[Federal Register Volume 77, Number 36 (Thursday, February 23, 2012)]
[Rules and Regulations]
[Pages 10810-10932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3591]



[[Page 10809]]

Vol. 77

Thursday,

No. 36

February 23, 2012

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; Endangered Status and 
Designations of Critical Habitat for Spikedace and Loach Minnow; Final 
Rule

  Federal Register / Vol. 77 , No. 36 / Thursday, February 23, 2012 / 
Rules and Regulations  

[[Page 10810]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0072; 4500030114]
RIN 1018-AX17


Endangered and Threatened Wildlife and Plants; Endangered Status 
and Designations of Critical Habitat for Spikedace and Loach Minnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), change the 
status of spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) 
from threatened to endangered under the Endangered Species Act of 1973, 
as amended (Act). With this rule we are also revising the designated 
critical habitats for both species. These changes fulfill our 
obligations under a settlement agreement.

DATES: This rule becomes effective on March 26, 2012.

ADDRESSES: This final rule and the associated final economic analysis 
and environmental assessment are available on the Internet at http://www.regulations.gov. Comments and materials received, as well as 
supporting documentation used in preparing 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 Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; 
telephone 602-242-0210; facsimile 602-242-2513.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Office, 2321 W. 
Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone 602-242-0210; 
facsimile 602-242-2513. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    In this final rule, we are changing the status of spikedace and 
loach minnow from threatened to endangered under the Act. We also are 
revising our designations of critical habitat for both species. We are 
under undertaking these actions pursuant to a settlement agreement and 
publication of this action will fulfill our obligations under that 
agreement. With the change in status for the species, the special rules 
for each species will be removed from the Code of Federal Regulations. 
In total, approximately 1,013 kilometers (630 miles) are designated as 
critical habitat for spikedace and 983 kilometers (610 miles) are 
designated as critical habitat for loach minnow in Apache, Cochise, 
Gila, Graham, Greenlee, Pinal, and Yavapai Counties, Arizona, and 
Catron, Grant, and Hidalgo Counties in New Mexico. Of this area, 
approximately 853 kilometers (529 miles) are designated for both 
species, with an additional 162 kilometers (100 miles) for spikedace 
only and an additional 130 kilometers (81 miles) for loach minnow only. 
We have excluded from this designation of critical habitat: portions of 
the upper San Pedro River in Arizona based on potential impacts to 
national security at Fort Huachuca; Tribal lands of the White Mountain 
Apache Tribe, San Carlos Apache Tribe, and the Yavapai-Apache Nation in 
Arizona; and private lands owned by Freeport-McMoRan in Arizona and New 
Mexico.

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the development and designations of critical 
habitat for the spikedace and the loach minnow under the Act (16 U.S.C. 
1531 et seq.). For more information on the biology and ecology of the 
spikedace and the loach minnow, refer to the final listing rule 
published in the Federal Register on July 1, 1986, for spikedace (51 FR 
23769), and October 28, 1986, for loach minnow (51 FR 39468); the 
previous critical habitat designations (72 FR 13356, March 21, 2007); 
and our 1991 final recovery plans, which are available from the Arizona 
Ecological Services Office (see ADDRESSES section). For information on 
spikedace and loach minnow critical habitat, refer to the proposed rule 
to designate critical habitat for the two species published in the 
Federal Register on October 28, 2010 (75 FR 66482). A notice of 
availability regarding changes to the proposed rule and information on 
the associated draft economic analysis and draft environmental 
assessment for the proposed rule to designate revised critical habitat 
was published in the Federal Register on October 4, 2011 (76 FR 61330).

Previous Federal Actions

    Previous Federal actions prior to October 28, 2010, are outlined in 
our proposed rule (75 FR 66482), which was published on that date. 
Publication of the proposed rule opened a 60-day comment period which 
closed on December 27, 2010. On October 4, 2011 (76 FR 61330), we 
published a revised proposed rule, announced the availability of a 
draft economic analysis and environmental assessment of the proposed 
designations, and announced the scheduling of a public information 
session and public hearing. Our October 4, 2011, notice also reopened 
the comment period on the revised proposed rule and uplisting for an 
additional 30 days, until November 3, 2011.

Spikedace

    The spikedace is a member of the minnow family Cyprinidae, and is 
the only species in the genus Meda. The spikedace was first collected 
from the San Pedro River in 1851. The spikedace is a small, slim fish 
less than 75 millimeters (mm) (3 inches (in)) in length (Sublette et 
al. 1990, p. 136). Spikedace have olive-gray to brownish skin, with 
silvery sides and vertically elongated black specks. Spikedace have 
spines in the dorsal fin (Minckley 1973, pp. 82, 112, 115).
    Spikedace are found in moderate to large perennial streams, where 
they inhabit shallow riffles (those shallow portions of the stream with 
rougher, choppy water) with sand, gravel, and rubble substrates (Barber 
and Minckley 1966, p. 31; Propst et al. 1986, p. 12; Rinne and Kroeger 
1988, p. 1; Rinne 1991, pp. 8-10). Specific habitat for this species 
consists of shear zones where rapid flow borders slower flow; areas of 
sheet flow at the upper ends of midchannel sand or gravel bars; and 
eddies at downstream riffle edges (Rinne 1991, p. 11; Rinne and Kroeger 
1988, pp. 1, 4). Recurrent flooding and a natural flow regime are very 
important in maintaining the habitat of spikedace and in helping 
maintain a competitive edge over invading nonnative aquatic species 
(Propst et al. 1986, pp. 76-81; Minckley and Meffe 1987, pp. 97, 103-
104).
    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. Habitat 
destruction and competition and predation by nonnative aquatic species 
reduced its range and abundance (Miller 1961, pp. 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; Propst et al. 1986, pp. 82-84). 
Spikedace are now restricted to portions of the upper Gila River 
(Grant, Catron, and Hidalgo Counties, New Mexico); Aravaipa Creek 
(Graham and Pinal Counties, Arizona);

[[Page 10811]]

Eagle Creek (Graham and Greenlee Counties, Arizona); and the Verde 
River (Yavapai County, Arizona) (Marsh et al. 1990, pp. 107-108, 111; 
Brouder, 2002, pers. comm.; Stefferud and Reinthal 2005, pp. 16-21; 
Paroz et al. 2006, pp. 62-67; Propst 2007, pp. 7-9, 11-14; Reinthal 
2011, pp. 1-2).
    In 2007, spikedace were translocated into Hot Springs and Redfield 
Canyons, in Cochise County, Arizona, and these streams were 
subsequently augmented (Robinson 2008a, pp. 2, 6; Robinson, 2008b, 
pers. comm.; Orabutt, 2009 pers. comm.; Robinson 2009a, pp. 2, 5-8). 
(We use the term ``translocate'' to describe stocking fish into an area 
where suitable habitat exists, but for which there are no documented 
collections.) Both Hot Springs and Redfield canyons are tributaries to 
the San Pedro River. Spikedace were also translocated into Fossil 
Creek, a tributary to the Verde River in Gila County, Arizona, in 2007, 
and were subsequently augmented in 2008 and 2011 (Carter 2007b, p. 1; 
Carter 2008a, p. 1; Robinson 2009b, p. 9; Boyarski et al. 2010, p. 3, 
Robinson 2011a, p. 1). In 2008, spikedace were translocated into Bonita 
Creek, a tributary to the Gila River in Graham County, Arizona 
(Blasius, 2008, pers. comm.; Orabutt, 2009,, pers. comm.; Robinson et 
al. 2009a, p. 209; Blasius and Conn 2011, p. 3), and were repatriated 
to the upper San Francisco River in Catron County, New Mexico (Propst, 
2010, pers. comm.). (We use the term ``repatriate'' to describe 
stocking fish into an area where we have historical records of prior 
presence.) Augmentations with additional fish will occur for the next 
several years at all sites, if adequate numbers of fish are available. 
Monitoring at each of these sites is ongoing to determine if 
populations ultimately become self-sustaining.
    The species is now common only in Aravaipa Creek in Arizona (AGFD 
1994; Arizona State University (ASU) 2002; Reinthal 2011, pp. 1-2) and 
one section of the Gila River south of Cliff, New Mexico (NMDGF 2008; 
Propst et al. 2009, pp. 14-17). The Verde River is presumed occupied; 
however, the last captured fish from this river was from a 1999 survey 
(Brouder 2002, p. 1; AGFD 2004). Spikedace from the Eagle Creek 
population have not been seen for over a decade (Marsh 1996, p. 2), 
although they are still thought to exist in numbers too low for the 
sampling efforts to detect (Carter et al. 2007, p. 3; see Minckley and 
Marsh 2009). The Middle Fork Gila River population is thought to be 
very small and has not been seen since 1991 (Jakle 1992, p. 6), but 
sampling is localized and inadequate to detect a sparse population.
    Population estimates have not been developed as a result of the 
difficulty in detecting the species, the sporadic nature of most 
surveys, and the difference in surveying techniques that have been 
applied over time. Based on the available maps and survey information, 
we estimate the present range for spikedace to be approximately 10 
percent or less of its historical range, and the status of the species 
within occupied areas ranges from common to very rare. Data indicate 
that the population in New Mexico has declined in recent years (Paroz 
et al. 2006, p. 56). Historical and current records for spikedace are 
summarized in three databases (ASU 2002, AGFD 2004, NMDGF 2008), which 
are referenced throughout this document.

Loach Minnow

    The loach minnow is a member of the minnow family Cyprinidae. The 
loach minnow was first collected in 1851 from the San Pedro River in 
Arizona and was described by those specimens in 1856 by Girard (pp. 
191-192). The loach minnow is a small, slender fish less than 80 mm (3 
in) 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).
    Loach minnow are found in small to large perennial streams and use 
shallow, turbulent riffles with primarily cobble substrate and swift 
currents (Minckley 1973, p. 134; Propst et al. 1988, pp. 36-43; Rinne 
1989, pp. 113-115; Propst and Bestgen 1991, pp. 29, 32-33). The loach 
minnow uses the spaces between, and in the lee (sheltered) side of, 
rocks for resting and spawning. It is rare or absent from habitats 
where fine sediments fill these interstitial spaces (Propst and Bestgen 
1991, p. 34).
    Loach minnow are now restricted to:
     Portions of the Gila River and its tributaries, the West, 
Middle, and East Fork Gila River (Grant, Catron, and Hidalgo Counties, 
New Mexico) (Paroz and Propst 2007, p. 16; Propst 2007, pp. 7-8, 10-11, 
13-14);
     The San Francisco and Tularosa rivers and their 
tributaries, Negrito and Whitewater Creeks (Catron County, New Mexico) 
(Propst et al. 1988, p. 15; ASU 2002; Paroz and Propst 2007, p. 16; 
Propst 2007, pp. 4-5);
     The Blue River and its tributaries, Dry Blue, Campbell 
Blue, Pace, and Frieborn Creeks (Greenlee County, Arizona, and Catron 
County, New Mexico) (Miller 1998, pp. 4-5; ASU 2002; Carter 2005, pp. 
1-5; Carter, 2008b, pers. comm.; Clarkson et al. 2008, pp. 3-4; 
Robinson 2009c, p. 3);
     Aravaipa Creek and its tributaries, Turkey and Deer Creeks 
(Graham and Pinal Counties, Arizona) (Stefferud and Reinthal 2005, pp. 
16-21);
     Eagle Creek (Graham and Greenlee Counties, Arizona), 
(Knowles 1994, pp. 1-2, 5; Bagley and Marsh 1997, pp. 1-2; Marsh et al. 
2003, pp. 666-668; Carter et al. 2007, p. 3; Bahm and Robinson 2009a, 
p. 1);
     The North Fork East Fork Black River (Apache and Greenlee 
Counties, Arizona) (Leon 1989, pp. 1-2; Lopez, 2000, pers. comm.; 
Gurtin, 2004, pers. comm.; Carter 2007b, p. 2; Robinson et al. 2009b, 
p. 4); and
     Possibly the White River and its tributaries, the East and 
North Fork White River (Apache, Gila, and Navajo Counties, Arizona).
    As described for spikedace above, population estimates for loach 
minnow have not been developed as a result of the difficulty in 
detecting the species, the sporadic nature of most surveys, and the 
difference in surveying techniques that have been applied over time. 
However, based on the available maps and survey information, we 
estimate the present range for loach minnow to be approximately 15 to 
20 percent or less of its historical range, and the status of the 
species within occupied areas ranges from common to very rare. Data 
indicate that the population in New Mexico has declined in recent years 
(Paroz et al. 2006, p. 56). Historical and current records for 
spikedace are summarized in three databases (ASU 2002, AGFD 2004, NMDGF 
2008), which are referenced throughout this document.

Summary of Factors Affecting the Species

    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Both spikedace and loach minnow 
currently exist in a small portion of their historical range (10 
percent, or less, for spikedace, and 15 to 20 percent for loach 
minnow), and the threats continue throughout its range. Accordingly, 
our assessment and determination applies to each species throughout its 
entire range. Section 4 of the Act (16 U.S.C. 1533), and implementing 
regulations (50 CFR part 424), set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants.

[[Page 10812]]

    Under section 4(a)(1) of the Act, a species may be determined to be 
endangered or threatened based on any of the following five factors: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence. In 
making this finding, information pertaining to spikedace and loach 
minnow, in relation to the five factors provided in section 4(a)(1) of 
the Act, is discussed below.
    In considering what factors might constitute threats to a species, 
we must look beyond the exposure of the species to a factor to evaluate 
whether the species may respond to the factor in a way that causes 
actual impacts to the species. If there is exposure to a factor and the 
species responds negatively, the factor may be a threat and we attempt 
to determine how significant a threat it is. The threat is significant 
if it drives, or contributes to, the risk of extinction of the species 
such that the species warrants listing as endangered or threatened as 
those terms are defined in the Act.
    Throughout the document, we discuss areas in which spikedace or 
loach minnow have been reintroduced, translocated, or augmented. For 
purposes of this document, we consider the species to have been 
reintroduced when they have been placed back into an area in which they 
were formerly present, but no longer are. We consider the fish to have 
been translocated when they are placed into a location for which we 
have no previous records of occurrence. Augmentation occurs when we add 
additional individuals to a former reintroduction or translocation 
project, in an attempt to establish a stable population.

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

Water Withdrawals
    Water resources are limited in the Southwestern United States and 
diversions and withdrawals have led to the conversion of portions of 
habitat to intermittent streams or reservoirs unsuitable for spikedace 
or loach minnow. Growing water demands reduce southern Arizona 
perennial surface water and threaten aquatic species. Historically, 
water withdrawals led to the conversion of large portions of flowing 
streams into intermittent streams, large reservoirs, or dewatered 
channels, thus eliminating suitable spikedace and loach minnow habitat 
in impacted areas (Propst et al. 1986, p. 3; Tellman et al. 1997, pp. 
37, 50, 63-64, 66, 103). These habitat changes, together with the 
introduction of nonnative fish species (see factors C and E), have 
resulted in the extirpation of spikedace and loach minnow throughout an 
estimated 80 to 90 percent of their historical ranges.
    Spikedace and loach minnow are stream-dwelling fish, and are 
associated only with flowing water. Spikedace are found in moderate to 
large perennial streams, and occur where the stream has flowing, 
rougher, choppy water (Barber and Minckley 1966, p. 31; Propst et al. 
1986, p. 12; Rinne and Kroeger 1988, p. 1; Rinne 1991, pp. 8-10). Loach 
minnow occur in shallow, turbulent riffles where there are swift 
currents (Minckley 1973, p. 134; Propst et al. 1988, pp. 36-43; Rinne 
1989, pp. 113-115; Propst and Bestgen 1991, pp. 29, 32-33). Water 
withdrawals that either dewater channels or reduce flows to low levels 
or pools within an active channel therefore eliminate the habitat used 
by the two species.
    Many streams currently or formerly occupied by spikedace and loach 
minnow have been affected by water withdrawals. The Gila River 
downstream of the town of Cliff, New Mexico, flows through a broad 
valley where irrigated agriculture and livestock grazing are the 
predominant uses. Human settlement has increased since 1988 (Propst et 
al. 2008 (pp. 1237-1238). Agricultural practices have led to dewatering 
of the river in the Cliff-Gila valley at times during the dry season 
(Soles 2003, p. 71). For those portions of the Gila River downstream of 
the Arizona-New Mexico border, agricultural diversions and groundwater 
pumping have caused declines in the water table, and surface flows in 
the central portion of the river basin are diverted for agriculture 
(Leopold 1997, pp. 63-64; Tellman et al. 1997, pp. 101-104; Arizona 
Department of Water Resources 2000, pp. 16-17).
    The San Francisco River has undergone sedimentation, riparian 
habitat degradation, and extensive water diversion and at present has 
an undependable water supply throughout portions of its length. The San 
Francisco River is seasonally dry in the Alma Valley, and two diversion 
structures fragment habitat in the upper Alma Valley and at Pleasanton 
(NMDGF 2006, p. 302). The San Francisco River in Arizona was classified 
as impaired due to excessive sediment from its headwaters downstream to 
the Arizona--New Mexico border (Arizona Department of Water Resources 
2011a, p. 1).
    Additional withdrawals of water from the Gila and San Francisco 
rivers may occur in the future. Implementation of Title II of the 
Arizona Water Settlements Act (AWSA) (Pub. L. 108-451) would facilitate 
the exchange of Central Arizona Project water within and between 
southwestern river basins in Arizona and New Mexico, and may result in 
the construction of new water development projects. For example, 
Section 212 of the AWSA pertains to the New Mexico Unit of the Central 
Arizona Project.
    The AWSA provides for New Mexico water users to deplete 140,000 
acre-feet of additional water from the Gila Basin in any ten-year 
period. The settlement also provides the ability to divert that water 
without complaint from downstream pre-1968 water rights in Arizona. New 
Mexico will receive $66 million to $128 million in non-reimbursable 
federal funding. The Interstate Stream Commission (ISC) funds may be 
used to cover costs of an actual water supply project, planning, 
environmental mitigation, or restoration activities associated with or 
necessary for the project, and may be used on one or more of 21 
alternative projects ranging from Gila National Forest San Francisco 
River Diversion/Ditch improvements to a regional water supply project 
(the Deming Diversion Project). At this time, it is not known how the 
funds will be spent, or which potential alternative(s) may be chosen.
    While multiple potential project proposals have been accepted by 
the New Mexico Office of the State Engineer (NMOSE) (NMOSE 2011a, p. 
1), implementation of the AWSA is still in the planning stages on these 
streams. The AWSA mandates that the ISC make the final determination of 
contracts for water and allocation of funding and provide notice to the 
Secretary of the Interior by December 31, 2014. New Mexico ISC must 
make any final determination during an open, public meeting, and only 
after consultation with the Gila San Francisco Water Commission, the 
citizens of Southwest New Mexico, and other affected interests. Due to 
the timeline associated with this project, as well as the uncertainties 
in how funding will be spent, and which potential alternative or 
alternatives will be chosen, the Service is unable to determine the 
outcome of this process at this time. However, should water be diverted 
from the Gila or San Francisco rivers, flows would be diminished and 
direct and indirect losses and degradation of

[[Page 10813]]

habitat for aquatic and riparian species would result. The San 
Francisco River is currently occupied by loach minnow, and is the site 
of a 2008 reintroduction for spikedace. The Gila River is a stronghold 
for both species, currently supporting the largest remaining 
populations of each. For these reasons, impacts to either river is of 
particular concern for the persistence of these species.
    Groundwater withdrawal in Eagle Creek, primarily for water supply 
for a large open-pit copper mine at Morenci, Arizona dries portions of 
the stream (Sublette et al. 1990, p. 19; Service 2005; Propst et al. 
1986, p. 7). Mining is the largest industrial water user in 
southeastern Arizona. The Morenci mine on Eagle Creek is North 
America's largest producer of copper, covering approximately 24,281 
hectares (ha) (60,000 acres (ac)). Water for the mine is imported from 
the Black River, diverted from Eagle Creek as surface flows, or 
withdrawn from the Upper Eagle Creek Well Field (Arizona Department of 
Water Resources 2009, p. 1).
    Aravaipa Creek is relatively protected from further instream 
habitat loss due to water withdrawals because it is partially within a 
Bureau of Land Management (BLM) Wilderness area and partially within a 
Nature Conservancy preserve. However, Aravaipa Creek is affected by 
upstream uses in the watershed, primarily groundwater pumping for 
irrigation. Irrigation can reduce creek flows, as crop irrigation uses 
large amounts of water, especially during the summer months when the 
creek flows are already at their lowest. Increased groundwater pumping 
from wells is known to be linked to reduced creek flows (JE Fuller 
2000, pp. 4-8).
    On the mainstem Salt River, impoundments have permanently limited 
the flow regime and suitability for spikedace or loach minnow. 
Spikedace are extirpated from portions of the Salt and Gila Rivers that 
were once perennial and are now classified as regulated (ASU 2002, The 
Nature Conservancy 2006).
    Water depletion is also a concern for the Verde River. In 2000, the 
Arizona Department of Water Resources (2000, p. 1-1) reported that the 
populations of major cities and towns within the Verde River watershed 
had more than doubled in the last 20 years, resulting in more than a 39 
percent increase in municipal water usage. The Arizona Department of 
Water Resources (2000, p. 1-1) anticipated that human populations in 
the Verde River watershed are expected to double again before 2040, 
resulting in more than a 400 percent increase over the 2000 water 
usage. The middle and lower Verde River has limited or no flow during 
portions of the year due to agricultural diversion and upstream 
impoundments, and has several impoundments in its middle reaches, which 
could expand the area of impacted spikedace and loach minnow habitat. 
The Little Chino basin within the Verde River watershed has already 
experienced significant groundwater declines that have reduced flow in 
Del Rio Springs (Arizona Department of Water Resources 2000, pp. 1-1, 
1-2). Blasch et al. (2006, p. 2) suggests that groundwater storage in 
the Verde River watershed has already declined due to groundwater 
pumping and reductions in natural channel recharge resulting from 
streamflow diversions.
    Also impacting water in the Verde River, the City of Prescott, 
Arizona, experienced a 22 percent increase in population between 2000 
and 2005 (U.S. Census Bureau 2010, p. 1), averaging around 4 percent 
growth per year (City of Prescott 2010, p. 1). In addition, the towns 
of Prescott Valley and Chino Valley experienced growth rates of 66 and 
67 percent, respectively (Arizona Department of Commerce 2009a, p. 1; 
2009b, p. 1). This growth is facilitated by groundwater pumping in the 
Verde River basin. In 2004, the cities of Prescott and Prescott Valley 
purchased a ranch in the Big Chino basin in the headwaters of the Verde 
River, with the intent of drilling new wells to supply up to 
approximately 4,933,927 cubic meters (4,000 acre-feet (AF)) of 
groundwater per year. If such drilling occurs, it could have serious 
adverse effects on the mainstem and tributaries of the Verde River.
    Scientific studies have shown a link between the Big Chino aquifer 
and spring flows that form the headwaters of the Verde River. It is 
estimated that 80 to 86 percent of baseflow in the upper Verde River 
comes from the Big Chino aquifer (Wirt 2005, p. G8). However, while 
these withdrawals could potentially dewater the upper 42 km (26 mi) of 
the Verde River (Wirt and Hjalmarson 2000, p. 4), it is uncertain that 
this project will occur given the legal and administrative challenges 
it faces; however, an agreement in principle was signed between various 
factions associated with water rights and interests on the Verde River 
(Citizens Water Advocacy Group 2010; Verde Independent 2010, p. 1).
    This upper portion of the Verde River is considered currently 
occupied by spikedace, and barrier construction and stream renovation 
plans are under way with the intention of using this historically 
occupied area for recovery of native fishes including loach minnow. 
Reductions of available water within this reach could preclude its use 
for recovery purposes. This area is currently considered occupied by 
spikedace that are considered genetically (Tibbets 1993, pp. 25-29) and 
morphologically (Anderson and Hendrickson 1994, pp. 148, 150-154) 
distinct from all other spikedace populations.
    Portions of the San Pedro River are now classified as formerly 
perennial, including areas from which spikedace and loach minnow are 
now extirpated (The Nature Conservancy 2006). Water withdrawals are 
also a concern for the San Pedro River. The Cananea Mine in Sonora, 
Mexico, owns the land surrounding the headwaters of the San Pedro. 
There is disagreement on the exact amount of water withdrawn by the 
mine, Mexicana de Cananea, which is one of the largest open-pit copper 
mines in the world. However, there is agreement that it is the largest 
water user in the basin (Harris et al. 2001; Varady et al. 2000, p. 
232).
    Another primary groundwater user in the San Pedro watershed is Fort 
Huachuca. Fort Huachuca is a U.S. Army installation located near Sierra 
Vista, Arizona. Initially established in 1877 as a camp for the 
military, the water rights of the Fort are predated only by those of 
local Indian tribes (Varady et al. 2000, p. 230). Fort Huachuca has 
pursued a rigorous water use reduction plan, working over the past 
decade to reduce groundwater consumption in the Sierra Vista 
Subwatershed. Their efforts have focused primarily on reductions in 
groundwater demand both on-post and off-post and increased artificial 
and enhanced recharge of the groundwater system. Annual pumping from 
Fort Huachuca production wells has decreased from a high of 
approximately 3,200 AF in 1989 to a low of approximately 1,400 AF in 
2005. In addition, Fort Huachuca and the City of Sierra Vista have 
increased the amount of water recharged to the regional aquifer through 
construction of effluent recharge facilities and detention basins that 
not only increase stormwater recharge but mitigate the negative effects 
of increased runoff from urbanization. The amount of effluent that was 
recharged by Fort Huachuca and the City of Sierra Vista in 2005 was 426 
AF and 1,868 AF, respectively. During this same year, enhanced 
stormwater recharge at detention basins was estimated to be 129 AF. The 
total net effect of all the combined efforts initiated by Fort Huachuca 
has been to reduce the net groundwater

