seem to lack the
competitive abilities and predator defenses developed by fishes from
regions where more species are present (Douglas et al. 1994, pp. 9-10).
The introduction and spread of nonnative species has been identified as
one of the major factors in the continuing decline of native fishes
throughout North America and particularly in the southwestern United
States (Miller 1961, p. 365, 377, 397-398; Lachner et al. 1970, p. 22;
Ono et al. 1983, p. 90; Moyle 1986, pp. 28-34; Moyle et al. 1986, pp.
416-423; Carlson and Muth 1989, pp. 232-233; Fuller et al. 1990, p. 1).
Miller et al. (1989, p. 1) concluded that nonnative species were a
causal factor in 68 percent of the fish extinctions in North America in
the last 100 years. For 70 percent of those fish still extant, but
considered to be endangered or threatened, introduced nonnative species
are a primary cause of the decline (Lassuy 1995, p. 392). In Arizona,
release or dispersal of recently introduced nonnative aquatic organisms
is a continuing phenomenon (Rosen et al. 1995, pp. 255-256, 258; U.S.
Fish and Wildlife Service 2001a, pp. 26-32). Aquatic nonnative species
are introduced and spread into new areas through a variety of
mechanisms, intentional and accidental, authorized and unauthorized.
Mechanisms for nonnative dispersal in the southwestern
[[Page 13376]]
United States include interbasin water transfer, sport fish stocking,
aquaculture, aquarium releases, baitbucket release (release of fish
used as bait by anglers), and biological control (e.g., the
introduction of one species to control another species) (U.S. Fish and
Wildlife Service 2001a, pp. 13, 37).
In the Gila River basin, introduction of nonnatives is considered a
major factor in the decline of all native fish species (Minckley 1985,
p. 20-21; Williams et al. 1985, p. 1; Minckley and Deacon 1991, p. 17).
Aquatic and semi-aquatic mammals, reptiles, amphibians, crustaceans,
mollusks (snails and clams), insects, zoo- and phytoplankton,
parasites, disease organisms, algae, and aquatic and riparian vascular
plants that are outside of their historical range have all been
documented to adversely affect aquatic ecosystems (Cohen and Carlton
1995, pp. 1-8). As described below, the nonnative fishes have been
demonstrated to pose a significant threat to Gila River basin native
fishes, including spikedace and loach minnow (Minckley 1985, p. 108-
109; Williams et al. 1985, p. 19). The aquatic ecosystem of the central
Gila River basin has relatively small streams with warm water and low
gradients, and many of the native aquatic species are small in size.
Therefore, much of the threat to native fishes comes from small
nonnative fish species, as has also been noted for southern Nevada
aquatic ecosystems (Deacon et al. 1964, p. 385). Examples of this are
the impacts of mosquitofish (Gambusia affinis) and red shiner
(Cyprinella lutrensis), which may compete with or prey upon native fish
in the Gila River basin (Meffe 1985, p. 173-174, 176-180; Douglas et
al. 1994, pp. 13-17).
The effects of nonnative fish competition on spikedace can be
classified as either interference or exploitive. Interference
competition occurs when individuals directly affect others, such as by
fighting, producing toxins, or preying upon them (Schoener 1983, p.
257). Exploitive competition occurs when individuals affect others
indirectly, such as through use of common resources (Douglas et al.
1994, p. 14).
Nonnative fishes known to occur within the historical range of the
spikedace include channel catfish (Ictalurus punctatus), flathead
catfish (Pylodictis olivaris), red shiner, fathead minnow (Pimephales
promelas), green sunfish (Lepomis cyanellus), largemouth bass
(Micropterus salmoides), smallmouth bass (Micropterus dolomieui),
rainbow trout (Oncorynchus mykiss), mosquitofish, carp (Cyprinus
carpo), bluegill (Lepomis macrochiris), yellow bullhead (Ameiurus
natalis), black bullhead (Ameiurus melas), and goldfish (Carassius
auratus) (AGFD Native Fish Database 2005, ASU 2002). Additionally, as
discussed below, nonnative parasites introduced incidentally with
nonnative species may threaten spikedace populations. Although
parasites are normal in fish populations and typically do not cause
mortality in their host, the effects of nonnative parasites can be
significant, especially when combined with other stressors such as poor
habitat conditions (U.S. Geological Survey 2004, p. 1; 2005, p. 2-3).
There is evidence of the negative impacts of nonnative predators on
native fishes for several stream reaches. The effect of nonnative fish
preying on natives such as spikedace is classified as interference
competition. Channel catfish, flathead catfish, and smallmouth bass all
prey on native fishes including spikedace, as evidenced by prey remains
of native fishes in the stomachs of these predatory species (Propst et
al. 1986, p. 82, Bonar et al. 2004, p. 13, 16-21). Native fish species
declines appear linked to increases in nonnative fish species. For
example, in 1949, 52 spikedace were collected at Red Rock while channel
catfish composed only 1.65 percent of the 607 fish collected. However,
in 1977, only six spikedace were located at the same site, and the
percentage of channel catfish had risen to 14.5 percent of 169 fish
collected. The decline of spikedace and the increase of channel catfish
is likely related (Anderson 1978, p. 51) because of this correlation
and the evidence of predation by catfish on spikedace.
Similar interactions between native and nonnative fishes were
observed in the upper reaches of the East Fork of the Gila River. In
this system, native fish were limited, with spikedace being rare or
absent, while nonnative channel catfish and smallmouth bass were
moderately common prior to 1983 and 1984 floods. Post-1983 flooding,
adult nonnative predators were generally absent and spikedace were
collected in moderate numbers in 1985 (Propst et al. 1986, p. 83).
Green sunfish (Lepomis cyanellus) is also thought to be a predator,
likely responsible for replacement of natives like spikedace, through
predation. While no direct studies have been completed on predation by
green sunfish on spikedace, they are a known predator that occurs
within occupied spikedace areas.
Interference competition occurs with species such as red shiner.
Red shiner appear to be particularly detrimental to spikedace because
although spikedace and shiners are naturally separated by geography
(i.e., allopatric), they occupy essentially the same habitat types. Red
shiner has an inverse distribution pattern to spikedace in that,
generally, where red shiner is present, spikedace are absent (Minckley
1973, p. 138). Where the two species occur together, there is evidence
of displacement of spikedace to less suitable habitats that it
otherwise did not occupy (Marsh et al. 1989, pp. 67, 107). As a result,
if red shiners are present, suitable habitat available for spikedace is
reduced. Range expansion and species recovery may then be curtailed due
to red shiner presence.
One study focused on potential impacts of red shiner on spikedace
in three areas; (1) Portions of the Gila River and Aravaipa Creek
having only spikedace; (2) a portion of the Verde River where spikedace
and red shiner have co-occurred for three decades; and (3) a portion of
the Gila River where red shiner recently invaded areas and where
spikedace had never been recorded. The study indicated that, for
reaches where only spikedace were present, spikedace displayed a
preference for slower currents and smaller particles in the substrate
than were generally available throughout the Gila River and Aravaipa
Creek systems. Where red shiner occur in the Verde River, the study
showed that red shiner occupied waters that were generally slower and
with smaller particle size in the substrate than were, on average,
available in the system. The study concludes that spikedace, where co-
occurring with red shiner, move into currents swifter than those
selected when in isolation, while red shiner occupy the slower habitat,
whether they are alone or with spikedace (Douglas et al. 1994, pp. 14-
16).
Western mosquitofish were introduced outside of their native range
to help control mosquitoes. Because of their aggressive and predatory
behavior, mosquitofish may negatively affect populations of small fish
through predation and competition (Courtenay and Meffe 1989, p. 320,
322, 324). Introduced mosquitofish have been particularly destructive
in the American west where they have contributed to the elimination or
decline of populations of federally threatened and endangered species,
such as the Gila topminnow (Poeciliopsis occidentalis occidentalis)
(Courtenay and Meffe 1989, p. 323-324).
The Asian tapeworm (Bothriocephalus acheilognathi) was introduced
into the United States via imported grass carp in the early 1970s. It
has since become well established in
[[Page 13377]]
the southeast and mid-southern United States and has been recently
found in the southwest including the Gila Basin. The definitive host in
the life cycle of the Asian tapeworm is cyprinid (fish in the minnow
family) fishes. There is a potential threat to spikedace as well as to
the other native fishes in Arizona because of the presence of this
parasite in the Gila Basin and the presence of cyprinid fish. The Asian
tapeworm affects fish health in several ways. The direct impacts to
fish are through impeding digestion of food as it passes through the
intestinal track, and loss of nutrients as the worm feeds off the fish;
large enough numbers of worms cause emaciation and starvation. An
indirect effect is that weakened fish are more susceptible to infection
by other pathogens. This parasite can infest many species of fish and
is carried into new areas along with nonnative fishes or native fishes
from contaminated areas. Asian tapeworm may be a significant source of
mortality of other fish species in the Colorado River basin (U.S.
Geological Survey 2004, p. 1, 2005, p. 2).
Anchor worm (Lernaea cyprinacea) (Copepoda), also a nonnative
species, is an external parasite, and is unusual in that it has little
host specificity, infecting a wide range of fishes and amphibians.
Additionally, infection has been known to kill large numbers of fish
due to tissue damage and secondary infection of the attachment site
(Hoffnagle and Cole 1997, p. 24). Presence of this parasite in the Gila
River basin is a threat to the Gila chub and other native fish. In July
1992, the Bureau of Land Management (BLM) found Gila chub that were
heavily parasitized by Lernaea cyprinacea in Bonita Creek. These fish
were likely more susceptible to parasites due to physiological stress
as a result of degraded habitat and decreased water flows due to water
withdrawals. Creef and Clarkson (1993, p. 1, p. 5) suspected that
infestations by Lernaea cyprinacea caused high mortality of stocked
native fish, razorback sucker (Xyrauchen texanus) and Colorado
pikeminnow (Ptycocheilus lucius).
The nonnative parasite Ichthyophthirius multifiliis (``Ich'') is a
potential threat to spikedace. ``Ich'' disease has occurred in some
Arizona streams, probably favored by high temperatures and crowding as
a result of drought (Mpoame 1982, p. 46). This protozoan becomes
embedded under the skin and within the gill tissues of infected fish.
When the ``Ich'' matures, it leaves the fish, causing fluid loss,
physiological stress, and sites that are susceptible to infection by
other pathogens. If ``Ich'' is present in large enough numbers they can
also impact respiration because of damaged gill tissue. This parasite
has been observed on the Sonora sucker (Catostomus insignis), a species
common throughout the Gila River basin, and ``Ich'' does not appear to
be hostspecific, so it could be transmitted to other species. ``Ich''
is known to be present in Aravaipa Creek (Mpoame 1982, p. 46).
Food
Food Items. Spikedace are active, highly mobile fish that visually
inspect drifting materials both at the surface and within the water
column. Gustatory inspection, or taking potential prey items into the
mouth before either swallowing or rejecting it, is also common (Barber
and Minckley 1983, p. 37). Prey body size is small, typically ranging
from 0.08 to 0.20 inches (2 to 5 mm) long (Anderson 1978, p. 36).
Stomach content analysis of spikedace determined that mayflies,
caddisflies, true flies, stoneflies, and dragonflies are all prey items
for spikedace. In one Gila River study, the frequency of occurrence was
71 percent for mayflies, 34 percent for true flies, and 25 percent for
caddisflies (Propst et al. 1986, p. 59). A second Gila River study of
four samples determined that total food volume was comprised of 72.7
percent mayflies, 17.6 percent caddisflies, and 4.5 percent true flies
(Anderson 1978, pp. 31-32). At Aravaipa Creek, mayflies, caddisflies,
true flies, stoneflies, and dragonflies were all prey items for
spikedace, as were some winged insects and plant materials (Schreiber
1978, pp. 12-16, 29, 35-37).
At Aravaipa Creek, spikedace consumed a total of 36 different prey
items. Mayflies constituted the majority of prey items, followed by
true flies. Of the mayflies consumed, 36.5 percent were adults, while
33.3 percent were nymphs. Terrestrial invertebrates, including ants,
wasps, and spiders, were also consumed, as were beetles, true bugs,
caddisflies, and water fleas (Barber and Minckley 1983, pp. 34-38).
Spikedace diet varies seasonally (Barber and Minckley 1983, pp. 34-
35). Mayflies dominated stomach contents in July, but declined in
August and September, increasing in importance again between October
and June. When mayflies were available in lower numbers, spikedace
consumed a greater variety of foods, including true bugs, true flies,
beetles, and spiders.
Spikedace diet varies with age class as well. Young spikedace,
which measure less than 0.9 inches (22.9 mm) long, fed on a diversity
of small-bodied invertebrates occurring in and on sediments along the
margins of the creek. True flies were found most frequently, but water
fleas and aerial adults of aquatic and terrestrial insects also provide
significant parts of the diet. As juveniles grow and migrate into the
swifter currents of the channel, mayfly nymphs (invertebrates between
the larval and adult life stages, similar to juveniles) and adults
increase in importance (Barber and Minckley 1983, pp. 36-37).
Spikedace are very dependent on aquatic insects for sustenance, and
the production of the aquatic insects consumed by spikedace occurs
mainly in riffle habitats (Propst et al. 1986, p. 59). As a result,
habitat selection influences food items found in stomach content
analyses. Spikedace in pools had eaten the least diverse foods while
those from riffles contained a greater variety of taxa, indicating that
the presence of riffles in good condition and abundance help to ensure
that a sufficient number and variety of prey items will continue to be
available for spikedace (Barber and Minckley 1983, pp. 36-37, 40).
Aquatic invertebrates that constitute the bulk of the spikedace
diet have specific habitat parameters of their own. Mayflies, which
constituted the largest percentage of prey items, spend their immature
stages in fresh water. Mayfly nymphs occur in all types of fresh
waters, wherever there is an abundance of oxygen, but they are most
characteristic of shallow water. Mayflies found in spikedace stomach
content analyses consisted of individuals from several genera, with
individuals from the genus Baetidae constituting the highest percentage
of prey from the mayfly order in the study by Schreiber (1978, p. 36).
Baetidae are free-ranging species of rapid waters that maintain
themselves in currents by clinging to pebbles. Spikedace also consumed
individuals from two other mayfly genera (Heptageniidae and
Ephemerellidae), which are considered ``clinging species'' as they
cling tightly to stones and other objects and may be found in greatest
abundance in crevices and on the undersides of stones (Pennak 1978, p.
539). The importance of gravel and cobble substrates is illustrated by
the fact that these prey species, which make up the bulk of the
spikedace diet, require these surfaces to persist.
Water Quality
Pollutants. Water with no or only minimal pollutant levels is
essential for the survival of spikedace. Spikedace occur in areas where
mining, agriculture, livestock operations, and
[[Page 13378]]
road construction and use are prevalent. Various pollutants are
associated with these types of activities. For spikedace, waters should
have low levels of pollutants such as copper, arsenic, mercury and
cadmium; human and animal waste products; pesticides; suspended
sediments; and gasoline or diesel fuels (Baker 2005). In addition, for
freshwater fish, dissolved oxygen should generally be greater than 3.5
cubic centimeters per liter (cc/l) (Bond 1979, p. 215). Below this,
some stress may occur.
Fish kills have been documented in the San Francisco River (Rathbun
1969, pp. 1-2) and the San Pedro River (Eberhardt 1981, pp. 1-4, 6-9,
11-12, 14, 16, and Tables 2-8), both of which are within the species'
historical range. In both instances, leaching ponds associated with
copper mines released waters into the streams, resulting in elevated
levels of toxic chemicals. For the San Pedro River, this included
elevated levels of iron, copper, manganese, and zinc. Both incidents
resulted in die-offs of species inhabiting the streams. Eberhardt
(1981, pp. 1, 3, 9, 10, 14-15) notes that no bottom-dwelling aquatic
insects, live fish, or aquatic vegetation of any kind were found for a
60-mi (97 km) stretch of river in the area affected by the spill.
Rathbun (1969, pp. 1-2) reported similar results for the San Francisco
River. The possibility for similar accidents, or pollution from other
sources, exists throughout the ranges of these species due to their
proximity to mines, communities, agricultural areas, and major
transportation routes.
Temperature. Temperatures of occupied spikedace habitat vary with
time of year. In May, water temperatures at Aravaipa Creek were
uniformly 66.2 [deg]F (19 [deg]C) (Barber et al. 1970, p. 11). Summer
water temperatures remained at no more than 80.6 [deg]F (27 [deg]C) at
Aravaipa Creek (Barber et al. 1970, p. 14), and at a mean of 66.7
[deg]F (19.3 [deg]C) between June and November on the Gila River in the
Forks area (at the Middle, West, and East Forks) and 69.4 [deg]F (20.8
[deg]C) in the Cliff-Gila Valley (Propst et al. 1986, p. 47). Winter
water temperatures ranged between 69.1 [deg]F (20.6 [deg]C) in November
down to 48.0 [deg]F (8.9 [deg]C) in December at Aravaipa Creek (Barber
and Minckley 1966, p. 316). Between December and May, mean temperature
in the Forks area was 46.0 [deg]F (7.8 [deg]C), and 53.1 [deg]F (11.7
[deg]C) in the Cliff-Gila Valley (Propst et al. 1986, p. 57). The
overall range represented by these measures is between 46-80.6 [deg]F
(7.8-27.0 [deg]C).
Recent studies by the University of Arizona focused on temperature
tolerances of spikedace. In the study, fish were acclimated to a given
temperature, and then temperatures were increased by 1 [deg]C (33.8
[deg]F) per day until test temperatures were reached. The study
determined that no spikedace survived exposure of 30 days at 34 or 36
[deg]C (93.2 or 96.8 [deg]F), and that 50 percent mortality occurred
after 30 days at 32.1 [deg]C (89.8 [deg]F). In addition, growth rate
was slowed at 32 [deg]C (89.6 [deg]F), as well as at lower test
temperatures of 10 [deg]C and 4 [deg]C (50 and 39.2 [deg]F). Multiple
behavioral and physiological changes were observed indicating that fish
became stressed at 30, 32, and 33 [deg]C (86, 89.6, and 91.4 [deg]F)
treatments. The study concludes that temperature tolerance in the wild
may be lower due to the influence of additional stressors, including
disease, predation, competition, or poor water quality. Survival of
fish in the fluctuating temperature trials in the study likely
indicates that exposure to higher temperatures for short periods during
a day would be less stressful to spikedace. The study concludes that
100 percent survival of spikedace at 30 [deg]C (86 [deg]F) in the
experiment suggests that little juvenile or adult mortality would occur
due to thermal stress if peak water temperatures remain at or below
that level (Bonar et al. 2005, pp. 7-8, 29-30).
Reproduction and Rearing of Offspring
As discussed above under flow velocities, spikedace use a variety
of habitat types within the channel during their reproductive cycle and
at various life stages. Although not typically associated with pools,
pools are used by female spikedace during the breeding season while
males remained in riffle habitats. Females leave the pools, generally
on the downstream end of the riffle, and swim upstream to males in
riffle habitat (Barber et al. 1970, pp.11-12). Unlike loach minnow that
deposit their eggs in a hole or depression, spikedace spawn in shallow
riffles and scatter their gametes (reproductive cells) into the water
column. Spikedace eggs are adhesive and develop among the gravel and
cobble of the riffles following spawning. Spawning in riffle habitat
ensures that the eggs are well oxygenated and are not normally subject
to suffocation by sediment deposition due to the swifter flows found in
riffle habitats. However, after the eggs have adhered to the gravel and
cobble substrate, excessive sedimentation could cause suffocation of
the eggs (Propst et al. 1986, p. 40).
Primary Constituent Elements for the Spikedace
Pursuant to our regulations, we are required to identify the known
physical and biological features (primary constituent elements)
essential to the conservation of the spikedace. All stream complexes
designated as critical habitat for the spikedace are occupied, are
within the species' historic geographic range, and contain sufficient
PCEs to support at least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the primary constituent elements essential to the conservation of
the spikedace are:
1. Permanent, flowing water with no or low levels of pollutants,
including:
a. Living areas for adult spikedace with slow to swift flow
velocities between 20 and 60 cm/second (8 and 24 in/second) in shallow
water between approximately 10 cm (4 in) and 1 meter (40 in) in depth,
with shear zones where rapid flow borders slower flow, areas of sheet
flow (or smoother, less turbulent flow) at the upper ends of mid-
channel sand/gravel bars, and eddies at downstream riffle edges;
b. Living areas for juvenile spikedace with slow to moderate water
velocities of approximately 18 cm/second (8 in/second) or higher in
shallow water between approximately 3 cm (1.2 in) and 1 meter (40 in)
in depth;
c. Living areas for larval spikedace with slow to moderate flow
velocities of approximately 10 cm/second (4 in/second) or higher in
shallow water approximately 3 cm (1.2 in) to 1 meter (40 in) in depth;
and
d. Water with dissolved oxygen levels greater than 3.5 cc/l and no
or minimal pollutant levels for pollutants such as copper, arsenic,
mercury, and cadmium; human and animal waste products; pesticides;
suspended sediments; and gasoline or diesel fuels.
2. Sand, gravel, and cobble substrates with low or moderate amounts
of fine sediment and substrate embeddedness. Suitable levels of
embeddedness are generally maintained by a natural, unregulated
hydrograph that allows for periodic flooding or, if flows are modified
or regulated, a hydrograph that allows for adequate river functions,
such as flows capable of transporting sediments.