[[Page 10814]]

consumption by approximately 2,272 AF (71 percent) since 1989 (Service 
2007, pp. 41-42).
    In addition to impacts on water availability within streams, 
diversion structures can create barriers for fish movement. Larger dams 
may prevent movement of fish between populations and dramatically alter 
the flow regime of streams through the impoundment of water (Ligon et 
al. 1995, pp. 184-189). These diversions also require periodic 
maintenance and reconstruction, resulting in potential habitat damages 
and inputs of sediment into the active stream.
    In summary, water withdrawals have occurred historically, and 
continue to occur, throughout the ranges of spikedace and loach minnow. 
Groundwater pumping and surface diversions used for agricultural, 
industrial, and municipal purposes can lead to declines in the water 
table and dewatering of active stream channels. Ongoing water 
withdrawals are known to occur on the Gila, San Francisco, and Verde 
rivers, and are occurring at limited levels, with the potential for 
increased withdrawals on Aravaipa Creek.
Stream Channel Alteration
    Sections of many Gila Basin rivers and streams have been, and 
continue to be, channelized for flood control, which disrupts natural 
channel dynamics (sediment scouring and deposition) and promotes the 
loss of riparian plant communities. Channelization changes the stream 
gradient above and below the channelization. Water velocity increases 
in the channelized section, which results in increased rates of erosion 
of the stream and its tributaries, accompanied by gradual deposits of 
sediment in downstream reaches that may increase the risk of flooding 
(Emerson 1971, p. 326; Simpson 1982, p. 122). Historical and ongoing 
channelization will continue to contribute to riparian and aquatic 
habitat decline most notably eliminating cover and reducing nutrient 
input.
    Stream channel alteration can affect spikedace and loach minnow 
habitat by reducing its complexity, eliminating cover, reducing 
nutrient input, improving habitat for nonnative species, changing 
sediment transport, altering substrate size, increasing flow 
velocities, and reducing the length of the stream (and therefore the 
amount of aquatic habitat available) (Gorman and Karr 1978, pp. 512-
513; Simpson 1982, p. 122; Schmetterling et al. 2001, pp. 7-10). Loach 
minnow occupy interstitial spaces between cobble (Propst and Bestgen 
1991, p. 34), and increases in sedimentation can fill these spaces in, 
removing shelter for loach minnow, and reducing available breeding 
habitat. Spikedace are typically found over sand, gravel, and rubble 
substrates (Barber and Minckley 1966, p. 31; Propst et al. 1986, p. 12; 
Rinne and Kroeger 1988, p. 1; Rinne 1991, pp. 8-10). Changes in 
sediment transport and alteration of substrate size can make an area 
unsuitable for spikedace. Both species occur in streams with specific 
water velocities, and increasing flow velocities as a result of 
channelization may also make an area unsuitable.
Water Quality
    In the past, the threat from water pollution was due primarily to 
catastrophic pollution events (Rathbun 1969, pp. 1-5; Eberhardt 1981, 
pp. 3-6, 8-10) or chronic leakage from large mining operations 
(Eberhardt 1981, pp. 2, 16). Although this is not as large a problem 
today as it was historically, some damage to spikedace and loach minnow 
populations still occurs from occasional spills or chronic inability to 
meet water quality standards (United States v. ASARCO, No. 98-0137 PHX- 
ROS (D. Ariz. June 2, 1998)). Mine tailings from a number of past and 
present facilities throughout the Gila Basin would threaten spikedace 
populations if catastrophic spills occur (Arizona Department of Health 
Services 2010, p. 3). Spills or discharges have occurred in the Gila 
River and affected streams within the watersheds of spikedace and loach 
minnow, including the Gila River, San Francisco River, San Pedro River, 
and some of their tributaries (Environmental Protection Agency (EPA) 
1997, pp. 24-67; Arizona Department of Environmental Quality 2000, p. 
6; Church et al. 2005, p. 40; Arizona Department of Environmental 
Quality 2007, p. 1).
    In January of 2006, the Arizona Department of Environmental Quality 
announced that it had been conducting a remedial investigation at the 
Klondyke tailings site on Aravaipa Creek, which currently supports one 
of the two remaining populations where spikedace and loach minnow are 
considered common. The Klondyke tailings site was a mill that processed 
ore to recover lead, zinc, copper, silver, and gold between the 1920s 
and the 1970s. There are eight contaminants in the tailings and soil at 
the Klondyke tailings site that are at levels above regulatory limits. 
These contaminants are: antimony; arsenic; beryllium; cadmium; copper; 
lead; manganese; and zinc. Samples of shallow groundwater collected at 
the site contained arsenic, beryllium, cadmium, chromium, lead, and 
nickel above regulatory limits (Arizona Department of Environmental 
Quality 2006, p. 2; Arizona Department of Water Resources 2011b, p. 1). 
A preliminary study in Aravaipa Creek has found high levels of lead in 
two other native fish species, Sonora sucker (Catostomus insignis) and 
roundtail chub (Gila robusta), as well as in the sediment and in some 
of the invertebrates. These lead levels are high enough that they could 
negatively impact reproduction (Reinthal, 2010, pers. comm.). We do not 
know with certainty whether these levels of lead would affect spikedace 
or loach minnow, but we assume similar impacts would occur as they are 
collocated with Sonora sucker and roundtail chub in Aravaipa Creek.
    The Service completed contaminant studies on the San Francisco 
River and Gila River in the 1990s. Two sites on the San Francisco River 
exceeded the International Joint Commission (IJC) background level 
standards for arsenic, cadmium, copper, mercury, and zinc. Cadmium 
levels at site 2 were approximately 16.5 times the background level, 
while copper was nearly 25 times greater than the background level. The 
two San Francisco River sites did not exceed domestic water source 
water quality standards for trace element concentrations, where those 
standards are provided for Arizona. The study site closest to, but 
downstream of, the portion of the Gila River included in the 
designation exceeded IJC background level standards for trace element 
concentrations for arsenic, cadmium, and copper. DDE was recovered in 
all whole body and edible fish samples, as were aluminum, arsenic, 
barium, chromium, selenium, and strontium. Cadmium, mercury, and 
selenium concentrations were determined to potentially pose a threat to 
fish-eating birds in the Gila River basin (Baker and King 1994, pp. 6-
14, 17, 19, 22).
    Organochlorine contaminants detected included heptachlor, 
chlordane, and DDE. The concentrations of these pesticides were below 
concentrations known to affect survival and reproduction of most fish 
species.
    The study recommended continued monitoring, due to the high cadmium 
and mercury concentrations that approach the critical reproductive 
effect threshold level in more than one-half of the samples. In 
addition, the study recommended monitoring for selenium as selenium 
levels exceeded dietary levels for protection of avian predators. Such 
monitoring has not occurred.
    The Arizona Department of Water Resources notes that 67 sites on 
the San Pedro River have parameter

[[Page 10815]]

concentrations that have equaled or exceeded their drinking water 
standards. The most frequently equaled or exceeded parameters included 
arsenic and fluoride, but other parameters equaled or exceeded in the 
sites measured in the San Pedro Basin were cadmium, lead, nitrates, 
beryllium, mercury, and total dissolved solids (Arizona Department of 
Water Resources 2011c, p. 1). The Verde River has three different 
reaches that exceed standards for turbidity, totaling 37.5 miles 
between Oak Creek and West Clear Creek. Additionally, Oak Creek exceeds 
the standards for E. coli (Arizona Department of Water Resources 2011d, 
p. 1).
    There are few studies, with the exception of the study at Aravaipa 
Creek, which discuss contaminants on spikedace and loach minnow. 
Generally, contaminants can have both sublethal and lethal effects. 
Sublethal effects are those, such as the lead contamination at Aravaipa 
Creek, which may reduce a species' ability to reproduce. Lethal are 
those effects that result in death for the species. Large fish kills 
are more rare now than in the past.
    Pollution is increasingly more widespread and more often from 
nonpoint sources. Urban and suburban development is one source of 
nonpoint-source pollution. Increasing the amount of runoff from roads, 
golf courses, and other sources of petroleum products, pesticides, and 
other toxic materials can cause changes in fish communities (Wang et 
al. 1997, pp. 6, 9, 11). Nutrient and sediment loads are increasing in 
urban areas (King et al. 1997, pp. 7-24, 38, 39) and, combined with 
depleted stream flows, can be serious threats to aquatic ecosystems 
during some periods of the year. Sewage effluent can contain lead, 
especially where the treatment plant receives industrial discharges or 
highway runoff (Hoffman et al. 1995, p. 361). The number of bridges and 
roads increases with expanding rural and urban populations in Arizona 
(Arizona Department of Transportation 2000, pp. 1-3), and pose 
significant risks to the fish from increases in toxic materials along 
roadways (Trombulak and Frissell 2000, pp. 22-24). Some metals, like 
lead and cadmium, are associated with fuel combustion. Lead can be 
found in vehicle emissions (Hoffman et al. 1995, pp. 369, 405).
    As noted previously, human populations within the ranges of 
spikedace and loach minnow are expected to increase over the next 20 
years. Therefore, we expect a corresponding increase in nonpoint-source 
pollution.
    Exposure to pesticides can result in a variety of behaviors. 
Sublethal behaviors are those that do not result in death. Sublethal 
responses of fish to pesticide exposure can include central nervous 
system disorders, increased ventilation rates, loss of equilibrium, 
rapid, jerky movements, dark discoloration or hemorrhaging in muscles 
and beneath the dorsal fin, erratic, uncoordinated swimming movements 
with spasms and convulsions, and spinal abnormalities (Meyer and 
Barclay 1990, p. 21).
    Exposure to metals at toxic levels can have varying effects. Low 
levels of some metals, such as selenium, are essential for good health. 
However, excess levels of selenium can be toxic, and selenium is 
considered one of the most toxic elements to fish (Sorensen 1991, pp. 
17-22). For other metals such as lead, all known effects on biological 
systems are negative (Hoffman et al. 1995, p. 356).
    Exposure to metals causes a variety of impacts, including 
disruption to feeding behaviors, altered respiratory rates, growth 
inhibition, and delayed sexual maturation; damage to body structure 
including skin, nervous system, and musculature, gills, fins, and 
spines; damage to organs including the liver, kidneys, intestines, 
heart, and chemoreceptors (used in migration); alterations to blood and 
blood chemistry, including red blood cells, hemoglobin levels, protein 
concentrations, glucose concentrations, and antibody titers; and damage 
to the nervous system leading to muscle spasms, paralysis, 
hyperactivity, and a loss of equilibrium (Sorensen 1991, pp. 17-22, 34-
48 (selenium), 74-78 (arsenic); 104-107 (lead); 153-164 (zinc); 199-219 
(cadmium); 253-275 (copper); and 312-323 (mercury)).
    The impacts of a toxin in a system vary by species, as well as by 
age level of the organism. For some metals, such as copper or mercury, 
fish are more severely affected at the embryonic and reproductive 
stages of the life cycle (Sorensen 1991, p. 269; Hoffman et al. 1995, 
p. 398). It is also important to note that, for some metals, such as 
cadmium, copper, lead, and mercury, increased temperatures or changes 
in water chemistry, such as pH or organic matter, can affect the 
toxicity of the metal (Sorensen 1991, p. 184; Hoffman et al. 1995, pp. 
395-396). Therefore, there can be an increased threat from exposure to 
toxins in streams that have also undergone alterations such as 
vegetation removal due to fire or construction and maintenance 
activities, or improper livestock grazing.
    An additional, increasing source of contamination for streams is 
caused by wildfires and their suppression. Based on historical records 
and long term tree-ring records, wildfires have increased in the 
ponderosa pine forests of the Southwest, including the range of the 
spikedace and loach minnow (Swetnam and Betancourt 1990, pp. 1017, 
1019; Swetnam and Betancourt 1998, pp. 3131-3135). This is due to a 
combination of decades of fire suppression, increases in biomass due to 
increased precipitation after 1976, and warming temperatures coupled 
with recent drought conditions (University of Arizona 2006, pp. 1, 3). 
As wildfires increase, so does the use of fire-retardant chemical 
applications. Some fire-retardant chemicals are ammonia-based, which is 
toxic to aquatic wildlife; however, many formulations also contain 
yellow prussiate of soda (sodium ferrocyanide), which is added as an 
anticorrosive agent. Such formulations are toxic for fish, aquatic 
invertebrates, and algae (Angeler et al. 2006, pp. 171-172; Calfee and 
Little 2003, pp. 1527-1530; Little and Calfee 2002, p. 5; Buhl and 
Hamilton 1998, p. 1598; Hamilton et al. 1998, p. 3; Gaikwokski et al. 
1996, pp. 1372-1373). Toxicity of these formulations is enhanced by 
sunlight (Calfee and Little 2003, pp. 1529-1533).
    In a 2008 biological opinion issued by the Service to the U.S. 
Forest Service (USFS) on the nationwide use of fire retardants, the 
Service concluded that the use of fire retardants can cause mortality 
to fish by exposing them to ammonia. We concluded in the opinion that 
the proposed action, which included the application of fire retardants 
throughout the range of the species, was likely to jeopardize the 
continued existence of the spikedace and loach minnow (Service 2008a). 
This consultation was recently reinitiated and completed in October 
2011. The revised biological opinion included additional buffers and 
protective measures and concluded that the revised protocol for fire 
retardant use was not likely to jeopardize the continued existence of 
either spikedace or loach minnow (Service 2011).
    Severe wildfires capable of extirpating or decimating fish 
populations are a relatively recent phenomenon, and result from the 
cumulative effects of historical or ongoing grazing and fire 
suppression (Madany and West 1983, pp. 665-667; Savage and Swetnam 
1990, p. 2374; Swetnam 1990, p. 12; Touchan et al. 1995, pp. 268-271; 
Swetnam and Baisan 1996, p. 29; Belsky and Blumenthal 1997, pp. 315-
316, 324-325; Gresswell 1999, pp. 193-194, 213). Historical wildfires 
were primarily cool-burning understory fires with

[[Page 10816]]

return intervals of 4 to 8 years in ponderosa pine (Swetnam and 
Dieterich 1985, pp. 390, 395). Cooper (1960, p. 137) concluded that, 
prior to the 1950s, crown fires were extremely rare or nonexistent in 
the region. However, since 1989, high-severity wildfires, and 
subsequent floods and ash flows, have caused the extirpation of several 
populations of Gila trout in the Gila National Forest, New Mexico 
(Propst et al. 1992, pp. 119-120, 123; Brown et al. 2001, pp. 140-141). 
It is not known if spikedace or loach minnow have suffered local 
extirpations; however, native fishes, including spikedace and loach 
minnow, in the West Fork Gila River, showed 60 to 80 percent decreases 
in population following the Cub Fire in 2002, due to flooding events 
after the fire (Rinne and Carter 2008, pp. 171). Increased fines 
(sediments) and ash may be continuing to affect the populations on the 
West Fork Gila, near the Gila Cliff Dwellings (Propst et al. 2008, p. 
1247).
    Since the proposed rule was published in October of 2011, the 
Wallow Fire burned portions of the critical habitat designations for 
spikedace and loach minnow, specifically the Black River Complex in 
Unit 2 (loach minnow only), and the Blue River Complex in Unit 7 (both 
species). The Wallow Fire encompassed just over 217,721 ha (538,000 ac) 
total in Arizona and New Mexico (InciWeb 2011), and was the largest 
wildfire in Arizona's history.
    Portions of Units 2 and 7 of the critical habitat designation fall 
within the Wallow Fire perimeter. Within Unit 2, the North Fork East 
Fork Black River falls within an unburned area inside the perimeter of 
the fire, as does most of Boneyard Creek. The majority of East Fork 
Black River falls within an area that experienced low burn severity, 
but does cross a few areas that were either unburned or burned at 
moderate burn severity. Coyote Creek is in an area almost entirely 
burned at low severity. Within Unit 7, the majority of Campbell Blue 
Creek is within unburned or low burn severity areas; however, 
approximately 2.4 km (1.5 mi) of the upper end of Campbell Blue Creek 
is within moderate and high burn severity. The Wallow Fire stopped just 
west of the Blue River, but came within approximately 0.3 km (0.2 mi) 
of the River. However, the rainfall during the summer monsoon, which 
began before the fire was extinguished, contributed ash and sediment to 
both streams. In the Blue River, ash and sediment travelled as far 
downstream as the San Francisco River, resulting in fish kills 
(Blasius, 2011, pers. comm.). Fish surveys completed in the fall of 
2011 indicated reduced numbers of loach minnow (Adelsberger et al. 
2011, p. 1).
    Effects of fire may be direct and immediate or indirect and 
sustained over time. Because spikedace and loach minnow are found 
primarily in the lower elevation, higher-order streams, they are most 
likely affected by the indirect effects of fire (e.g., ash flows, 
increased water temperatures), not direct effects (e.g., drastic 
changes in pH, ammonium concentrations). Indirect effects of fire 
include ash and debris flows, increases in water temperature, increased 
nutrient inputs, and sedimentation, some of which can last for several 
years to more than a decade after the fire (Amaranthus et al. 1989, pp. 
75-77; Propst et al. 1992, pp. 119-120; Gresswell 1999, pp. 194-211; 
Burton 2005, pp. 145-146; Dunham et al. 2007, pp. 335, 340-342; Rinne 
and Carter 2008, pp. 169-171; Mahlum et al. 2011, pp. 243-246). Of 
these, ash flows probably have the greatest effect on spikedace and 
loach minnow. Ash and debris flows may occur months after fires, when 
barren soils are eroded during monsoonal rain storms (Bozek and Young 
1994, pp. 92-94). Ash and fine particulate matter created by fire can 
fill the interstitial spaces between gravel particles, eliminating 
spawning habitat or, depending on the timing, suffocating eggs that are 
in the gravel. Ash and debris flows can also decimate aquatic 
invertebrate populations that the fish depend on for food (Molles 1985, 
p. 281).
Recreation
    The impacts to spikedace and loach minnow from recreation can 
include movement of people or livestock, such as horses or mules, along 
streambanks, trampling, loss of vegetation, and increased danger of 
fire (Northern Arizona University 2005, p. 136; Monz et al. 2010, pp. 
553-554). In the arid Gila River Basin, recreational impacts are 
disproportionately distributed along streams as a primary focus for 
recreation (Briggs 1996, p. 36). Within the range of spikedace and 
loach minnow, the majority of the occupied areas occur on Federal 
lands, which are managed for recreation and other purposes. Spikedace 
and loach minnow are experiencing increasing habitat impacts from such 
use in some areas. For example, Fossil Creek experienced an increase in 
trail use at one site, with an estimated 8,606 hikers using the trail 
in 1998, and an estimated 19,650 hikers using the trail in 2003. 
Dispersed camping also occurs in the area. The greatest impacts from 
camping were vegetation loss and litter (Northern Arizona University 
2005, pp. 134-136). Similar impacts have been observed at Aravaipa 
Creek. We do not have information on the impacts of litter on spikedace 
and loach minnow; however, impacts from vegetation loss can include 
soil compaction, which when combined with vegetation loss, can result 
in increased runoff and sedimentation in waterways (Monz et al. 2010, 
pp. 551-553; Andereck 1993, p. 2).
    Recreation overuse can result in decreased riparian vegetation 
(USFS 2008, pp. 7-17) and subsequent increases in stream temperatures. 
Recreation is cited as one of the causes of impairment due to water 
temperature on the West Fork Gila River (EPA 2010, p. 1). We discuss 
temperature tolerances below in the microhabitat discussions for each 
species. Spikedace and loach minnow are known to have a range of 
temperatures in which they occur, and recent research by the University 
of Arizona has determined upper temperature tolerances for the two 
species. Spikedace did not survive exposure of 30 days at 34 or 36 
[deg]C (93.2 or 96.8 [deg]F), and 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 the lower test 
temperatures of 10 and 4 [deg]C (50 and 39.2 [deg]F). Multiple 
behavioral and physiological changes were observed, indicating the fish 
became stressed at 30, 32, and 33 [deg]C (86, 89.6 and 91.4 [deg]F) 
treatments. Similarly, the study determined that no loach minnow 
survived for 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). For 
loach minnow, growth rate slowed at 28 and 30 [deg]C (82.4 and 86.0 
[deg]F) compared to growth at 25 [deg]C (77 [deg]F), indicating that 
loach minnow were stressed at sublethal temperatures. The study 
concludes that temperature tolerance in the wild may be even lower due 
to the influence of additional stressors, including disease, predation, 
competition, or poor water quality.
Roads and Bridges
    Roads impact Gila River Basin streams (Dobyns 1981, pp. 120-129, 
167, 198-201), including spikedace, loach minnow, and their habitats 
(Jones et al. 2000, pp. 82-83). The need for bridges and roads 
increases with increasing rural and urban populations in Arizona 
(Arizona Department of Transportation 2000, pp. 1-3). In addition, 
existing roads and bridges have ongoing maintenance requirements that 
result in alterations of stream channels within spikedace and loach 
minnow habitats (Service 1994a, pp. 8-

[[Page 10817]]

12; Service 1995a, pp. 10-12; Service 1995b, pp. 5-7; Service 1997a, 
pp. 10-15; Service 1997b, pp. 54-77). Bridge construction or repair 
causes channel alteration and, if not carefully executed, can result in 
long-term channel adjustments, altering habitats upstream and 
downstream. In some areas, low-water crossings exist within occupied 
spikedace and loach minnow habitats and cause channel modification and 
habitat disruption. Low-water crossings on general-use roads exist in a 
number of areas that may support spikedace and loach minnow. These 
crossings frequently require maintenance following minor flooding.
    Generally, there are fewer new bridge construction projects within 
critical habitat; however, one proposed bridge will occur near the 
designation for spikedace in Unit 2 over Tonto Creek. Road and bridge 
maintenance and repairs occur frequently on the Blue River. There have 
been repeated road repairs near the Gila Cliff Dwellings on the West 
Fork Gila River because the bridge span is too short to accommodate 
peak flows. This is a common problem on bridges that cross the Gila 
River, and on other rivers occupied by spikedace and loach minnow in 
the Southwest. In an attempt to protect bridges, large amounts of fill 
(such as boulders, rip rap, and dirt) are used to confine and redirect 
the river. Typically, this habitat alteration is detrimental to 
spikedace and loach minnow because it changes the channel gradient and 
substrate composition, and reduces habitat availability. Eventually, 
peak flows remove the fill material, roads and bridges are damaged, and 
the resulting repairs and reconstruction lead to additional habitat 
disturbance (Service 1998, 2002a, 2005, 2008b, 2008c, 2009, 2010a).
    The impacts of bridge and road construction, usage, and repairs can 
include increased sedimentation, either due to driving across low-water 
crossings in active stream channels, or due to excavation associated 
with maintenance and repair activities. Vehicles using low-water 
crossings as well as heavy equipment in active channels during 
construction or repairs can both harm eggs of spikedace and loach 
minnow, and compress substrates so that the interstitial spaces used by 
adult loach minnow are removed. Maintenance and construction work on 
banks around bridges and roads may also lead to increased sedimentation 
due to sediment disturbance or the removal of vegetation.
Livestock Grazing
    Livestock grazing has been one of the most widespread and long-term 
causes of adverse impacts to native fishes and their habitat (Miller 
1961, pp. 394-395, 399), but is one of the few threats where adverse 
effects to species such as spikedace and loach minnow are decreasing, 
due to improved management on Federal lands (Service 1997c, pp. 121-
129, 137-141; Service 2001, pp. 50-67). This improvement occurred 
primarily by discontinuing grazing in the riparian and stream 
corridors. However, although adverse effects are less than in the past, 
livestock grazing within watersheds where spikedace and loach minnow 
and their habitats are located continues to cause adverse effects. 
These adverse effects occur through watershed alteration and subsequent 
changes in the natural flow regime, sediment production, and stream 
channel morphology (Platts 1990, pp. I-9--I-11; Belsky et al. 1999, pp. 
1-3, 8-10; Service 2001, pp. 50-67).
    Livestock grazing can destabilize stream channels and disturb 
riparian ecosystem functions (Platts 1990, pp. I-9--I-11; Armour et al. 
1991, pp. 7-10; Tellman et al. 1997, pp. 20-21, 33, 47, 101-102; Wyman 
et al. 2006, pp. 5-7). Medina et al. (2005, p. 99) note that the 
impacts of grazing vary within and among ecoregions, and that some 
riparian areas can sustain little to no ungulate grazing, while others 
can sustain very high use. They further note that threatened and 
endangered fish populations and their associated riparian habitat ``* * 
* may require some form of protection from grazing of all ungulates 
(e.g., elk, deer, cattle) * * *''. Improper livestock grazing can 
negatively affect spikedace and loach minnow through removal of 
riparian vegetation (Propst et al. 1986, p. 3; Clary and Webster 1989, 
p. 1; Clary and Medin 1990, p. 1; Schulz and Leininger 1990, p. 295; 
Fleishner 1994, pp. 631-633, 635-636), that can result in reduced bank 
stability and higher water temperatures (Kauffman and Krueger 1984, pp. 
432-434; Platts and Nelson 1989, pp. 453, 455; Fleishner 1994, pp. 635-
636; Belsky et al. 1999, pp. 2-5, 9-10). Livestock grazing can also 
cause increased sediment in the stream channel, due to streambank 
trampling and riparian vegetation loss (Weltz and Wood 1986, pp. 364-
368; Pearce et al. 1998, pp. 302, 307; Belsky et al. 1999, p. 10). 
Livestock can physically alter the streambank through trampling and 
shearing, leading to bank erosion (Trimble and Mendel 1995, pp. 243-
244; Belsky et al. 1999, p. 1). In combination, loss of riparian 
vegetation and bank erosion can alter channel morphology, including 
increased erosion and deposition, increased sediment loads, 
downcutting, and an increased width-to-depth ratio, all of which lead 
to a loss of spikedace and loach minnow habitat components. Livestock 
grazing management also continues to include construction and 
maintenance of open stock tanks, which are often stocked with nonnative 
aquatic species harmful to spikedace and loach minnow (Service 1997b, 
pp. 54-77) if they escape or are transported to waters where these 
native fish occur.
    An indirect effect of grazing can include the development of water 
tanks for livestock. In some cases, stocktanks are used to stock 
nonnative fish for sportfishing, or they may support other nonnative 
aquatic species such as bullfrogs or crayfish. In cases where 
stocktanks are in close proximity to live streams, they may 
occasionally be breached or flooded, with nonnative fish escaping from 
the stocktank and entering stream habitats (Hedwall and Sponholtz 2005, 
pp. 1-2; Stone et al. 2007, p. 133).
Climate Conditions
    Climate conditions have contributed to the status of the spikedace 
and loach minnow now and will likely continue into the future. While 
floods may benefit the species, habitat drying affects the occurrence 
of natural events, such as fire, drought, and forest die-off, and 
increases the chances of disease and infection.
    Consideration of climate change is a component of our analyses 
under the Endangered Species Act. In general terms, ``climate change'' 
refers to a change in the state of the climate (whether due to natural 
variability, human activity, or both) that can be identified by changes 
in the mean or variability of its properties, and that persists for an 
extended period--typically decades or longer (Intergovernmental Panel 
on Climate Change (IPCC) 2007a, p. 78).
    Changes in climate are occurring. Examples include warming of the 
global climate system over recent decades, and substantial increases in 
precipitation in some regions of the world and decreases in other 
regions (for these and other examples see IPCC 2007a, p. 30; Solomon et 
al. 2007, pp. 35-54, 82-85).
    Most of the observed increase in global average temperature since 
the mid-20th century cannot be explained by natural variability in 
climate, and is very likely due to the observed increase in greenhouse 
gas concentrations in the atmosphere as a result of human

[[Page 10818]]

activities, particularly emissions of carbon dioxide from fossil fuel 
use (IPCC 2007a, p. 5 and Figure SPM.3; Solomon et al. 2007, pp. 21-
35). Therefore, to project future changes in temperature and other 
climate conditions, scientists use a variety of climate models (which 
include consideration of natural processes and variability) in 
conjunction with various scenarios of potential levels and timing of 
greenhouse gas emissions (e.g., Meehl et al. 2007 entire; Ganguly et 
al. 2009, pp. 11555, 15558; Prinn et al. 2011, pp. 527, 529).
    The projected magnitude of average global warming for this century 
is very similar under all combinations of models and emissions 
scenarios until about 2030. Thereafter, the projections show greater 
divergence across scenarios. Despite these differences in projected 
magnitude, however, the overall trajectory is one of increased warming 
throughout this century under all scenarios, including those which 
assume a reduction of greenhouse gas emissions (Meehl et al. 2007, pp. 
760-764; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp. 
527, 529). (For examples of other global climate projections, see IPCC 
2007b, p. 8.)
    Various types of changes in climate can have direct or indirect 
effects on species and these may be positive or negative depending on 
the species and other relevant considerations, including interacting 
effects with existing habitat fragmentation or other nonclimate 
variables. There are three main components of vulnerability to climate 
change: Exposure to changes in climate, sensitivity to such changes, 
and adaptive capacity (IPCC 2007a, p. 89; Glick et al. 2011, pp. 19-
22). Because aspects of these components can vary by species and 
situation, as can interactions among climate and nonclimate conditions, 
there is no single way to conduct our analyses. We use the best 
scientific and commercial data available to identify potential impacts 
and responses by species that may arise in association with different 
components of climate change, including interactions with nonclimate 
conditions.
    As is the case with all potential threats, if a species is 
currently affected or is expected to be affected in a negative way by 
one or more climate-related impacts, this does not necessarily mean the 
species meets the definition of a threatened or endangered species as 
defined under the Act. The impacts of climate change and other 
conditions would need to be to the level that the species is in danger 
of extinction, or likely to become so, throughout all or a significant 
portion of its range. If a species is listed as threatened or 
endangered, knowledge regarding the species' vulnerability to, and 
impacts from, climate-associated changes in environmental conditions 
can be used to help devise appropriate strategies for its recovery.
    Climate simulations of Palmer Drought Severity Index (PSDI) (a 
calculation of the cumulative effects of precipitation and temperature 
on surface moisture balance) for the Southwest for the periods of 2006-
2030 and 2035-2060 predict an increase in drought severity with surface 
warming. Additionally, drought still increases during wetter 
simulations because the effect of heat-related moisture loss (Hoerling 
and Eicheid 2007, p. 19). Annual mean precipitation is likely to 
decrease in the Southwest as well as the length of snow season and snow 
depth (IPCC 2007b, p. 887). Most models project a widespread decrease 
in snow depth in the Rocky Mountains and earlier snowmelt (IPCC 2007b, 
p. 891). Exactly how climate change will affect precipitation is less 
certain, because precipitation predictions are based on continental-
scale general circulation models that do not yet account for land use 
and land cover change effects on climate or regional phenomena. 
Consistent with recent observations in changes from climate, the 
outlook presented for the Southwest predicts warmer, drier, drought-
like conditions (Seager et al. 2007, p. 1181; Hoerling and Eischeid 
2007, p. 19). A decline in water resources with or without climate 
change will be a significant factor in the compromised watersheds of 
the desert southwest.
    On August 16, 2011, the U.S. Department of Agriculture granted a 
request from the Governor of Arizona to assign Apache, Cochise, Graham, 
Greenlee, and Santa Cruz counties as primary natural disaster areas due 
to losses caused by drought, wildfires, and high winds. The purpose of 
such a designation is to make farm operators in both primary and 
contiguous disaster areas eligible to be considered for assistance from 
the Farm Service Agency (FSA) (Vilsack 2011). However, this designation 
is a recognition of drought in counties inhabited by spikedace and 
loach minnow, including Apache, Graham, and Greenlee counties. For New 
Mexico, the NMOSE reported that, for the first 5 months of 2011, 
statewide precipitation was only 35 percent of normal in New Mexico 
(NMOSE 2011b). They include spikedace and loach minnow on a list of 
species likely to be affected by drought due to loss of habitat (NMOSE 
2011c). Habitat losses occur when surface waters decrease, resulting in 
insufficient flows which may continue to fill low areas as pool 
habitat, but which do not continue to have sufficient depth or velocity 
to create the habitat types preferred by spikedace and loach minnow.
Summary of Factor A
    Spikedace and loach minnow face a variety of threats throughout 
their range in Arizona and New Mexico, including groundwater pumping, 
surface water diversions, impoundments, dams, channelization, 
improperly managed livestock grazing, wildfire, agriculture, mining, 
road building, residential development, and recreation. These 
activities, alone and in combination, contribute to riparian habitat 
loss and degradation of aquatic resources in Arizona and New Mexico.
    Changes in flow regimes are expected to continue into the 
foreseeable future. Groundwater pumping, surface water diversions, and 
drought are reducing available surface flow in streams occupied by 
spikedace and loach minnow. These conditions are ongoing, but drought 
conditions are worsening and there are at least two large diversion 
projects in the planning stages which may result in further water 
withdrawals on the Verde and Gila rivers. For spikedace and loach 
minnow, reduced surface flow in streams can decrease the amount of 
available habitat by eliminating flowing portions of the stream used by 
the two species. In addition, stream channel alterations, such as 
diversion structures and channelization of streams, affect the flow 
regimes, substrate, and sedimentation levels that are needed for 
suitable spikedace and loach minnow habitat.
    Impacts associated with roads and bridges, changes in water 
quality, improper livestock grazing, and recreation have altered or 
destroyed many of the rivers, streams, and watershed functions in the 
ranges of the spikedace and loach minnow. While fish kills are less 
common now than in the past, water quality issues exist in several 
streams, and can include contamination by cadmium, lead, nitrates, 
beryllium, mercury, and total dissolved solids. These contaminants can 
have adverse effects on the prey base of the species and can be either 
sublethal, affecting their overall health or ability to reproduce, or 
can be lethal. Construction and maintenance at bridges, improper 
livestock grazing, wildfire, and recreation may also remove or reduce 
vegetation, which can impact water temperatures. With

[[Page 10819]]

increased temperatures, spikedace and loach minnow may experience 
multiple behavioral and physiological changes at elevated temperatures, 
and extreme temperatures can result in death. Decreases in 
precipitation and increases in temperatures due to climate change and 
drought are likely to further limit the areas where spikedace or loach 
minnow can persist by causing further decreases in surface flows and 
potentially increases in temperature.
    The combined impacts of decreased flows, increased sedimentation, 
increased temperatures, and impaired water quality diminish the amount 
of habitat available and the suitability of that habitat in some areas. 
These impacts are further exacerbated by predation by and competition 
with nonnative species and other factors, as outlined below.

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

    Currently, collection of spikedace and loach minnow in Arizona is 
prohibited by Arizona Game and Fish Commission Order 40, except where 
such collection is authorized by special permit (Arizona Game and Fish 
Department (AGFD) 2009, p. 5). The collection of these species is 
prohibited in the State of New Mexico except by special scientific 
permit (New Mexico Department of Game and Fish (NMDGF) 2010, p. 4). 
Because spikedace and loach minnow do not grow larger than 80 mm (3 
in), we conclude that angling for this species is not a threat. No 
known commercial uses exist for spikedace or loach minnow. A limited 
amount of scientific collection occurs, but does not pose a threat to 
these species because it is regulated by the States. Therefore, we have 
determined that overutilization for commercial, recreational, 
scientific, or educational purposes is not a threat to spikedace or 
loach minnow at this time.

C. Disease or Predation

    The introduction and spread of nonnative species has been 
identified as one of the primary factors in the continuing decline of 
native fishes throughout North America and particularly in the 
Southwest (Miller 1961, pp. 365, 397-398; Lachner et al. 1970, p. 21; 
Ono et al. 1983, pp. 90-91; Carlson and Muth 1989, pp. 222, 234; Fuller 
et al. 1999, p. 1; Propst et al. 2008, pp. 1246-1251; Pilger et al. 
2010, pp. 300, 311-312). Miller et al. (1989, pp. 22, 34, 36) concluded 
that introduced nonnative species were a causal factor in 68 percent of 
fish extinctions in North America in the last 100 years. For the 70 
percent of fish species that are still extant, but are considered to be 
endangered or threatened, introduced nonnative species are a primary 
cause of the decline (Lassuy 1995, pp. 391-394). Release or dispersal 
of new nonnative aquatic organisms is a continuing phenomenon in the 
species' range (Rosen et al. 1995, p. 254). Currently, the majority of 
native fishes in Arizona and 80 percent of native fishes in the 
Southwest are on either State or Federal protection lists.
    Nonnative fish introductions in the southwestern United States 
began before 1900, and have steadily increased in frequency (Rinne and 
Stefferud 1996, p. 29). New species are continually being introduced 
through various mechanisms, including aquaculture, aquarium trade, 
sport fish stocking, live bait use, interbasin water transfers, and 
general ``bait bucket transport,'' where people move fish from one area 
to another without authorization and for a variety of purposes (Service 
1994b, pp. 12-16; Service 1999, pp. 24-59). Nearly 100 kinds of 
nonnative fishes have been stocked or introduced into streams in the 
Southwest (Minckley and Marsh 2009, p. 51). Nonnative fishes known to 
occur within the historical range of the spikedace include channel 
catfish (Ictalurus punctatus), flathead catfish (Pylodictis olivaris), 
red shiner (Cyprinella lutrensis), fathead minnow (Pimephales 
promelas), green sunfish (Lepomis cyanellus), largemouth bass 
(Micropterus salmoides), smallmouth bass (Micropterus dolomieui), 
rainbow trout (Oncorhynchus mykiss), brown trout (Salmo trutta), 
mosquitofish (Gambusia affinis), carp (Cyprinus carpio), bluegill 
(Lepomis macrochiris), yellow bullhead (Ameiurus natalis), black 
bullhead (Ameiurus melas), and goldfish (Carassius auratus) (ASU 2002).
    In the Gila River basin, introduction of nonnative species is 
considered a primary factor in the decline of native fish species 
(Minckley 1985, pp. 1, 68; Williams et al. 1985, pp. 1-2; Minckley and 
Deacon 1991, pp. 15-17; Douglas et al. 1994, pp. 9-11; Clarkson et al. 
2005 p. 20; Olden and Poff 2005, pp. 79-87). Aquatic and semiaquatic 
mammals, reptiles, amphibians, crustaceans, mollusks (snails and 
clams), parasites, disease organisms, and aquatic and riparian vascular 
plants outside of their historical range, have all been documented to 
adversely affect aquatic ecosystems (Cohen and Carlton 1995, pp. i-iv). 
The effects of nonnative fish competition on spikedace and loach minnow 
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). Interference competition in the form of predation is 
discussed here, while a discussion of the history of nonnative species 
introductions and resulting interference competition for resources is 
under Factor E below.
Altered Flow Regimes and Nonnative Predators
    Alterations of stream channels through channelization, surface and 
groundwater withdrawals are discussed above under Factor A. Propst et 
al. (2008, p. 1236) completed a study on the interaction of physical 
modification of stream channels coupled with the widespread 
introduction and establishment of nonnative aquatic species. Following 
evaluation of six study sites in the upper Gila River drainage, they 
determined that the negative association between nonnatives and native 
fishes indicated a complex relationship between naturally variable 
flows and nonnative species, and varied at the study sites (Propst et 
al. 2008, p. 1236). For the West, Middle, and East Forks of the Gila 
River, they determined that natural flow alone would be insufficient to 
conserve native fish assemblages. The Tularosa and San Francisco River 
study sites were affected by human use (albeit at low levels), and 
neither site supported more than a few nonnative fishes, with none in 
most years. Declines of loach minnow in this area may be due to the 
natural variability of the system; however, the research concluded that 
resilience of native fish assemblages may be compromised by the 
presence of the nonnative species.
    The Gila River study site, just downstream of the town of Cliff, 
was the most affected by human activity, and was exposed to the 
greatest number of nonnative fishes; however, over the course of the 
study, the native fish assemblage at the site did not change. Although 
not entirely explained, the researchers indicate that the lack of 
optimal (i.e., pool) habitat for nonnative predators and the 
comparative abundance of habitats (e.g., cobble riffles and shallow 
gravel runs) favored by native fishes partially explains the 
persistence of the native fish assemblage. They speculate that other 
factors, including thermal regime or turbidity, might also have 
buffered the interactions between native and nonnative fishes (Propst 
et al. 2008, pp.