3. Streams that have:
a. Low gradients of less than approximately 1.0 percent;
b. Water temperatures in the approximate range of 35 to 86 [deg]F
(1.7 to
[[Page 13379]]
30.0 [deg]C) (with additional natural daily and seasonal variation);
c. Pool, riffle, run, and backwater components; and
d. An abundant aquatic insect food base consisting of mayflies,
true flies, caddisflies, stoneflies, and dragonflies.
4. Habitat devoid of nonnative aquatic species or habitat in which
nonnative aquatic species are at levels that allow persistence of
spikedace.
5. Areas within perennial, interrupted stream courses that are
periodically dewatered but that serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted.
Units are designated based on sufficient PCEs being present to
support one or more of the species's life history functions. Some units
contain all PCEs and support multiple life processes, while some units
contain only a portion of the PCEs necessary to support the species'
particular use of that habitat. Where a subset of the PCEs is present
at the time of designation, this rule protects those PCEs and thus the
conservation function of the habitat.
Loach Minnow
The specific primary constituent elements required for the loach
minnow are derived from the biological needs of the species as
described in the Background section of this proposal and below.
Space for Individual and Population Growth and Normal Behavior
As noted for the spikedace above, streams in the Southwestern
United States have a wide fluctuation in flows and resulting habitat
conditions at different times of the year. Loach minnow persist in
these varying conditions and, as discussed below, several studies have
documented habitat conditions at occupied sites.
Habitat Preferences
Flow Velocities. Loach minnow live on the bottom of small to large
rivers, preferring shallow, swift, and turbulent riffles, living and
feeding among clean, loose, gravel-to-cobble substrates (Anderson and
Turner 1977, pp. 2, 6-7, 9, 12-13; Barber and Minckley 1966, p. 315;
Britt 1982, pp. 10-13, 29-30; Lee et al. 1980, p. 365; Marsh et al.
2003, p. 666; Minckley 1981, p. 165; Velasco 1997, p. 28). Loach minnow
are sometimes associated with filamentous (threadlike) algae, which are
attached to the stream substrates (Anderson and Turner 1977, p. 5; Lee
et al. 1980, p. 365; Minckley 1981, p. 165). Specific habitat use
varies with the life stage of the fish, as well as geographic location.
As noted below, researchers have documented a range of flows in areas
occupied by loach minnow.
Water Depth and Flow Velocities. One study found loach minnow in
varying water depths by lifestage, with water depth being 15.5 cm (6.1
in) for eggs, 10.6 cm (4.2 in) for larvae, 16.8 cm (6.6 in) for
juveniles, and 18.3 cm (7.2 in) for adults (Propst et al. 1988, p. 38).
Flow rate studies have been completed on the Gila River, Tularosa
River, San Francisco River, Aravaipa Creek, and Deer Creek. Measured
flows in habitat occupied by adult loach minnow ranged from 9.6 to 31.2
in/second (24.4 to 79.2 cm/second) (Barber and Minckley 1966, p. 321;
Propst et al. 1988, pp. 32, 36-39; Propst and Bestgen 1991, p. 33;
Rinne 1989, pp. 112, 116). There is geographic variation in flow
velocities used by adult loach minnow. Adult loach minnow in the Gila
River preferred velocities of 1.2 to 14.4 in/second (3.0 to 36.6 cm/
second), while those in Aravaipa Creek preferred velocities of 15.6 to
20.4 in/second (39.6 to 51.8 cm/second). This may be due to the fact
that there were considerably more areas of slow velocity available to
loach minnow in the Gila River, and that there was more and larger
cobble substrate in the Gila River, which creates more habitat of
slower velocities for loach minnow to use (Turner and Tafanelli 1983,
pp. 15-20).
Juvenile loach minnow generally occurred in areas where velocities
were similar to those used by adults; however, these areas had faster
velocities than those used by larvae. In the Gila, San Francisco, and
Tularosa rivers, juveniles occupied areas with mean velocities ranging
between 1.2 and 33.6 in/second (3.0 and 85.3 cm/second) (Propst et al.
1988, pp. 37-38; Propst and Bestgen 1991, p. 32; Rinne 1989, p. 111;
Turner and Tafanelli 1983, p. 26). Larval loach minnow move from the
rocks under which they spawned to areas with slower velocities than the
main stream after emergence, typically remaining in areas with
significantly slower velocities than juveniles and adults. Larval loach
minnow in the Gila, San Francisco, and Tularosa rivers occupied areas
that were shallower and significantly slower than areas where eggs were
found. In the Gila, San Francisco, and Tularosa rivers, and Aravaipa
Creek, larval loach minnow occupied areas with flow velocities ranging
from 3.6 to 19.2 in/second (9.1 to 48.8 cm/second) (Propst et al. 1988,
p. 37; Propst and Bestgen 1991, p. 32).
The use of riffle habitat has been documented in Aravaipa Creek
(Barber and Minckley 1966, p. 321; Rinne 1989, pp. 113, 116; Velasco
1997, pp. 5-6; Vives and Minckley 1990, pp. 451-452), Eagle Creek
(Marsh et al. 2003, p. 666), Tularosa River (Propst et al. 1984, pp. 7-
12), and the Gila and San Francisco rivers (Britt 1982, pp. 1, 5, 10-
12, 29; Propst and Bestgen 1991, p. 32; Propst et al. 1984, pp. 7-12;
Propst et al. 1988, pp. 36-39). Loach minnow prefer shallow, swift, and
turbulent riffles. However, loach minnow also occur in stream segments
that contain pool, riffle, and run habitats on the Blue, upper Gila,
and San Francisco rivers (AGFD 1994, pp. 1, 5-11; Bagley et al. 1995,
pp. 11, 13, 16, 17, 22; J.M. Montgomery 1985, p. 21).
Substrates. Loach minnow in Aravaipa Creek occurred over a gravel-
pebble substrate with materials ranging between 3 to 16 mm (0.12 to
0.63 in) in diameter and, except in the summer, were associated with
the larger sizes of available substrate. The use of larger substrates
was disproportionately greater than expected based on overall
availability of substrate size in the stream, indicating that loach
minnow have a preference for the larger substrate and tend to use these
substrate areas rather than areas with smaller substrate (Rinne 1989,
pp. 112-114). For portions of the upper Gila River occupied by loach
minnow in 1999 and 2000, substrates were characterized by gravel-pebble
and cobble substrates, with 70 percent of the sites having a gravel-
pebble substrate, and 14 percent of the sites having cobble substrate
(Rinne 2001, p. 69).
Loach minnow in Aravaipa Creek and the Gila River appeared to
prefer cobble and gravel, avoiding areas dominated by sand or finer
gravel. This may be due to the fact that loach minnow maintain a
relatively stationary position on the bottom of a stream in flowing
water. An irregular bottom, such as that created by cobble or larger
gravels, creates pockets of lower water velocities around larger rocks
where loach minnow can remain stationary with less energy expenditure
(Turner and Tafanelli 1983, pp. 24-25). In the Gila and San Francisco
rivers, the majority of loach minnow captured occurred in the upstream
portion of a riffle rather than in the central and lower depositional
sections of the riffle. This is likely due to the availability of
interstitial spaces in the cobble-rubble substrate, which became filled
with sediment more quickly in the central and lower sections of a
riffle section as suspended sediment begins to settle to the stream
bottom (Propst et al. 1984, p. 12).
Loach minnow use different substrates during different life stages.
Eggs occurred primarily on large gravel
[[Page 13380]]
to rubble, while larvae were found where substrate particles were
smaller than substrates used by embryos. Juvenile fish occupy areas
with substrates of larger particle size than larvae. Adults exhibited a
narrower preference for substrates than did juveniles, and were most
commonly associated with gravel to cobble substrates (Propst et al.
1988, pp. 36-39; Propst and Bestgen 1991, pp. 32-33).
As noted above, streams in the southwestern United States have a
wide fluctuation in flows and are periodically dewatered. While
portions of stream segments included in this designation may experience
dry periods, they are still considered important because the loach
minnow is adapted to this changing environment and will use these areas
as connective corridors when they are wetted.
Flooding. In areas where substantial diversions or impoundments
have been constructed, loach minnow are less likely to occur (Propst et
al. 1988, pp. 63-64, Propst and Bestgen 1991, p. 37). This is in part
due to habitat changes caused by the construction of the diversions,
and in part due to the reduction of beneficial effects of flooding on
loach minnow habitat. Flooding appears to positively affect loach
minnow population dynamics by resulting in higher recruitment
(reproduction and survival of young) and by decreasing the abundance of
nonnative fishes (Stefferud and Rinne 1996, p. 1).
The construction of water diversions, by increasing water depth,
has reduced or eliminated riffle habitat in many stream reaches. In
addition, loach minnow are generally absent in stream reaches affected
by impoundments. While the specific factors responsible for this is not
known, it is likely related to modification of thermal regimes,
habitat, food base, or discharge patterns (Propst et al. 1988, p. 64;
Minckley 1973, pp. 1-11).
Flooding also cleans, rearranges, and rehabilitates important
riffle habitat (Propst et al. 1988, pp. 63-64). Flooding allows for the
scouring of sand and gravel in riffle areas, which reduces the degree
of embeddedness of cobble and boulder substrates (Britt 1982, p. 45).
Excessive sediment in the bedload, or that sediment that moves by
sliding or rolling along the bed of the stream (Leopold et al. 1992, p.
180) is typically deposited at the downstream undersurfaces of cobble
and boulder substrate components where flow velocities are lowest, and
can result in a higher degree of embeddedness (Rinne 2001, p. 69).
Following flooding, cavities created under cobbles by scouring action
of the flood waters provides enhanced spawning habitat for loach
minnow.
Studies on the Gila, Tularosa, and San Francisco rivers found that
flooding is primarily a positive influence on native fish, and
apparently had a positive influence on the relative abundance of loach
minnow (Britt 1982, p. 45). Rather than following a typical pattern of
winter mortality and population decline, high levels of loach minnow
recruitment occurred after the flood, and loach minnow relative
abundance remained high through the next spring. Flooding enhanced and
enlarged loach minnow habitat, resulting in a greater survivorship of
individuals through winter and spring (Propst et al. 1988, p. 51).
Similar results were observed on the Gila and San Francisco rivers
following flooding in 1978 (Britt 1982, p. 45).
Natural flooding may also reduce the negative impacts of nonnative
fish species on loach minnow. During significant floods, nonnative
species introduced into western streams were either displaced or
destroyed, while native species were able to maintain their position in
or adjacent to channel habitats, persist in micro refuges or recolonize
should they be displaced (Britt 1982, p. 46; Minckley and Meffe 1987,
p. 97).
Stream Gradient. In addition to the availability of riffle habitat,
gradient may influence the distribution and abundance of loach minnow.
In studies of the San Francisco River, Gila River, Aravaipa Creek, and
the Blue River, loach minnow occurred in stream reaches where the
gradient was generally low, ranging from 0.3 to 2.2 percent (Rinne
1989, p. 109; Rinne 2001, p. 69).
Habitat Protected From Disturbance or Representative of the Historic
Geographical and Ecological Distribution of a Species
Nonnative aquatic species. As noted under the discussion of
nonnative fish species in the spikedace primary constituent elements
section above, nonnative aquatic species have been introduced for a
variety of reasons, resulting in interference or exploitive
competition. Interference competition, such as predation, may result
from interactions between loach minnow and nonnative channel and
flathead catfish. Omnivorous channel catfish of all sizes move into
riffles to feed, preying on the same animals most important to the
loach minnow diet. Juvenile flathead catfish also feed in riffles in
darkness. Flathead catfish are piscivorous, even when small. Loach
minnow remains were found in the digestive tracts of channel catfish
(Propst et al. 1988, p. 64; Propst and Bestgen 1991, p. 36).
Exploitive competition, or competition for actual resources
(Schoener 1983, p. 257), may occur between loach minnow and red shiner,
as red shiner is the nonnative fish species most likely to occur in
stream habitats occupied by small loach minnow. Red shiners occur in
all places known to be formerly occupied by loach minnow, and are
absent or rare in places where loach minnow persists. Because of this,
red shiner has often been implicated in the decline of loach minnow, as
well as other native fishes. Loach minnow habitat is markedly different
from that of the red shiner, so interaction between the two species was
unlikely to cause shifts in habitat use by loach minnow (Marsh et al.
1989, p. 39). Studies indicate that, instead, red shiner move into
voids left when native fishes such as loach minnow are extirpated due
to habitat degradation in the area (Bestgen and Propst 1987, p. 209).
This may preclude occupancy of this area by loach minnow in the future,
should habitat conditions improve.
Prior to 1960, the Glenwood-Pleasanton reach of the Gila River
supported a native fish community of eight different species. Post-
1960, four of these species became uncommon, and ultimately three of
them were extirpated. In studies completed between 1961 and 1980, it
was determined that loach minnow was less common than it had been,
while diversity of the nonnative fish community had increased in
comparison to the pre-1960 period. Following 1980, red shiner, fathead
minnow, and channel catfish were all regularly collected. Drought and
diversions for irrigation resulted in a decline in habitat quality,
with canyon reaches retaining habitat components for native species.
However, establishment of nonnative fishes in the canyon reaches then
reduced the utility of these areas for native species (Propst et al.
1988, pp. 51-56).
The discussion on spikedace includes information on other nonnative
aquatic species such as Asian tapeworm, anchor worm, and Ich, which are
also detrimental to loach minnow.
Food
Food Items. Loach minnow are opportunistic, benthic insectivores
that obtain their food from riffle-dwelling larval mayflies, black
flies, and true flies, as well as from larvae of other aquatic insect
groups such as caddisflies and stoneflies. Loach minnow in the Gila,
Tularosa, and San Francisco rivers
[[Page 13381]]
consumed primarily true flies and mayflies, with mayfly nymphs being an
important food item throughout the year. Mayfly nymphs constituted the
most important food item throughout the year for adults studied on the
Gila and San Francisco Rivers, while true fly larvae were most common
in the winter months (Propst et al. 1988, p. 27; Propst and Bestgen
1991, p. 35). In Aravaipa Creek, loach minnow consumed 11 different
prey items, including mayflies, stoneflies, caddisflies, and true
flies. Mayflies constituted the largest percentage of their diet during
this study except in January, when true flies made up 54.3 percent of
the total food volume (Schreiber 1978, pp. 40-41).
Loach minnow consume different prey items during their various life
stages. Both larvae and juveniles primarily consumed true flies, which
constituted approximately 7 percent of their food items in one year,
and 49 percent the following year. Mayfly nymphs were also an important
dietary element at 14 percent and 31 percent during a one-year study.
Few other aquatic macroinvertebrates were consumed (Propst et al. 1988,
p. 27). In a second study, true fly larvae and mayfly naiads
constituted the primary food of larval and juvenile loach minnow
(Propst and Bestgen 1991, p. 35).
The availability of pool and run habitats affects availability of
prey species. While most of the food items of loach minnow are riffle
species, two are not, including true fly larvae and mayfly nymphs.
Mayfly nymphs, at times, made up 17 percent of the total food volume of
loach minnow in a study at Aravaipa Creek (Schreiber 1978, pp. 40-41).
The presence of a variety of habitat types is therefore important to
the persistence of loach minnow in a stream, even while they are
typically associated with riffles.
Water Quality
Pollutants. Water with no or only minimal pollutant levels is
important for the conservation of loach minnow. As with spikedace,
loach minnow occur in areas where mining, agriculture, livestock
operations, and road construction are prevalent activities. Various
pollutants are associated with these types of activities. For loach
minnow, waters should have low levels of pollutants, such as copper,
arsenic, mercury, and cadmium; human and animal waste products;
pesticides; suspended sediments; and gasoline or diesel fuels (Baker
2005). In addition, for freshwater fish, dissolved oxygen should
generally be greater than 3.5 cc/l (Bond 1979, p. 215). Below this,
some stress may occur.
Fish kills associated with previous mining accidents are detailed
under the spikedace PCEs above. These incidents occurred within the
historical range of the loach minnow.
Temperatures. Loach minnow have a fairly narrow range in
temperature tolerance, and their upstream distributional limits in some
areas may be linked to low winter stream temperature (Propst et al.
1988, p. 62). Suitable temperature regimes appear to be fairly
consistent across geographic areas. Studies of Aravaipa Creek, East
Fork White River, the San Francisco River, and the Gila River
determined that loach minnow were present in areas with water
temperatures in the range of 48.2 to 71.6 [deg]F (9 to 22 [deg]C)
(Britt 1982, p. 31; Leon 1989, p. 1; Propst et al. 1988, p. 62; Propst
and Bestgen 1991, p. 33; Vives and Minckley 1990, p. 451).
Recent studies by the University of Arizona focused on temperature
tolerances of loach minnow. In the study, fish were acclimated to a
given temperature, and then temperatures were increased by 1 [deg]C
(33.8 [deg]F) per day until test temperatures were reached. The study
determined that no loach minnow survived 30 days at 32 [deg]C (89.6
[deg]F), and that 50 percent mortality occurred after 30 days at 30.6
[deg]C (87.1 [deg]F). In addition, growth rate was slowed at 28 [deg]C
and 30 [deg]C (82.4 and 86.0 [deg]F) in comparison to growth at 25
[deg]C (77 [deg]F), indicating that loach minnow were stressed at sub-
lethal temperatures. Survival of fish in the fluctuating temperature
trials of the study likely indicates that exposure to higher
temperatures for short periods during a day would be less stressful to
loach minnow. The study concludes that temperature tolerance in the
wild may be lower due to the influence of additional stressors,
including disease, predation, competition, or poor water quality. The
study concludes that 100 percent survival of loach minnow at 28 [deg]C
(82.4 [deg]F) suggests that little juvenile or adult mortality would
occur due to thermal stress if peak water temperatures remain at or
below that level (Bonar et al. 2005, pp. 6-8, 28, 33).
Reproduction and Rearing of Offspring
Habitat conditions needed for reproduction and rearing of offspring
include appropriate flow velocities, substrates, sediment levels, and
riffle availability. Loach minnow place eggs in areas with mean
velocities ranging between 2.4 to 15.6 in/second (3.0 to 39.6 cm/
second) in the Gila, San Francisco, West Fork, Middle Fork, and East
Fork Gila rivers (Britt 1982, pp. 29-30; Propst et al. 1988, p. 25;
Propst and Bestgen 1991, p. 34). Fungal infections developed on egg
masses found in slow-velocity waters of less than 2.4 in/second (6.2
cm/second) (Propst et al. 1988, p. 25; Propst and Bestgen 1991, p. 34).
Once hatched, areas of slower flows appear important to larval loach
minnow as they have been found in slower-velocity stream margins
(Propst et al. 1988, pp. 37-38).
Substrate type is important to spawning as well. While loach minnow
spawning occurs in the same riffle habitat that adults occupy, it is
the substrate that determines its suitability for spawning. Eggs are
deposited on the undersurface of rocks or cobbles. Rocks are generally
flattened, have smooth surfaces, and are angular. Rocks which have eggs
attached are generally embedded on their upstream side in the
substrate. Eggs placed under rocks in the Gila River, San Francisco
River, and Aravaipa Creek were placed on the underside of rocks in nest
cavities formed by rocks of varying sizes (Britt 1982, pp. 29, 31;
Propst et al. 1988, p. 21; Vives and Minckley 1990, pp. 451-452).
Loach minnow spawning is the life history stage most affected by
sediment or fines (Rinne 2001, p. 69). Because deposition of eggs
occurs on the downstream undersurfaces of cobble and boulder substrate
components, excessive fines in the bedload of a system can fill in the
areas where eggs would otherwise be deposited, especially in areas of
slower velocities.
Primary Constituent Elements for the Loach Minnow
Pursuant to our regulations, we are required to identify the known
physical and biological features (primary constituent elements)
essential to the conservation of the loach minnow. All stream complexes
designated as critical habitat for the loach minnow are considered
occupied, within the species' historic geographic range, and contain
sufficient PCEs to support at least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the primary constituent elements essential to the conservation of
the loach minnow are:
1. Permanent, flowing water with no or minimal pollutant levels,
including:
a. Living areas for adult loach minnow with moderate to swift flow
velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in
shallow water between approximately 1.0 to 30 inches
[[Page 13382]]
(3 cm to 75 cm) in depth, with gravel, cobble, and rubble substrates;
b. Living areas for juvenile loach minnow with moderate to swift
flow velocities between 1.0 and 34 in/second (3.0 and 85.0 cm/second)
in shallow water between approximately 1.0 to 30 inches (3 cm to 75 cm)
in depth with sand, gravel, cobble, and rubble substrates;
c. Living areas for larval loach minnow with slow to moderate
velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in
shallow water with sand, gravel, and cobble substrates;
d. Spawning areas with slow to swift flow velocities in shallow
water where cobble and rubble and the spaces between them are not
filled in by fine dirt or sand; and
e. Water with dissolved oxygen levels greater than 3.5 cc/l and no
or minimal pollutant levels for pollutants such as copper, arsenic,
mercury, and cadmium; human and animal waste products; pesticides;
suspended sediments; and gasoline or diesel fuels.
2. Sand, gravel, and cobble substrates with low or moderate amounts
of fine sediment and substrate embeddedness. Suitable levels of
embeddedness are generally maintained by a natural, unregulated
hydrograph that allows for periodic flooding or, if flows are modified
or regulated, a hydrograph that allows for adequate river functions,
such as flows capable of transporting sediments.