[[Page 10820]]

1246-1249). The study concludes that, while native fish assemblages may 
persist through drought, their resistance and resilience are 
compromised if nonnative predators are present. They also conclude 
that, while retention of natural hydrologic regimes is crucial for the 
persistence of native fish assemblages in arid-land streams, removal 
and preclusion of nonnative predators and competitors are equally 
important (Propst et al. 2008, p. 1251).
Predation
    Nonnative channel catfish, flathead catfish, and smallmouth bass 
all prey on spikedace and loach minnow, as indicated by prey remains of 
native fishes in the stomachs of these species (Propst et al. 1986, p. 
82; Propst et al. 1988, p. 64; Bonar et al. 2004, pp. 13, 16-21). 
Channel catfish move into riffles to feed, preying on the same animals 
most important to loach minnows, while juvenile flathead catfish prey 
on loach minnows (Service 1991a, p. 5). Smallmouth bass are known to 
co-occur with spikedace and are documented predators of the species 
(Service 1991b, p. 6; Paroz et al. 2009, pp. 12, 18). When smallmouth 
bass densities increased on the East Fork Gila River, densities of 
native fishes decreased (Stefferud et al. 2011, pp. 11-12). Green 
sunfish are also thought to be a predator, likely responsible for 
replacement of native species like spikedace and loach minnow. While no 
direct studies have been completed on predation by green sunfish on 
spikedace or loach minnow, they are a known predator of fish that size, 
and they occur within areas occupied by these species.
    Declines of native fish species appear linked to increases in 
nonnative fish species. In 1949, for example, 52 spikedace were 
collected at Red Rock on the Gila River, while channel catfish composed 
only 1.65 percent of the 607 fish collected. However, in 1977, only 6 
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, pp. 2, 13, 50-51). Similarly, interactions between 
native and nonnative fishes were observed in the upper reaches of the 
East Fork of the Gila River. Prior to the 1983 and 1984 floods in the 
Gila River system, native fish were limited, with spikedace being rare 
or absent, while nonnative channel catfish and smallmouth bass were 
moderately common. After the 1983 flooding, adult nonnative predators 
were generally absent, and spikedace were collected in moderate numbers 
in 1985 (Propst et al. 1986, p. 83).
    The majority of areas considered occupied by spikedace and loach 
minnow have seen a shift from a predominance of native fishes to a 
predominance of nonnative fishes. For spikedace, this is best 
demonstrated on the upper Verde River, where native species dominated 
the total fish community at greater than 80 percent from 1994 to 1996, 
before dropping to approximately 20 percent in 1997 and 19 percent in 
2001. At the same time, three nonnative species increased in abundance 
between 1994 and 2000 (Rinne et al. 2004, pp. 1-2). Similar changes in 
the dominance of nonnative fishes have occurred on the Middle Fork Gila 
River, with a 65 percent decline of native fishes between 1988 and 2001 
(Propst 2002, pp. 21-25).
    In other areas, nonnative fishes may not dominate the system, but 
their abundance has increased, while spikedace and loach minnow 
abundance has declined. This is the case for the Cliff-Gila Valley area 
of the Gila River, where nonnative fishes increased from 1.1 percent to 
8.5 percent, while native fishes declined steadily over a 40-year 
period (Propst et al. 1986, pp. 27-32). At the Redrock and Virden 
valleys on the Gila River, the relative abundance in nonnative fishes 
in the same time period increased from 2.4 percent to 17.9 percent 
(Propst et al. 1986, pp. 32-34). Four years later, the relative 
abundance of nonnative fishes increased to 54.7 percent at these sites 
(Propst et al. 1986, pp. 32-36). The percentage of nonnative fishes 
increased by almost 12 percent on the Tularosa River between 1988 and 
2003, while on the East Fork Gila River, nonnative fishes increased to 
80.5 percent relative abundance in 2003 (Propst 2005, pp. 6-7, 23-24). 
Nonnative fishes are also considered a management issue in other areas 
including Eagle Creek, the San Pedro River, West Fork Gila River, and 
to a lesser extent on the Blue River and Aravaipa Creek.
    Generally, when the species composition of a community shifts in 
favor of nonnative fishes, a decline in spikedace or loach minnow 
abundance occurs (Olden and Poff 2005, pp. 79-86). Propst et al. (1986, 
p. 38) noted this during studies of the Gila River between 1960 and 
1980. While native species, including spikedace, dominated the study 
area initially, red shiner, fathead minnow, and channel catfish were 
more prevalent following 1980. Propst et al. (1986, pp. 83-86) noted 
that drought and diversions for irrigation first brought a decline in 
habitat quality, followed by the establishment of nonnative fishes in 
remaining suitable areas, thus reducing the availability and utility of 
these areas for native species. It should be noted that the effects of 
nonnative fishes often occur with, or are exacerbated by, changes in 
flow regimes or declines in habitat conditions (see Factor A above) and 
should be considered against the backdrop of historical habitat 
degradation that has occurred over time (Minckley and Meffe 1987, pp. 
94, 103; Rinne 1991, p. 12).
    Nonnative channel catfish, flathead catfish, and smallmouth bass 
are present in most spikedace habitats, including the Verde River 
(Minckley 1993, pp. 7-13; Jahrke and Clark 1999, pp. 2-7; Rinne 2004, 
pp. 1-2; Bahm and Robinson 2009b, pp. 1-4; Robinson and Crowder 2009, 
pp. 3-5); the Gila River (Propst et al. 1986, pp. 14-31; Springer 1995, 
pp. 6-10; Jakle 1995, pp. 5-7; Propst et al. 2009, pp. 14-17); the San 
Pedro River (Jakle 1992, pp. 3-5; Minckley 1987, pp. 2, 16); the San 
Francisco River (Papoulias et al. 1989, pp. 77-80; Propst et al. 2009, 
pp. 5-6); the Blue River (ASU 1994, multiple reports; ASU 1995, 
multiple reports; Clarkson et al. 2008, pp. 3-4); the Tularosa River, 
East Fork Gila River, West Fork Gila River, and Middle Fork Gila River 
(Paroz et al. 2009, p. 12; Propst et al. 2009, pp. 7-13) and Eagle 
Creek (Marsh et al. 2003, p. 667; ASU 2008, multiple reports; Bahm and 
Robinson 2009a, pp. 2-6).
    Pilger et al. (2010, pp. 311-312) studied the food webs in six 
reaches of the Gila River. Their study attempted to quantify resource 
overlap among native and nonnative fishes. Their study determined that 
nonnative fishes consumed a greater diversity of invertebrates and more 
fish than native species, and that nonnative fishes consumed predacious 
invertebrates and terrestrial invertebrates more frequently than native 
fishes. They found that, on average, the diets of adult nonnative 
fishes were composed of 25 percent fish, but that there was high 
variability among species. Only 6 percent of the diet of channel 
catfish was fish, while fish made up 84 percent of the diet of flathead 
catfish. They found that both juvenile and adult nonnative species 
could pose a predation threat to native fishes.
    As noted below under Factor E, nonnative fishes also compete for 
resources with native fishes. While nonnative fishes are preying on 
native fishes, small-bodied nonnative fishes are also potentially 
affecting native fishes through competition (discussed further under 
Factor E), so that native fishes are impacted by both competition and 
predation. Pilger et al. (2010, p.

[[Page 10821]]

312) note that removal and preclusion of nonnative predators and 
competitors may be necessary for conservation of native fishes in the 
upper Gila River in order to mitigate the effects they have on native 
species. Rinne and Miller (2006, pp. 91, 95) note that, in the upper 
Verde River, native fishes have declined precipitously since the mid-
1990s. They conclude that there are declining trends of native fish 
abundances in the upper Gila River, and that the coexistence of native 
and nonnative fishes there may indicate that the threshold has not been 
reached, but may be imminent.
Disease
    Various parasites may affect spikedace and loach minnow. Asian 
tapeworm (Bothriocephalus acheilognathi) was introduced into the United 
States with imported grass carp (Ctenopharyngodon idella) in the early 
1970s. It has since become well established in areas throughout the 
southwestern United States. The definitive host in the life cycle of 
Asian tapeworm is a cyprinid fish (carp or minnow), and therefore it is 
a potential threat to spikedace and loach minnow, as well as other 
native cyprinids in Arizona. The Asian tapeworm adversely affects fish 
health by impeding the digestion of food as it passes through the 
digestive track. Emaciation and starvation of the host can occur when 
large enough numbers of worms feed off the fish directly. An indirect 
effect is that weakened fish are more susceptible to infection by other 
pathogens. Asian tapeworm invaded the Gila River basin and was found 
during the Central Arizona Project's fall 1998 monitoring in the Gila 
River at Ashurst-Hayden Dam. It has also been confirmed from Bonita 
Creek in 2010 and from Fossil Creek in 2004 and 2010 (U.S. Fish and 
Wildlife Service National Wild Fish Health Survey 2004, 2010). This 
parasite can infect many species of fish and is carried into new areas 
along with nonnative fishes or native fishes from contaminated areas.
    The parasite (Ichthyophthirius multifiliis) (Ich) usually occurs in 
deep waters with low flow and is a potential threat to spikedace and 
loach minnow. Ich has occurred in some Arizona streams, probably 
encouraged by high temperatures and crowding as a result of drought. 
Ich is known to be present in Aravaipa Creek (Mpoame 1982, pp. 45-47), 
which is currently occupied by both spikedace and loach minnow. This 
parasite was observed being transmitted on the Sonora sucker 
(Catostomus insignis), although it does not appear to be host-specific 
and could be transmitted by other species (Mpoame 1982, p. 46). It has 
been found on desert and Sonoran suckers, as well as roundtail chub 
(Robinson et al. 1998, p. 603). This parasite becomes embedded under 
the skin and within the gill tissues of infected fish. When 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, it can also impact respiration 
because of damaged gill tissue. There are recorded spikedace 
mortalities in captivity due to Ich.
    Anchor worm (Lernaea cyprinacea), an external parasite, is unusual 
in that it has little host specificity, infecting a wide range of 
fishes and amphibians. Infection by this parasite has been known to 
kill large numbers of fish due to tissue damage and secondary infection 
of the attachment site (Hoffnagle and Cole 1999, p. 24). Presence of 
this parasite in the Gila River basin is a threat to spikedace, loach 
minnow, and other native fishes. In July 1992, the BLM found anchor 
worms in Bonita Creek. They have also been documented in Aravaipa Creek 
and the Verde River (Robinson et al. 1998, pp. 599, 603-605). Both 
spikedace and loach minnow occur in Bonita and Aravaipa Creeks.
    Yellow grub (Clinostomum marginatum) is a parasitic, larval 
flatworm that appears as yellow spots on the body and fins of a fish. 
These spots contain larvae of worms which are typically introduced by 
fish-eating birds who ingest fish infected with the parasite. Once 
ingested, the parasites mature and produce eggs in the intestines of 
the bird host. The eggs are then deposited into water bodies in the 
bird waste, where they infect the livers of aquatic snails. The snail 
hosts in turn allow the parasites to develop into a second and third 
larval form, which then migrates into a fish host. Because the 
intermediate host is a bird, and therefore highly mobile, yellow grub 
are easily spread. When yellow grub infect a fish they penetrate the 
skin and migrate into its tissues, causing damage and potentially 
hemorrhaging. Damage from one yellow grub may be minimal, but in 
greater numbers, yellow grub can kill fish (Maine Department of Inland 
Fisheries and Wildlife 2002a, p. 1). Yellow grub occur in many areas in 
Arizona and New Mexico, including Aravaipa Creek (Amin 1969, p. 436; 
U.S. Geological Survey (USGS) 2004, p. 71; Widmer et al. 2006, p. 756), 
Oak Creek (Mpoame and Rinne 1983, pp. 400-401), the Salt River (Amin 
1969, p. 436; Bryan and Robinson 2000, p. 19), the Verde River (Bryan 
and Robinson 2000, p. 19), and Bonita Creek (Robinson, 2011b, pers. 
comm.).
    Black grub, also called black spot, (Neascus spp.) is a parasitic 
larval fluke that appears as black spots on the skin, tail base, fins, 
and musculature of a fish. As with yellow grub, adult black grub 
trematodes live in a bird's mouth and produce eggs, which are swallowed 
unharmed and released into the water in the bird's feces. Each stage of 
their life cycle is named. Eggs mature in the water releasing 
miracidia, which infect mollusks as a first intermediate host, and 
continue to grow, becoming redia. They then migrate into the tissues of 
a second intermediate host, which is typically a fish. At this stage, 
they are termed ``cercaria.'' When the cercaria penetrates and migrates 
into the tissues of a fish, it causes damage and possibly hemorrhaging. 
It then becomes encapsulated by host tissue, and melanophores, or 
pigmented cells, surround the outer layers, resulting in the darker 
color, which appears as a black spot. The damage caused by one cercaria 
is negligible, but in greater numbers they may kill a fish (Lane and 
Morris 2000, pp. 2-3; Maine Department of Inland Fisheries and Wildlife 
2002b, p. 1). Black grub are present in the Verde River (Robinson et 
al. 1998, p. 603; Bryan and Robinson 2000, p. 21), Silver Creek, 
Redfield Canyon, and Fossil Creek (Robinson, 2011b, pers. comm.), and 
are prevalent in the San Francisco River in New Mexico (Paroz, 2011 
pers. comm.).
Summary of Factor C
    Both spikedace and loach minnow have been severely impacted by the 
predation of nonnative predators. Aquatic nonnative species have been 
introduced or spread into new areas through a variety of mechanisms, 
including intentional and accidental releases, sport stocking, 
aquaculture, aquarium releases, and bait-bucket release. Channel 
catfish, flathead catfish, and smallmouth bass appear to be the most 
prominent predators, although other species contribute to the decline 
of spikedace and loach minnow. Spikedace and loach minnow have been 
replaced by nonnative fishes in several Arizona streams. In addition to 
threats from predation, we also conclude that both spikedace and loach 
minnow are reasonably certain to become impacted by parasites that have 
been documented in the Gila River basin and that are known to adversely 
affect or kill fish hosts. For these reasons, we find that disease and 
predation are significant threats to the spikedace and loach minnow.

[[Page 10822]]

D. The Inadequacy of Existing Regulatory Mechanisms

    Because of the complex, indirect, and cumulative nature of many of 
the threats to spikedace and loach minnow, existing regulatory 
mechanisms are inadequate to address or ameliorate the threats. Causes 
of the declining status of these species are a mix of many human 
activities and natural events, which makes them difficult to control 
through regulation.
State Regulations
    Spikedace is listed by New Mexico as an endangered species, while 
loach minnow is listed as threatened (Bison-M 2010). These designations 
provide the protection of the New Mexico Wildlife Conservation Act. 
However, the primary focus of the New Mexico Wildlife Conservation Act 
and other State legislation is to prevent actual destruction or harm to 
individuals of the species. Since most of the threats to these species 
come from actions that do not directly kill individuals, but indirectly 
result in their death from the lack of some habitat requirement or an 
inability to reproduce, the State protection is only partially 
effective for this species. Similarly, spikedace and loach minnow are 
listed as species of concern by the State of Arizona. The listing under 
the State of Arizona law does not provide protection to the species or 
their habitats; however, AGFD regulations prohibit possession of these 
species (AGFD 2006, Appendix 10, p. 4).
    As discussed above under Factor C, the introduction and spread of 
nonnative aquatic species is a major threat to spikedace and loach 
minnow. Neither the States of New Mexico and Arizona nor the Federal 
Government has adequate regulatory mechanisms to address this issue. 
Programs to introduce, augment, spread, or permit such actions for 
nonnative sport, bait, aquarium, and aquaculture species continue. 
Regulation of these activities does not adequately address the spread 
of nonnative species, as many introductions are conducted through 
incidental or unregulated actions.
    New Mexico water law does not include provisions for instream water 
rights to protect fish and wildlife and their habitat. Arizona water 
law does recognize such provisions; however, because this change is 
relatively recent, instream water rights have low priority and are 
often overcome by more senior diversion rights. Indirectly, Arizona 
State law also allows surface water depletion by groundwater pumping.
    A limited amount of scientific collection occurs under State 
permitting, as authorized by the special rule for the two species, but 
does not pose a threat to these species because it is regulated by the 
States.
Federal Regulations
    Many Federal statutes potentially afford protection to spikedace 
and loach minnow. A few of these are section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.), Federal Land Policy and Management Act (43 
U.S.C. 1701-1782), National Forest Management Act (16 U.S.C. 1600 et 
seq.), National Environmental Policy Act (NEPA), and the Act. However, 
in practice these statutes have not been able to provide sufficient 
protection to prevent the downward trend in the populations and habitat 
of spikedace and loach minnow and the upward trend in threats. Section 
404 of the Clean Water Act regulates placement of fill into waters of 
the United States, including most of spikedace and loach minnow 
habitat. However, many actions highly detrimental to spikedace and 
loach minnow and their habitats, such as gravel mining and irrigation 
diversion structure construction and maintenance, are often exempted 
from the Clean Water Act. Other detrimental actions, such as bank 
stabilization and road crossings, are covered under nationwide permits 
that receive little or no Service review. A lack of thorough, site-
specific analyses for projects can allow substantial adverse effects to 
spikedace, loach minnow, and their habitat.
    The Federal Land Policy and Management Act and National Forest 
Management Act provide mechanisms for protection and enhancement of 
spikedace, loach minnow, and their habitat on Federal lands. The USFS 
and the BLM have made significant progress on some stream enhancements 
(Fossil Creek, Blue River, Hot Springs Canyon, and Bonita Creek). 
However, despite the protection and enhancement mechanisms in these 
laws, competing multiple uses, limited funding and staffing have 
resulted in few measureable on-the-ground successes, and the status of 
these species has continued to decline.
    Spikedace and loach minnow are currently listed as threatened under 
the Act and therefore are afforded the protections of the Act. Special 
rules were promulgated for spikedace and loach minnow in 1986, which 
prohibit taking of the species, except under certain circumstances in 
accordance with applicable State fish and wildlife conservation laws 
and regulations. Violations of the special rules are considered 
violations of the Act (50 CFR 17.44(p) for spikedace and 50 CFR 
17.44(q) for loach minnow). As a result of the special rules for 
spikedace and loach minnow, the AGFD is issuing scientific collecting 
permits. This authority was granted at 50 CFR 17.44(p) for spikedace 
and 50 CFR 17.44(q) for loach minnow. This is confirmed through Arizona 
Commission Order 40 and New Mexico special permit (19 New Mexico 
Administrative Code 33.6.2).
    Under section 7 of the Act, Federal agencies must insure that any 
action they authorize, fund, or carry out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the adverse modification or destruction of designated 
critical habitat. The Service promulgated regulations extending take 
prohibitions under section 9 for endangered species to threatened 
species. Prohibited actions under section 9 include, but are not 
limited to, take (i.e., harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or attempt to engage in such activity). 
Critical habitat designation alerts the public that the areas 
designated as critical habitat are important for the future recovery of 
the species, as well as invoking the review of these areas under 
section 7 of the Act with regard to any possible Federal actions in 
that area.
    Section 10 of the Act allows for the permitting of take in the 
course of otherwise lawful activities by private entities, and may 
involve habitat conservation plans which can ultimately benefit 
spikedace or loach minnow. The habitat conservation plan (HCP) prepared 
by Salt River Project (SRP) is expected to benefit spikedace and loach 
minnow in the Verde River.
    Spikedace and loach minnow have been protected under the Act since 
their listing in 1986. While the Act provides prohibitions against 
take, and allows for the development of HCPs, the species have 
continued to decline. To date, section 7 consultation has not been an 
effective tool in addressing this decline. This is due in part to the 
fact that some causes of the decline, such as competition and predation 
with nonnative aquatic species, decreases in surface flows due to 
drought, and habitat losses caused by wildfires are not covered by the 
Act. In addition, water diversions are often ``grandfathered'' into 
existing law and are therefore not subject to section 7.
Summary of Factor D
    Despite the prohibitions against take, which have been in place 
since the

[[Page 10823]]

species were listed in 1986, spikedace and loach minnow have continued 
to decline. While section 7 consultation may be effective in addressing 
impacts from Federal actions such as a road construction project or 
implementation of an allotment management plan, they are not effective 
at minimizing losses to the species from competition and predation with 
nonnative species, the impacts of drought or climate change, or the 
effects of wildfires. Review under the CWA is lacking, and the Federal 
Land Policy and Management Act and National Forest Management Act are 
not currently having a positive effect on the species. In summary, 
existing regulatory mechanisms that prohibit taking of the two species 
have been in place for decades, however, these regulations are not 
adequate to address the significant habitat effects, particularly water 
diversion and the distribution and abundance of nonnative fishes, 
affecting spikedace and loach minnow. Because existing regulatory 
mechanisms do not provide adequate protection for these species or 
their habitats throughout their ranges, we conclude the inadequacy of 
existing regulatory mechanisms is a significant threat to the spikedace 
and loach minnow.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

Nonnative Fishes
    As described under Factor C above, nonnative fishes pose a 
significant threat to Gila River basin native fishes, including 
spikedace and loach minnow (Minckley 1985, pp. 1, 68; Williams et al. 
1985, pp. 3, 17-20; Minckley and Deacon 1991, pp. 15-17). Competition 
with nonnative fish species is considered a primary threat to spikedace 
and loach minnow. See Factor C for the discussion of predation by 
nonnative fish species.
    As with many fish in the West, spikedace and loach minnow lacked 
exposure to a wider range of species over evolutionary time, so that 
they seem to lack the competitive abilities and predator defenses 
developed by fishes from regions where more species are present (Moyle 
1986, pp. 28-31; Douglas et al. 1994, pp. 9-10). As a result, the 
native western fish fauna is significantly impacted by interactions 
with nonnative species. The introduction of more aggressive and 
competitive nonnative fish has led to significant losses of spikedace 
and loach minnow (Douglas et al. 1994, pp. 14-17). Nonnative fishes 
known to occur within the historical range of spikedace and loach 
minnow in the Gila River basin include channel catfish, flathead 
catfish, red shiner, fathead minnow, green sunfish, largemouth bass, 
smallmouth bass, rainbow trout, western mosquitofish, carp, warmouth 
(Lepomis gulosus), bluegill, yellow bullhead, black bullhead, and 
goldfish (Miller 1961, pp. 373-394; Nico and Fuller 1999, pp. 16, 21-
24; Clark 2001, p. 1; AGFD 2004, Bahm and Robinson 2009b, p. 3).
    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 these areas, small, nonnative 
fish species pose a threat to spikedace and loach minnow (Deacon et al. 
1964, pp. 385, 388). Examples of this are the impacts of mosquitofish 
and red shiner, which may compete with, or predate upon, native fish in 
the Gila River basin (Meffe 1985, pp. 173, 177-185; Douglas et al. 
1994, pp. 1, 13-17). However, negative interactions also occur between 
small native and large nonnative individuals. On the East and Middle 
Forks of the Gila River, where large nonnative predators were 
comparatively common, small native species were uncommon or absent. 
Conversely, on the West Fork Gila River, when large nonnative predators 
were rare, most small-bodied and young of large-bodied native fishes 
persisted (Stefferud et al. 2011, pp. 1409-1411).
    For spikedace and loach minnow, every habitat that has not been 
renovated or protected by barriers has at least six nonnative fish 
species present, at varying levels of occupation. In addition to 
nonnative fishes, parasites have been introduced incidentally with 
nonnative species and may be deleterious to spikedace and loach minnow 
populations. Nonnative crayfish (Orconectes virilis) have invaded 
occupied spikedace and loach minnow habitats (Taylor et al. 1996, p. 
31; Robinson and Crowder 2009, p. 3; Robinson et al. 2009b, p. 4; USGS 
2009, p. 1). Crayfish are known to eat fish eggs, especially those 
bound to the substrate (Dorn and Mittlebach 2004, p. 2135), as is the 
case for spikedace and loach minnow. Additionally, crayfish cause 
decreases in macroinvertebrates, amphibians, and fishes (Hanson et al. 
1990, p. 69; Lodge et al. 2000, p. 11). Several of the nonnative 
species now in spikedace and loach minnow habitats arrived there since 
the species were listed, such as red shiner in Aravaipa Creek 
(Stefferud and Reinthal 2005, p. 51) and Asian tapeworm in the middle 
Gila River.
    Competition can be classified as either interference competition or 
exploitive competition. 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). 
Exploitive competition in the form of predation is discussed above 
under Factor C. Interference competition occurs with species such as 
red shiner. Nonnative red shiners compete with spikedace for suitable 
habitats, as the two species occupy essentially the same habitat types. 
The red shiner has an inverse distribution pattern in Arizona to 
spikedace (Minckley 1973, p. 138). Where the two species occur 
together, there is evidence of displacement of spikedace to less 
suitable habitats than previously occupied (Marsh et al. 1989, pp. 67, 
107). As a result, if red shiners are present, suitable habitat for 
spikedace is reduced. In addition, the introduction of red shiner and 
the decline of spikedace have occurred simultaneously (Minckley and 
Deacon 1968, pp. 1427-1428; Douglas et al. 1994, pp. 13, 16-17). The 
red shiner was introduced in the mainstem Colorado River in the 1950s, 
spreading upstream to south-central Arizona by 1963, and by the late 
1970s eastward into New Mexico. Spikedace disappeared at the same time 
and in the same progressively upstream direction, likely as a result of 
interactions with red shiner and in response to impacts of various 
water developments (Minckley and Deacon 1968, pp. 1427-1428; Minckley 
and Deacon 1991, pp. 7, 15; Douglas et al. 1994, pp. 13-17).
    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 co-occurred for three decades; and (3) a portion of the 
Gila River where red shiner invaded areas and where spikedace have 
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 with smaller particle sizes 
in the substrate than were, on average, available in the system. The 
study concludes that in areas where spikedace co-occurrs with

[[Page 10824]]

red shiner, red shiner remain in the preferred habitat, while spikedace 
move into currents swifter than typically occupied (Douglas et al. 
1994, pp. 14-16). The areas with swifter currents are likely less 
suitable for spikedace, as evidenced by their nonuse until such 
competition occurs. Red shiners are known to occur in the Verde River 
(Minckley 1993, p. 10; Jahrke 1999, pp. 2-7; Bahm and Robinson 2009b, 
pp. 3-5), Aravaipa Creek (Reinthal, 2011, pp. 1-2), Blue River (ASU 
2004, multiple reports; ASU 2005, multiple reports), and Gila River 
(Minckley 1973, pp. 136-137; Marsh et al. 1989, pp. 12-13; Propst et 
al. 2009, pp. 14-18).
    As with spikedace, exploitive competition also appears to occur 
between red shiner and 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. Loach minnow 
habitat is markedly different than that of red shiner, so interaction 
between the two species is unlikely to cause shifts in habitat use by 
loach minnow (Marsh et al. 1989, p. 39). Instead, studies indicate that 
red shiner move into voids left when native fishes such as loach minnow 
are extirpated due to habitat degradation in the area (Bestgen and 
Propst 1986, p. 209). Should habitat conditions improve and the habitat 
once again become suitable for loach minnow, the presence of red shiner 
may preclude occupancy of loach minnow, although the specific mechanism 
of this interaction is not fully understood. Prior to 1960, the 
Glenwood-Pleasanton reach of the San Francisco River supported a native 
fish assemblage 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 the 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 most habitat components for native species. However, 
establishment of nonnative fishes in the canyon reaches has reduced the 
utility of these areas for native species (Propst et al. 1988, pp. 51-
56).
    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 
fishes through predation and competition (Courtenay and Meffe 1989, pp. 
320-324). Introduced mosquitofish have been particularly destructive to 
native fish communities in the American West, where they have 
contributed to the elimination or decline of populations of federally 
endangered and threatened species, such as the Gila topminnow 
(Poeciliopsis occidentalis occidentalis) (Courtenay and Meffe 1989, pp. 
323-324). Pilger et al. (2010, p. 312) found that the generalist 
feeding strategy of smallbodied nonnative fishes could further affect 
native fishes through competition, particularly if there is a high 
degree of overlap in habitat use. In their study on the upper Gila 
River, they determined that the diets of nonnative, small-bodied fishes 
and all age groups of native fishes overlapped, so that the presence of 
both juvenile and adult nonnative species could pose a competitive 
threat to native fishes spikedace and loach minnow (Pilger et al. 2010, 
p. 311). Western mosquitofish represent an additional challenge for 
spikedace and loach minnow management, in that they are harder to 
effectively remove during stream renovation efforts. In the desert 
Southwest, the habitat conditions are so limited that native fish 
reintroductions can occur only in those areas where the competition and 
predation of nonnative fishes can be physically precluded, such as 
above a fish barrier.
Drought
    The National Integrated Drought Information System (2011) 
classifies drought in increasing severity categories from abnormally 
dry, to moderate, severe, extreme, and, most severe, exceptional. The 
southwestern United States is currently experiencing drought conditions 
classified as moderate to exceptional. Drought conditions are reported 
as abnormally dry to moderate for the Verde River, with the remainder 
of the critical habitat streams in severe to extreme in Arizona. 
Critical habitat areas in New Mexico fall within the severe to extreme 
drought categories (National Integrated Drought Information System 
2011).
    While spikedace and loach minnow have survived many droughts in 
their evolutionary histories, drought may have more of an impact on the 
species due to already reduced habitat suitability from other effects, 
as described above. In some areas of spikedace and loach minnow 
habitat, drought results in lower streamflow, and consequently warmer 
water temperatures beyond the species' tolerance limits, and more 
crowded habitats with higher levels of predation and competition. In 
other areas, drought reduces flooding that would normally rejuvenate 
habitat and tend to reduce populations of some nonnative species, which 
are less adapted to the large floods of southwestern streams (Minckley 
and Meffe 1987, pp. 94, 104; Stefferud and Rinne 1996a, p. 80). The 
combined effects of drought with ongoing habitat loss and alteration; 
increased predation, competition, and disease from nonnative species; 
and the general loss of resiliency in highly altered aquatic ecosystems 
have had and continue to have negative consequences for spikedace and 
loach minnow populations.
Genetics
    Each remaining population of spikedace is genetically distinct. 
Genetic distinctiveness in the Verde River and Gila River fishes 
indicates that these populations have been historically isolated 
(Tibbets and Dowling 1996, (pp. 1285-1291); Anderson and Hendrickson 
1994, pp. 148, 150-154). The center of the historical distribution for 
spikedace is permanently altered, and the remaining populations are 
isolated and represent the fringes of the formerly occupied range. 
Isolation of these populations has important ramifications for the 
overall survival of the species. Loss of any population may be 
permanent, as there is little ability to repopulate isolated areas, due 
largely to habitat alterations in areas between remaining populations 
(Propst et al. 1986, pp. 38, 86). No genetic exchange is possible 
between the remaining populations of spikedace without human 
assistance. In addition, because genetic variation is important to the 
species' fitness and adaptive capability, losses of genetic variation 
represent a threat to the species (Meffe and Carroll 1997, pp. 162-
172).
    Spikedace in the upper Verde River are genetically different than 
those that were translocated to Fossil Creek; however, there is a 
minimal opportunity for the two populations to interbreed due to the 
length of the river between the two occupied areas. While the Verde 
River supports many of the habitat features for spikedace, it currently 
supports a high number of nonnative species that compete with, and prey 
on, spikedace. We anticipate that, until extensive management takes 
place, spikedace in the two areas will remain isolated. The spikedace 
translocation in Fossil Creek has been in place for

[[Page 10825]]

approximately 4 years. It is not known if that translocation effort 
will succeed.
    As with spikedace, each remaining population of loach minnow is 
genetically distinct. Genetic subdivision into three geographic regions 
indicates that gene flow has been low but not historically absent 
(Tibbets 1993, pp. 22-24, 33). The center of the loach minnow's 
historical distribution is permanently gone, and the remaining 
populations are isolated and represent the fringes of the formerly 
occupied range. Isolation of these populations has important 
ramifications for the overall survival of the species. Loss of any 
population may be permanent, as there is little ability to repopulate 
isolated areas, due largely to habitat alterations in areas between 
remaining populations (Propst et al. 1988, p. 65). No genetic exchange 
is likely between the remaining populations of loach minnow without 
human assistance. As noted for spikedace, genetic variation is 
important to the species' fitness and adaptive capability, and losses 
of genetic variation represent a threat to the species (Meffe and 
Carroll 1997, pp. 162-172).
Flow Regime, Nonnative Fishes, and Connectivity
    The competitive effects of nonnative fish species are often 
exacerbated by changes in flow regimes or declines in habitat 
conditions associated with water developments, as discussed above, and 
should be considered against the backdrop of historical habitat 
degradation that has occurred over time (Minckley and Meffe 1987, pp. 
94, 103; Rinne 1991, p. 12). Stefferud and Rinne (1996b, p. 25) note 
that a long history of water development and diversion coupled with 
nonnative fish introductions has resulted in few streams in Arizona 
retaining their native fish communities. Using the Gila River as an 
example, Propst et al. (1988, p. 67) note that natural (e.g., drought) 
and human-induced (e.g., flow level reductions through irrigation 
diversion) factors combined to reduce loach minnow abundance in the 
Gila River. They note that where canyon habitat would normally continue 
to contain surface flows and suitable habitat for loach minnow, the 
establishment of nonnative fishes in canyon reaches has reduced their 
suitability as habitat for the minnow. Minckley and Douglas (1991, pp. 
7-17) concluded that, for fishes native to the Southwest, the 
combination of changes in stream discharge patterns and nonnative fish 
introductions has reduced the range and numbers of all native species 
of fish, and has led to extinction of some.
    Recent work completed by Propst et al. (2008) indicates that 
individual factors, such as the presence of nonnative fishes or 
existing flow regimes may have impacts on native fish species, but it 
is likely that the interaction of these factors causes a decline in 
native fish species. In studies on the upper Gila River drainage in New 
Mexico, Propst et al. (2008) determined that flow regime was a primary 
factor in shaping fish assemblages, with the greatest densities of 
native fishes occurring in those years with higher stream discharges. 
However, they also found that pressure from competition and predation 
with nonnative fishes also affected fish assemblages. They concluded 
that there was a negative association between nonnatives and native 
fishes, which indicated that there is a complex relationship between 
naturally variable flows and nonnative species, and that natural flow 
alone was not enough to conserve native fish species (Propst et al. 
2008, p. 1246). The way in which these factors interact varied from 
stream to stream in the study.
    Propst et al. (2008) also note the importance of connectivity, 
stating that it is critical to ensuring the long-term persistence of 
native fishes. They note that loach minnow, while still present 
throughout much of its historical range, has been apparently extirpated 
from four of six sites in 10 years or less, and that loss of 
connectivity among populations has reduced the likelihood that many 
will recover naturally, even if causes for elimination are removed. 
They conclude that ``It is almost certain similar, but undocumented, 
losses have occurred throughout the species range, and its status is 
much more fragile than presumed'' (Propst et al. 2008, p. 1251). 
However, where flows remain suitable, and connectivity is maintained, 
there is the inherent risk of exposure to nonnative species traveling 
from one area to another. They conclude that retention of natural 
hydrologic regimes and preclusion of nonnative predators and 
competitors are equally important (Propst et al. 2008, p. 1251).
Summary of Factor E
    The reduced distribution and decreasing numbers of spikedace and 
loach minnow make the two species susceptible to natural environmental 
variability, including climate conditions such as drought. However, 
research indicates that it is the interaction of individual factors 
such as nonnative fishes and altered flow regimes that is causing a 
decline of native fish species. Native fishes are unable to maintain a 
competitive edge in areas where resources are already limited, and 
these resources are likely to become more limited due to water 
developments and drought. Increased water demands are likely to further 
limit the areas where spikedace or loach minnow can persist. We 
therefore conclude that the spikedace and loach minnow are threatened 
by other natural or manmade factors.

Reclassification Determination

    As required by the Act, we considered the five factors in assessing 
whether the spikedace and loach minnow are endangered or threatened 
throughout all or a significant portion of their range. We carefully 
assessed the best scientific and commercial information available 
regarding reclassification of the spikedace and the loach minnow from 
threatened to endangered. There are many threats to both species, 
including habitat loss and modifications (Factor A) caused by 
historical and ongoing land uses such as water diversion and pumping, 
livestock grazing, and road construction. However, competition with, or 
predation by, nonnative species, such as channel and flathead catfish, 
green sunfish, and red shiner, is likely the largest remaining threat 
to the species (Factors C and E). In addition, recent research 
indicates that the combination of altered flow regimes and nonnative 
fishes together are causing declines in native fishes. Existing 
regulatory mechanisms (Factor D) have not proven adequate to halt the 
decline of spikedace or loach minnow or habitat losses since the time 
of their listing as threatened species. In addition, the warmer, drier, 
drought-like conditions predicted to occur due to climate change 
(Factor A) will further reduce available resources for spikedace and 
loach minnow.
    In 1991, we completed a 5-year review for spikedace and loach 
minnow in which we determined that the species' status was very 
precarious and that a change in status from threatened to endangered 
was warranted. Since that time, although some recovery actions have 
occurred, the majority of the areas historically occupied by spikedace 
and loach minnow have experienced a shift from a predominance of native 
fishes to a predominance of nonnative fishes. The low numbers of 
spikedace and loach minnow, their isolation in tributary waters, 
drought, ongoing water demands, and other threats leads us to conclude 
the species are now in danger of extinction throughout their ranges.
    We determined in 1994 that reclassifying spikedace and loach minnow 
to endangered status was warranted but precluded (59 FR 35303,

[[Page 10826]]

July 11, 1994), and restated this conclusion on January 8, 2001 (66 FR 
1295). We reanalyzed the determination each year in our Candidate 
Notice of Review, and determined that reclassification to endangered is 
warranted, in the Candidate Notice of Review published on November 9, 
2009 (74 FR 57804). Spikedace and loach minnow were not addressed in 
the Candidate Notice of Review published in 2011, as this 
reclassification determination was funded in FY 2010. Candidate 
assessments are not reviewed on an annual basis once they are funded.
    Both species have been reduced in range and numbers since the time 
of listing through either localized extirpations, reduced distribution 
within occupied drainages, or reductions in numbers within a given 
drainage. Spikedace and loach minnow are both extirpated from the Salt 
and San Pedro rivers. Spikedace are additionally extirpated from the 
San Francisco River, while loach minnow are extirpated from the Verde 
River.
    In terms of reduced distribution since listing within occupied 
drainages, spikedace currently have a much reduced distribution in the 
Verde River, where the known locations at listing occurred over 
approximately 25 percent of the previously occupied area. Loach minnow 
are reduced in distribution in the San Francisco and Tularosa rivers, 
occurring in a portion up and downstream of the Whitewater Creek 
confluence and again farther upstream of the Tularosa River. Spikedace 
and loach minnow are both reduced in distribution in the East and 
Middle Forks of the Gila River, occurring closer to the confluence with 
the Gila River, but no longer extending as far upstream as in the past. 
The strongholds for both species are Aravaipa Creek in Arizona and the 
Gila River mainstem in New Mexico, but more recent records indicate at 
least small reductions in the up and downstream extent of their 
distributions in these systems.
    In addition to extirpations and reductions in range, some spikedace 
and loach minnow populations persist, but are at reduced numbers. In 
the Verde River, spikedace numbers were frequently in the hundreds, 
with a high of 407 in 1986, but reduced to double and then single 
digits in the late 1980s and 1990s (ASU 2002). While spikedace likely 
still occur in the Verde River, they are at extremely low numbers and 
on the verge of extirpation. Survey records indicate a similar 
situation exists for both spikedace and loach minnow in Eagle Creek. 
Loach minnow are in extremely low numbers in the North Fork East Fork 
Black River as well (ASU 2002).
    Two of the primary threats to spikedace and loach minnow are 
nonnative fishes and loss of water due to diversions, pumping, drought, 
or other causes, as detailed above. Recently, Propst et al. (2008) 
indicated that individual factors, such as the presence of nonnative 
fishes or existing flow regimes may have impacts on native fish 
species, but it is likely that the interaction of these factors may 
cause a decline in native fish species. Past events (both legal and 
alleged illegal) resulted in the establishment of at least 60 nonnative 
fish species, at least three nonnative amphibians (American bullfrog, 
Rio Grande leopard frog, American tiger salamander), at least four 
invertebrates (two species of crayfish, Asiatic clam, and New Zealand 
mud snail), and several diseases or parasites that affect native fish 
or amphibians in areas across Arizona (See Service 2002a for additional 
information). The impacts of nonnative fishes on spikedace and loach 
minnow are detailed above. Nonnative aquatic species are known to occur 
in varying levels in every stream occupied by spikedace or loach 
minnow, with the exception of streams in the early stages of renovation 
and/or reintroduction projects, such as Hot Springs Canyon. Nonnative 
species are considered a serious cause of the decline of the two 
species in all streams except for Aravaipa Creek and the mainstem Gila 
River in New Mexico; however, nonnatives are present in these streams 
as well.
    Alteration or reductions of stream flow is a concern in many areas 
as well, including the Verde River, Salt River, San Pedro River, Gila 
River, Eagle Creek, and San Francisco River. In these areas, diversion 
structures may cause stream levels to drop or become dewatered, 
especially during drought and during the drier months. Future water 
needs in the arid southwest, coupled with the ongoing drought and 
climate change, are likely to increase the number of dewatered areas, 
the size of the dewatered areas, and the length of time for which 
dewatering occurs. Additional, pending water development projects have 
been identified above.
    Recovery actions have occurred at Hot Springs Canyon, Redfield 
Canyon, Fossil Creek, Bonita Creek, and the San Francisco River in New 
Mexico, and have focused on building barriers to nonnative fishes or 
using existing structures as barriers. In some instances, chemical and/
or mechanical removal of nonnative species has occurred. To date, these 
projects have been costly, requiring millions of dollars for barrier 
construction, and extensive time and costs for personnel involved in 
the renovation. Sufficient time has not yet elapsed to determine the 
success of these projects. Fossil Creek is showing early signs of 
success for spikedace (Robinson 2011a, p. 1), but the downstream 
barrier has been breached by nonnatives on one occasion since the 
project began in 2007. Bonita Creek was reinvaded, despite its barrier. 
Redfield Canyon currently has inadequate flows to support either 
species. Regardless of the success of these efforts, Hot Springs Canyon 
and Redfield Canyon flow into the dry portions of the San Pedro River 
so are not connected to any other populations of spikedace or loach 
minnow. Fossil Creek does flow into the active channel of the Verde 
River, but the Verde River at that confluence is currently dominated by 
nonnatives. Bonita Creek flows into the Gila River, which is also 
dominated by nonnatives and ultimately becomes dewatered as well. 
Therefore, the recovery actions completed to date, while allowing the 
species to persist, have limited ability to help recover the species at 
this time.
    An additional complication in recovery of the species is the lack 
of available suitable habitat. The species are both currently found in 
isolated areas, with little opportunity for expansion or for genetic 
interchange. The Verde River feeds into two reservoirs, effectively 
isolating it from the Salt River. Those portions of the Salt River that 
were historically occupied by the species now have four dams and 
reservoirs. The San Pedro River is dewatered in some areas, especially 
downstream of known historical distribution. Aravaipa Creek, while 
supporting the largest population of the two species in Arizona, ends 
at a dry stretch of the San Pedro River. Those portions of Eagle Creek 
occupied by the two species occur above a diversion dam, downstream of 
which nonnative levels are high. Eagle Creek then joins the Gila River, 
which is also dominated by nonnative fishes. Downstream of the occupied 
area in the Gila River, which supports the largest known populations of 
the species, there are water diversions that ultimately result in a dry 
stream channel as the river travels into Arizona from New Mexico.
    In summary, spikedace and loach minnow previously had a relatively 
widespread distribution covering portions of Arizona, New Mexico, and 
northern Mexico. Both species have suffered major reductions in numbers 
and range over time due to persistent threats such that spikedace are 
now estimated to occur in only 10 percent of

[[Page 10827]]

their former range, while loach minnow occur in 10 to 20 percent of 
their former range. Currently, only small, isolated populations of 
these species remain, with limited to no opportunities for interchange 
between populations or expansion of existing areas, making the species 
more vulnerable to threats including reproductive isolation. The two 
primary threats of nonnative aquatic species competition and predation 
and alteration or diminishment of stream flows are persistent, and 
research indicates that the combination of the two is leading to 
declines of native species such as spikedace and loach minnow (Propst 
et al. 2008). The ongoing drought and climate conditions aggravate the 
loss of water in some areas, and future water development projects have 
been identified. Finally, the opportunities for expansion of the two 
species' range are limited by dams, reservoirs, dewatering, and 
nonnative species distribution.
    Based on this information, as well as the above review of the best 
scientific and commercial information available, we find that both 
species are currently in danger of extinction and therefore meet the 
definition of endangered species under the Act. Because we have 
determined that these species are currently on the brink of extinction 
and are not in danger of extinction in the foreseeable future, we have 
determined that the correct status for the species under the Act is 
endangered. As a result, we are reclassifying both spikedace and loach 
minnow from threatened species to endangered species. With this 
reclassification of spikedace and loach minnow to endangered status, we 
remove the special rules for these species at 50 CFR 17.44(p) and 
17.44(q), respectively. Special rules apply only to threatened species; 
therefore, as spikedace and loach minnow are now listed as endangered, 
these special rules no longer apply.