3. Streams that have:
a. Low gradients of less than approximately 2.5 percent;
b. Water temperatures in the approximate range of 35 to 82 [deg]F
(1.7 to 27.8 [deg]C) (with additional natural daily and seasonal
variation);
c. Pool, riffle, run, and backwater components; and
d. An abundant aquatic insect food base consisting of mayflies,
true flies, black flies, caddisflies, stoneflies, and dragonflies.
4. Habitat devoid of nonnative aquatic species or habitat in which
nonnative aquatic species are at levels that allow persistence of loach
minnow.
5. Areas within perennial, interrupted stream courses that are
periodically dewatered but that serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted.
Units are designated based on sufficient PCEs being present to
support one or more of the species' life history functions. Some units
contain all PCEs and support multiple life processes, while some units
contain only a portion of the PCEs necessary to support the species'
particular use of that habitat. Where a subset of the PCEs is present
at the time of designation, this rule protects those PCEs and thus the
conservation function of the habitat.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas that contain the features essential
to the conservation of the spikedace and loach minnow. In designating
critical habitat for the spikedace and loach minnow, we solicited
information from knowledgeable biologists and reviewed recommendations
contained in State wildlife resource reports. We also reviewed the
available literature pertaining to habitat requirements, historical
localities, and current localities of the two species. We used data in
reports submitted during section 7 consultations, research published in
peer-reviewed articles and presented in academic theses and agency
reports, and regional GIS data layer coverages.
We have also reviewed historical and current occurrence data,
information pertaining to habitat requirements for these species,
scientific information on the biology and ecology of the two species,
general conservation biology principles, and scientific information
cited in the Recovery Plans for these two species. Of particular
importance, we reviewed databases, published literature, and field
notes to determine the historical and current occurrence data for the
two species. The SONFishes Database (ASU 2002) details occurrence
records from the 1800s through 1999. The Heritage Database Management
System (HDMS) (AGFD 2004) contains information for Arizona with some
overlap of SONFishes records, as well as records from 1999 through
2004. Agency and researcher field notes and published literature
contain additional information on completed surveys and species
detections.
Criteria for Defining Critical Habitat
We are designating critical habitat on lands within the
geographical range occupied at the time of listing and currently
occupied by either, or in some cases both, the spikedace and loach
minnow. We consider an area to be occupied by the spikedace or loach
minnow if we have records to support occupancy within the last 10
years, or where the stream segment is directly connected to a segment
with occupancy records from within the last 10 years (this is described
within each unit description below). The three connected areas (see
Table 1 above) included in the designation are within the historical
range of the species, contain one or more of the PCEs required by
spikedace or loach minnow, have been occupied in the past, and are
directly connected to a stream segment with records of occupancy from
2004 or 2005 (see Table 1 above). For the following reasons we believe
that these areas are occupied for the purposes of this critical habitat
designation: (1) The areas are directly connected to stream segments
with recent occupancy records (2004 and 2005); (2) the stream segments
are connected and the fish can move between them; (3) surveys have been
infrequent or inconsistent and spikedace and loach minnow can be
difficult to detect in surveys; and (4) we have other streams in which
the species were not detected for long periods before being detected
again [e.g., Eagle Creek, where there was a 44 year gap between loach
minnow detections (see Marsh et al. 2003, p. 666)]. We believe a period
of 10 years is reasonable to determine occupancy based on the fact that
both species are difficult to detect in surveys, surveys have been
infrequent or inconsistent because many of the areas where they occur
are remote, and as noted above, we have areas where these species were
not detected for long periods of time (44 years) and then detected
again. The life expectancy of spikedace and loach minnow is 2 to 3
years. A period of 10 years would represent a time period that provides
for three to four generations of spikedace and loach minnow.
We divided the overall historical range into five river complexes,
and each critical habitat stream segment was derived from within these
larger complexes. We believe this is a reasonable approach because
populations in mainstem tributaries may access a wider geographic area
by moving into smaller tributaries, while populations in tributaries
are afforded the ability to disperse to other tributaries via the
mainstem river within that complex. Overall, the complexes included
herein provide coverage throughout the historical range of the species,
with exceptions for areas that were excluded for specific reasons, as
detailed below (see ``Exclusions under Section 4(b)(2) of the Act''
section below). The critical habitat designation constitutes our best
assessment of areas that contain sufficient features (PCEs) essential
to the conservation of spikedace and loach minnow and that require
special management or protection.
We are designating critical habitat in areas that we have
determined to be occupied at the time of listing, and that
[[Page 13383]]
contain sufficient primary constituent elements to support life history
functions essential for the conservation of the species. Lands were
included in the designation based on sufficient PCEs being present to
support the life processes of the species. Some lands contain all PCEs
and support multiple life processes. Some lands contain only a portion
of the PCEs necessary to support the particular use of that habitat. In
determining whether an area contains sufficient PCEs, the Service
looked at various databases and survey records to determine occupancy,
as well as habitat descriptions at various locations. We relied on
information provided in survey reports and research documents to
describe conditions at various locations. This information was then
synthesized to develop the critical habitat designation.
When determining final critical habitat map boundaries, we made
every effort to avoid including developed areas such as buildings,
paved areas, and other structures that lack any PCEs for the spikedace
and loach minnow. Any such structures and the land under them
inadvertently left inside critical habitat boundaries of this final
rule are excluded by text and are not designated as critical habitat.
Therefore, Federal actions limited to these areas would not trigger
section 7 consultation, unless they affect the species or primary
constituent elements in adjacent critical habitat.
Lateral Extent
The areas designated as critical habitat are designed to provide
sufficient riverine and associated floodplain area for breeding, non-
breeding, and dispersing adult spikedace and loach minnow, as well as
for the habitat needs of juvenile and larval stages of these fishes. In
general, the primary constituent elements of critical habitat for
spikedace and loach minnow include the riverine ecosystem formed by the
wetted channel and the adjacent floodplains within 300 lateral feet on
either side of bankfull stage, except where bounded by canyon walls.
Areas within the lateral extent also contribute to PCEs 1 and 2 (water
quality) and contain PCEs 3 (food source) and 5 (provide areas where
the fish may move through when wetted). Spikedace and loach minnow use
the riverine ecosystem for feeding, sheltering, and cover while
breeding and migrating. This designation takes into account the
naturally dynamic nature of riverine systems and floodplains (including
riparian and adjacent upland areas) that are an integral part of the
stream ecosystem. For example, riparian areas are seasonally flooded
habitats (i.e., wetlands) that are major contributors to a variety of
vital functions within the associated stream channel (Federal
Interagency Stream Restoration Working Group 1998, Brinson et al. 1981,
pp. 2-61, 2-69, 2-72, 2-75, 2-84 to 2-85). They are responsible for
energy and nutrient cycling, filtering runoff, absorbing and gradually
releasing floodwaters, recharging groundwater, maintaining streamflows,
protecting stream banks from erosion, and providing shade and cover for
fish and other aquatic species. Healthy riparian and adjacent upland
areas help ensure water courses maintain the habitat important for
aquatic species (e.g., see U.S. Forest Service 1979, pp. 18, 109, 158,
264, 285, 345; Middle Rio Grande Biological Interagency Team 1993, pp.
64, 89, 94), including the spikedace and loach minnow. Habitat quality
within the mainstem river channels in the historical range of the
spikedace and loach minnow is intrinsically related to the character of
the floodplain and the associated tributaries, side channels, and
backwater habitats that contribute to the key habitat features (e.g.,
substrate, water quality, and water quantity) in these reaches. We have
determined that a relatively intact riparian area, along with periodic
flooding in a relatively natural pattern, is important for maintaining
the PCEs necessary for long-term conservation of the spikedace and
loach minnow.
The lateral extent (width) of riparian corridors fluctuates
considerably between a stream's headwaters and its mouth. The
appropriate width for riparian buffer strips has been the subject of
several studies (Castelle et al. 1994). Most Federal and State agencies
generally consider a zone 23-46 m (75-150 ft) wide on each side of a
stream to be adequate (NRCS 1998; Moring et al. 1993; Lynch et al.
1985), although buffer widths as wide as 152 m (500 ft) have been
recommended for achieving flood attenuation benefits (Corps 1999). In
most instances, however, riparian buffer zones are primarily intended
to reduce (i.e., buffer) detrimental impacts to the stream from sources
outside the river channel. Consequently, while a riparian corridor 23-
46 m (75-150 ft) in width may function adequately as a buffer, it is
likely inadequate to preserve the natural processes that provide
spikedace and loach minnow primary constituent elements.
The lateral extent of streams was set at 300 ft (91.4 m) to either
side of bankfull stage to accommodate stream meandering and high flows,
and in order to ensure that this designation contained the features
essential to the conservation of the species. Bankfull stage is defined
as the upper level of the range of channel-forming flows which
transport the bulk of the available sediment over time. Bankfull stage
is generally considered to be that level of stream discharge reached
just before flows spill out onto the adjacent floodplain. The discharge
that occurs at bankfull stage, in combination with the range of flows
that occur over a length of time, govern the shape and size of the
river channel (Rosgen 1996, pp. 2-2 to 2-4; Leopold 1997, pp. 62-63,
66). The use of bankfull stage and 300 ft (91.4 m) on either side
recognizes the naturally dynamic nature of riverine systems, recognizes
that floodplains are an integral part of the stream ecosystem, and
contains the area and associated features essential to the conservation
of the species. A relatively intact floodplain, along with the periodic
flooding in a relatively natural pattern, is an important element in
the conservation of spikedace and loach minnow.
We determined the 300-foot lateral extent for several reasons.
First, the implementing regulations of the Act require that critical
habitat be defined by reference points and lines as found on standard
topographic maps of the area (50 CFR 424.12). Although we considered
using the 100-year floodplain, as defined by the Federal Emergency
Management Agency (FEMA), we found that it was not included on standard
topographic maps, and the information was not readily available from
FEMA or from the Army Corps of Engineers for the areas we are proposing
to designate. We suspect this is related to the remoteness of many of
the stream reaches where these species occur. Therefore, we selected
the 300-foot lateral extent, rather than some other delineation, for
three biological reasons: (1) The biological integrity and natural
dynamics of the river system are maintained within this area (i.e., the
floodplain and its riparian vegetation provide space for natural
flooding patterns and latitude for necessary natural channel
adjustments to maintain appropriate channel morphology and geometry,
store water for slow release to maintain base flows, provide protected
side channels and other protected areas, and allow the river to meander
within its main channel in response to large flow events); (2)
conservation of the adjacent riparian area also helps provide important
nutrient recharge and protection from sediment and pollutants; and (3)
vegetated lateral zones are widely recognized as
[[Page 13384]]
providing a variety of aquatic habitat functions and values (e.g.,
aquatic habitat for fish and other aquatic organisms, moderation of
water temperature changes, and detritus for aquatic food webs) and help
improve or maintain local water quality (see U.S. Army Corps of
Engineers' final notice concerning Issuance and Modification of
Nationwide Permits, March 9, 2000, 65 FR 12818-12899).
Among other things, the floodplain provides space for natural
flooding patterns and latitude for necessary natural channel
adjustments to maintain channel morphology and geometry. We conclude
that a relatively intact riparian area, along with periodic flooding in
a relatively natural pattern, is important in maintaining the stream
conditions necessary for long-term survival and recovery of the
spikedace and loach minnow.
Conservation of the river channel alone is not sufficient to ensure
the survival and recovery of the spikedace and loach minnow. For the
reasons discussed above, we believe the riparian corridors adjacent to
the river channel provide an important function within the areas
designated as critical habitat.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing, contain the primary
constituent elements and may require special management considerations
or protection. We believe each area included in this final designation
requires special management and protections as described in our unit
descriptions and Table 1.
Special management considerations for each area will depend on the
threats to the spikedace and/or loach minnow in that critical habitat
area. For example, threats requiring special management include
nonnative fish species and the continued spread of nonnative fishes
into spikedace or loach minnow habitat. Other threats requiring special
management include threat of fire, retardant application during the
fire, and excessive ash and sediment following the fire. On-going
improper livestock grazing can be a threat to spikedace and loach
minnow and their habitats. Poor water quality and adequate quantities
of water for all life stages of spikedace and loach minnow threaten
these fish and may require special management actions or protections.
The construction of water diversions, by increasing water depth, has
reduced or eliminated riffle habitat in many stream reaches. In
addition, loach minnow are generally absent in stream reaches affected
by impoundments. While the specific factor responsible for this is not
known, it is likely related to modification of thermal regimes,
habitat, food base, or discharge patterns. We have included below in
our description of each of the critical habitat areas for the spikedace
and loach minnow a description of the threats occurring in that area
requiring special management or protections.
When determining critical habitat boundaries, we made every effort
to avoid the designation of developed areas such as buildings, paved
areas, boat ramps and other structures that lack PCEs for spikedace and
loach minnow. Any such structures do not contain the PCEs and are not
considered part of the critical habitat designation. This also applies
to the land on which such structures sit directly. Therefore, Federal
actions limited to these areas would not trigger section 7
consultations, unless they affect the species and/or PCEs in adjacent
critical habitat.
Critical Habitat Designation
Below are tables and descriptions of the critical habitat segments,
including discussion of excluded and exempted areas within each
segment. For each stream reach, the upstream and downstream boundaries
are described. Additionally, critical habitat includes the stream
channels within the identified stream reaches and areas within these
reaches and, as described above, the area of bankfull width plus 300
lateral feet on either side of bankfull width, except when the
floodplain is narrow and bounded by canyon walls. This 300-foot width
defines the lateral extent of each area of critical habitat that
contains sufficient PCEs (3 and 5) to provide for one or more of the
life history functions of the spikedace and loach minnow.
The critical habitat designation for both spikedace and loach
minnow includes five complexes totaling approximately 522.2 mi (840.4
km) of stream reaches (see Tables 1 and 2). The spikedace and loach
minnow critical habitat areas described below constitute our best
assessment at this time of areas determined to be occupied at the time
of listing, that contain the primary constituent elements and may
require special management, and those additional areas that were not
occupied at the time of listing but are currently occupied and contain
the features essential to the conservation of the species. Unless
otherwise indicated, the following areas identified in Table 1 and in
the unit descriptions below, are designated as critical habitat for
both spikedace and loach minnow (see the ``Regulation Promulgation''
section of this rule below for exact descriptions and distances of
boundaries). The designation includes portions of 8 streams for
spikedace and 21 streams for loach minnow; however, individual streams
are not isolated, but are grouped with others to form areas or
``complexes.''
Table 2 below provides approximate area (mi/km) determined to meet
the definition of critical habitat for the spikedace and loach minnow
by State.
Table 2.--Approximate Critical Habitat in Stream Miles (mi) and Kilometers (km) by State and Landowner
----------------------------------------------------------------------------------------------------------------
New Mexico mi
Landowner Arizona mi (km) (km) Total mi (km)
----------------------------------------------------------------------------------------------------------------
Federal................................................... 170.4 (274.2) 167.7 (269.9) 338.1 (544.1)
State..................................................... 8.0 (12.9) 1.3 (2.1) 9.3 (15)
Tribal.................................................... 2.1 (3.4) 0 (0) 2.1 (3.4)
Private................................................... 90.2 (145.1) 82.5 (132.8) 172.7 (277.9)
-----------------------------------------------------
Total................................................. 270.7 (435.6) 251.5 (404.8) 522.2 (840.4)
----------------------------------------------------------------------------------------------------------------
[[Page 13385]]
Table 3.--Areas Determined To Meet the Definition of Critical Habitat
for the Spikedace and Loach Minnow and the Areas Excluded From the Final
Critical Habitat Designation
[ac (ha)/mi (km)]
------------------------------------------------------------------------
Area excluded
Area meeting the from the final
State or geographic area definition of critical habitat
critical habitat designation (mi/
(mi/km) km)
------------------------------------------------------------------------
Arizona............................. 373.7 (601.5) 103.1 (165.9)
New Mexico.......................... 258.8 (416.4) 7.3 (11.7)
-----------------------------------
Total........................... 632.5 (1017.9) 110.3 (177.5)
------------------------------------------------------------------------
The approximate area encompassed within each critical habitat unit
is shown in Table 4.
Table 4.--Critical Habitat Units Designated for the Spikedace and Loach
Minnow
[Area estimates reflect all land within critical habitat complexes]
------------------------------------------------------------------------
Critical habitat unit Mi Km
------------------------------------------------------------------------
1. Verde River.......................................... 43.0 69.2
2. Black River.......................................... 18.1 29.1
3. Lower San Pedro/Gila River/Aravaipa Creek............ 85.5 137.5
4. Gila Box/San Francisco River......................... 235.0 378.2
5. Upper Gila River..................................... 140.6 226.3
---------------
Total................................................. 522.2 840.4
------------------------------------------------------------------------
Complex 1--Verde River Complex--Yavapai County, Arizona
Spikedace have been detected in the Verde River Complex since 1890.
The Verde River was known to be occupied by spikedace at the time of
listing, and is still considered to be occupied based on surveys
documenting spikedace presence as recently as 1999. This complex was
also historically occupied by loach minnow, with records from 1890 and
1938 (ASU 2002, Brouder 2002, AGFD 2004). At this time, the tributary
streams of the Verde River are believed to be unoccupied by both
species and are not being included as critical habitat. The Verde River
Complex is unusual in that a relatively stable thermal and hydrologic
regime is found in the upper river and in Fossil Creek, one of the
tributaries to the Verde River. Also, spikedace in the Verde River are
genetically distinct from all other spikedace populations (Tibbets
1993, pp. iii-iv, 34-35; Anderson and Hendrickson 1994, p. 154). The
Verde River contains one or more of the primary constituent elements,
including shear zones, sheet flow, and eddies, and an appropriate prey
base. In addition, the lateral extent of each segment within this
complex of critical habitat contains sufficient PCEs (3 and 5) to
provide for one or more of the life history functions of the spikedace
and loach minnow. The continuing presence of spikedace and the
existence of features that are essential to the conservation of the
species create a high potential for restoration of loach minnow to the
Verde River system. Threats to this critical habitat area requiring
special management and protections include water diversions, improper
livestock grazing, and nonnative fish species (see Table 1 above).
The landownership of this complex consists of large blocks of U.S.
Forest Service lands in the upper and lower reaches, with significant
areas of private ownership in the Verde Valley. There are also lands
belonging to Arizona State Parks, Yavapai Apache Tribe, and the AGFD.
The Verde River divides the west and east halves of the Prescott
National Forest, and passes by or through the towns of Camp Verde,
Middle Verde, Bridgeport, Cottonwood, and Clarkdale.
Verde River Complex--Spikedace Only--43 mi (69.2 km) of river
extending from the Prescott and Coconino National Forest boundary with
private lands upstream to Sullivan Dam at Township 17 North, Range 2
West, section 15. Sullivan Dam is at the upstream limit of perennial
flow in the mainstem of the Verde River. Perennial flow results from a
series of river-channel springs and from Granite Creek. The Verde River
contains features essential to the conservation of the spikedace
between its headwaters and Fossil Creek. These portions of the Verde
River provide a relatively stable thermal and hydrologic regime
suitable for spikedace. Below Fossil Creek, the Verde River has a
larger flow and is thought to offer little suitable habitat (i.e., does
not contain sufficient PCEs) for spikedace or loach minnow. The Verde
River below Fossil Creek is within the historical range for both
species, and comments on previous critical habitat designations from
the U.S. Forest Service indicated this stretch of the river may offer
substantial value for spikedace and loach minnow recovery. We will
continue to seek further information regarding the Verde River and its
role in conservation for these two species and may consider designation
of the Verde River below Fossil Creek in future potential revisions of
critical habitat. At this time, however, we are excluding all land
south of the Coconino and Prescott National Forest boundaries at the
upper end of the Verde Valley due to disproportionate economic concerns
(see Exclusions under Section 4(b)(2) below).
Complex 2--Black River Complex--Apache and Greenlee Counties, Arizona
The Salt River Sub-basin represents a significant portion of loach
minnow historical range; however, loach minnow have been extirpated
from all but a small portion of the Black and White rivers. The Black
River Complex is considered important because it is the only remaining
population of loach minnow on public lands in the Salt River Sub-basin.
We are designating streams within this complex as critical habitat
for loach minnow only. At this time, spikedace are not known to
historically occupy areas at this elevation; however, the data on
maximum elevation for spikedace are not definitive and if information
becomes available that differs from that currently available, the Black
River Complex may be reevaluated for spikedace critical habitat
designation in a future revision. Portions of the sub-basin are
unsuitable, either because of topography or because of the presence of
reservoirs, stream channel alteration by humans, or overwhelming
nonnative fish populations. However, other areas within the sub-basin
remain suitable. Complex 2 was not known to be occupied at listing,
with first detections of loach minnow occurring in 1996. It is
currently occupied by loach minnow
[[Page 13386]]
(Bagley et al. 1995, multiple surveys; Lopez 2000, p. 1; ASU 2002; AGFD
2004). Because the range of loach minnow has been severely reduced, and
only a few streams remain occupied, the Black River Complex is
considered essential to the loach minnow. In addition, Complex 2
supports one or more of the PCEs for loach minnow, including sufficient
flow velocities and appropriate gradients, substrates, depths, and
habitat types (i.e., riffles, runs). In addition, the lateral extent of
each segment within this complex of critical habitat contains
sufficient PCEs (3 and 5) to provide for one or more of the life
history functions of the spikedace and loach minnow. Threats in this
complex requiring special management or protections include improper
livestock grazing, nonnative fish, recreation, and sedimentation
including that from a recent fire that destroyed vegetation (see Table
1). The ownership of this complex is predominantly U.S. Forest Service,
with a few small areas of private land. All streams within the complex
are within the boundaries of the Apache-Sitgreaves National Forest and
include lands of the White Mountain Apache Tribe.