Available Conservation Measures

    Conservation measures provided to spikedace and loach minnow under 
the Act include several reintroduction and augmentation projects. Some 
of these projects have already begun; others are in the planning stage. 
Project planning is under way for renovation efforts in Blue River and 
Spring Creek in Arizona. Other recovery actions include reintroduction 
or translocation of spikedace into streams within its historical range. 
In 2007, spikedace were translocated into Hot Springs Canyon, Redfield 
Canyon, and Fossil Creek. In 2008, spikedace were translocated into 
Bonita Creek in Arizona and reintroduced to the San Francisco River in 
New Mexico. Monitoring has occurred at each of these sites annually, 
with annual augmentations at Hot Springs Canyon, Redfield Canyon, and 
Fossil Creek in subsequent years when fish are available, up to and 
including 2011. Spikedace were augmented in the San Francisco River in 
2009, but monitoring and augmentations did not occur in 2010 or 2011 
due to a lack of adequate staffing and resources. Due to a reinvasion 
by nonnative species, augmentations are temporarily on hold at Bonita 
Creek.
    Several translocation projects for loach minnow are also in the 
planning stages. These projects may occur with or without construction 
of fish barriers. Loach minnow may also benefit from the Blue River and 
Spring Creek renovation projects mentioned above. Additional recovery 
actions include translocations or reintroduction of loach minnow into 
streams within its historical range. In 2007, translocations of loach 
minnow occurred at Hot Springs Canyon, Redfield Canyon, and Fossil 
Creek. Monitoring of these sites occurs annually, and the sites have 
been augmented annually when fish are available, up to and including 
2011. In 2008, loach minnow were translocated into Bonita Creek, 
Arizona. Monitoring occurs annually at this site; however, due to a 
reinvasion by nonnative species, augmentations are temporarily on hold.
    The AGFD and Bureau of Reclamation continue to fund equipment and 
staff to run the Bubbling Ponds Native Fish Research Facility through 
the Gila River Basin Native Fishes Conservation Program (formerly known 
as the Central Arizona Project Fund Transfer Program). Salt River 
Project's habitat conservation plan was signed in 2008, and is expected 
to benefit both the spikedace and the loach minnow in the Verde River 
watershed. Also in 2008, AGFD staff managed original source stock and 
their progeny at the Bubbling Ponds facility, totaling 740 Gila River 
spikedace, 1,650 Aravaipa Creek spikedace, 670 Blue River loach minnow, 
and 3,250 Aravaipa Creek loach minnow. Plans are under way to bring in 
stock from every extant population of loach minnow, including those in 
the San Francisco River, the three forks of the Gila River, the upper 
Gila River in New Mexico, and the Eagle and Black River system in 
Arizona. Bubbling Ponds will serve as a refuge for some populations, 
and as a captive breeding facility for others, depending on the status 
of the population and availability of translocation sites.
    In an effort to minimize impacts from nonnative fish interactions, 
the NMDGF initiated a nonnative removal effort in the Forks area in 
2007, and at Little Creek (a tributary to West Fork Gila River) in 
2010. These efforts are expected to continue.

Critical Habitat Designations for Spikedace and Loach Minnow

Summary of Changes From Proposed Rule

    As noted in our October 4, 2011, notice of availability (NOA) (76 
FR 61330), we used three criteria in the proposed rule to evaluate if 
unoccupied habitat was essential to the survival and recovery of the 
species. One of the criteria evaluated the potential of a stream 
segment to ``connect to other occupied areas, which will enhance 
genetic exchange between populations.'' After additional review of the 
stream segments proposed for critical habitat, we concluded there were 
no stream segments that met this criterion, and we removed it as an 
element of the ruleset. We continue to believe that both loach minnow 
and spikedace conservation will require genetic exchange between the 
remaining populations to allow for genetic variation, which is 
important for species' fitness and adaptive capability. We also 
acknowledge that areas equally important to the conservation of the 
species, outside of the critical habitat designations, will be 
necessary for long-term conservation, subject to future on-the-ground 
recovery actions and 7(a)(1) opportunities. Based on information we 
received during the comment periods on the proposed rule, several 
changes have been made to the areas designated as critical habitat in 
this final rule. These changes are summarized in Table 1 below.

   Table 1--Changes in Stream Segments Included Within the Critical Habitat Designations for Loach Minnow and
                                                    Spikedace
----------------------------------------------------------------------------------------------------------------
                Stream                       From km (mi)              To km (mi)           Change in km (mi)
----------------------------------------------------------------------------------------------------------------
San Francisco River *................  180.7 (112.3)..........  203.6 (126.5)..........  Addition of 22.8
                                                                                          (14.2).

[[Page 10828]]

 
Bear Creek *.........................  0.0 (0.0)..............  31.4 (19.5)............  Addition of 31.4
                                                                                          (19.5).
Redfield Canyon......................  22.5 (14.0)............  6.5 (4.0)..............  Reduction of 16.0
                                                                                          (10.0).
Hot Springs Canyon...................  19.0 (11.8)............  9.3 (5.8)..............  Reduction of 9.7 (6.0).
Fossil Creek.........................  7.5 (4.7)..............  22.2 km (13.8 mi)......  Addition of 14.6 (9.1).
----------------------------------------------------------------------------------------------------------------
* This change made for loach minnow only.

    San Francisco River. As noticed in the NOA (76 FR 61330; October 4, 
2011), we are correcting an error made in the proposed rule by 
extending that portion of the San Francisco River designated for loach 
minnow by 22.8 km (14.2 mi). The mileage for spikedace remains the same 
as was in the proposed rule (75 FR 66482; October 28, 2010); however, 
we had intended to include the same mileage for loach minnow as was in 
the 2007 critical habitat designation as this area is currently 
occupied by loach minnow, as this area meets the definition of critical 
habitat for loach minnow. The total mileage included on the San 
Francisco River for loach minnow was changed from 180.7 km (112.3 mi) 
in the revised proposed rule to 203.6 km (126.5 mi) in this final rule. 
This change has been incorporated in this final rule. The mileage for 
spikedace remains the same as in the revised proposed rule.
    Bear Creek. We noted in the NOA that we intended to add portions of 
Bear Creek to the designation for loach minnow, based on occupancy of 
this area by loach minnow. The NOA noted that we were adding 31.4 km 
(19.5 mi) of Bear Creek from its confluence with the Gila River 
upstream to the confluence with Sycamore and North Fork Walnut creeks. 
We consider those portions of Bear Creek included within the final 
designation to have been occupied at listing, as described in the NOA, 
although records were not known until 2005 and 2006. These areas meet 
the definition of critical habitat for loach minnow. As noted in our 
NOA, we recognize that portions of this stream are intermittent, but 
also acknowledge that streams with intermittent flows can function as 
connective corridors through which the species may move when the area 
is wetted. We have reviewed all of the information received, and 
conclude that inclusion of Bear Creek is appropriate at this time. We 
do not anticipate that loach minnow will occupy the lowermost portions 
of the Creek when they are dry, but we have determined that that area 
has value as a connective corridor to the mainstem Gila River during 
high-flow events.
    It should be noted that the low number of fish does not, in all 
likelihood, represent the total number of fish present, as sampling 
rarely results in capture of all individuals present. Regardless, the 
number of fish present in Bear Creek is low. However, Bear Creek is a 
tributary to an occupied stream, and is within the historical range of 
the species. Loach minnow are currently much reduced in their overall 
distribution compared to historical conditions. The threats assessment 
above outlines current threats, which are numerous. While 
reintroduction projects are under way, the success of those efforts is 
currently limited. Streams are not abundant in the desert southwest. 
Because this area provides suitable habitat and is occupied by loach 
minnow, we conclude that it is essential to the conservation of the 
species.
    Redfield and Hot Springs Canyons. In response to comments received 
during the second comment period, we have reevaluated the extent of 
each stream included within the designations, and concluded that they 
do not meet the definition of critical habitat for either spikedace or 
loach minnow. With further review, we have determined that, although 
connective habitat is important, the area previously retained as 
connective habitat (i.e., between the barrier location and the San 
Pedro River) currently connects to dewatered portions of the San Pedro 
River. We have therefore shortened the overall stretch of each stream 
to include just those sections currently supporting perennial flows. 
For Redfield Canyon, the designations changed from 22.5 km (14.0 mi) in 
the revised proposed rule to approximately 6.5 km (4.0 miles) in this 
final rule, and include that portion of the stream from the confluence 
with Sycamore Canyon downstream to the barrier constructed at Township 
11 South, Range 19 East, section 36.
    For Hot Springs Canyon, we are making similar changes. The barrier 
location and the downstream extent of perennial flows are approximately 
one mile apart. As with Redfield Canyon, Hot Springs Canyon ultimately 
connects with dewatered portions of the San Pedro River. In the 
proposed rule we included Hot Springs Canyon from its confluence with 
Bass Canyon downstream for 19.0 km (11.8 mi). In the final rule, we are 
reducing the portion of Hot Springs Canyon included within critical 
habitat to that area from its confluence with Bass Canyon downstream 
for approximately 9.3 km (5.8 mi).
    Fossil Creek. We received several comments and new information 
indicating that the best habitat for the species in Fossil Creek occurs 
above the newly constructed barrier at Township 11\1/2\ North, Range 7 
East, section 29. The portions of Fossil Creek above the barrier have 
been in use as a translocation site for spikedace beginning in 2008. 
Although there was limited success with the translocation initially, 
surveys in August 2011 (Crowder, 2011, pers. comm.) located numerous 
spikedace within Fossil Creek. While it would be premature to call the 
translocation a success, the persistence of spikedace indicates that it 
is suitable, and this area meets the definition of critical habitat for 
spikedace and loach minnow. For this reason, we are adjusting the area 
included within Fossil Creek to include the portions upstream of the 
barrier to the old Fossil Diversion Dam at Township 12 North, Range 7 
East, section 14. The area incorporated in this stream segment will 
increase from 7.5 km (4.8 mi) to 22.2 km (13.8 mi).
    In total, the areas designated as critical habitat for both species 
were reduced as compared to the revised proposed rule. For spikedace, 
the area included within the designation was reduced by 155 km (96 mi). 
For loach minnow, the area included within the designation was reduced 
by 160 km (99 mi). Portions of this are attributable to the changes 
noted above, and portions to changes made under the Exclusions section. 
The bulk of the reduced mileage can be attributed to exclusions on 
Eagle Creek and the San Pedro River and, to a lesser extent, on the 
Gila River.

Critical Habitat Background

    Critical habitat is defined in section 3 of the Act as:

[[Page 10829]]

    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
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 that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies insure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not 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 the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) of the Act would apply, but even in the event of a destruction 
or adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, the critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (PCEs such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type) that are essential to the conservation of the species. PCEs 
are the elements of physical or biological features that, when laid out 
in the appropriate quantity and spatial arrangement to provide for a 
species' life-history processes, are essential to the conservation of 
the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our 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 we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may 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.
    The location and suitability of habitat changes and species may 
move from one area to another over time. Climate change will be a 
particular challenge for biodiversity because the interaction of 
additional stressors associated with climate change and current 
stressors may push species beyond their ability to survive (Lovejoy 
2005, pp. 325-326). The synergistic implications of climate change and 
habitat fragmentation are the most threatening facet of climate change 
for biodiversity (Hannah et al. 2005, p. 4). Current climate change 
predictions for terrestrial areas in the Northern Hemisphere indicate 
warmer air temperatures, more intense precipitation events, and 
increased summer continental drying (Field et al. 1999, pp. 1-3; Hayhoe 
et al. 2004, p. 12422; Cayan et al. 2005, p. 6; IPCC 2007b, p. 1181). 
Climate change may lead to increased frequency and duration of severe 
storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 
2002, p. 6074; Cook et al. 2004, p. 1015. Generally, the outlook 
presented for the Southwest predicts warmer, drier, drought-like 
conditions (Seager et al. 2007, p. 1181; Hoerling and Eischeid 2007, p. 
19), and a decline in water resources with or without climate change 
will be a significant factor in the compromised watersheds of the 
desert southwest.
    Habitat is dynamic, or frequently changing, and species may move 
from one area to another over time. We recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not be required for recovery of the species. Areas 
that are important to the conservation of the species, both inside and 
outside the critical habitat designations, will continue to be subject 
to: (1) Conservation actions

[[Page 10830]]

implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. 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 (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Occupied Versus Unoccupied Areas

    We include as occupied those areas that were identified as occupied 
for each species in the original listing documents, as well as any 
additional areas determined to be occupied after 1986. Our reasoning 
for including these additional areas (post-1986) is that they were 
likely occupied at the time of the original listings, but had not been 
detected in surveys. In summary, there are three reasons why a stream 
segment is considered occupied at the time of listing: (1) The stream 
segment was occupied in the 1986 listing document; or (2) the fish were 
found subsequently to 1986; and (3) the post-1986 stream segment is 
between two occupied, but separated, stream segments.
    Several factors may influence whether or not spikedace or loach 
minnow were detected in a given survey, and at what level. In some 
instances, survey efforts may have been minimal or absent for a given 
area. Once a species is listed, awareness of the species is heightened 
for wildlife and land managers, and survey efforts are often increased 
or expanded to include areas where they might be present. Moreover, 
spikedace and loach minnow are small-bodied fish that can be difficult 
to detect when in low numbers. This may be partially responsible for 
the lack of determinations over a 44-year period on Eagle Creek for 
loach minnow, for example. Finally, capture efficiencies for seining of 
fish are low, with some research indicating that capture efficiency of 
a seine haul averages 49 percent (Dewey and Holland-Bartels 1997, p. 
101). This means that 51 percent of the fish present may not be 
captured. It should be noted that various factors can affect seining 
efficiency, and that most surveys involve more than one seine haul. 
However, if a species is present in low numbers, as is common for 
spikedace and loach minnow, the likelihood of catching them at the low 
capture efficiencies associated with seining is low. Loach minnow are 
likely to be more difficult to detect due to their having a reduced gas 
bladder. They are typically restricted to bottom-dwelling habitat, 
swimming in only brief movements, which may further reduce the 
likelihood of its being collected in a seine. We believe a combination 
of these factors to be responsible for the lack of detections over a 44 
year period on Eagle Creek for loach minnow, as described above.
    In some instances, areas were known to have been occupied by one or 
both species prior to listing, but were not described as occupied in 
the listing document based on the limited data available. Subsequent 
detections after listing in 1986 have caused us to reconsider the 
occupancy status of some streams. For example, we were aware of one 
loach minnow record for Dry Blue Creek from 1948 up until listing, but 
did not include Dry Blue Creek as occupied at listing in 1986 based on 
this record. Subsequent positive survey records in the late 1990s have 
caused us to reconsider this area. As a result, in this designation, we 
consider Dry Blue Creek to be occupied by loach minnow at the time of 
listing. Similarly, Eagle Creek had one record of loach minnow from 
1950, but was not included as occupied at listing in 1986. Loach minnow 
were subsequently detected again in the 1990s, and it is therefore 
considered occupied at the time of listing within this designation.
    In every case, areas discovered to be occupied after 1986 are 
connected, or historically were connected, to occupied areas. For 
example, the Black River complex was not known to be occupied until 
1996; however, it is connected, albeit over long distances, to the 
White River, which is currently occupied, and the Salt River, which was 
historically occupied. Dry Blue Creek, described above, is connected to 
the occupied Blue River. Eagle Creek is a tributary to the Gila River, 
and at one time perennial flows would have connected this population to 
those in the upper portions of the Gila River in New Mexico. It is 
therefore logical to conclude that these areas had been occupied since 
listing, although possibly at low numbers that were difficult to 
detect.
    Because areas determined to be occupied after 1986 are or were 
connected to occupied areas, the survey efforts for the species have 
been less than thorough, and because both species are difficult to 
detect in low numbers, we anticipate that, although occupancy was not 
determined in some areas until post-1986, the species were likely 
present at listing in 1986 in these areas, but not discovered until 
after listing.
    Given that spikedace and loach minnow are small-bodied fish that 
can be difficult to detect when in low numbers, we also consider those 
areas included in this designation to be essential to the conservation 
of the species.

Physical and Biological Features

    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features (PBFs) essential to the 
conservation of spikedace and loach minnow in areas occupied at the 
time of listing, focusing on the features' primary constituent elements 
(PCEs). We consider PCEs to be the elements of physical and biological 
features that, when laid out in the appropriate quantity and spatial 
arrangement to provide for a species' life-history processes, are 
essential to the conservation of the species. We outline the 
appropriate quantities and spatial arrangements of the elements in the 
Physical and Biological Features (PBFs) section of the October 28, 
2010, proposed rule. For example, spawning substrate would be 
considered an essential feature, while the specific composition (sand, 
gravel, and cobble) and level of embeddedness are the elements (PCEs) 
of that feature.
    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the PBFs essential to the 
conservation of the species and which may require special management 
considerations or protection. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.

[[Page 10831]]

    We derive the specific PBFs required for spikedace and loach minnow 
from studies of their habitat, ecology, and life history as described 
in the Critical Habitat section of the proposed rule to designate 
critical habitat published in the Federal Register on October 28, 2010, 
and in the information presented below. Additional information can be 
found in the final listing rule published in the Federal Register on 
July 1, 1986 (spikedace; 51 FR 23769) and October 28, 1986 (loach 
minnow; 51 FR 39468), and the recovery plans for each of the species 
(Service 1991a, 1991b). Below, we provide a discussion of the physical 
and biological features that are essential to the conservation of the 
spikedace and loach minnows:

Space for Individual and Population Growth and for Normal Behavior

Spikedace

    Microhabitats. Habitat occupied by spikedace can be broken down 
into smaller, specialized habitats called microhabitats. These 
microhabitats vary by stream, by season, and by species' life stage. 
Studies on habitat use have been completed on the Gila River in New 
Mexico, and the Verde River and Aravaipa Creek in Arizona. Generally, 
spikedace occupy moderate to large perennial streams at low elevations 
over substrates (river bottom material) of sand, gravel, and cobble 
(Barber and Minckley 1966, p. 31; Propst et al. 1986, pp. 3, 12; Rinne 
and Kroeger 1988, p. 1). Occupied streams are typically of low gradient 
(Barber et al. 1970, p. 10; Rinne and Kroeger 1988, p. 2; Rinne 1991, 
pp. 8-12; Rinne and Stefferud 1996, p. 17), and less than 1 meter (m) 
(3.28 feet (ft)) in depth (Propst et al. 1986, p. 41; Minckley and 
Marsh 2009, p. 155).
    Larval spikedace occur most frequently in slow-velocity water near 
stream margins or along pool edges. Most larvae are found over sand 
substrates. Juvenile spikedace tend to be found over a greater range of 
water velocities than larvae, but still in shallow areas. Juvenile 
spikedace occupy areas with a gravel or sand substrate, although some 
have been found over cobble substrates as well. Larvae and juveniles 
may occasionally be found in quiet pools or backwaters (e.g., pools 
that are connected with, but out of, the main river channel) (Sublette 
et al. 1990, p. 138).
    Adult spikedace occur in the widest range of flow velocities. They 
are typically associated with shear zones (areas within a stream where 
more rapidly flowing water abuts water moving at slower velocities), 
downstream of sand bars, and in eddies or small whirlpools along 
downstream margins of riffles (those shallow portions of the stream 
with rougher, choppy water). Adult spikedace are found in shallow water 
over predominantly gravel-dominated substrates (Propst et al. 1986, p. 
40; Rinne 1991, pp. 8-12; Rinne and Stefferud 1997, p. 21; Rinne and 
Deacon 2000, p. 106; Rinne 2001, p. 68), but also over cobble and sand 
substrates (Minckley and Marsh 2009, p. 155; Rinne and Kroeger 1988, p. 
3; Sublette et al. 1990, p. 138).
    In addition to substrate type, the amount of embeddedness (filling 
in of spaces by fine sediments) is also important to spikedace. 
Spikedace more commonly occur in areas with low to moderate amounts of 
fine sediment and substrate embeddedness, which is important for the 
healthy development of eggs. Spawning has been observed in areas with 
sand and gravel beds and not in areas where fine materials smaller than 
sand coats the sand or gravel substrate. Additionally, low to moderate 
amounts of fine sediments ensure that eggs remain well-oxygenated and 
will not suffocate due to sediment deposition (Propst et al. 1986, p. 
40). Water temperatures of occupied spikedace habitat vary with time of 
year.
    Water temperatures have been recorded at Aravaipa Creek, and on the 
Gila River in the Forks area and at the Cliff-Gila Valley. Water 
temperatures of occupied spikedace habitat vary with time of year. 
Summer water temperatures were between 19.3 degrees Celsius ([deg]C) 
(66.7 degrees Fahrenheit ([deg]F)) (Gila River, Forks Area) and 27 
[deg]C (80.6[emsp14] [deg]F) (Aravaipa Creek). Winter water 
temperatures ranged between 8.9 [deg]C (48.0[emsp14] [deg]F) at 
Aravaipa Creek and 11.7 [deg]C (53.1[emsp14] [deg]F) in the Cliff-Gila 
Valley (Barber and Minckley 1966, p. 316; Barber et al. 1970, pp. 11, 
14; Propst et al. 1986, p. 57).
    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[emsp14] [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[emsp14] [deg]F), and that 50 percent 
mortality occurred after 30 days at 32.1 [deg]C (89.8[emsp14] [deg]F). 
In addition, growth rate was slowed at 32 [deg]C (89.6[emsp14] [deg]F), 
as well as at the lower test temperatures of 10 and 4 [deg]C (50 and 
39.2[emsp14] [deg]F). Multiple behavioral and physiological changes 
were observed, indicating the fish became stressed at 30, 32, and 33 
[deg]C (86, 89.6 and 91.4[emsp14] [deg]F). 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[emsp14] [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).
    Spikedace occupy streams with low to moderate gradients (Propst et 
al. 1986, p. 3; Rinne and Stefferud 1997, 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 1997, p. 14).
    Table 2 compares specific parameters of habitat occupied by 
spikedace at various ages as identified through studies completed to 
date. Studies on flow velocity in occupied spikedace habitat have been 
completed on the Gila River, Aravaipa Creek, and the Verde River 
(Barber and Minckley 1966, p. 321; Minckley 1973, p. 114; Anderson 
1978, p. 17; Schreiber 1978, p. 4; Turner and Tafanelli 1983, pp. 15-
16; Propst et al. 1986, pp. 39-41; Rinne and Kroeger 1988, p. 1; Hardy 
et al. 1990, pp. 19-20, 39; Sublette et al. 1990, p. 138; Rinne 1991, 
pp. 9-10; Rinne 1999a, p. 6).

                        Table 2--Habitat Parameters for Varying Life Stages of Spikedace
----------------------------------------------------------------------------------------------------------------
                                                Larvae                 Juveniles                  Adults
----------------------------------------------------------------------------------------------------------------
Flow velocity in centimeters per       8.4 (3.3)..............  16.8 (6.6).............  23.3-70.0 (9.2-27.6).
 second (inches per second).
Depth in centimeters (inches)........  3.0-48.8 (1.2-19.2)....  3.0-45.7 (1.2-18.0)....  6.1-42.7 (2.4-16.8).
Gradient (percent)...................  No data................  No data................  0.3 to <1.0.

[[Page 10832]]

 
Substrates...........................  Primarily sand, with     Primarily gravel, with   Sand, gravel, cobble,
                                        some over gravel or      some sand and cobble.    and low amounts of
                                        cobble.                                           fine sediments.
----------------------------------------------------------------------------------------------------------------

    In studies on the Gila River, there were seasonal shifts in 
microhabitats used, involving depth or velocity, depending on the study 
site. It is believed that seasonal shifts in microhabitat use reflect 
selection by spikedace for particular microhabitats. In the cold 
season, when their metabolic rate decreases, spikedace near the Forks 
area on the Gila River seek protected areas among the cobble of stream 
channel margins, where water is shallower and warmer. In other areas 
such as the Cliff-Gila Valley, cobbled banks for protection were 
generally not available, but slow-velocity areas in the lee of gravel 
bars and riffles were common, and spikedace shifted to these protected 
areas of slower velocity during the cold season. Seasonal changes in 
microhabitat preference by spikedace are not entirely understood, and 
additional study is needed (Propst et al. 1986, pp. 47-49).
    Studies indicate a geographic variation in the portion of the 
stream used by spikedace. On the Verde River, outside of the April to 
June breeding season, 80 percent of the spikedace collected 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). In contrast, 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).
    Flooding. In part, suitable habitat conditions are maintained by 
flooding. 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. Items 2 and 3 will be addressed in greater 
detail below.
    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 
decreases. Natural dams formed by the deposition of this sediment 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 produce floods of varying intensity and duration. 
These high flows likely rejuvenate spikedace spawning and foraging 
habitat (Propst et al. 1986, p. 3). 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 the floods either stimulated spawning, enhanced 
recruitment of three native species, or eliminated one of the nonnative 
fish species (Stefferud and Rinne 1996a, p. 80).
    In summary, based on the best scientific and commercial information 
available for spikedace, we have developed the following ranges in 
habitat parameters:
     Shallow water generally less than 1 m (3.3 ft) in depth;
     Slow to swift flow velocities between 5 and 80 cm per 
second (sec) (1.9 and 31.5 in. per sec);
     Glides, runs, riffles, the margins of pools and eddies, 
and backwater components;
     Sand, gravel, and cobble substrates with low or moderate 
amounts of fine sediment and substrate embeddedness, as maintained by a 
natural, unregulated flow regime that allows for periodic flooding or, 
if flows are modified or regulated, a flow regime that allows for 
adequate river functions, such as flows capable of transporting 
sediments;
     Low gradients of less than approximately one percent;
     Water temperatures in the general range of 8 to 28 [deg]C 
(46.4 to 82.4[emsp14] [deg]F); and
     Elevations below 2,100 m (6,890 ft).

Loach Minnow

    Microhabitat. The best scientific and commercial information 
available indicates that, in general, loach minnow live on the bottom 
streams or rivers with low gradients within shallow, swift, and 
turbulent riffles. They are also known to occupy pool, riffle, and run 
habitats in some areas. They live and feed among clean, loose, gravel-
to-cobble substrates. Their reduced air bladder (the organ that aids in 
controlling a fish's ability to float without actively swimming) allows 
them to persist in high-velocity habitats with a minimal amount of 
energy, and they live in the interstitial spaces (openings) between 
rocks (Anderson and Turner 1977, pp. 2, 6-7, 9, 12-13; Barber and 
Minckley 1966, p. 315; Lee et al. 1980, p. 365; Britt 1982, pp. 10-13, 
29-30; J.M. Montgomery 1985, p. 21; Marsh et al. 2003, p. 666; Minckley 
1981, p. 165; Propst et al. 1988, p. 35; Rinne 1989, p. 109; Velasco 
1997, p. 28; Sublette et al. 1990, p. 187; AGFD 1994, pp. 1, 5-11; 
Bagley et al. 1995, pp. 11, 13, 16, 17, 22; Rinne 2001, p. 69; Minckley 
and Marsh 2009, p. 174). Loach minnow are sometimes found in or near 
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; Sublette et al. 1990, p. 187; Minckley and Marsh 
2009, p. 174).
    Microhabitats used by loach minnow vary by life stage and stream. 
Adult loach minnow occupy a broad range of water velocities, with the 
majority of adults occurring in swift flows. Their eggs are adhesive, 
and are placed on the undersurfaces of rocks in the same riffles that 
they themselves occupy. After hatching, larval loach minnow move from 
the rocks under which they were spawned to areas with slower velocities 
than the main stream, typically remaining in areas with significantly 
slower velocities than juveniles and adults. Larval loach minnow occupy 
areas that are shallower and significantly slower than areas where eggs 
are found (Propst et al. 1988, p. 37; Propst and Bestgen 1991, p. 32). 
Juvenile loach minnow generally occur in areas where velocities are 
similar to those used by adults, and that have higher flow velocities 
than those occupied by larvae (Propst et al. 1988, pp. 36-37).
    Substrate is an important component of loach minnow habitat. 
Studies in Aravaipa Creek and the Gila River indicate that loach minnow 
prefer cobble and large gravel, avoiding areas dominated by sand or 
fine gravel. This may be because 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

[[Page 10833]]

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 sections of the riffle, where 
loose materials are more likely to fall out of the water column and 
settle on the stream bottom. 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 (Propst et al. 1984, p. 12).
    Varying substrates are used during different life stages of loach 
minnow. Adults occur over cobble and gravel, and place their eggs in 
these areas. Larval loach minnow are found where substrate particles 
are smaller than those used by adults. Juvenile loach minnow occupy 
areas with substrates of larger particle size than larvae. Generally, 
adults exhibited a narrower preference for depth and substrate than did 
juveniles, and were associated with gravel to cobble substrates within 
a narrower range of depths (Propst et al. 1988, pp. 36-39; Propst and 
Bestgen 1991, pp. 32-33).
    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 9 to 22 [deg]C 
(48.2 to 71.6[emsp14] [deg]F) (Britt 1982, p. 31; Propst et al. 1988, 
p. 62; Leon 1989, p. 1; Propst and Bestgen 1991, p. 33; Vives and 
Minckley 1990, p. 451).
    Studies by the University of Arizona focused on temperature 
tolerances of loach minnow. In one study, fish were acclimated to a 
given temperature, and then temperatures were increased by 1 [deg]C 
(33.8[emsp14] [deg]F) per day until test temperatures were reached. The 
study determined that no loach minnow survived for 30 days at 32 [deg]C 
(89.6[emsp14] [deg]F), and that 50 percent mortality occurred after 30 
days at 30.6 [deg]C (87.1[emsp14] [deg]F). In addition, growth rate 
slowed at 28 and 30 [deg]C (82.4 and 86.0[emsp14] [deg]F) compared to 
growth at 25 [deg]C (77[emsp14] [deg]F), indicating that loach minnow 
were stressed at sublethal 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 since 100 percent survival of loach 
minnow at 28 [deg]C (82.4[emsp14] [deg]F) was observed, 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).
    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).
    Table 3 compares specific parameters of microhabitats occupied by 
loach minnow at various ages as identified through studies completed to 
date. Studies on habitat occupied by loach minnow have been completed 
on the Gila River, Tularosa River, San Francisco River, Aravaipa Creek, 
Deer Creek, and Eagle Creek (Barber and Minckley 1966, p. 321; Britt 
1982, pp. 1, 5, 10-12, 29; Turner and Tafanelli 1983, pp. 15-20, 26; 
Propst et al. 1984, pp. 7-12; Propst et al. 1988, pp. 32, 36- 39; Rinne 
1989, pp. 111-113, 116; Propst and Bestgen 1991, p. 32; Vives and 
Minckley 1990, pp. 451-452; Propst and Bestgen 1991, pp. 32-33; Velasco 
1997, pp. 5-6; Marsh et al. 2003, p. 666).

                       Table 3--Habitat Parameters for Varying Life Stages of Loach Minnow
----------------------------------------------------------------------------------------------------------------
                                          Egg               Larvae             Juveniles            Adults
----------------------------------------------------------------------------------------------------------------
Flow velocity in centimeters per  3.0-91.4 (1.2-      0.0-48.8 (0.0-      3.0-85.3 (1.2-      0.0-79.2 (0.0-
 second (inches per second).       36.0).              19.2).              33.6).              31.2).
Depth in centimeters (inches)...  3.0-30.5 (1.2-12).  3.0-45.7 (1.2-8.0)  6.1-42.7 (2.4-      6.1-45.7 (2.4-
                                                                           16.8).              18.0).
Substrate.......................  Large gravel to     No data...........  No data...........  Gravel to cobble.
                                   rubble.
----------------------------------------------------------------------------------------------------------------

    There are some differences in microhabitats occupied by loach 
minnow in different areas. Studies completed in New Mexico determined 
that there were significant differences in water velocities occupied 
among the three study sites, with the mean velocities at 37.4 (Tularosa 
River), 56.3 (Forks area of the Gila River) and 60.5 cm per second 
(Cliff-Gila Valley site on the Gila River). Differences in water depth 
were not as pronounced, however. Much of the variation in microhabitat 
utilization may be explained by habitat availability, as the compared 
streams varied in size (Propst et al. 1988, pp. 37-43).
    Flooding. Flooding also plays an important role in habitat 
suitability for loach minnow. In areas where substantial diversions 
(structures created to divert water to pools for pumping from the 
stream) 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 (addressed further 
below) (Stefferud and Rinne 1996b, p. 1).
    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). 
Typically, sediment is carried along the bed of a stream and deposited 
at the downstream, undersurface side of cobbles and boulders. Over 
time, this can result in the filling of cavities created under cobbles 
and boulders (Rinne 2001, p. 69). Flooding removes the extra sediment, 
and cavities created under cobbles by scouring action of the

[[Page 10834]]

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).
    In summary, based on the best scientific and commercial information 
available for loach minnow, we have developed generalized ranges in 
habitat parameters within streams or rivers, as follows:
     Shallow water generally less than 1 m (3.3 ft) in depth;
     Slow to swift flow velocities between 0 and 80 cm per sec 
(0.0 and 31.5 in. per sec);
     Pools, runs, riffles and rapids;
     Sand, gravel, cobble, and rubble substrates with low or 
moderate amounts of fine sediment and substrate embeddedness, as 
maintained by a natural, unregulated flow regime that allows for 
periodic flooding or, if flows are modified or regulated, flow regime 
that allows for adequate river functions, such as flows capable of 
transporting sediments;
     Water temperatures in the general range of 8 to 25 [deg]C 
(46.4 to 77[emsp14] [deg]F);
     Low stream gradients of less than approximately 2.5 
percent; and
     Elevations below 2,500 m (8,202 ft).

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

Spikedace

    Food. Spikedace are active, highly mobile fish that visually 
inspect drifting materials both at the surface and within the water 
column. Gustatory inspection, or taking the 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 2 to 5 mm (0.08 to 0.20 in) long (Anderson 1978, p. 36).
    Stomach content analysis of spikedace determined that mayflies, 
caddisflies, true flies (Order Diptera), stoneflies, and dragonflies 
(Order Odonata) are all potential prey items. 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 composed 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). Barber and 
Minckley (1983, pp. 34-38) found that spikedace at Aravaipa Creek also 
consumed ants and wasps (Order Hymenoptera), spiders (Order Areneae), 
beetles (Order Coleoptera), true bugs, and water fleas (Order 
Cladocera).
    Spikedace diet varies seasonally (Barber and Minckley 1983, pp. 34-
38). 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 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 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). Barber and Minckley 
(1983, pp. 36-37, 40) found that spikedace in pools had eaten the least 
diverse food, 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.
    Aquatic invertebrates that constitute the bulk of the spikedace 
diet have specific habitat parameters of their own. Mayflies occur 
primarily in fresh water with an abundance of oxygen. Spikedace consume 
mayflies from the genus Baetidae (Schreiber 1978, p. 36), which 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 the 
availability of these prey species, which make up the bulk of the 
spikedace diet, requires these surfaces to persist.
    The availability of food for spikedace is affected by flooding. The 
onset of flooding corresponds with an increased diversity of food 
items, as inflowing flood water carries terrestrial invertebrates, such 
as ants, bees, and wasps, into aquatic areas (Barber and Minckley 1983, 
p. 39).
    Water. As a purely aquatic species, spikedace are entirely 
dependent on streamflow habitat for all stages of their life cycle. 
Therefore, perennial flows are an essential feature. Areas with 
intermittent flows may serve as connective corridors between occupied 
or seasonally occupied habitat through which the species may move when 
the habitat is wetted.
    In addition to water quantity, water quality is important to 
spikedace. Water with no or low levels of pollutants is essential for 
the survival of spikedace. For spikedace, pollutants such as copper, 
arsenic, mercury, cadmium, human and animal waste products, pesticides, 
suspended sediments, ash, and gasoline or diesel fuels should not be 
present at high levels (Baker, 2005, pers. comm.). In addition, for 
freshwater fish, dissolved oxygen should generally be greater than 3.5 
cubic centimeters per liter (cc per l) (Bond 1979, p. 215). Below this 
level, some stress to fish may occur.
    Fish kills have been documented within the range of the spikedace, 
including on 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). Occupancy by spikedace at the San Francisco River site is 
less certain, but spikedace were present in the Gila River upstream of 
its confluence with the San Francisco. Spikedace were present in the 
San Pedro River up through 1969 within the area affected by the Cananea 
Mine spill, which extended 97 km (60 mi) north of the United States/
Mexico border (Eberhardt 1981, p. 3). All aquatic life within this 97-
km (60-mi)

[[Page 10835]]

stretch was killed between 1977 and 1979, and no spikedace records are 
known after that time. For both the San Francisco and San Pedro rivers, 
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) noted that no bottom-
dwelling aquatic insects, live fish, or aquatic vegetation of any kind 
were found in the area affected by the spill. Rathbun (1969, pp. 1-2) 
reported similar results for the San Francisco River. As detailed above 
under the threats discussion, spills or discharges have occurred in the 
Gila River and affected streams within the watersheds of spikedace, 
including the Gila River, San Francisco River, San Pedro River, and 
some of their tributaries (EPA 1997, pp. 24-67; Arizona Department of 
Environmental Quality 2000, p. 6; Church et al. 2005, p. 40; Arizona 
Department of Environmental Quality 2007, p. 1).
    In summary, based on the best scientific and commercial information 
available for spikedace, we conclude that an appropriate prey base and 
water quality parameters for spikedace will include:
     An abundant aquatic insect food base consisting of 
mayflies, true flies, black flies, caddisflies, stoneflies, and 
dragonflies;
     Streams with no or no more than low levels of pollutants;
     Perennial flows, or 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;
     Streams with a natural, unregulated flow regime that 
allows for periodic flooding or, if flows are modified or regulated, a 
flow regime that allows for adequate river functions, such as flows 
capable of transporting sediments.

Loach Minnow

    Food. Loach minnow are opportunistic, feeding on 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 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 larvae of true flies (insects of 
the order Diptera) 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 in one study. 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 
nymphs 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 though they are 
typically associated with riffles.
    Water Quality. Water, with no or low pollutant levels, is important 
for the conservation of loach minnow. For loach minnow, waters should 
have no more than low levels of pollutants, such as copper, arsenic, 
mercury, cadmium, human and animal waste products, pesticides, 
suspended sediments, and gasoline or diesel fuels (Baker, 2005, pers. 
comm.). In addition, for freshwater fish, dissolved oxygen should 
generally be greater than 3.5 cc per l (Bond 1979, p. 215). Below this, 
some stress to the fish may occur.
    Fish kills associated with previous mining accidents, as well as 
other contaminants issues, are detailed under the spikedace discussion 
above. These incidents occurred within the historical range of the 
loach minnow. As with spikedace, loach minnow were known to occur in 
the area affected by the Cananea Mine spill up through 1961. All 
aquatic life within the affected area was killed between 1977 and 1979, 
and no loach minnow records are known after that time. On the San 
Francisco River, loach minnow are known to have occurred in the general 
area of the spill in the 1980s and 1990s (ASU 2002). Additional spills 
or discharges have occurred in the Gila River and affected streams 
within the watersheds occupied by loach minnow, including the Gila 
River, San Francisco River, San Pedro River, and some of their 
tributaries (EPA 1997, pp. 24-67; Arizona Department of Environmental 
Quality 2000, p. 6; Church et al. 2005, p. 40; Arizona Department of 
Environmental Quality 2007, p. 1).
    In summary, based on the best scientific and commercial information 
available for loach minnow, we have identified an appropriate prey base 
and water quality for loach minnow to include:
     An abundant aquatic insect food base consisting of 
mayflies, true flies, black flies, caddisflies, stoneflies, and 
dragonflies;
     Streams with no or no more than low levels of pollutants;
     Perennial flows, or 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; and
     Streams with a natural, unregulated flow regime that 
allows for periodic flooding or, if flows are modified or regulated, a 
flow regime that allows for adequate river functions, such as flows 
capable of transporting sediments.

Cover or Shelter

    Spikedace. No specific information on habitat parameters used 
specifically for cover and shelter is available for spikedace. 
Therefore, we have not identified any specific conditions specific to 
cover and shelter for spikedace.
    Loach Minnow. As noted above, adult loach minnow are sometimes 
associated with filamentous algae, which may serve as a protective 
cover (Anderson and Turner 1977, p. 5; Lee et al. 1980, p. 365; 
Minckley 1981, p. 165; Sublette et al. 1990, p. 187; Minckley and Marsh 
2009, p. 174). Loach minnow adults place their adhesive eggs on the 
undersides of rocks, with the rock serving as protective cover. Propst 
et al. (1988, p. 21) found that the rocks used were typically elevated 
from the surface of the streambed on the downstream side, with most 
rocks flattened and smooth surfaced. Adult loach minnow remain with the 
eggs, so that the rock serves as a protective cover for them as

[[Page 10836]]

well (Propst et al. 1988, pp. 21-25, 36-39).

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

Spikedace

    Suitable sites. Spikedace occur in specific habitat during the 
breeding season, with female and male spikedace becoming segregated. 
Females occupy pools and eddies, while males occupy riffles flowing 
over sand and gravel beds in water approximately 7.9 to 15.0 cm (3.1 to 
5.9 in) deep. Females then enter the riffles occupied by the males 
before eggs are released into the water column (Barber et al. 1970, pp. 
11-12).
    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).
    Larval and juvenile spikedace occupy peripheral portions of streams 
that have slower currents (Anderson 1978, p. 17; Propst et al. 1986, 
pp. 40-41). Gila River studies found larval spikedace in velocities of 
8.4 cm per second (3.3 in. per sec) while juvenile spikedace occupy 
areas with velocities of approximately 16.8 cm per second (6.6 in. per 
sec) (Propst et al. 1986, p. 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 25.4 to 35.6 mm 
(1.0 to 1.4 in) in length) occurred over a greater range of water 
velocities than smaller larvae, but still occupied water depths of less 
than 32.0 cm (12.6 in) (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).
    During a study on the Gila River, 60 percent of spikedace larvae 
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 10 percent associated with 
cobble-dominated substrates. Juveniles occupy a wider range in flow 
velocities than larvae (0.0 to 57.9 cm per second (22.8 in. per 
second)), but occurred at similar depths as larvae (Propst et al. 1986, 
pp. 40-41).
    As noted above, excessive sedimentation can lead to suffocation of 
eggs. Clean substrates are therefore essential for successful breeding. 
Both flooding and unaltered flow regimes are essential for maintenance 
of suitable substrates. As noted above under habitat requirements, 
periodic flooding appears to benefit spikedace by removing excess 
sediment from some portions of the stream, breaking up embedded bottom 
materials, or rearranging sediments in ways that restore suitable 
habitats. Flooding may also stimulate spawning or enhance recruitment 
(Mueller 1984, p. 355; Propst et al. 1986, p. 3; Stefferud and Rinne 
1996a, p. 80; Minckley and Meffe 1987, pp. 99, 100; Rinne and Stefferud 
1997, pp. 159, 162; Velasco 1997, pp. 28-29). Streams in the 
southwestern United States have a wide fluctuation in flows and some 
are periodically dewatered. While portions of stream segments included 
in these designations may experience dry periods, they are still 
considered important because the spikedace is adapted to stream systems 
with fluctuating water levels. While they cannot persist in dewatered 
areas, spikedace will use these areas as connective corridors between 
occupied or seasonally occupied habitat when they are wetted. Areas 
that serve as connective corridors are those ephemeral or intermittent 
stream segments that connect two or more other perennial stream 
segments.
    Therefore, based on the information above, we identify appropriate 
sites for breeding, reproduction, or development of offspring for 
spikedace to include:
     Sand, gravel, and cobble substrates;
     Riffle habitat;
     Slower currents along stream margins with appropriate 
stream velocities for larvae;
     Appropriate water depths for larvae and juvenile 
spikedace;
     Flow velocities that encompass the range of 8.5 cm per sec 
(3.3 in. per sec) to 57.9 cm per sec (22.8 in. per sec); and
     Streams with a natural, unregulated flow regime that 
allows for periodic flooding or, if flows are modified or regulated, a 
flow regime that allows for adequate river functions, such as flows 
capable of transporting sediments.

Loach Minnow

    Adult loach minnow attach eggs to the undersurfaces of rocks in the 
same riffles in which they are typically found. In studies conducted on 
the Gila River, water velocities in these areas ranged from 3.0 to 91.4 
cm per second (36.0 in. per second). The majority of rocks with 
attached eggs were found in water flowing at approximately 42.7 cm per 
second (16.8 in. per second). The range of depths in which rocks with 
eggs attached were found was 3.0 to 30.5 cm (1.2 to 12 in), with the 
majority found between 6.1 and 21.3 cm (2.4 and 8.4 in) (Propst et al. 
1988, pp. 36-39).
    Loach minnow larvae occupy shallower and slower water than eggs. In 
Gila River studies, larvae occurred in flow velocities averaging 7.9 cm 
per second (3.1 in. per second), and in depths between 3.0 to 45.7 cm 
(1.2 to 18 in). Juveniles occurred in areas with higher velocities, 
ranging between 35.1 and 85.3 cm per second (13.8 and 33.6 in. per 
second). Juveniles occurred in slightly deeper water of approximately 
6.1 to 42.7 cm (2.4 to 16.8 in) (Propst et al. 1988, pp. 36-39).
    As noted above under general habitat requirements, flooding is 
important in maintaining loach minnow habitat, including habitats used 
for breeding. Flooding reduces embeddedness of cobble and boulder 
substrates under which eggs are placed (Britt 1982, p. 45). The 
construction of water diversions have reduced or eliminated riffle 
habitat in many stream reaches, resulting in pool development. Loach 
minnow are generally absent in stream reaches affected by impoundments. 
While the specific factors responsible for this are 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).
    Therefore, based on the information above, we identify appropriate 
sites for breeding, reproduction, or development of offspring for loach 
minnow to include:
     Cobble substrates;
     Riffle habitats;
     Slower currents along stream margins with appropriate 
stream velocities for larvae;
     Appropriate water depths for larvae and juvenile loach 
minnow;
     Flow velocities that encompass the range of 6.1 to 42.7 cm 
(2.4 to 16.8 in); and
     Streams with a natural, unregulated flow regime that 
allows for periodic flooding or, if flows are modified or regulated, a 
flow regime that allows for adequate river functions, such as flows 
capable of transporting sediments.