(1) East Fork Black River--Loach Minnow Only--12.2 mi (19.7 km) of
river extending from the confluence with the West Fork Black River
upstream to the confluence with an unnamed tributary approximately 0.51
mi (0.82 km) downstream of the Boneyard Creek confluence. This area is
considered occupied based on records from 1996, it is connected to the
North Fork East Fork Black River with documented loach minnow records
from 2004, and contains one or more of the primary constituent elements
including sufficient flow velocities and appropriate gradients,
substrates, depths, and habitat types (i.e., riffles, runs).
(2) North Fork East Fork Black River--Loach Minnow Only--4.4 mi
(7.1 km) of river extending from the confluence with the East Fork
Black River upstream to the confluence with an unnamed tributary. This
area is occupied by loach minnow based on surveys documenting presence
of loach minnow as recently as 2004. Above the unnamed tributary, the
river has finer substrate and lacks riffle habitat, making it
unsuitable for loach minnow.
(3) Boneyard Creek--Loach Minnow Only--1.4 mi (2.3 km) of creek
extending from the confluence with the East Fork Black River upstream
to the confluence with an unnamed tributary. Boneyard Creek contains
one or more of the primary constituent elements, including sufficient
flow velocities and appropriate gradients, substrates, depths, and
habitat types (i.e., riffles, runs). This area is considered to be
occupied based on records from 1996; it is also connected to the North
Fork East Fork Black River which has documented loach minnow records
from 2004. This area represents part of the only occupied complex in
the Salt River basin.
(4) East Fork White River--Loach Minnow Only--12.5 mi (20.1 km) of
the East Fork White River extending from the confluence with the North
Fork White River and the East Fork White River at Township 5 North,
Range 22 East, section 35 upstream to Township 5 North, Range 23 East,
southeast quarter of section 13. This area was occupied by loach minnow
at the time of listing and is reported to be currently occupied by the
White Mountain Apache Tribe. This segment of the East Fork White River
contains sufficient features to support one or more of the life history
functions of the loach minnow that may include appropriate gradient,
temperature, habitat types (pool, riffle, run, etc.), and low levels of
non-natives. Threats in this segment requiring special management or
protections include water diversions and recreation. The entirety of
this reach is located on lands belonging to the White Mountain Apache
Tribe. A management plan for loach minnow has been in place on these
lands since 2000. On the basis of this plan and our partnership with
the White Mountain Apache Tribe, we are excluding this area from final
critical habitat pursuant to section 4(b)(2) of the Act (see
``Relationship of Critical Habitat to Tribal Lands'' section below for
additional information).
Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek Complex--Pinal
and Graham Counties, Arizona
The portions of this complex designated as critical habitat are
within the geographical range occupied by both spikedace and loach
minnow at their listing and currently. Spikedace and loach minnow have
been present within this complex since 1943, with occupancy confirmed
most recently in 2006 (ASU 2002, AGFD 2004, Rienthal 2006, p. 2-3). The
portions of the Gila and San Pedro rivers included within this complex
were not known to be occupied at listing, with the first detection on
the Gila River occurring in 1991 (Jakle 1992, p. 6). However, this area
is connected via the San Pedro River to Aravaipa Creek, which contains
one of the largest remaining populations of spikedace, and is therefore
considered to be occupied for the purposes of critical habitat. Because
the distribution of spikedace is reduced to populations in the Verde
River, Aravaipa Creek, and the Gila River in New Mexico, all remaining
populations are considered important to the species. This complex
contains one or more of the PCEs for both species including sufficient
flow velocities and appropriate gradients, substrates, depths, and
habitat types (i.e., riffles, runs). In addition, the lateral extent of
each segment within this complex of critical habitat contains
sufficient PCEs (3 and 5) to provide for one or more of the life
history functions of the spikedace and loach minnow. Ongoing actions
requiring special management or protections in this area include
wildfire, some recreational pressure, low nonnative pressures, water
diversions, and contaminants issues. Aravaipa Creek supports the
largest remaining spikedace and loach minnow populations in Arizona.
Threats in this complex requiring special management or protections
include water diversions, improper livestock grazing, nonnative fish,
recreation, and mining (see Table 1). This area includes extensive BLM
land as well as extensive private land, some State of Arizona lands,
and a small area of allotted land, used by the San Carlos Apache Tribe.
The lower portions of the Gila River are Bureau of Reclamation lands.
(1) Gila River--Spikedace Only--39.0 mi (62.8 km) of river
extending from the Ashurst-Hayden Dam upstream to the confluence with
the San Pedro River. Spikedace were located in the Gila River in 1991
(Jakle 1992, p. 6), and the Gila River is connected with Aravaipa
Creek, which supports the largest remaining spikedace population. Those
portions of the Gila River designated as critical habitat contain one
or more of the primary constituent elements, including sufficient flow
velocities and appropriate gradients, substrates, depths, and habitat
types (i.e., glides, runs, eddies). Above the confluence with the San
Pedro River, flow in the Gila River is highly regulated by the Coolidge
Dam and does not contain the features essential to the conservation of
either species. Below the confluence, the input of the San Pedro
provides a sufficiently unregulated hydrograph, which is a feature
essential to the conservation of the spikedace. Threats in this area
requiring special management or protections include water diversions,
improper livestock grazing, and nonnative fish species. This river is
part of the complex that contains the largest remaining population of
spikedace and loach
[[Page 13387]]
minnow and contains the features essential to the conservation of the
species.
(2) Lower San Pedro River--Spikedace Only--13.4 mi (21.5 km) of
river extending from the confluence with the Gila River upstream to the
confluence with Aravaipa Creek. This area was occupied at the time of
listing and is considered to be occupied as it is directly connected
with Aravaipa Creek, which supports the largest remaining spikedace
population. This portion of the San Pedro River contains one or more of
the primary constituent elements, including sufficient flow velocities
and appropriate gradients, substrates, depths, and habitat types (i.e.,
glides, runs, eddies). Existing flow in the river comes from surface
and subsurface contributions from Aravaipa Creek. Threats in this area
requiring special management or protections include water diversions,
nonnative fish, improper livestock grazing, and mining. This river is
part of the complex that contains the largest remaining population of
spikedace and loach minnow and contains the features essential to the
conservation of the species.
(3) Aravaipa Creek--28.1 mi (45.3 km) of creek extending from the
confluence with the San Pedro River upstream to the confluence with
Stowe Gulch, which is where the upstream limit of sufficient perennial
flow ends for either species. Aravaipa Creek was occupied by both
spikedace and loach minnow at the time of listing and continues to
support a substantial population of both species (Rienthal 2006, p. 1-
2). Aravaipa Creek contains one or more of the primary constituent
elements, including sufficient flow velocities and appropriate
gradients, substrates, depths, and habitat types (i.e., runs, riffles,
glides, eddies). Threats in this area requiring special management or
protections include water diversions, nonnative fish, and recreational
pressures (see Table 1).
(4) Turkey Creek--Loach Minnow Only--2.7 mi (4.3 km) of creek
extending from the confluence with Aravaipa Creek upstream to the
confluence with Oak Grove Canyon. This creek was occupied at the time
of listing and is currently occupied by loach minnow (Rienthal 2006, p.
2-3). Turkey Creek contains one or more of the primary constituent
elements, including sufficient flow velocities and appropriate
gradients, substrates, depths, and habitat types (i.e., riffles, runs).
Threats to this area requiring special management or protections are
generally the same as for Aravaipa Creek, and include water diversions,
nonnative fish, and recreational pressure (see Table 1). This creek is
part of the complex that contains the largest remaining population of
spikedace and loach minnow and contains the features essential to the
conservation of the species.
(5) Deer Creek--Loach Minnow Only--2.3 mi (3.6 km) of creek
extending from the confluence with Aravaipa Creek upstream to the
boundary of the Aravaipa Wilderness. This stream was occupied at the
time of listing and is currently occupied by loach minnow. Deer Creek
contains one or more of the primary constituent elements essential to
the conservation of loach minnow, including sufficient flow velocities
and appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs). The threats to loach minnow in this area are similar to
those for Aravaipa Creek, including water diversions, nonnative fish,
and recreation. This creek is part of the complex that contains the
largest remaining population of spikedace and loach minnow and contains
the features essential to the conservation of the species.
Complex 4--San Francisco and Blue Rivers Complex--Graham and Greenlee
Counties, Arizona and Catron County, New Mexico
The streams in this complex are within the geographical range
occupied by the loach minnow and the spikedace. The Blue River system
and adjacent portions of the San Francisco River constitute the longest
stretch of occupied loach minnow habitat unbroken by large areas of
unsuitable habitat. Loach minnow have been present in this complex
since 1840 up to the present, including at its listing (Miller 1998,
pp. 4-5; ASU 2002; AGFD 2004; Carter 2005, pp. 1-9; Propst 2005, p. 6;
Propst 2006, p. 2). Within this complex, Eagle Creek was known to be
occupied by spikedace at its listing (ASU 2002; Marsh et al. 2003, pp.
666-668; AGFD 2004), while Frieborn, Negrito, and Pace creeks were not
known to be occupied at the time of listing. For the areas not known to
be occupied at the time of listing, each of these areas is currently
occupied by loach minnow, supports one or more of the PCEs, and is
connected to a stream that is also currently occupied. Because the
distribution of loach minnow has been severely reduced, these creeks
are considered essential to the species. Streams in this complex
contain one or more of the PCEs for both species including sufficient
flow velocities and appropriate gradients, substrates, depths, and
habitat types (i.e., riffles, runs). In addition, the lateral extent of
each segment within this complex of critical habitat contains
sufficient PCEs (3 and 5) to provide for one or more of the life
history functions of the spikedace and loach minnow. Threats in this
complex requiring special management are described in the individual
stream reaches below. This complex contains extensive U.S. Forest
Service land, some BLM land, and scattered private, State of Arizona,
and NMDGF lands.
(1) Eagle Creek--Loach Minnow Only--44.8 mi (71.9 km) of creek
extending from the Phelps-Dodge Diversion Dam upstream to the
confluence of Dry Prong and East Eagle creeks, including lands of the
San Carlos Apache Reservation and the Phelps Dodge Corporation. Eagle
Creek was occupied by spikedace and loach minnow at the time of
listing. The most current records of occupancy in Eagle Creek are from
1997 for loach minnow and 1989 for spikedace. Eagle Creek contains one
or more of the primary constituent elements essential to the
conservation of loach minnow, including sufficient flow velocities and
appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs). Threats within this area that require special
management or protections include water diversions, improper livestock
grazing, nonnative fish, and mining (see Table 1).
A section of Eagle Creek approximately 17.2 mi (27.7 km) long
occurs on the San Carlos Apache Reservation. We have received a
management plan from the San Carlos Apache Tribe addressing native
fishes. On the basis of this plan and our partnership with the San
Carlos Apache Tribe, we are excluding this area from final critical
habitat pursuant to section 4(b)(2) of the Act (see ``Relationship of
Critical Habitat to Tribal Lands'' section below for additional
information). An additional 9.9 mi (15.7 km) are owned by the Phelps
Dodge Corporation. We received a management plan from Phelps Dodge
addressing management for spikedace and loach minnow. On the basis of
this plan, we are excluding their lands from the final critical habitat
designation pursuant to section 4(b)(2) of the Act (see ``Exclusions
under Section 4(b)(2) of the Act'' for additional information).
(2) San Francisco River--Loach Minnow Only--126.5 mi (203.5 km) of
river extending from the confluence with the Gila River upstream to the
mouth of The Box, a canyon above the town of Reserve. Loach minnow
occupied the San Francisco River at the time of listing and occupy it
presently,
[[Page 13388]]
with occupancy verified in 2005. The San Francisco River contains one
or more of the primary constituent elements essential to the
conservation of loach minnow, including sufficient flow velocities and
appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs). Threats to this area requiring special management or
protections include water diversions, improper livestock grazing, and
nonnative fish species (see Table 1).
(3) Tularosa River--Loach Minnow Only--18.6 mi (30.0 km) of river
extending from the confluence with the San Francisco River upstream to
the town of Cruzville. Above Cruzville, the river does not contain the
features essential to the conservation of the species because of the
small size of the stream and a predominance of fine substrates. This
area includes one or more of the primary constituent elements essential
to the conservation of loach minnow, including sufficient flow
velocities and appropriate gradients, substrates, depths, and habitat
types (i.e., riffles, runs). The Tularosa River was occupied at the
time of listing and is known to be currently occupied based on records
as recent as 2002. Threats to the species and its habitat in this area
that require special management or protections include grazing and
nonnative fish (see Table 1).
(4) Negrito Creek--Loach Minnow Only--4.2 mi (6.8 km) of creek
extending from the confluence with the Tularosa River upstream to the
confluence with Cerco Canyon. Above this area, the creek does not
contain the features essential to the conservation of the species
because of gradient and channel morphology. Negrito Creek has been
occupied since listing, with the most recent record from 1998 (Service
2005). In addition, this area is directly connected to the Tularosa
River, which has occupancy records as recent as 2002. Negrito Creek
contains one or more of the primary constituent elements essential to
the conservation of loach minnow, including sufficient flow velocities
and appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs). Threats to this area requiring special management or
protections include improper livestock grazing and nonnative fish (see
Table 1).
(5) Whitewater Creek--Loach Minnow Only--1.1 mi (1.8 km) of creek
extending from the confluence with the San Francisco River upstream to
the confluence with the Little Whitewater Creek. Upstream of this area
the river does not contain the features essential to the conservation
of the species because of gradient and channel changes that make the
portion above Little Whitewater Creek unsuitable for loach minnow. In
addition, low water temperatures likely influence the upstream
distributional limits (Propst 2006, p. 2). Whitewater Creek was
occupied at the time of listing, and is connected with the San
Francisco River, which has documented loach minnow records as recent as
2001. This area does support one or more primary constituent elements
for loach minnow, including sufficient flow velocities and appropriate
gradients, substrates, depths, and habitat types (i.e., riffles, runs).
Threats to this area include grazing and nonnative fish (see Table 1).
(6) Blue River--Loach Minnow Only--51.1 mi (82.2 km) of river
extending from the confluence with the San Francisco River upstream to
the confluence of Campbell Blue and Dry Blue creeks. The Blue River was
occupied at the time of listing and continues to be occupied by loach
minnow (Carter 2005, pp. 1-9). The Blue River contains one or more of
the primary constituent elements essential to the conservation of loach
minnow, including sufficient flow velocities and appropriate gradients,
substrates, depths, and habitat types (i.e., riffles, runs). Planning
is underway among several State and Federal agencies for reintroduction
of native fishes, including spikedace, in the Blue River, and thus the
Blue River may be considered for spikedace critical habitat in future
revisions of the designation. Threats in this area include water
diversions, improper livestock grazing, nonnative fish, and roads (see
Table 1).
(7) Campbell Blue Creek--Loach Minnow Only--8.1 mi (13.1 km) of
creek extending from the confluence of Dry Blue and Campbell Blue
creeks upstream to the confluence with Coleman Canyon. Areas above
Coleman Canyon do not contain the features essential to the
conservation of the species because the creek becomes steeper and
rockier, making it unsuitable for loach minnow. Campbell Blue Creek is
currently occupied (Carter 2005, pp. 1-9) and supports one or more of
the velocities and appropriate gradients, substrates, depths, and
habitat types (i.e., riffles, runs). Threats to this area requiring
special management or protections include improper livestock grazing
and nonnative fish species (see Table 1).
(8) Dry Blue Creek--Loach Minnow Only--3.0 mi (4.8 km) of creek
extending from the confluence with Campbell Blue Creek upstream to the
confluence with Pace Creek. Dry Blue Creek has been occupied by loach
minnow since listing and is occupied with records dating from 2001. In
addition, this area is connected with Campbell Blue Creek, which has
documented loach minnow records as recent as 2004. This area also
contains one or more of the primary constituent elements essential to
the conservation of loach minnow, including sufficient flow velocities
and appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs). Threats to this area requiring special management or
protections include improper livestock grazing and nonnative fish
species (see Table 1).
(9) Pace Creek--Loach Minnow Only--0.8 mi (1.2 km) of creek
extending from the confluence with Dry Blue Creek upstream to a barrier
falls. Pace Creek has been occupied by loach minnow since listing and
is considered currently occupied with the most recent record from 1998.
This area also contains one or more of the primary constituent elements
essential to the conservation of loach minnow, including sufficient
flow velocities and appropriate gradients, substrates, depths, and
habitat types (i.e., riffles, runs). Threats to this area requiring
special management or protections include improper livestock grazing
and nonnative fish species (see Table 1).
(10) Frieborn Creek--Loach Minnow Only--1.1 mi (1.8 km) of creek
extending from the confluence with Dry Blue Creek upstream to an
unnamed tributary. Frieborn Creek has been occupied by loach minnow
since listing and is currently occupied with the most recent record
from 1998. This area also contains one or more of the primary
constituent elements essential to the conservation of loach minnow,
including sufficient flow velocities and appropriate gradients,
substrates, depths, and habitat types (i.e., riffles, runs). Threats to
this area requiring special management or protections include improper
livestock grazing and nonnative fish species (see Table 1).
(11) Little Blue Creek--Loach Minnow Only--2.8 mi (4.5 km) of creek
extending from the confluence with the Blue River upstream to the mouth
of a canyon. Little Blue Creek was occupied at the time of listing and
is considered to be occupied as it is directly connected with the Blue
River, which has documented loach minnow records as recent as 2004.
This area also contains one or more of the primary constituent elements
essential to the conservation of loach minnow including sufficient flow
velocities and appropriate gradients, substrates, depths, and habitat
types (i.e., riffles, runs). Threats requiring special management or
protections in this area
[[Page 13389]]
include grazing and nonnative fish (see Table 1).
Complex 5--Upper Gila River Complex--Grant, Catron, and Hidalgo
Counties, New Mexico
Spikedace have been known to be present in this complex since 1935
and up through the present. Loach minnow have been known to be present
in this complex since 1938 and up through the present. This complex was
occupied by both spikedace and loach minnow at the time of listing
(Propst et al. 1998, p. 14-15; ASU 2002; Propst 2002, p. 4, 22, 27, 31;
Paroz et al. 2006, p. 63-64; Propst 2006, p. 2). This complex contains
the largest remaining populations of both species in New Mexico. It is
considered to represent the ``core'' of what remains of these species.
Streams in this complex contain one or more of the PCEs for both
species including sufficient flow velocities and appropriate gradients,
substrates, depths, and habitat types (i.e., riffles, runs). In
addition, the lateral extent of each segment within this complex of
critical habitat contains sufficient PCEs (3 and 5) to provide for one
or more of the life history functions of the spikedace and loach
minnow. Threats requiring special management or protections in this
area are addressed in each of the individual stream segment
descriptions below. The largest areas are on U.S. Forest Service land,
with small private inholdings. There are large areas of private lands
in the Cliff-Gila Valley, and the BLM administers significant stretches
upstream of the Arizona/New Mexico border. There are also small areas
of NMDGF, National Park Service, and State of New Mexico lands.
(1) Upper Gila River--102.2 mi (164.4 km) of river extending from
the confluence with Moore Canyon (near the Arizona/New Mexico border)
upstream to the confluence of the East and West Forks of the Gila
River. The Gila River was occupied by spikedace and loach minnow at the
time of listing and continues to be occupied by both species (ASU 2002,
Propst 2002, pp. 2, 4, 29-33). The Gila River from its confluence with
the West Fork Gila and East Fork Gila contains one or more primary
constituent elements for spikedace and loach minnow, including
sufficient flow velocities and appropriate gradients, substrates,
depths, and habitat types (i.e., riffles, runs, glides, eddies).
Threats to this area requiring special management or protections
include water diversions, improper livestock grazing, recreation, road
construction, and nonnative fish species (see Table 1). Approximately
7.2 mi (11.6 km) along the Gila River are owned by the Phelps Dodge
Corporation. We received a management plan from Phelps Dodge addressing
management for spikedace and loach minnow for these areas. On the basis
of this plan, we are excluding their lands from the final critical
habitat designation pursuant to section 4(b)(2) of the Act, and because
of economic impact concerns (see ``Exclusion under Section 4(b)(2) of
the Act'' for additional information).
(2) East Fork Gila River--26.1 mi (42.0 km) of river extending from
the confluence with the West Fork Gila River upstream to the confluence
of Beaver and Taylor creeks. This area was occupied by both species at
the time of listing and both species have been found there as recently
as 2001. In addition, this area is connected to habitat currently
occupied by spikedace and loach minnow on the West Fork of the Gila
River. Portions of the East Fork Gila River contain one or more of the
primary constituent elements essential to the conservation of spikedace
and loach minnow including sufficient flow velocities and appropriate
gradients, substrates, depths, and habitat types (i.e., riffles, runs,
glides, eddies). Threats to this area requiring special management or
protections include improper livestock grazing, nonnative fish species,
and ash flows from wildfires (See Table 1).
(3) Middle Fork Gila River--Spikedace Only--7.7 mi (12.3 km) of
river extending from the confluence with the West Fork Gila River
upstream to the confluence with Big Bear Canyon. This area is currently
occupied (ASU 2002, Paroz et al. 2006, p. 63, Propst 2002, p. 22,
Propst 2006, p. 2), and is connected to currently occupied habitat on
the West Fork of the Gila River. The Middle Fork Gila River contains
one or more of the primary constituent elements essential to the
conservation of spikedace, including sufficient flow velocities and
appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs, glides, eddies). Threats to this area requiring special
management or protections include improper livestock grazing, nonnative
fish species, and ash flows and increased sediment loading following
recent wildfires (See Table 1).
(4) Middle Fork Gila River--Loach Minnow Only--11.9 mi (19.1 km) of
river extending from the confluence with the West Fork Gila River
upstream to the confluence with Brothers West Canyon. This area is
currently occupied (ASU 2002, Paroz et al. 2006, p. 63, Propst 2002, p.
22, Propst 2006, p. 2) and is connected to currently occupied habitat
on the West Fork of the Gila River. Portions of the Middle Fork Gila
River contain one or more primary constituent elements essential to the
conservation of loach minnow, including sufficient flow velocities and
appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs). Threats to this area requiring special management or
protections include grazing, nonnative fish species, and ash flows and
increased sediment loading following wildfires (See Table 1).
(5) West Fork Gila River--7.7 mi (12.4 km) of river extending from
the confluence with the East Fork Gila River upstream to the confluence
with EE Canyon. This lower portion of the West Fork Gila River was
occupied by both spikedace and loach minnow at the time of listing and
continues to be occupied by both species. This area contains one or
more primary constituent elements essential to the conservation of
spikedace and loach minnow, including sufficient flow velocities and
appropriate gradients, substrates, depths, and habitat types (i.e.,
riffles, runs, glides, eddies). Above EE Canyon, the river does not
contain the features essential to the conservation of the species due
to gradient and channel morphology. Threats to this area requiring
special management or protections include nonnative fish species and
ash flows and increased sediment loading following wildfires (See Table
1).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition. Pursuant to current
national policy and the statutory provisions of the Act, destruction or
adverse modification is determined on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be
[[Page 13390]]
functionally established) to serve the intended conservation role for
the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once a proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action because of
the section 7(a)(2) compliance process, should those species be listed
or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may request reinitiation of consultation with us on actions
for which formal consultation has been completed, if those actions may
affect subsequently listed species or designated critical habitat or
adversely modify or destroy proposed critical habitat.
Federal activities that may affect the spikedace and loach minnow
or their designated critical habitat will require section 7
consultation under the Act. Activities on State, Tribal, local or
private lands requiring a Federal permit (such as a permit from the
Corps under section 404 of the Clean Water Act or a permit under
section 10(a)(1)(B) of the Act from the Service) or involving some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) will also be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local, or private lands
that are not federally-funded, authorized, or permitted, do not require
section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Spikedase and Loach Minnow and Their
Critical Habitat
Jeopardy Standard
Prior to and following designation of critical habitat, the Service
has applied an analytical framework for spikedace and loach minnow
jeopardy analyses that relies heavily on the importance of core area
populations to the survival and recovery of the spikedace and loach
minnow. The section 7(a)(2) analysis is focused not only on these
populations but also on the habitat conditions necessary to support
them.
The jeopardy analysis usually expresses the survival and recovery
needs of the spikedace and loach minnow in a qualitative fashion
without making distinctions between what is necessary for survival and
what is necessary for recovery. Generally, if a proposed Federal action
is incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
opinion is warranted because of the relationship of each core area
population to the survival and recovery of the species as a whole.
Adverse Modification Standard
For the reasons described in the Director's December 9, 2004
memorandum, the key factor related to the adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the
[[Page 13391]]
primary constituent elements to be functionally established) to serve
the intended conservation role for the species. Generally, the
conservation role of spikedace and loach minnow critical habitat units
is to support viable core area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs to an extent that the conservation value
of critical habitat for the spikedace and loach minnow is appreciably
reduced. Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for the spikedace and loach minnow include, but are not
limited to:
(1) Channelization, impoundment, road and bridge construction,
deprivation of substrate source, destruction and alteration of riparian
vegetation, reduction of available floodplain, removal of gravel or
floodplain terrace materials, and excessive sedimentation from mining,
livestock grazing, road construction, timber harvest, off-road vehicle
use, and other watershed and floodplain disturbances;
(2) actions that would significantly and detrimentally alter the
water chemistry in any of the stream segments listed above could
destroy or adversely modify the critical habitat of either or both
species. Such activities include, but are not limited to, release of
chemical or biological pollutants into the surface water or connected
groundwater at a point source or by dispersed release (non-point
source);
(3) actions that would introduce, spread, or augment nonnative fish
species could destroy or adversely modify the critical habitat of
either or both species; and
(4) actions that would result in the removal of water from
waterways. Such activities include, but are not limited to,
construction and operation of canals and interbasin water transfers.
We consider all of the units designated as critical habitat, as
well as those that have been excluded, to contain features essential to
the conservation of the spikedace and loach minnow. All units are
within the geographic range of the species, all were occupied by the
species at the time of listing, and are likely to be used by the
spikedace and loach minnow. Federal agencies already consult with us on
activities in areas currently occupied by the spikedace and loach
minnow, or if the species may be affected by the action, to ensure that
their actions do not jeopardize the continued existence of the
spikedace and loach minnow.
Exclusions Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude an area
from critical habitat if [s]he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the Secretary is afforded broad discretion and the
Congressional record is clear that in making a determination under the
section the Secretary has discretion as to which factors and how much
weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, determine whether the benefits
of exclusion outweigh the benefits of inclusion. If an exclusion is
contemplated, then we must determine whether excluding the area would
result in the extinction of the species. In the following sections, we
address a number of general issues that are relevant to the exclusions
we considered.
General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process
The most direct, and potentially largest, regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation pursuant to section 7 of the Act to
ensure that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
only applies where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat. Second, it only limits destruction
or adverse modification. By its nature, the prohibition on adverse
modification is designed to ensure those areas that contain the
physical and biological features essential to the conservation of the
species or unoccupied areas that are essential to the conservation of
the species are not eroded. Critical habitat designation alone,
however, can not require active management efforts toward recovery.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation would be initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. Mandatory
measures and terms and conditions to implement such measures are only
specified when the proposed action would result in the incidental take
of a listed animal species. Reasonable and prudent alternatives to the
proposed Federal action would only be suggested when the biological
opinion results in a jeopardy or adverse modification conclusion.
We also note that for 30 years prior to the Ninth Circuit Court's
decision in Gifford Pinchot, the Service conflated the jeopardy
standard with the standard for destruction or adverse modification of
critical habitat when evaluating federal actions that affect currently
occupied critical habitat. The Court ruled that the two standards are
distinct and that adverse modification evaluations require
consideration of impacts on the recovery of species. Thus, under the
Gifford Pinchot decision, critical habitat designations may provide
greater benefits to the recovery of a species. However, we believe the
conservation achieved
[[Page 13392]]
through implementing management plans is typically greater than would
be achieved through multiple site-by-site, project-by-project, section
7 consultations involving consideration of critical habitat. Management
plans commit resources to implement long-term management and protection
to particular habitat for at least one and possibly other listed or
sensitive species. Section 7 consultations only commit Federal agencies
to prevent adverse modification to critical habitat caused by the
particular project, and they are not committed to provide conservation
or long-term benefits to areas not affected by the proposed project.
Thus, any management plan which considers enhancement or recovery as
the management standard will often provide as much or more benefit than
a consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat in that it provides the framework for the
consultation process.
Educational Benefits of Critical Habitat
A benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for the spikedace and loach minnow. In general the educational benefit
of a critical habitat designation always exists, although in some cases
it may be redundant with other educational effects. For example,
habitat conservation plans have significant public input and may
largely duplicate the educational benefit of a critical habitat
designation. This benefit is closely related to a second, more indirect
benefit: That designation of critical habitat would inform State
agencies and local governments about areas that could be conserved
under State laws or local ordinances.
However, we believe that there would be little additional
informational benefit gained from the designation of critical habitat
for the exclusions discussed in this rule because these areas are
included in this rule as having habitat containing the features
essential to the conservation of the species. Consequently, we believe
that the informational benefits are already provided even though these
areas are not designated as critical habitat. Additionally, the purpose
normally served by the designation, that of informing State agencies
and local governments about areas that would benefit from protection
and enhancement of critical habitat for the spikedace and loach minnow,
is already well established among State and local governments, and
Federal agencies in those areas that we are excluding from critical
habitat in this rule on the basis of other existing habitat management
protections.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002).
Stein et al. (1995) found that only about 12 percent of listed species
were found almost exclusively on Federal lands (90 to 100 percent of
their known occurrences restricted to Federal lands) and that 50
percent of federally listed species are not known to occur on Federal
lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998, Crouse et al. 2002, James 2002). Building
partnerships and promoting voluntary cooperation of landowners is
essential to understanding the status of species on non-Federal lands
and is necessary to implement recovery actions such as reintroducing
listed species, active management, and habitat protection.
Many non-Federal landowners derive satisfaction in contributing to
endangered species recovery. The Service promotes these private-sector
efforts through the Four Cs philosophy--conservation through
communication, consultation, and cooperation. This philosophy is
evident in Service programs such as HCPs, Safe Harbor Agreements,
Candidate Conservation Agreements, Candidate Conservation Agreements
with Assurances, and conservation challenge cost-share. Many private
landowners, however, are wary of the possible consequences of
encouraging endangered species to their property, and there is mounting
evidence that some regulatory actions by the Federal government, while
well-intentioned and required by law, can (under certain circumstances)
have unintended negative consequences for the conservation of species
on private lands (Wilcove et al. 1996, Bean 2002, Conner and Mathews
2002, James 2002, Koch 2002, Brook et al. 2003). Many landowners fear a
decline in their property value due to real or perceived restrictions
on land-use options where threatened or endangered species are found,
and more specifically, when critical habitat is proposed or designated.
Consequently, harboring endangered species is viewed by many landowners
as a liability, resulting in anti-conservation incentives because
maintaining habitats that harbor endangered species represents a risk
to future economic opportunities (Main et al. 1999, Brook et al. 2003).
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7 of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands.
According to some researchers, the designation of critical habitat on
private lands significantly reduces the likelihood that landowners will
support and carry out conservation actions (Main et al. 1999, Bean
2002, Brook et al. 2003). The magnitude of this negative outcome is
greatly amplified in situations where active management measures (such
as reintroduction, fire management, control of invasive species) are
necessary for species conservation (Bean 2002). A critical habitat
designation cannot require such actions on the lands being exempted
here.
The Service believes that the judicious use of excluding specific
areas of non-federally owned lands from critical habitat designations
can contribute to species recovery and provide a superior level of
conservation than critical habitat alone. For example, less than 17
percent of Hawaii is federally owned, but the state is home to more
than 24 percent of all federally listed species, most of which will not
recover without State and private landowner cooperation. On the island
of Lanai, Castle and Cooke Resorts, LLC,
[[Page 13393]]
which owns 99 percent of the island, entered into a conservation
agreement with the Service. The conservation agreement provides
conservation benefits to target species through management actions that
remove threats (such as axis deer, mouflon sheep, rats, invasive
nonnative plants) from the Lanaihale and East Lanai Regions. Specific
management actions include fire control measures, nursery propagation
of native flora (including the target species) and planting of such
flora. These actions will significantly improve the habitat for all
currently occurring species. Due to the low likelihood of a Federal
nexus on the island, we believe that the benefits of excluding the
lands covered by the MOA exceeded the benefits of including them. As
stated in the final critical habitat rule for endangered plants on the
Island of Lanai:
On Lanai, simply preventing ``harmful activities'' will not slow
the extinction of listed plant species. Where consistent with the
discretion provided by the Act, the Service believes it is necessary
to implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources and that remove
or reduce disincentives to conservation. While the impact of
providing these incentives may be modest in economic terms, they can
be significant in terms of conservation benefits that can stem from
the cooperation of the landowner. The continued participation of
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and
Watershed Partnership and other voluntary conservation agreements
will greatly enhance the Service's ability to further the recovery
of these endangered plants.
The Department of the Interior's Four C's philosophy--conservation
through communication, consultation, and cooperation--is the foundation
for developing the tools of conservation. These tools include
conservation grants, funding for Partners for Fish and Wildlife
Program, the Coastal Program, and cooperative-conservation challenge
cost-share grants. Our Private Stewardship Grant program and Landowner
Incentive Program provide assistance to private landowners in their
voluntary efforts to protect threatened, imperiled, and endangered
species, including the development and implementation of Habitat
Conservation Plans (HCPs).
Conservation agreements with non-Federal landowners (HCPs,
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending
species protections and providing for positive management actions
beyond those that can be required through section 7 consultations. In
the past decade we have encouraged non-Federal landowners to enter into
conservation agreements, based on a view that we can achieve greater
species conservation on non-Federal land through such partnerships than
we can through coercive methods (61 FR 63854; December 2, 1996).
Relationship of Critical Habitat to Economic Impacts--Exclusions Under
Section 4(b)(2) of the Act
This section allows the Secretary to exclude areas from critical
habitat for economic reasons if he determines that the benefits of such
exclusion exceed the benefits of designating the area as critical
habitat, unless the exclusion will result in the extinction of the
species concerned. Congress has provided this discretionary authority
to the Secretary with respect to critical habitat. Although economic
and other impacts may not be considered when listing a species,
Congress has expressly required their consideration when designating
critical habitat.
In making the following exclusions, we have in general considered
that all of the costs and other impacts predicted in the economic
analysis may not be avoided by excluding the area, because all of the
areas in question are currently occupied by the listed species and
there will be requirements for consultation under section 7 of the Act,
or for permits under section 10 (henceforth ``consultation''), for any
take of these species, and other protections for the species exist
elsewhere in the Act and under State and local laws and regulations. In
conducting economic analyses, we are guided by the 10th Circuit Court
of Appeal's ruling in the New Mexico Cattle Growers Association case
(248 F.3d at 1285), which directed us to consider all impacts,
``regardless of whether those impacts are attributable co-extensively
to other causes.'' As explained in the analysis, due to possible
overlapping regulatory schemes and other reasons, some elements of the
analysis may also overstate some costs.
Conversely, the Ninth Circuit has recently ruled (Gifford Pinchot,
378 F.3d at 1071) that the Service's regulations defining ``adverse
modification'' of critical habitat are invalid because they define
adverse modification as affecting both survival and recovery of a
species. The Court directed us to consider that determinations of
adverse modification should be focused on impacts to recovery. While we
have not yet proposed a new definition for public review and comment,
compliance with the Court's direction may result in additional costs
associated with the designation of critical habitat (depending upon the
outcome of the rulemaking, as well as additional benefits to the
species). In light of the uncertainty concerning the regulatory
definition of adverse modification, our current methodological approach
to conducting economic analyses of our critical habitat designations is
to consider all conservation-related costs. This approach would include
costs related to sections 4, 7, 9, and 10 of the Act, and should
encompass costs that would be considered and evaluated in light of the
Gifford Pinchot ruling.
In addition, we have received several credible comments on the
economic analysis contending that it underestimates, perhaps
significantly, the costs associated with this critical habitat
designation. Both of these factors are a balancing consideration
against the possibility that some of the costs shown in the economic
analysis might be attributable to other factors, or are overly high,
and so would not necessarily be avoided by excluding the area for which
the costs are predicted from this critical habitat designation.
Relationship of Critical Habitat to Tribal Lands
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and
the relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2), we believe that fish, wildlife, and other
natural resources on tribal lands are better managed under tribal
authorities, policies, and programs than through Federal regulation
wherever possible and practicable. Based on this philosophy, we believe
that, in many cases, designation of tribal lands as critical habitat
provides very little additional benefit to threatened and endangered
species. Conversely, such designation is often viewed by tribes as an
unwanted intrusion into tribal self governance, thus compromising the
government-to-government relationship essential to achieving our mutual
goals of managing for healthy ecosystems upon which the viability of
threatened and endangered species populations depend.
San Carlos Apache Tribe
The San Carlos Apache Tribe has one stream within its tribal lands,
Eagle Creek, that is known to be currently
[[Page 13394]]
occupied by the spikedace and loach minnow and its tribal lands contain
features that are essential to the conservation of the spikedace and
loach minnow. The Tribe has completed and is implementing a Fisheries
Management Plan (FMP) that includes specific management actions for the
spikedace and loach minnow and conserves the PCEs. In this exclusion,
we considered several factors, including our relationship with San
Carlos Apache Tribe, and the degree to which the Tribe's FMP provides
specific management for the spikedace and loach minnow. Tribal
governments protect and manage their resources in the manner that is
most beneficial to them. The San Carlos Apache Tribe exercises
legislative, administrative, and judicial control over activities
within the boundaries of its lands. Additionally, the Tribe has natural
resource programs and staff and has enacted the FMP. In addition, as
trustee for land held in trust by the United States for Indian Tribes,
the Bureau of Indian Affairs (BIA) provides technical assistance to the
San Carlos Apache Tribe on management planning and oversees a variety
of programs on their lands. Spikedace and loach minnow conservation
activities have been ongoing on San Carlos Apache tribal lands, and,
prior to the completion of their FMP, their natural resource management
was consistent with management of habitat for this species. The
development and implementation of the efforts formalized in the San
Carlos Apache Tribes FMP will continue with or without critical habitat
designation.
The San Carlos Apache Tribe highly values its wildlife and natural
resources, and is charged to preserve and protect these resources under
the Tribal Constitution. Consequently, the Tribe has long worked to
manage the habitat of wildlife on its tribal lands, including the
habitat of endangered and threatened species. We understand that it is
the Tribe's position that a designation of critical habitat on its
lands improperly infringes upon its tribal sovereignty and the right to
self-government.
The San Carlos Apache Tribes' FMP provides assurances and a
conservation benefit to the spikedace and loach minnow. Implementation
of the FMP will result in protecting all known spikedace and loach
minnow habitat on San Carlos Tribal Land and assures no net habitat
loss or permanent modification will occur in the future. The purpose of
the FMP includes the long-term conservation of native fishes, including
the spikedace and loach minnow, on tribal lands. The FMP outlines
actions to conserve, enhance, and restore spikedace and loach minnow
PCEs, including efforts to eliminate nonnative fishes from spikedace
and loach minnow habitat, actions that could not be compelled by a
critical habitat designation. All habitat restoration activities
(whether it is to rehabilitate or restore native plants) will be
conducted under reasonable coordination with the Service. All
reasonable measures will be taken to ensure that recreational
activities do not result in a net habitat loss or permanent
modification of the habitat. All reasonable measures will be taken to
conduct livestock grazing activities in a manner that will ensure the
conservation of spikedace and loach minnow habitat. Within funding
limitations and under confidentiality guidelines established by the
Tribe, the Tribe will cooperate with the Service to monitor and survey
spikedace and loach minnow habitat, conduct research, perform habitat
restoration, remove nonnative fish species, or conduct other beneficial
spikedace and loach minnow management activities.
White Mountain Apache Tribe
The White Mountain Apache Tribe has one stream within its tribal
lands, East Fork White River, that is known to be currently occupied by
loach minnow and its tribal lands contain features that are essential
to the conservation of the loach minnow. The White Mountain Apache
Tribe currently has a management plan in place for loach minnow. The
plan was completed in 2000 and provides for, among other conservation
measures, inventory and monitoring, water quality protection ordinance,
captive propagation, and relocation to minimize loss from catastrophic
events such as fire and drought. Prior to and since the plan was
developed, the Tribe has actively managed for loach minnow. In this
exclusion, we considered several factors, including our relationship
with the White Mountain Apache Tribe, and the degree to which the
Tribe's management plan provides specific management for the loach
minnow and conserves its PCEs. Tribal governments protect and manage
their resources in the manner that is most beneficial to them. The
White Mountain Apache Tribe exercises legislative, administrative, and
judicial control over activities within the boundaries of its lands.
Additionally, the Tribe has natural resource programs and staff and has
been managing for the conservation of the loach minnow. In addition, as
trustee for land held in trust by the United States for Indian Tribes,
the BIA provides technical assistance to the White Mountain Apache
Tribe on management planning and oversees a variety of programs on
their lands.
The White Mountain Apache Tribe highly values its wildlife and
natural resources, and is charged to preserve and protect these
resources under the Tribal Constitution. Consequently, the Tribe has
long worked to manage the habitat of wildlife on its tribal lands,
including the habitat of endangered and threatened species. We
understand that it is the Tribe's position that a designation of
critical habitat on its lands improperly infringes upon its tribal
sovereignty and the right to self-government.
Yavapai Apache Tribe
The Yavapai Apache Tribe has long worked to protect the Verde River
and its surrounding habitat as it flows on the lands of the Nation. The
Nation is implementing strong conservation measures designed to
preserve the Verde River and its riparian corridor for the benefit of
all species, and in order to protect the traditional and cultural
practices of the Nation. The Nation's continued efforts to work
cooperatively with the Service to protect federally listed species have
previously been demonstrated through adoption of a recent Southwestern
Willow Flycatcher Management Plan, dated May 25, 2005. This document
provides realistic and practicable objectives for protection of the
riparian community on tribal lands. This habitat is coextensive with
the habitat that was proposed for the spikedace. Because the existing
Management Plan requires that the habitat of the Verde River be
protected and preserved for the flycatcher, its protections similarly
extend to the spikedace. In addition, the Tribe passed a resolution on
June 15, 2006, confirming and declaring a riparian conservation
corridor along the Verde River including 300 ft (91.4 m) on either side
of the river. Within the conservation corridor stocking of non-native
fishes is prohibited, and livestock grazing, construction and other
activities shall be minimized to assure that no net loss of habitat for
federally listed species such as the spikedace and loach minnow shall
occur, and that no permanent modification of habitat important to
listed species is allowed. The Tribe will also take all reasonable
steps to coordinate with the Service regarding recreational activities,
habitat restoration activities, or other activities that may impact the
habitat important to the spikedace and loach minnow. The Tribe will
monitor habitat, including
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surveys for these fish and conduct research or other activities to
provide a conservation benefit.
Below we determine, pursuant to a 4(b)(2) analysis, that those
portions of the Verde River below the Prescott and Coconino National
Forest boundary with private lands above the Verde Valley will be
excluded from the final designation based upon economic costs. The
Yavapai Apache tribal lands fall within this area, and are excluded as
part of that overall exclusion. However, we also find pursuant to our
analysis below that their lands should be excluded on the basis of our
relationship with the Yavapai Apache Tribe, and the Tribe's management
of the Verde River that we believe provides a conservation benefit to
the spikedace.
(1) Benefits of Inclusion
Including lands of the San Carlos Apache Tribe, the White Mountain
Apache Tribe, and the Yavapai Apache Tribe in critical habitat would
provide some additional benefit from section 7 consultation, because we
could consult via the BIA on actions that may adversely affect critical
habitat. Activities covered in previous consultations include livestock
grazing, recreation, fish stocking, fire management, bank stabilization
projects, and conservation measures that benefited spikedace and/or
loach minnow. These measures included monitoring, fence repair (to
exclude cattle from overusing and thereby damaging habitat), and
education programs to inform the public of the need to avoid actions
that damage habitat. However, we note that because the spikedace and
loach minnow are listed species and are found on these Tribal lands,
section 7 consultation under the jeopardy standard will still be
required if Tribal or BIA activities may adversely affect spikedace or
loach minnow, regardless of whether these lands are included in the
final critical habitat designation. As a result, we expect that
inclusion of San Carlos Apache, White Mountain Apache, and the Yavapai
Apache Tribe lands in the critical habitat designation would provide
only that additional habitat protection accorded by critical habitat as
discussed by the Ninth Circuit Court of Appeals in the Gifford Pinchot
ruling discussed above.
Nevertheless, few additional benefits would be derived from
including these Tribal Lands in the spikedace and loach minnow final
critical habitat designation beyond what will be achieved through the
implementation of their management plans. As noted above, the primary
regulatory benefit of any designated critical habitat is that federally
funded or authorized activities in such habitat require consultation
pursuant to section 7 of the Act. Such consultation would ensure that
adequate protection is provided to avoid destruction or adverse
modification of critical habitat. These three tribes have already
agreed under the terms of their management plans and by tribal
resolution to protect riparian and aquatic communities, to ensure no
net loss of habitat, to coordinate with the Service in order to prevent
any habitat destruction, and to conduct activities consistent with the
conservation of all native species, including the spikedace and loach
minnow and their PCEs.
As discussed above, we expect that little additional educational
benefit would be derived from designating San Carlos Apache, White
Mountain Apache, and Yavapai Apache tribal lands as critical habitat.
The additional educational benefits that might arise from critical
habitat designation are largely accomplished through the multiple
notice and comments which accompany the development of this critical
habitat designation, as evidenced by the Tribes working with the
Service to address habitat and conservation needs for the spikedace and
loach minnow. Additionally, we anticipate that the Tribes will continue
to actively participate in working groups, and provide for the timely
exchange of management information. The educational benefits important
for the long-term survival and conservation of the spikedace and loach
minnow are being realized without designating this area as critical
habitat. Educational benefits will continue on these lands whether or
not critical habitat is designated because the Tribes already recognize
the importance of those habitat areas to the spikedace and loach
minnow.
Another possible benefit is the additional funding that may be
generated for habitat restoration or improvement by having an area
designated as critical habitat. In some instances, having an area
designated as critical habitat may improve the ranking a project
receives during evaluation for funding. The Tribes often require
additional sources of funding in order to conduct wildlife-related
activities. Therefore, having an area designated as critical habitat
could improve the chances of the Tribes receiving funding for spikedace
or loach minnow related projects. Additionally, occupancy by spikedace
or loach minnow also provides benefits to be considered in evaluating
funding proposals. Because there are areas of occupied habitat on these
Tribal lands this may also help secure funding for management of these
areas.
For these reasons, then, we believe that designation of critical
habitat would provide some additional benefits.
(2) Benefits of Exclusion
The benefits of excluding San Carlos Apache, White Mountain Apache,
and the Yavapai Apache tribal lands from critical habitat include: (1)
The advancement of our Federal Indian Trust obligations and our
deference to Tribes to develop and implement tribal conservation and
natural resource management plans for their lands and resources, which
includes the spikedace and loach minnow and other Federal trust
species; (2) the maintenance of effective working relationships to
promote the conservation of the spikedace and loach minnow and their
habitats; (3) the allowance for continued meaningful collaboration and
cooperation on spikedace and loach minnow management and other
resources of interest to the Federal government; and (4) the provision
of conservation benefits to riparian ecosystems and a host of species,
including the spikedace and loach minnow and their habitat.
During the development of the spikedace and loach minnow critical
habitat designation (and coordination for other critical habitat
proposals), and other efforts such as conservation of native fish
species in general, we have met and communicated with each of these
Tribes to discuss how they might be affected by the regulations
associated with spikedace and loach minnow conservation and the
designation of critical habitat. As such, we established relationships
with these Tribes specific to spikedace and loach minnow conservation.
As part of our relationship, we provided technical assistance to the
Tribes to develop measures to conserve the spikedace and loach minnow
and their habitat on their lands. These measures are contained within
their management plans and tribal resolution that we have in our
supporting record. This proactive action was conducted in accordance
with Secretarial Order 3206, ``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act'' (June
5, 1997); the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951); Executive Order 13175; and the relevant provision of the
Departmental Manual of the Department of the Interior (512 DM 2). We
believe that the San Carlos Apache,
[[Page 13396]]
White Mountain Apache, and the Yavapai Apache Tribes should be the
governmental entities to manage and promote the conservation of the
spikedace and loach minnow on their lands. During our communication
with the Tribes, we recognized and endorsed their fundamental right to
provide for tribal resource management activities, including those
relating to riparian aquatic ecosystems.
The designation of critical habitat on these Tribal lands would be
expected to adversely impact our working relationship with them. In
fact, during our discussions with the Tribes, we were informed that
critical habitat would be viewed as an intrusion on their sovereign
abilities to manage natural resources in accordance with their own
policies, customs, and laws. To this end, we found that the Tribes
would prefer to work with us on a government-to-government basis. We
view this as a substantial benefit.
In addition to management/conservation actions described for the
conservation of the spikedace and loach minnow, we anticipate future
management/conservation plans to include conservation efforts for other
listed species and their habitat. We believe that many Tribes are
willing to work cooperatively with us to benefit other listed species,
but only if they view the relationship as mutually beneficial.
Consequently, the development of future voluntary management actions
for other listed species will likely be contingent upon whether the San
Carlos Apache, White Mountain Apache, and the Yavapai Apache Tribal
lands are designated as critical habitat for the spikedace and loach
minnow. Thus, the benefit of excluding these lands would be future
conservation efforts that would benefit the spikedace and loach minnow
as well as other listed species.
Another benefit of excluding these Tribal lands from the critical
habitat designation includes relieving additional regulatory burden and
costs associated with the preparation of portions of section 7
documents related to critical habitat. While the cost of adding these
additional sections to assessments and consultations is relatively
minor, there could be delays which can generate real costs to some
project proponents. However, because in this case critical habitat is
being excluded in occupied areas already subject to section 7
consultation and a jeopardy analysis, it is anticipated this reduction
would be minimal.
(3) Benefits of the Exclusion Outweigh the Benefits of Inclusion
We find that the benefits of designating critical habitat for the
spikedace and loach minnow on these Tribal lands are small in
comparison to the benefits of the exclusion. Exclusion would enhance
the partnership efforts focused on recovery of the spikedace and loach
minnow within these river reaches. Excluding these areas also would
reduce some of the administrative costs during consultation pursuant to
section 7 of the Act. We discuss below additional economic costs and an
exclusion of a portion of the Verde River that include tribal lands of
the Yavapai Apache Nation.
(4) The Exclusion Will Not Result in Extinction of the Species
Because these river reaches on the Tribal lands are occupied by the
spikedace and loach minnow, which are protected from take under section
9 of the Act, any actions that might kill spikedace or loach minnow,
including habitat modification that would cause death of either
species, must either undergo a consultation with the Service under the
requirements of section 7 of the Act or receive a permit from us under
section 10 of the Act. Additionally, we believe that the exclusion of
these lands from critical habitat would not result in the extinction of
the spikedace or loach minnow because their management outlines and the
provisions of a resolution specifically address conservation of these
species. The tribal management strategies outline actions to conserve,
enhance, and restore spikedace and loach minnow habitat, including
efforts to eliminate nonnative fishes from their habitat. Such efforts
provide greater conservation benefit than would result from a
designation of critical habitat. This is because section 7
consultations for critical habitat only consider listed species in the
project area evaluated and Federal agencies are only committed to
prevent adverse modification to critical habitat caused by the
particular project and are not committed to provide conservation or
long-term benefits to areas not affected by the proposed project. Such
efforts provide greater conservation benefit than would result for
designation as critical habitat. As a result, there is no reason to
believe that this exclusion would result in extinction of the species.
Partnerships and Management Plans on Private Lands
The Phelps Dodge Corporation (Phelps Dodge) provided two management
plans to the Service during the second open comment period. One plan
was provided for Eagle Creek in southeastern Arizona, and the other is
for portions of the middle Gila River in New Mexico. We provide a
summary of each of these plans below.
Eagle Creek Management Plan
Phelps Dodge's lands along Eagle Creek are comprised of individual
land parcels adjoining the southern boundary of the Apache-Sitgreaves
National Forests and the eastern boundary of San Carlos Apache Tribe
lands. The parcels are not entirely connected; there are intervening
portions of Forest Service and other private lands between parcels of
Phelps Dodge's lands.
The management plan would affect only those lands owned by Phelps
Dodge. Phelps Dodge owns approximately 34 square miles of land around
the upper portions of Eagle Creek; however, not all of lands encompass
or are adjacent to Eagle Creek. Phelps Dodge owns land along
approximately 11.0 mi (17.8 km) of Eagle Creek, which are covered by
the management plan. The Service has determined that Eagle Creek
currently supports one of more of the PCEs for loach minnow and is
occupied by loach minnow. In addition, we determined (see Table 1) that
nonnative aquatic species, water diversions, and mining are all
potential threats within this area.
Phelps Dodge's water supply for its Morenci Mine operation is
derived from a variety of water rights, including a Black River water
transfer (supported by a Central Arizona Project exchange), several
deep ground water wells, and surface water from Eagle Creek, which
constitutes approximately six percent of the natural flow of that
Creek.
Phelps Dodge indicates within the management plan that their
overall goal is to operate its Eagle Creek water system to maintain
perennial flows in Eagle Creek from the confluence of Willow Creek to
the Phelps Dodge diversion dam to the extent it is legally,
economically, and hydrologically reasonable to do so. Within the
management plan, Phelps Dodge developed goals for both the loach minnow
and spikedace within the Phelps Dodge reach. These goals regarding the
two species include the following: (1) Monitoring distribution and
abundance; (2) obtaining an understanding of the population dynamics as
they relate to existing
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habitat conditions and land use practices; (3) continuing historic land
use practices and water supply practices which enhance water flows; and
(4) consideration of habitat when deviating from such historic
management practices. With respect to monitoring, Phelps Dodge has
supported various biological surveys and studies on Eagle Creek, and
intends to continue participating in such research projects in the near
future. To gain a better understanding of the population dynamics of
the loach minnow and spikedace, Phelps Dodge proposes to support the
Rocky Mountain Research Station in its research.
Phelps Dodge further intends to utilize the management plan for
loach minnow and spikedace by doing the following: (1) Form working
relationships with others that promote the conservation of these fish
and their habitat; (2) develop the opportunity for collaboration and
cooperation on management issues and other resources of interest to the
Federal government; and (3) provide conservation benefits to riparian
ecosystems, including habitat that may be or may potentially become
suitable.
To ensure continued conservation of spikedace and loach minnow in
Eagle Creek, Phelps Dodge has also committed to regular coordination
with the Service, which will include an annual summary to the Service
regarding implementation of the management plan. Any deviations from
the plan will be addressed, as will intended implementation of actions
under the plan for the following year. Phelps Dodge will make all
reasonable efforts to provide the Service with notice of any
significant changes to the management of its water supply system that
are outside the range of historic operating parameters discussed in the
management plan. If any changes are required, Phelps Dodge will
consider loach minnow and spikedace habitat and any comments received
from the Service, and will make reasonable efforts to minimize adverse
impacts to these fish and the PCEs to the extent legally, economically,
and practically reasonable, so long as such actions do not impair their
ability to hold, exercise, or modify their water rights.
Phelps Dodge will also make reasonable efforts to coordinate their
water management activities by attending regularly scheduled fisheries
management working group meetings to stay abreast of ongoing management
issues and concerns within the overall Eagle Creek area. Phelps Dodge
will also consider stream renovation projects for Eagle Creek should
the Service decide to pursue them, provided they do not interfere with
existing land and water use and rights.
Gila River Management Plan
The Gila River Management Plan covers riparian lands owned by
Phelps Dodge in the middle reach of the mainstem Gila River south of
Mogollon Creek in New Mexico. Land ownership in this area is
principally Federal, with irregularly dispersed private and State
lands.
The management plan would affect only those lands owned by Phelps
Dodge. Phelps Dodge owns lands surrounding or bordering approximately
7.3 mi (11.7 km) of the mainstem Gila River. Some of the lands owned by
Phelps Dodge in this area are leased for ranching and agriculture
purposes, including the U-Bar Ranch. The Service has determined that
these areas currently support one or more of the PCEs for spikedace and
loach minnow, and both species currently occupy this portion of the
stream. Those portions of the mainstem Gila River on Phelps Dodge lands
support diversity and abundance of native fishes. In addition, this
reach contains a high proportion of favorable habitat types for
spikedace and loach minnow, including low gradient riffles and glide-
runs. In addition, we determined (see Table 1) that recreation, roads,
grazing, nonnative aquatic species, and water diversions are potential
threats in this area that may require special management or
protections.
Phelps Dodge's water rights and delivery system in this area have
been developed and maintained to provide a dependable and adequate
water supply for the operation of the Tyrone Mine. The delivery system
consists of a diversion structure on the Gila River as well as a
retention facility (Bill Evans Lake), and several wells. Surface water
is diverted from the Gila River at the diversion structure for storage
in Bill Evans Lake and transported via pipeline to the Tyrone Mine
Facility.
Within the management plan, Phelps Dodge commits to the following:
(1) Monitoring the distribution and abundance of the loach minnow and
spikedace in the Gila River passing through the Phelps Dodge Reach; (2)
obtaining an understanding of the population dynamics of the loach
minnow and spikedace as they relate to existing habitat conditions and
land use practices in the Gila River; (3) continuing historic land use
practices and water supply practices which enhance water flows in the
Phelps Dodge Reach, (4) and considering loach minnow and spikedace
habitat when deviating from the historical management practices. These
commitments will be carried out in the same manner as described above
under the Eagle Creek Management Plan.
Within the management plan, Phelps Dodge commits to coordinating
with the Service regarding management activities on their lands. This
coordination will include an annual summary to the Service regarding
implementation of the management plan. Any deviations from the plan
will be addressed, as will the intended implementation of actions under
the plan for the following year. The report will be provided to the
Service during the first quarter of each calendar year.
Phelps Dodge will also make all reasonable efforts to provide the
Service with notice of any significant changes to the management of its
water supply system that are outside the range of historic operating
parameters discussed in the management plan. If any changes are
required, Phelps Dodge will consider loach minnow and spikedace habitat
and any comments received from the Service, and will make reasonable
efforts to minimize adverse impacts to the fish and their PCEs to the
extent legally, economically, and practically reasonable, so long as
such actions do not impair their ability to hold, exercise, or modify
their water rights.
Phelps Dodge will also make reasonable efforts to coordinate their
water management activities by attending regularly scheduled fisheries
management working group meetings to stay abreast of ongoing management
issues and concerns within the overall Gila River area. Phelps Dodge
will also consider stream renovation projects for the Gila River should
the Service decide to pursue them, provided they do not interfere with
existing land and water uses and rights.
The following analysis applies to both the Eagle Creek and Gila
River areas covered by the Phelps Dodge's management plans, referred to
as Plans below.
(1) Benefits of Inclusion
There are few benefits in including areas covered by these Plans in
the final critical habitat designation above those benefits that will
be achieved through the implementation of these Plans, including
voluntary management and restoration projects. As discussed above, the
principal benefit of any area designated as final critical habitat is
that activities adversely affecting critical habitat require
consultation under section 7 of the Act if a Federal action is
involved. Such consultation would ensure that adequate protection is
[[Page 13398]]
provided to avoid destruction or adverse modification of critical
habitat.
As of the date of this final rule, the Service has not conducted
any formal consultations that have directly addressed the impacts of
mining activities in the areas proposed as critical habitat (Final
Economic Analysis 2004, pg. 5-3). There have, however, been several
informal consultations regarding surface mining since the listing of
the species. In addition, the Service conducted one formal consultation
on spikedace and razorback sucker (Xyrauchen texanus) regarding
spillway repair to the Phelps Dodge Diversion dam on Eagle Creek in
1996. This consultation did not directly address impacts of the
diversion dam itself, though the Service recommended that such a
consultation be conducted. The consultation found that the proposed
action was not likely to adversely affect the fish species, and
recommended minimizing the use of heavy equipment in the wetted area,
making reasonable efforts to ensure no pollutants enter surface water,
catch and release of any spikedace found, as a well as monitoring
activities.
The small number of previous section 7 consultations during the
past 20 years since these species have been listed and while critical
habitat was designated and the expectation that there will be will be
few if any future projects with a Federal nexus gives us reasonable
grounds to believe that critical habitat designation will create
relatively few benefits for the spikedace and loach minnow in these
areas. Since these areas covered by the Plans are privately owned,
unless there is a Federal nexus in connection with activities occurring
in these areas, the designation of critical habitat will not require
consultation with the Service for such activities. It is possible that
the maintenance of the Phelps Dodge Diversion dam could act as a
Federal nexus for consultation because the diversion is likely subject
to U.S. Army Corps of Engineers permit requirements. This could result
in consultation, but because these areas are considered to be occupied
by the species, consultation would already take place under the
jeopardy standard (see ``General Principles of Section 7 Consultations
Used in the 4(b)(2) Balancing Process'' above). Moreover, since the
prior consultation on maintenance of this structure found it was
``unlikely to adversely affect'' the species, it is not reasonable to
anticipate that a future consultation on maintenance of the structure
would result in a finding of adverse modification of the critical
habitat.
Another possible benefit is that the designation of critical
habitat can serve to educate the public regarding the potential
conservation value (species presence and their PCEs) of an area, and
this may focus and contribute to conservation efforts by other parties
by clearly delineating areas of high conservation value for certain
species. Any information about the spikedace and loach minnow and its
habitat that reaches a wide audience, including other parties engaged
in conservation activities, would be considered valuable. However,
Phelps Dodge is currently working with the Service to address the
conservation of these fish and to avoid impacts to their habitat
(PCEs), and the agreements they have offered would institutionalize
that cooperation. Further, these areas were included in the proposed
designation, which itself has reached a wide audience, and has thus
provided information to the broader public about the conservation value
of these areas. Thus, the educational benefits that might follow
critical habitat designation have already been provided through the
multiple notice and comments which accompanied the development of this
critical habitat designation and previous designations. For these
reasons, then, we believe that designation of critical habitat would
have few, if any, additional benefits beyond those that will result
from continued consultation for the presence of these species.
(2) Benefits of Exclusion
We believe that significant benefits would be realized by excluding
these areas from the final critical habitat designation that include:
(1) The continuance and strengthening of our relationship with Phelps
Dodge to promote the conservation of the spikedace and loach minnow and
their habitat; (2) the allowance for collaboration and cooperation in
surveys, monitoring, and research as we work towards recovery of these
species; and (3) the conservation benefits to the Gila River and Eagle
Creek ecosystems and spikedace and loach minnow habitat that might not
otherwise occur, all as set out in the Plans summarized above. Phelps
Dodge is greatly concerned about the possible impacts of a critical
habitat designation in this area (James 2006, p. 7, 10-20) and is
offering these management plans as an alternative. It is unlikely they
would proceed with them if these areas were designated as critical
habitat.
Phelps Dodge, including the U-Bar Ranch that they own on the Gila
River, is an important land manager within Eagle Creek and the Gila
River watersheds. The surveys, monitoring, research, and commitment to
collaborate with the Service on restoration projects within these areas
document that conservation efforts will occur for these fish and their
habitat. These activities and cooperation may not occur if we were to
designate critical habitat on these private lands, and these actions
cannot be compelled by the designation, particularly given the
expectation that there would be a very limited, if any, federal nexus
for having a consultation on private activities here. We believe that
the results of these activities promote long-term protection and are
aimed at conserving the spikedace and loach minnow in these areas. The
benefits of excluding these areas from critical habitat will encourage
the continued conservation, land management, and coordination with the
Service. If these areas are designated as critical habitat, we may
jeopardize future conservation, research, and information sharing for
the recovery of the spikedace and loach minnow and likely not secure
any offsetting benefits from the designation due to the apparent lack
of a federal nexus to trigger consultation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including lands owned by Phelps Dodge
in the final critical habitat designation are small, and are limited to
minimal educational benefits and potentially some benefits through
section 7 consultations. However, since these lands are privately
owned, unless a Federal nexus exists, final critical habitat would not
result in a section 7 consultation. The lack of previous section 7
consultations during the 20 years since these species have been listed
in these areas being excluded from the final designation of critical
habitat give us reasonable grounds to believe that such a Federal nexus
is unlikely to occur, or would likely occur only for the subject of the
prior consultation, which resulted in a finding of ``unlikely to
adversely affect'' the species. We also note that the requirement of
Federal agencies to consult with us on activities that may affect these
species still exists, whether or not critical habitat is designated,
since these areas are considered occupied. The benefits of excluding
these areas from designation as critical habitat for the spikedace and
loach minnow are significant, and include encouraging the continuation
of monitoring, surveys, research, enhancement, and restoration
activities that will benefit spikedace and loach
[[Page 13399]]
minnow PCEs. The exclusion of this area will likely also provide
additional benefits to the species by encouraging a cooperative working
relationship with Phelps Dodge. Although the benefits of these
management plans are less than plans in other areas upon which
exclusions are often made (i.e. habitat conservation plans), the likely
lack of a Federal nexus for these lands means that the benefits of
these plans still exceed by the considerable margin the benefits the
species would receive from the designation. We accordingly find that
the benefits of excluding these areas from the final critical habitat
designation outweigh the benefits of their inclusion.
(4) Exclusion Will Not Result in Extinction of the Species
We have determined that exclusion of areas covered by these Plans
on the Gila River and Eagle Creek will not result in extinction of
these species. Any actions that might adversely affect the spikedace
and loach minnow must undergo a consultation with the Service under the
requirements of section 7 of the Act or receive a permit from us under
section 10. The spikedace and loach minnow are protected from take
under section 9. The exclusions leave these protections unchanged from
those which would exist if the excluded areas were designated as final
critical habitat. Phelps Dodge is committed to greater conservation
measures on their land than would be available through the designation
of critical habitat. Accordingly, we have determined that exclusion of
these areas of Eagle Creek and the Gila River as discussed above under
subsection 4(b)(2) of the Act will not cause the extinction of the
species.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on June 6, 2006 (71 FR 32496). We
accepted comments on the draft analysis until October 16, 2006.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the spikedace and loach minnow. This information is
intended to assist the Secretary in making decisions about whether the
benefits of excluding particular areas from the designation outweigh
the benefits of including those areas in the designation. This economic
analysis considers the economic efficiency effects that may result from
the designation, including habitat protections that may be coextensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies.
The economic analysis considers the economic impacts of
conservation measures taken prior to and subsequent to the final
listing and designation of critical habitat for the spikedace and loach
minnow. Pre-designation impacts are typically defined as all management
efforts that have occurred since the time of listing. The spikedace and
loach minnow were listed on July 1 and October 28, 1986, respectively
(51 FR 23769, 51 FR 39468). Our draft economic analysis found that the
total post-designation costs associated with the five proposed critical
habitat units are forecast to range from $25.2 to $100.3 million over
20 years, with discounted (7%) annual costs at $1.4 to $6.7 million
annually (IEc 2006, p. ES-2). Estimated costs are primarily due to
impacts on water use and management, species management, and
recreation.
Based upon these estimates, we conclude in the final analysis,
which reviewed and incorporated public comments, that no significant
economic impacts are expected from the designation of critical habitat
for spikedace and loach minnow, except for the Verde River, as
discussed in further detail in the ``Verde River'' section below. A
copy of the economic analysis is included in our supporting record and
may be obtained by contacting the Arizona Ecological Services Field
Office (see ADDRESSES section) or online at http://www.fws.gov/southwest/es/arizona/.
Verde River
As discussed in the ``Summary of Changes from the Proposed Rule''
section above, we have determined that proposed critical habitat on
those portions of the Verde River below the Prescott and Coconino
National Forest boundary with private lands will not be designated as
final critical habitat due to the potential economic impact of
designation. The economic analysis estimates the potential future
impacts (2006-2025) associated with the entire stretch of the Verde
River to be $64.59 million (undiscounted dollars). Although these costs
do not account for variance in river miles or population, they are a
full order of magnitude larger than the estimated impacts for any other
stretch of river proposed as critical habitat, and represent more than
half of the total estimated impacts ($100.3 million) for the entire
proposed critical habitat designation. Estimated quantified costs on
this reach primarily stem from potential impacts to agriculture, but
also include impacts on development and recreation activities.
Unquantified potential impacts could include impacts to water users,
including Verde Valley municipalities and the City of Prescott.
The economic analysis indicates that most of these costs occur in
the lower portion of the Verde River where the river runs through
several communities in the Verde Valley that are experiencing rapid
urban growth. Therefore, we are excluding from the final critical
habitat designation the lower portion of the Verde River below the
Prescott and Coconino National Forest boundary with private lands due
to significant and disproportionate economic impacts.
We have reached this determination because we believe the benefits
of excluding these segments from the final critical habitat designation
outweigh the benefits of including them as critical habitat.
We have considered in making the lower Verde River exclusion that
all of the costs estimated in the draft economic analysis may not be
avoided by excluding this area. This is because this area is currently
occupied by the spikedace and there will be requirements for
consultation under section 7 of the Act or for permits under section 10
for any take of the species. Additionally, other protections for the
species exist elsewhere in the Act and
[[Page 13400]]
under State and local laws and regulations.
(1) Benefits of Inclusion
The primary conservation value of the lower Verde River proposed
critical habitat segment is to sustain existing populations. The area
excluded from the final designation is currently considered occupied by
the spikedace. If this area is designated as critical habitat, any
actions with a Federal nexus which might adversely modify or destroy
the critical habitat would require a consultation with us. However,
inasmuch as this area is currently occupied by the spikedace,
consultation for activities which might adversely impact the species,
including possibly habitat modification (see definition of ``harm'' at
50 CFR 17.3) would be required even without the critical habitat
designation. We recognize that consultation for critical habitat would
likely provide some additional benefits to the species under the
provision of the Gifford Pinchot decision.
As discussed above, we expect that little additional educational
benefits would be derived from including this area as critical habitat.
The additional educational benefits that might arise from critical
habitat designation are largely accomplished through the multiple
notice and comments which accompanied the development of this critical
habitat designation and previous designations.
Designation of critical habitat in the lower Verde River might
result in consultations with Federal agencies or as part of intra-
Service consultations for HCPs that may lead to conservation activities
for the spikedace; however, we believe any possible benefits would be
minimal as derived from critical habitat because the spikedace is
present in the Verde River and consultations are already likely to
occur.
In summary, we believe that designating this proposed segment as
final critical habitat would provide little additional Federal
regulatory benefits for the species. Under the Gifford Pinchot
decision, critical habitat designations may provide greater benefits to
recovery of a species than was previously believed. Because the
proposed critical habitat is occupied by the species, there must be
consultation with the Service for any action which may adversely affect
the species. Some improvements in habitat quality might result from a
designation, but we believe that they would be minimal, as discussed
above. The additional educational benefits which might arise from
critical habitat designation are largely accomplished through the
multiple notice and comments which accompanied the development of this
regulation, and contact with the affected parties during development of
the economic analysis.
(2) Benefits of Exclusion
The benefits of excluding the lower Verde River from critical
habitat designation are avoidance in up to $64.59 million (undiscounted
dollars) in possible economic impacts, as set out in the economic
analysis. While the cost estimate of $64.59 million is an estimate of
potential economic costs for the entire Verde River, we are only
excluding the lower portion because we believe the lower portion of the
Verde River accounts for some of the highest cost areas since this is
where the river runs through several communities in the Verde Valley
that are experiencing rapid urban growth. Additionally, as discussed
below, we find that the upper portion of the Verde River is the most
important for conservation of the spikedace because it accounts for 91
percent of the known locations of the spikedace in the Verde River.
We also believe that excluding these lands, and thus helping
landowners and water users avoid the additional costs that would result
from the designation, will contribute to a more positive climate for
Habitat Conservation Plans and other active conservation measures.
These generally provide greater conservation benefits than result from
designation of critical habitat--even in the post-Gifford Pinchot
environment--which requires only that the there be no adverse
modification resulting from federally-related actions. Generally,
positive conservation efforts by landowners contribute more towards
recovery of species than the mere avoidance of adverse impacts required
under a critical habitat designation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We find that the benefits of designating final critical habitat for
the spikedace on the lower portion of the Verde River are small in
comparison to the benefits of exclusion. In making this finding, we
have weighed the benefits of including the lower Verde River as final
critical habitat against the possible costs imposed on private parties
as a result of the final critical habitat designation.
We have therefore excluded these lands from the final critical
habitat designation pursuant to section 4(b)(2) of the Act.
(4) Exclusion Will Not Result in Extinction of the Species
Because we consider the lower portion of the Verde River to be
occupied by spikedace, a species protected from take under section 9 of
the Act, any actions that might adversely affect or result in take of
the spikdace, regardless of whether a Federal is present, must undergo
a consultation with the Service under the requirements of section 7 of
the Act or receive a permit from us under section 10 of the Act. This
exclusion leaves these protections unchanged from those which would
exist if the excluded areas were designated as critical habitat.
Additionally, we have concluded that excluding this area from final
critical habitat will not result in the extinction of the spikedace
because this exclusion is only a small percentage of the overall
critical habitat designation and, as noted above, 91 percent of the
known locations of the spikedace occur in the upper Verde River, which
is not being excluded from the final critical habitat designation.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2) of the
Act, if we determine that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat,
unless we determine, based on the best scientific data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a
notice of
[[Page 13401]]
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities. The SBREFA also amended the RFA to require a
certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses, Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we considered the types of
activities that might trigger regulatory impacts under this designation
as well as types of project modifications that may result. In general,
the term significant economic impact is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we considered the number of small entities
affected within particular types of economic activities (e.g., water
management and use, livestock grazing, Tribal activities, residential
and related development, species-specific management activities,
recreation activities, fire management activities, mining, and
transportation). We apply the ``substantial number'' test individually
to each industry to determine if certification is appropriate. However,
the SBREFA does not explicitly define ``substantial number'' or
``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect the spikedace or loach minnow. Federal agencies must also
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities.
Our economic analysis of this designation evaluated the potential
economic effects on small business entities and small governments
resulting from conservation actions related to the listing of these
species and proposed designation of their critical habitat. We
evaluated small business entities in water management and use,
livestock grazing activities, mining operations, management activities
specific to spikedace and loach minnow, recreation, residential and
related development, Tribes, transportation, and fire management. Based
on our analysis, impacts are anticipated to occur in Tribes,
agricultural crop production as it relates to water use and management,
livestock grazing, residential and commercial development, and
recreation. The following is a summary of the information contained in
Appendix B of the economic analysis:
Tribes
The economic analysis estimates that future impacts resulting from
spikedace and loach minnow conservation activities on Tribal lands
could include administrative costs of consultations, surveys and
monitoring, development of a Fisheries Management Plan, modifications
to grazing, fire management, modifications to recreational activities,
and potential project modifications to restoration activities. The
economic analysis provides additional detail on anticipated impacts;
however, because all Tribal lands have been excluded under section
4(b)(2), these costs will not be incurred.
Water Management and Use: Agricultural Crop Production
The economic analysis notes that spikedace and loach minnow
conservation activities have not impacted crop production since the
listing of the species in 1986. The economic analysis further notes
that, because agricultural water use comprises 98 percent of surface
water use and 81 percent of groundwater use in counties containing
critical habitat for spikedace and loach minnow, it is likely that any
additional water supplies needed for the species would come from
agriculture. Therefore, the analysis focuses on a potential scenario
under which farmers would give up agricultural water use in an effort
to provide adequate water supply for the species, leading to reductions
in crop production. The economic analysis notes that, because of the
uncertainty involved in estimating the potential reduction in
agricultural production, the scenario analyzed represents the high-end
estimate of impacts to water users.
Should this scenario be realized, losses in land values associated
with transitioning irrigated cropland to non-irrigated lands will
likely result, and would range from $3,175 to $6,190 per acre,
depending on the area in which critical habitat is located. A total of
6,310 acres of cropland are in the vicinity of proposed critical
habitat (i.e., in the same valley), and 810 of those acres are located
within the critical habitat designation itself. The average farm size
in affected counties ranges from 1,300 acres to 7,800 acres. Assuming
affected farms are average-sized for their counties, approximately one
to five farms could experience reductions in crop production.
Alternatively, the median farm size in affected counties ranges from 41
to 1,300 acres. Assuming affected farms are median-sized for their
counties, approximately 4 to 199 farms could experience reductions in
crop production. Under the assumption that all farms are small (1,884
farms across 5 counties), the estimate of future impacts (1 to 199)
represents between less than 1 percent to 6.5 percent of total small
farm operations in counties that contain spikedace and loach minnow
critical habitat. The analysis assumes that affected farms are small,
so that total future impacts represent less than
[[Page 13402]]
1 percent to 6.5 percent of total small farm operations in counties
that contain spikedace and loach minnow habitat.
Livestock Grazing
The economic analysis notes that ranching operations holding
Federal grazing allotment permits are anticipated to experience
economic impacts as they implement species conservation requirements
for grazing activities. The analysis assumes that each Federal grazing
allotment falling within critical habitat is run by a unique ranching
operation, so that approximately 76 ranching operations may be impacted
annually. These 76 ranches represent 4.7 percent of ranches in the
affected counties, or 1.0% of ranches in New Mexico and Arizona. Annual
costs to each of these ranches would be between $390 and $9,200 per
ranch. With average revenues per ranch in this region at $166,700,
these losses represent between 0.2 and 5.5 percent of each ranch's
estimated average revenues.
The analysis notes that approximately 72 small ranching operations
may experience a reduction in revenues of between 0.9 and 22 percent of
annual revenues annually. The analysis concludes that the extent to
which these impacts are significant to any individual ranch depends on
its financial conditions.
Residential and Commercial Development
The analysis for residential and commercial development concludes
that impacts are likely to occur in the Verde River segment, as it
contains a large amount of private land, a relatively large human
population, and high projected population growth potential in the next
20 years. The analysis notes that it is likely that project
modification costs associated with spikedace and loach minnow
conservation activities would be passed from the developer to the
existing landowner in the form of reduced prices for raw land. The
landowners may be developers, farmers, ranchers, or simply individuals
or families that are not registered businesses, and the analysis
concludes that some of the existing landowners may be small entities.
Impacts to developers are estimated to include fencing costs,
scientific studies, surveying and monitoring requirements, and possibly
off-setting mitigation (habitat set-aside). Costs are estimated to
range from $3.1 million to $4.8 million per large development, or
$3,900 to $5,900 per housing unit ($190 to 300 annually, if costs are
distributed evenly over 20 years). Total impacts to development
activities are estimated at $3.4 to $5.2 million over 20 years, or
$319,000 to $419,000 annually (assuming a discount rate of seven
percent). The analysis concludes that up to 1,646 housing units could
be built on approximately 2,880 privately owned acres within proposed
critical habitat over the next 20 years in Yavapai County. The economic
analysis provides additional detail on anticipated impacts; however,
because we excluded the middle and lower portions of the Verde River
under section 4(b)(2) of the Act, the majority of these costs will not
be incurred.
Recreation
The analysis notes that areas currently stocked with nonnative
sportfish include the Camp Verde area in the Verde River in Complex 1
and the East Fork Gila River in Complex 5. The analysis states that the
future impact of the critical habitat designation on the stocking
regimes in these areas is unknown, as is the reduction in fishing
activity that would occur if stocking is curtailed, and whether or not
nonnative fish stocking might be replaced with catchable native fish
stocking (e.g., Apache trout). Because of these unknowns, the analysis
evaluated the high-end cost of angler days at risk if sportfish
stocking were discontinued in these reaches.
Angling trips are valued at $8.6 million over 20 years (or $816,000
annually), assuming a discount rate of seven percent. The analysis
notes that State fish managers typically identify alternative sites for
stocked fish when areas are closed to stocking, so that angler days are
likely to be redistributed to other areas rather than lost altogether.
The high-end estimate does not consider the possibility that recreators
will visit alternative fishing sites.
The two stream reaches where impacts on recreation are anticipated
to occur are in Yavapai County, Arizona, and Catron County, New Mexico.
If angler trips to the two stream reaches are not lost, but instead are
redistributed to other streams, then regional impacts on small
businesses are likely to be minimal. If, as in the high-end estimate of
impacts, angler trips to the two stream reaches are not undertaken,
localized impacts on anglers, and in turn small businesses that rely on
fishing activities, could occur. These impacts would be spread across a
variety of industries including food and beverage stores, food service
and drinking places, accommodations, transportation, and sporting
goods. The analysis found that these industries generate approximately
$829 million in total annual sales for these two counties. Based on
2001 National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation for Arizona and New Mexico, average expenditures per fishing
trip are approximately $37, with the bulk of these expenditures
occurring in the food service and gasoline industries. By multiplying
this per-trip estimate by the number of fishing trips potentially lost
due to spikedace and loach minnow conservation activities (0 to 13,260
days per year, assuming one day per trip), expenditures by these
anglers are estimated to be up to $485,000 annually. The high-end
estimate of annual loss of trip expenditures could therefore represent
a loss of approximately 0.06 percent of annual revenues for affected
businesses.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on the spikedace and
loach minnow and their habitat. First, if we conclude, in a biological
opinion, that a proposed action is likely to jeopardize the continued
existence of a species or adversely modify its critical habitat, we can
offer ``reasonable and prudent alternatives.'' Reasonable and prudent
alternatives are alternative actions that can be implemented in a
manner consistent with the scope of the Federal agency's legal
authority and jurisdiction, that are economically and technologically
feasible, and that would avoid jeopardizing the continued existence of
listed species or result in adverse modification of critical habitat. A
Federal agency and an applicant may elect to implement a reasonable and
prudent alternative associated with a biological opinion that has found
jeopardy or adverse modification of critical habitat. An agency or
applicant could alternatively choose to seek an exemption from the
requirements of the Act or proceed without implementing the reasonable
and prudent alternative. However, unless an exemption were obtained,
the Federal agency or applicant would be at risk of violating section
7(a)(2) of the Act if it chose to proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal or plant species,
we may identify reasonable and prudent measures designed to minimize
the amount or extent of take and require the Federal agency or
applicant to implement such measures through non-discretionary
[[Page 13403]]
terms and conditions. We may also identify discretionary conservation
recommendations designed to minimize or avoid the adverse effects of a
proposed action on listed species or critical habitat, help implement
recovery plans, or to develop information that could contribute to the
recovery of the species.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. We can only describe the general
kinds of actions that may be identified in future reasonable and
prudent alternatives. These are based on our understanding of the needs
of the species and the threats it faces, as described in the final
listing rule and this critical habitat designation. Within the final
critical habitat units, the types of Federal actions or authorized
activities that we have identified as potential concerns are carrying
out, permitting, or funding of: Livestock grazing, road and bridge
construction and maintenance, water diversions (including maintenance
of diversion structures), recreation, gravel mining, burning and
wildfires, mining, watershed disturbances, and the spread of nonnative
aquatic species.
It is likely that a developer or other project proponent could
modify a project or take measures to protect the spikedace and loach
minnow. The kinds of actions that may be included if future reasonable
and prudent alternatives become necessary include conservation set-
asides, management of competing nonnative species, restoration of
degraded habitat, and regular monitoring. These are based on our
understanding of the needs of the species and the threats it faces, as
described in the final listing rule and proposed critical habitat
designation. These measures are not likely to result in a significant
economic impact to project proponents.
In summary, we have considered whether this critical habitat
designation would result in a significant economic effect on a
substantial number of small entities. We have determined, for the above
reasons and based on currently available information, that it is not
likely to affect a substantial number of small entities. Federal
involvement, and thus section 7 consultations, would be limited to a
subset of the area designated. The most likely Federal involvement
could include actions needing a section 404 permit under the Clean
Water Act (e.g., livestock grazing, agricultural water developments,
recreation). A regulatory flexibility analysis is not required.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211
(Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. Executive Order 13211 requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This final rule to designate critical habitat for the
spikedace and loach minnow is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, or permits or who otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; additionally,
critical habitat would not shift the costs of the large entitlement
programs listed above on to State governments.
(b) The economic analysis discusses potential impacts of critical
habitat designation for spikedace and loach minnow on water management
activities, livestock grazing, Tribes, residential and commercial
development activities, recreation activities, fire management
activities, mining, and transportation activities. The analysis
estimates that the total costs of the rule could range from $25.2 to
$100.3 million in undiscounted dollars over 20 years. Impacts are
largely anticipated to affect water use and management, recreation, and
livestock. Impacts on small governments are not anticipated, or they
are anticipated to be passed on to consumers in the form of price
changes. Consequently, for the reasons discussed above, we do not
believe that the designation of critical habitat for the spikedace and
loach minnow will significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
[[Page 13404]]
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the spikedace and loach minnow in a
takings implications assessment. The takings implications assessment
concludes that this designation of critical habitat for these fish does
not pose significant takings implications.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policies, we
requested information from and coordinated development of this critical
habitat designation with appropriate State resource agencies in Arizona
and New Mexico. The designation of critical habitat in areas currently
occupied by spikedace or loach minnow may impose nominal additional
regulatory restrictions to those currently in place and, therefore, may
have little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas containing features essential to the conservation of
this species are more clearly defined, and the primary constituent
elements of the habitat necessary to the conservation of this species
are specifically identified. While making this definition and
identification does not alter where and what federally sponsored
activities may occur, it may assist local governments in long-range
planning (rather than waiting for case-by-case section 7 consultations
to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Endangered Species
Act. This final rule uses standard property descriptions and identifies
the primary constituent elements within the designated areas to assist
the public in understanding the habitat needs of spikedace and loach
minnow.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose record keeping 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
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996). However, when the range of the species
includes States within the Tenth Circuit, such as that of the spikedace
and loach minnow, pursuant to the Tenth Circuit ruling in Catron County
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429
(10th Cir. 1996), we undertake a NEPA analysis for critical habitat
designation. We conducted a NEPA evaluation and notified the public of
the draft document's availability on June 6, 2006 (71 FR 32496). We
completed an environmental assessment and finding of no significant
impact on the designation of critical habitat for the spikedace and
loach minnow. The final documents are available and can be viewed
online at http://www.fws.gov/southwest/es/arizona/.
Government to Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have excluded all Tribal
lands from the final critical habitat designation pursuant to section
4(b)(2) of the Act.
Secretarial Order 3206: American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act
The purpose of Secretarial Order 3206 (Secretarial Order) is to
``clarif(y) the responsibilities of the component agencies, bureaus,
and offices of the Department of the Interior and the Department of
Commerce, when actions taken under authority of the Act and associated
implementing regulations affect, or may affect, Indian lands, tribal
trust resources, or the exercise of American Indian tribal rights.'' If
there is potential that a tribal activity could cause either direct or
incidental take of a species proposed for listing under the Act, then
meaningful government-to-government consultation will occur to try to
harmonize the Federal trust responsibility to Tribes and tribal
sovereignty with our statutory responsibilities under the Act. The
Secretarial order also requires us to consult with Tribes if the
designation of an area as critical habitat might impact tribal trust
resources, tribally owned fee lands, or the exercise of tribal rights.
References Cited
A complete list of all references cited in this rulemaking is upon
request from the Arizona Ecological Services Field Office (see
ADDRESSES section above).
Authors
The primary authors of this package are the Arizona Ecological
Services Office staff (see ADDRESSES section above).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations as set forth below:
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. 17.95(e) by revising the critical habitat entries for
``Loach Minnow (Tiaroga cobitis)'' and ``Spikedace (Meda fulgida)'' to
read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
[[Page 13405]]
(e) Fishes.
* * * * *
Loach Minnow (Tiaroga Cobitis)
(1) Critical habitat units are depicted for Apache, Graham,
Greenlee, and Pinal Counties, Arizona; and Catron, Grant, and Hidalgo
Counties, New Mexico, on the maps and as described below.
(2) Within these areas, the primary constituent elements of
critical habitat for loach minnow are the following:
(i) Permanent, flowing water with no or low levels of pollutants,
including:
(A) Living areas for adult loach minnow with moderate to swift flow
velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in
shallow water between approximately 1.0 to 30 inches (3 cm to 75 cm) in
depth, with gravel, cobble, and rubble substrates;
(B) Living areas for juvenile loach minnow with moderate to swift
flow velocities between 1.0 and 34 in/second (3.0 and 85.0 cm/second)
in shallow water between approximately 1.0 to 30 inches (3 cm to 75 cm)
in depth with sand, gravel, cobble, and rubble substrates;
(C) Living areas for larval loach minnow with slow to moderate
velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in
shallow water with sand, gravel, and cobble substrates;
(D) Spawning areas with slow to swift flow velocities in shallow
water where cobble and rubble and the spaces between them are not
filled in by fine dirt or sand; and
(E) Water with dissolved oxygen levels greater than 3.5 cc/l and no
or minimal pollutant levels for pollutants such as copper, arsenic,
mercury, and cadmium; human and animal waste products; pesticides;
suspended sediments; and gasoline or diesel fuels.
(ii) Sand, gravel, and cobble substrates with low or moderate
amounts of fine sediment and substrate embeddedness. Suitable levels of
embeddedness are generally maintained by a natural, unregulated
hydrograph that allows for periodic flooding or, if flows are modified
or regulated, a hydrograph that allows for adequate river functions,
such as flows capable of transporting sediments.
(iii) Streams that have:
(A) Low gradients of less than approximately 2.5 percent;
(B) Water temperatures in the approximate range of 35 to 86 [deg]F
(1.7 to 30.0 [deg]C) (with additional natural daily and seasonal
variation);
(C) Pool, riffle, run, and backwater components; and
(D) An abundant aquatic insect food base consisting of mayflies,
true flies, black flies, caddisflies, stoneflies, and dragonflies.
(iv) Habitat devoid of nonnative aquatic species or habitat in
which nonnative aquatic species are at levels that allow persistence of
loach minnow.
(v) Areas within perennial, interrupted stream courses that are
periodically dewatered but that serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted.
(3) Each stream segment includes a lateral component that consists
of 300 feet (91.4 meters) on either side of the stream channel measured
from the stream edge at bank full discharge. This lateral component of
critical habitat contains and contributes to the physical and
biological features essential to the loach minnow and is intended as a
surrogate for the 100-year floodplain.
(4) Critical habitat map areas. Data layers defining map areas, and
mapping of critical habitat areas, was done using Arc GIS and verifying
with USGS 7.5[foot] quadrangles. Legal descriptions for New Mexico and
Arizona are based on the Public Lands Survey System (PLSS). Within this
system, all coordinates reported for New Mexico are in the New Mexico
Principal Meridian (NMPM), while those in Arizona are in the Gila and
Salt River Meridian (GSRM). All mileage calculations were performed
using GIS.
(5) Note: Index map of critical habitat units for loach minnow (Map
1) follows:
BILLING CODE 4310-55-P
[[Page 13406]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.000
(6) Complex 2--Black River, Apache and Greenlee Counties, Arizona.
(i) East Fork Black River--12.2 mi (19.7 km) of river extending
from the confluence with the West Fork Black River at Township 4 North,
Range 28
[[Page 13407]]
East, section 11 upstream to the confluence with unnamed tributary
approximately 0.51 mi (0.82 km) downstream of the Boneyard Creek
confluence at Township 5 North, Range 29 East, section 5. Land
ownership: U.S. Forest Service (Apache--Sitgreaves National Forest).
(ii) North Fork East Fork Black River--4.4 mi (7.1 km) of river
extending from the confluence with East Fork Black River at Township 5
North, Range 29 East, section 5 upstream to the confluence with an
unnamed tributary at Township 6 North, Range 29 East, section 30. Land
ownership: U.S. Forest Service (Apache--Sitgreaves National Forest).
(iii) Boneyard Creek--1.4 mi (2.3 km) of creek extending from the
confluence with the East Fork Black River at Township 5 North, Range 29
East, section 5 upstream to the confluence with an unnamed tributary at
Township 6 North, Range 29 East, section 32. Land ownership: U.S.
Forest Service (Apache--Sitgreaves National Forest).
(iv) Note: Map of Complex 2 (Black River) of loach minnow critical
habitat (Map 2) follows:
[[Page 13408]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.001
[[Page 13409]]
(7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal
and Graham Counties, Arizona.
(i) Aravaipa Creek--28.1 mi (45.3 km) of creek extending from the
confluence with the San Pedro River at Township 7 South, Range 16 East,
section 9 upstream to the confluence with Stowe Gulch at Township 6
South, Range 19 East, section 35. Land ownership: Bureau of Land
Management, Tribal, and State lands.
(ii) Turkey Creek--2.7 mi (4.3 km) of creek extending from the
confluence with Aravaipa Creek at Township 6 South, Range 19 East,
section 19 upstream to the confluence with Oak Grove Canyon at Township
6 South, Range 19 East, section 32. Land ownership: Bureau of Land
Management.
(iii) Deer Creek--2.3 mi (3.6 km) of creek extending from the
confluence with Aravaipa Creek at Township 6 South, Range 18 East,
section 14 upstream to the boundary of the Aravaipa Wilderness at
Township 6 South, Range 19 East, section 18. Land ownership: Bureau of
Land Management.
(iv) Note: Map of Complex 3 (Aravaipa Creek) of loach minnow
critical habitat (Map 3) follows:
[[Page 13410]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.002
[[Page 13411]]
(8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham
Counties, Arizona, and Catron County, New Mexico.
(i) Eagle Creek--17.7 mi (28.5 km) of creek extending from the
Phelps--Dodge Diversion Dam at Township 4 South, Range 28 East, section
23 upstream to the confluence of Dry Prong and East Eagle Creeks at
Township 2 North, Range 28 East, section 29, excluding portions of the
San Carlos Reservation. Land ownership: U.S. Forest Service (Apache--
Sitgreaves National Forest), and private lands.
(ii) San Francisco River--126.5 mi (203.5 km) of river extending
from the confluence with the Gila River at Township 5 South, Range 29
East, section 21 upstream to the mouth of The Box, a canyon above the
town of Reserve, at Township 6 South, Range 19 West, section 2. Land
ownership: Bureau of Land Management, U.S. Forest Service (Apache-
Sitgreaves National Forest), State, and private lands in Arizona, and
U.S. Forest Service (Gila National Forest) and private lands in New
Mexico.
(iii) Tularosa River--18.6 mi (30.0 km) of river extending from the
confluence with the San Francisco River at Township 7 South, Range 19
West, section 23 upstream to the town of Cruzville at Township 6 South,
Range 18 West, section 12. Land ownership: U.S. Forest Service (Gila
National Forest) and private lands.
(iv) Negrito Creek--4.2 mi (6.8 km) of creek extending from the
confluence with the Tularosa River at Township 7 South, Range 18 West,
section 19 upstream to the confluence with Cerco Canyon at Township 7
South, Range 18 West, section 21. Land ownership: U.S. Forest Service
(Gila National Forest), and private lands.
(v) Whitewater Creek--1.1 mi (1.8 km) of creek extending from the
confluence with the San Francisco River at Township 11 South, Range 20
West, section 27 upstream to the confluence with the Little Whitewater
Creek at Township 11 South, Range 20 West, section 23. Land ownership:
private lands.
(vi) Blue River--51.1 mi (82.2 km) of river extending from the
confluence with the San Francisco River at Township 2 South, Range 31
East, section 31 upstream to the confluence of Campbell Blue and Dry
Blue Creeks at Township 6 South, Range 20 West, section 6. Land
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and
private lands in Arizona; U.S. Forest Service (Gila National Forest) in
New Mexico.
(vii) Campbell Blue Creek--8.1 mi (13.1 km) of creek extending from
the confluence of Dry Blue and Campbell Blue Creeks at Township 6
South, Range 20 West, section 6 in New Mexico upstream to the
confluence with Coleman Canyon at Township 4 North, Range 31 East,
section 32 in Arizona. Land ownership: U.S. Forest Service (Apache-
Sitgreaves National Forest) and private lands in Arizona; U.S. Forest
Service (Gila National Forest) in New Mexico.
(viii) Dry Blue Creek--3.0 mile (4.8 km) of creek extending from
the confluence with Campbell Blue Creek at Township 7 South, Range 21
West, section 6 upstream to the confluence with Pace Creek at Township
6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service
(Gila National Forest).
(ix) Pace Creek--0.8 mile (1.2 km) of creek extending from the
confluence with Dry Blue Creek at Township 6 South, Range 21 West,
section 28 upstream to a barrier falls at Township 6 South, Range 21
West, section 29. Land ownership: U.S. Forest Service (Gila National
Forest).
(x) Frieborn Creek--1.1 mi (1.8 km) of creek extending from the
confluence with Dry Blue Creek at Township 7 South, Range 21 West,
section 6 upstream to an unnamed tributary at Township 7 South, range
21 West, section 8. Land ownership: U.S. Forest Service (Gila National
Forest).
(xi) Little Blue Creek--2.8 mi (4.5 km) of creek extending from the
confluence with the Blue River at Township 1 South, range 31 East,
section 5 upstream to the mouth of a canyon at Township 1 North, Range
31 East, section 29. Land ownership: U.S. Forest Service (Apache-
Sitgreaves National Forest).
(xii) Note: Map of Complex 4 (San Francisco and Blue Rivers) of
loach minnow critical habitat (Map 4) follows:
[[Page 13412]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.003
[[Page 13413]]
(9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo
Counties, New Mexico.
(i) Upper Gila River--94.9 mi (152.7 km) of river extending from
the confluence with Moore Canyon (near the Arizona/New Mexico border)
at Township 18 South, Range 21 West, section 32 upstream to the
confluence of the East and West Forks of the Gila River at Township 13
South, Range 13 West, section 8. Land ownership: Bureau of Land
Management, U.S. Forest Service (Gila National Forest), State, and
private lands.
(ii) East Fork Gila River--26.1 mi (42.0 km) of river extending
from the confluence with the West Fork Gila River at Township 11 South,
Range 12 West, section 17 upstream to the confluence of Beaver and
Taylor creeks at Township 13 South, Range 13 West, section 8. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iii) Middle Fork Gila River--11.9 mi (19.1 km) of river extending
from the confluence with the West Fork Gila River at Township 12 South,
Range 14 West, section 25 upstream to the confluence with Brothers West
Canyon at Township 11 South, Range 14 West, section 33. Land ownership:
U.S. Forest Service (Gila National Forest) and private lands.
(iv) West Fork Gila River--7.7 mi (12.4 km) of river extending from
the confluence with the East Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence with EE Canyon at
Township 12 South, Range 14 West, section 22. Land ownership: U.S.
Forest Service (Gila National Forest), National Park Service, and
private lands.
(v) Note: Map of Complex 5 (Upper Gila River Complex) of loach
minnow critical habitat (Map 5) follows:
[[Page 13414]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.004
[[Page 13415]]
* * * * *
Spikedace (Meda fulgida)
(1) Critical habitat units are depicted for Graham, Greenlee,
Pinal, and Yavapai Counties, Arizona; and Catron, Grant, and Hidalgo
Counties, New Mexico, on the maps and as described below.
(2) Within these areas, the primary constituent elements of
critical habitat for spikedace are the following:
(i) Permanent, flowing water with no or minimal pollutant levels,
including:
(A) Living areas for adult spikedace with slow to swift flow
velocities between 20 and 60 cm/second (8 and 24 in/second) in shallow
water between approximately 10 cm (4 in) and 1 meter (40 in) in depth,
with shear zones where rapid flow borders slower flow, areas of sheet
flow (or smoother, less turbulent flow) at the upper ends of mid-
channel sand/gravel bars, and eddies at downstream riffle edges;
(B) Living areas for juvenile spikedace with slow to moderate water
velocities of approximately 18 cm/second (8 in/second) or higher in
shallow water between approximately 3 cm (1.2 in) and 1 meter (40 in)
in depth;
(C) Living areas for larval spikedace with slow to moderate flow
velocities of approximately 10 cm/second (4 in/second) or higher in
shallow water approximately 3 cm (1.2 in) to 1 meter (40 in) in depth;
and
(D) Water with dissolved oxygen levels greater than 3.5 cc/l and no
or minimal pollutant levels for pollutants such as copper, arsenic,
mercury, and cadmium; human and animal waste products; pesticides;
suspended sediments; and gasoline or diesel fuels.
(ii) Sand, gravel, and cobble substrates with low or moderate
amounts of fine sediment and substrate embeddedness. Suitable levels of
embeddedness are generally maintained by a natural, unregulated
hydrograph that allows for periodic flooding or, if flows are modified
or regulated, a hydrograph that allows for adequate river functions,
such as flows capable of transporting sediments.
(iii) Streams that have:
(A) Low gradients of less than approximately 1.0 percent;
(B) Water temperatures in the approximate range of 35 to 82 [deg]F
(1.7 to 27.8 [deg]C) (with additional natural daily and seasonal
variation);
(C) Pool, riffle, run, and backwater components; and
(D) An abundant aquatic insect food base consisting of mayflies,
true flies, caddisflies, stoneflies, and dragonflies.
(iv) Habitat devoid of nonnative aquatic species or habitat in
which nonnative aquatic species are at levels that allow persistence of
spikedace.
(v) Areas within perennial, interrupted stream courses that are
periodically dewatered but that serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted.
(3) Each stream segment includes a lateral component that consists
of 300 feet (91.4 meters) on either side of the stream channel measured
from the stream edge at bank full discharge. This lateral component of
critical habitat contains and contributes to the physical and
biological features essential to the spikedace and is intended as a
surrogate for the 100-year floodplain.
(4) Critical habitat map areas. Data layers defining map areas, and
mapping of critical habitat areas, was done using Arc GIS and verifying
with USGS 7.5' quadrangles. Legal descriptions for New Mexico and
Arizona are based on the Public Lands Survey System (PLSS). Within this
system, all coordinates reported for New Mexico are in the New Mexico
Principal Meridian (NMPM), while those in Arizona are in the Gila and
Salt River Meridian (GSRM). All mileage calculations were performed
using GIS.
(5) Note: Index map of critical habitat units for spikedace (Map
1), follows:
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[GRAPHIC] [TIFF OMITTED] TR21MR07.005
(6) Complex 1--Verde River, Yavapai County, Arizona.
(i) Verde River--43.0 mi (69.2 km) of river extending from the
Prescott and Coconino National Forest boundary with private lands at
Township 17
[[Page 13417]]
North, Range 3 East, section 7, upstream to Sullivan Dam at Township 17
North, Range 2 West, section 15. Land ownership: U.S. Forest Service
(Coconino and Prescott National Forests), State, and private lands.
(ii) Note: Map of Complex 1 (Verde River) of spikedace critical
habitat (Map 2) follows:
[GRAPHIC] [TIFF OMITTED] TR21MR07.006
[[Page 13418]]
(7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal
and Graham Counties, Arizona.
(i) Gila River--39.0 mi (62.8 km) of river extending from the
Ashurst-Hayden Dam at Township 4 South, Range 11 East, section 8
upstream to the confluence with the San Pedro River at Township 5
South, Range 15 East, section 23. Land ownership: Bureau of
Reclamation, Bureau of Land Management, State, and private lands.
(ii) Lower San Pedro River--13.4 mi (21.5 km) of river extending
from the confluence with the Gila River at Township 5 South, Range 15
East, section 23 upstream to the confluence with Aravaipa Creek at
Township 7 South, Range 16 East, section 9. Land ownership: Bureau of
Land Management, Tribal, State, and private lands.
(iii) Aravaipa Creek--28.1 mi (45.3 km) of creek extending from the
confluence with the San Pedro River at Township 7 South, Range 16 East,
section 9 upstream to the confluence with Stowe Gulch at Township 6
South, Range 19 East, section 35. Land ownership: Bureau of Land
Management, Tribal, State, and private lands.
(iv) Note: Map of Complex 3 (Middle Gila/Lower San Pedro/Aravaipa
Creek) of spikedace critical habitat (Map 3) follows:
[[Page 13419]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.007
[[Page 13420]]
(8) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo
Counties, New Mexico.
(i) Upper Gila River--94.9 mi (152.7 km) of river extending from
the confluence with Moore Canyon (near the Arizona/New Mexico border)
at Township 18 South, Range 21 West, section 32 upstream to the
confluence of the East and West Forks of the Gila River at Township 13
South, Range 13 West, section 8, excluding lands owned by the Phelps
Dodge Corporation. Land ownership: Bureau of Land Management, U.S.
Forest Service (Gila National Forest), State, and private lands.
(ii) East Fork Gila River--26.1 mi (42.0 km) of river extending
from the confluence with the West Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence of Beaver and
Taylor creeks at Township 11 South, Range 12 West, section 17. Land
ownership: U.S. Forest Service (Gila National Forest) and private
lands.
(iii) Middle Fork Gila River--7.7 mi (12.3 km) of river extending
from the confluence with the West Fork Gila River at Township 12 South,
Range 14 West, section 25 upstream to the confluence with Big Bear
Canyon at Township 12 South, Range 14 West, section 2. Land ownership:
U.S. Forest Service (Gila National Forest) and private lands.
(iv) West Fork Gila River--7.7 mi (12.4 km) of river extending from
the confluence with the East Fork Gila River at Township 13 South,
Range 13 West, section 8 upstream to the confluence with EE Canyon at
Township 12 South, Range 14 West, section 22. Land ownership: U.S.
Forest Service (Gila National Forest), National Park Service, and
private lands.
(v) Note: Map of Complex 5 (Upper Gila River Complex) of spikedace
critical habitat (Map 4) follows:
[[Page 13421]]
[GRAPHIC] [TIFF OMITTED] TR21MR07.008
[[Page 13422]]
* * * * *
Dated: March 6, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-1218 Filed 3-20-07; 8:45 am]
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