Spikedace

    Nonnative aquatic species. One of the primary reasons for the 
decline of native species is the presence of nonnative aquatic species, 
as described above

[[Page 10837]]

under Factors C and E above. Nonnative aquatic species can include 
fishes, crayfish, or parasites, among others. Interactions with 
nonnative fishes can occur in the form of interference competition 
(e.g., predation) or exploitive competition (competition for 
resources), and introduced species are considered a primary factor in 
the decline of native species (Anderson 1978, pp. 50-51; Miller et al. 
1989, p. 1; Lassuy 1995, p. 392). Multiple nonnative fish species are 
now present in the range of spikedace and loach minnow. In addition, 
nonnative parasites are also present.
    Flooding may help to reduce the threat presented by nonnative 
species. Minckley and Meffe (1987, pp. 99-100) found that flooding, as 
part of a natural flow regime, may temporarily remove nonnative fish 
species, which are not adapted to flooding patterns in the Southwest. 
Thus flooding consequently removes the competitive pressures of 
nonnative fish species on native fish species which persist following 
the flood. Minckley and Meffe (1987, pp. 99-100) studied the 
differential response of native and nonnative fishes in seven 
unregulated and three regulated streams or stream reaches that were 
sampled before and after major flooding and 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 fishes 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 and green sunfish, appear to 
be partially adapted to flooding, and often reappear in a few weeks 
(Minckley and Meffe 1987, p. 100).
    The information presented above indicates the detrimental effects 
of interference and exploitive competition with nonnative species to 
spikedace, as well as the issues presented by the introduction of 
nonnative parasites. Therefore, based on the best scientific and 
commercial information currently available for spikedace, we conclude 
that suitable habitat with respect to nonnative aquatic species is 
habitat devoid of nonnative aquatic species, or habitat in which 
nonnative aquatic species are at levels that allow persistence of 
spikedace.

Loach Minnow

    As with spikedace (discussed above), interference and exploitive 
competition with nonnative species can be detrimental to loach minnow. 
Interference competition, in the form of predation, may result from 
interactions between loach minnow and nonnative channel and flathead 
catfish, while exploitive competition likely occurs with red shiner.
    The discussion under Factor C above on disease and predation 
includes information on other nonnative aquatic species, such as Asian 
tapeworm, anchor worm, and Ich, which are also detrimental to loach 
minnow.
    The discussion under spikedace on flooding and its benefits in 
potentially minimizing threats from nonnative fishes applies to loach 
minnow as well. The information presented above indicates the 
detrimental effects of interference and exploitive competition with 
nonnative species to loach minnow, as well as the issues presented by 
the introduction of nonnative parasites. Therefore, based on the best 
scientific and commercial information currently available for 
spikedace, we conclude that suitable habitat with respect to nonnative 
aquatic species should include:
     Habitat devoid of nonnative aquatic species, or habitat in 
which nonnative aquatic species are at levels that allow persistence of 
loach minnow; and
     Streams with a natural, unregulated flow regime that 
allows for periodic flooding or, if flows are modified or regulated, a 
flow regime that allows for adequate river functions, such as flows 
capable of transporting sediments.

Primary Constituent Elements for Spikedace

    As noted above, we are required to identify the PBFs essential to 
the conservation of spikedace and loach minnow in areas occupied at the 
time of listing, focusing on the features' PCEs. We consider PCEs to be 
the elements of PBFs that provide for a species' life-history 
processes, and that are essential to the conservation of the species. 
We outline the appropriate quantities and spatial arrangements of the 
elements in the Physical or Biological Features (PBFs) section of the 
October 28, 2010, proposed rule. For example, spawning substrate would 
be considered an essential feature, while the specific composition 
(sand, gravel, and cobble) and level of embeddedness are the elements 
(PCEs) of that feature. This section identifies the PCEs for both 
spikedace and loach minnow.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species and the habitat 
requirements for sustaining the essential life-history functions of the 
species, we have determined that PCEs for the spikedace are:
    (1) Habitat to support all egg, larval, juvenile, and adult 
spikedace, which includes:
    a. Perennial flows with a stream depth generally less than 1 m (3.3 
ft), and with slow to swift flow velocities between 5 and 80 cm per 
second (1.9 and 31.5 in. per second).
    b. Appropriate stream microhabitat types including glides, runs, 
riffles, the margins of pools and eddies, and backwater components over 
sand, gravel, and cobble substrates with low or moderate amounts of 
fine sediment and substrate embeddedness;
    c. Appropriate stream habitat with a low gradient of less than 
approximately 1.0 percent, at elevations below 2,100 m (6,890 ft); and
    d. Water temperatures in the general range of 8.0 to 28.0 [deg]C 
(46.4 to 82.4[emsp14][deg]F).
    (2) An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddisflies, stoneflies, and dragonflies.
    (3) Streams with no or no more than low levels of pollutants.
    (4) Perennial flows, or 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.
    (5) No nonnative aquatic species, or levels of nonnative aquatic 
species that are sufficiently low as to allow persistence of spikedace.
    (6) Streams with a natural, unregulated flow regime that allows for 
periodic flooding or, if flows are modified or regulated, a flow regime 
that allows for adequate river functions, such as flows capable of 
transporting sediments.

Primary Constituent Elements for Loach Minnow

    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species and the habitat 
requirements for sustaining the essential life-history functions of the 
species, we have determined that PCEs for the loach minnow are:
    (1) Habitat to support all egg, larval, juvenile, and adult loach 
minnow which includes:
    (a) Perennial flows with a stream depth of generally less than 1 m 
(3.3 ft), and with slow to swift flow velocities between 0 and 80 cm 
per second (0.0 and 31.5 in. per second);

[[Page 10838]]

    (b) Appropriate microhabitat types including pools, runs, riffles, 
and rapids over sand, gravel, cobble, and rubble substrates with low or 
moderate amounts of fine sediment and substrate embeddedness;
    (c) Appropriate stream habitats with a low stream gradient of less 
than 2.5 percent and are at elevations below 2,500 m (8,202 ft); and
    (d) Water temperatures in the general range of 8.0 to 25.0 [deg]C 
(46.4 to 77[emsp14][deg]F).
    (2) An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddisflies, stoneflies, and dragonflies.
    (3) Streams with no or no more than low levels of pollutants.
    (4) Perennial flows, or 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.
    (5) No nonnative aquatic species, or levels of nonnative aquatic 
species that are sufficiently low to allow persistence of loach minnow.
    (6) Streams with a natural, unregulated flow regime that allows for 
periodic flooding or, if flows are modified or regulated, a flow regime 
that allows for adequate river functions, such as flows capable of 
transporting sediments.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas determined to be occupied at the time of listing contain the PBFs 
and may require special management considerations or protection. We 
believe each area included in these designations requires special 
management and protections as described in our unit descriptions.
    Special management considerations for each area will depend on the 
threats to the spikedace or loach minnow, or both, 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 the threat of fire, retardant application during 
fire, and excessive ash and sediment following fire. 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. Certain livestock grazing practices can be a 
threat to spikedace and loach minnow and their habitats, although 
concern for this threat has lessened due to improved management 
practices. The construction of water diversions can cause increasing 
water depth behind diversion structures, and 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 discussion of the 
threats occurring in that area requiring special management or 
protections.

Criteria Used To Identify Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining areas within the 
geographical area occupied at the time of listing that contain the 
features essential to the conservation of spikedace and loach minnow, 
and areas outside of the geographical areas occupied at the time of 
listing that are essential for the conservation of spikedace and loach 
minnow. Sources of data for these two species include multiple 
databases maintained by universities and State agencies for Arizona and 
New Mexico, existing recovery plans, endangered species reports (Propst 
et al. 1986, 1988), and numerous survey reports on streams throughout 
the species' range. We have also reviewed available information that 
pertains to the habitat requirements of this species. Sources of 
information on habitat requirements include existing recovery plans, 
endangered species reports, studies conducted at occupied sites and 
published in peer-reviewed articles, agency reports, and data collected 
during monitoring efforts.
    The recovery plans for spikedace and loach minnow were both 
finalized in 1991 (Service 1991a; Service 1991b), and are in need of 
revision to update information on species distribution, revisit 
conservation priorities, address any new information developed through 
monitoring and research, and bring the plans into conformance with 
current Service standards. At the time the plans were written, captive 
propagation and reintroduction projects had not yet begun. With these 
efforts now under way, prioritization is needed. We are in the process 
of convening a recovery team for this purpose. In the interim, we have 
developed an internal preliminary recovery assessment of potential 
steps necessary for achieving recovery of spikedace and loach minnow.
    The current distribution of both spikedace and loach minnow is much 
reduced from their historical distribution. We anticipate that recovery 
will require continued protection of existing populations and habitat, 
as well as establishing populations in additional streams within their 
historical ranges. Not all streams within their historical range have 
retained the necessary PBFs, and the critical habitat designation does 
not include all streams known to have been occupied by the species 
historically. The critical habitat designation instead focuses on 
streams within the historical range that have retained the necessary 
PBFs, and that will allow the species to reach recovery by ensuring 
that there are adequate numbers of fish in stable populations, and that 
these populations occur over a wide geographic area. This will help to 
minimize the likelihood that catastrophic events, such as wildfire or 
contaminant spills, would be able to simultaneously affect all known 
populations. We developed necessary steps for downlisting as well as 
delisting.
    For spikedace, our preliminary recovery assessment recommends that, 
in order to downlist the species from endangered to threatened, one 
additional stable population be established in either the Salt or Verde 
subbasins, and the number of occupied streams be increased from 8 (the 
current level) to 10 rangewide. Occupancy may be established through 
natural means (i.e., expansion by the fish themselves) or through 
translocation efforts. For delisting of spikedace, our preliminary 
recovery assessment indicates that a stable population should be 
established in the remaining subbasin, and that occupied streams within 
the historical range of the species be increased to 12. In addition, 
the goal is to ensure that all genetic lineages are adequately 
represented in the 12 occupied streams, where appropriate and feasible.
    For loach minnow, our preliminary recovery assessment recommends 
that, in order to downlist the species from endangered to threatened, 
the number of occupied streams be increased from 19 (the current level) 
to 22, with one occupied stream in each of the major watersheds. For 
delisting, the preliminary recovery assessment recommends increasing 
the number of occupied streams to 25, with at least one occupied stream 
in each of the major watersheds, and that remaining genetic lineages be 
adequately represented in at

[[Page 10839]]

least one stream, where appropriate and feasible.
    The preliminary recovery assessment makes other recommendations, 
including establishing protective measures for connective areas, 
maintaining captive breeding stocks, and developing plans for 
augmentation of captive breeding stock.
    Our preliminary recovery assessment of the habitats needed for 
conservation of these species attempts to provide geographic 
distribution across the ranges of the species, represent the full 
ranges of habitat and environmental variability the species have 
occupied, and preserve existing genetic diversity. We anticipate that 
the final recovery plans developed by the Recovery Team, once formed, 
may vary from this assessment, and will likely provide additional 
criteria and prioritization of recovery actions. However, the broad 
goals used in our preliminary recovery assessment will be similar to 
those for the recovery planning process as recovery will require 
expanding the currently contracted ranges and establishing additional 
populations.
    We determined that all areas designated as critical habitat for 
spikedace and loach minnow contain the PCEs for each species. There are 
no developed areas within the designations for either species except 
for barriers constructed on streams or road crossings of streams, which 
do not remove the suitability of these areas for these species.
    Using our preliminary recovery assessment for selection of critical 
habitat, we have developed a designation to expand the current 
distribution of the two species by including both specific areas known 
to be occupied by the species at listing, as well as including some 
areas that were not known to be occupied at listing, but which were 
once part of their historical ranges. These unoccupied areas are 
essential to the recovery of the species because their current 
distribution is reduced to 10 to 20 percent of historical range, and 
concentrates fish in a few remaining areas that could be more 
susceptible to catastrophic events.
    We used the following ruleset for both spikedace and loach minnow, 
also summarized in Table 4, to determine which areas to designate as 
critical habitat:
    (1) Evaluate the habitat suitability of stream segments known to 
have been occupied at listing:
    (a) Retain those segments that contain the PCEs to support life-
history functions essential for the conservation of the species, or
    (b) Eliminate those areas known to have been occupied at listing, 
but that no longer contain any PCEs for the species.
    (2) Evaluate stream segments not known to have been occupied at 
listing but that are within the historical range of the species to 
determine if they are essential to the survival and conservation (i.e., 
recovery) of the species. Essential areas are those that:
    (a) Serve as an extension of habitat within the geographic area of 
an occupied unit; or
    (b) Expand the geographic distribution within areas not occupied at 
the time of listing across the historical range of the species.

 Table 4--Summary of Categorization of Waterways Designated as Critical
                 Habitat for Loach Minnow and Spikedace
------------------------------------------------------------------------
        Stream category                Criterion         Categorized as
------------------------------------------------------------------------
Occupied at listing...........  Segment contains                      1a
                                 sufficient PCEs * to
                                 support life-history
                                 functions essential
                                 to the conservation
                                 of the species.
                                Segment no longer                     1b
                                 supports any PCEs for
                                 the species, or
                                 segment has been
                                 permanently altered
                                 so that restoration
                                 is unlikely.
Not known to be occupied at     Segment serves as an                  2a
 listing but within the          extension of habitat
 species' historical range.      in the unit.
                                Segment expands the                   2b
                                 geographic
                                 distribution across
                                 the range of the
                                 species.
------------------------------------------------------------------------
* PCE = primary constituent element.

    The critical habitat designation includes two different categories 
of habitat. The ``2a'' category includes currently unoccupied stream 
reaches within units that are tributaries to other, occupied stream 
reaches. For example, within Unit 1, we include West Clear Creek as a 
2a stream for spikedace. West Clear Creek is not currently occupied, 
but it is a tributary to the Verde River, which is currently occupied. 
Increasing the amount of occupied habitat in units, like the Verde 
River, already occupied by the species is essential because it expands 
the available habitat within a given unit that can be occupied by the 
two species and provides for an increased population size within that 
stream system. Increased population sizes are essential to conserving 
the two species as higher numbers of individuals increases the 
likelihood of their persistence over time.
    The ``2b'' category includes streams within units that are not 
currently occupied by the species but that are still within their 
historical range. The difference between ``2a'' and ``2b'' streams is 
that there is no occupancy within the entire unit for a ``2b'' stream. 
For example, while there are historical records of spikedace from 
within the Salt River Subbasin (Unit 2), this subbasin is unoccupied by 
the species. We have included Tonto Creek and some of its tributaries 
as ``2b'' streams within the designation. Inclusion of this area 
provides for expansion of the overall geographic distribution of 
spikedace. Expanding the geographic distribution of both species is 
essential for species that occur in only a fragment of their former 
range, as is the case for spikedace and loach minnow. Identifying 
additional streams for recovery of the two species ultimately allows 
for additional occupied units over a broader geographic range, which 
reduces the overall impacts of catastrophic events.
    In summary, we have considered the known occupancy of the area in 
determining which areas are either in category 1 (occupied at listing) 
versus category 2 (not occupied at listing), as well as the suitability 
and level of adverse impacts to habitat within each unit. We believe 
the areas designated as critical habitat provide for the conservation 
of the spikedace and the loach minnow because they include habitat for 
all extant populations and provide habitat for all known genetic 
lineages.

[[Page 10840]]

    We evaluated those stream segments retained through the above 
analysis, and refined the starting and end points by evaluating the 
presence or absence of appropriate PCEs. We selected upstream and 
downstream cutoff points not to include areas that are highly degraded 
and are not likely restorable. For example, permanently dewatered 
areas, permanently developed areas, or areas in which there was a 
change to unsuitable parameters (e.g., a steep gradient, bedrock 
substrate) were used to mark the start or endpoint of a stream segment 
within the designation. Critical habitat stream segments were then 
mapped using ArcMap (Environmental Systems Research Institute, Inc.), a 
Geographic Information Systems program.
    With respect to length, the designations were designed to provide 
sufficient riverine area for breeding, nonbreeding, and dispersing 
adult spikedace and loach minnow, as well as for the habitat needs for 
juvenile and larval stages of these fishes. In addition, with respect 
to width, we evaluated the lateral extent necessary to support the PCEs 
for spikedace and loach minnow. The resulting designations take 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 functions vital to fish within the 
associated stream channel (Brinson et al. 1981, pp. 2-61, 2-69, 2-72, 
2-75, 2-84 through 2-85; Federal Interagency Stream Restoration Working 
Group 1998). Riparian areas filter runoff, absorb and gradually release 
floodwaters, recharge groundwater, maintain streamflow, protect stream 
banks from erosion, and provide 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 USFS 1979, pp. 18, 109, 158, 264, 285, 345; Middle Rio Grande 
Biological Interagency Team 1993, pp. 64, 89, 94; Castelle et al. 1994, 
pp. 279-281), 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 the 
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 and varies depending on the specific function required 
for a particular buffer (Castelle et al. 1994, pp. 879-881). Most 
Federal and State agencies generally consider a zone 23 to 46 m (75 to 
150 ft) wide on each side of a stream to be adequate (Natural Resource 
Conservation Service 1998, pp. 2-3; Moring et al. 1993, p. 204; Lynch 
et al. 1985, p. 164), although buffer widths as wide as 152 m (500 ft) 
have been recommended for achieving flood attenuation benefits (U.S. 
Army Corps 1999, pp. 5-29). 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, such as 
pollutants in adjacent areas. Consequently, while a riparian corridor 
23 to 46 m (75 to 150 ft) in width may protect water quality and 
provide some level of riparian habitat protection, a wider area would 
provide full protection of riparian habitat because the stream itself 
can move within the floodplain in response to high flow events. A 91.4 
m (300 ft) buffer would better protect water temperatures, as well as 
reduce the impacts of high flow events, thereby providing additional 
protection to critical habitat areas.
    To address this issue, the lateral extent of streams included in 
these designations is 91.4 m (300 ft) to either side of bankfull stage. 
We believe this width is necessary to accommodate stream meandering and 
high flows, and in order to ensure that these designations contain 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 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 91.4 m (300 ft) 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. Bankfull stage is not an ephemeral feature, meaning it 
does not disappear. Bankfull stage can always be determined and 
delineated for any stream we have designated as critical habitat. We 
acknowledge that the bankfull stage of any given stream may change 
depending on the magnitude of a flood event, but it is a definable and 
standard measurement for stream systems. Unlike trees or cliff facings 
used by terrestrial species, stream systems provide habitat that is in 
constant change. Following high flow events, stream channels can move 
from one side of a canyon to the opposite side, for example. If we were 
to designate critical habitat based on the location of the stream on a 
specific date, the area within the designation could be a dry channel 
in less than one year from the publication of the determination, should 
a high flow event occur.
    We determined the 91.4-m (300-ft) 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(c)). Although we 
considered using the 100-year floodplain, as defined by the Federal 
Emergency Management Agency, we found that it was not included on 
standard topographic maps, and the information was not readily 
available from the Federal Emergency Management Agency or from the U.S. 
Army Corps of Engineers for the areas we are designating. We suspect 
this is related to the remoteness of many of the stream reaches where 
these species occur. Therefore, we selected the 91.4-m (300-ft) lateral 
extent, rather than some other delineation, for four 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 to 
provide important nutrient recharge and protection from sediment and 
pollutants.

[[Page 10841]]

    (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 of Issuance and Modification of Nationwide Permits, March 9, 
2000, 65 FR 12818).
    (4) A 91.4-m (300-ft) buffer contributes to the functioning of a 
river, thereby supporting the PCEs needed for suitable spikedace and 
loach minnow habitat.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack PCEs for spikedace and loach minnow. The scale of the maps 
we prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action would affect the PCEs 
in the adjacent critical habitat.
    Eight units were designated as critical habitat based on sufficient 
elements of physical and biological features being present to support 
spikedace and loach minnow life processes. Some units contained all of 
the identified elements of physical and biological features and 
supported multiple life processes. Some segments contained only some 
elements of the physical and biological features necessary to support 
spikedace and loach minnow use of that habitat.

Final Critical Habitat Designations

    We are designating eight units as critical habitat for spikedace 
and loach minnow. Within this designation, we refer to the eight units 
by subbasin name, as they are all subbasins to the Colorado River 
Basin. The critical habitat areas described below constitute our best 
assessment at this time of areas that meet the definition of critical 
habitat. Those eight units are: (1) Verde River Subbasin, (2) Salt 
River Subbasin, (3) San Pedro River Subbasin, (4) Bonita Creek 
Subbasin, (5) Eagle Creek Subbasin, (6) San Francisco River Subbasin, 
(7) Blue River Subbasin, and (8) Gila River Subbasin. Table 5 
(spikedace) and Table 6 (loach minnow) show the occupied units.

                      Table 5--Occupancy of Designated Critical Habitat Units by Spikedace
----------------------------------------------------------------------------------------------------------------
                                         Occupied at time of
                Unit                    listing or documented      Currently occupied    Translocated population
                                            after listing
----------------------------------------------------------------------------------------------------------------
                                          Unit 1--Verde River Subbasin
----------------------------------------------------------------------------------------------------------------
Verde River.........................  Yes.....................  Yes....................  No.
Granite Creek.......................  No......................  No.....................  No.
Oak Creek...........................  No......................  No.....................  No.
Beaver and Wet Beaver Creek.........  No......................  No.....................  No.
West Clear Creek....................  No......................  No.....................  No.
Fossil Creek........................  No......................  Uncertain..............  Yes.
----------------------------------------------------------------------------------------------------------------
                                           Unit 2--Salt River Subbasin
----------------------------------------------------------------------------------------------------------------
Salt River Mainstem.................  No......................  No.....................  No.
Tonto Creek.........................  No......................  No.....................  No.
Greenback Creek.....................  No......................  No.....................  No.
Rye Creek...........................  No......................  No.....................  No.
Spring Creek........................  No......................  No.....................  No.
Rock Creek..........................  No......................  No.....................  No.
----------------------------------------------------------------------------------------------------------------
                                        Unit 3--San Pedro River Subbasin
----------------------------------------------------------------------------------------------------------------
San Pedro River.....................  No......................  No.....................  No.
Hot Springs Canyon..................  No......................  Yes....................  Yes.
Bass Canyon.........................  No......................  No.....................  No.
Redfield Canyon.....................  No......................  Uncertain..............  Yes.
Aravaipa Creek......................  Yes.....................  Yes....................  No.
Deer Creek..........................  No......................  No.....................  No.
Turkey Creek........................  No......................  No.....................  No.
----------------------------------------------------------------------------------------------------------------
                                          Unit 4--Bonita Creek Subbasin
----------------------------------------------------------------------------------------------------------------
Bonita Creek........................  No......................  Uncertain..............  Yes.
----------------------------------------------------------------------------------------------------------------
                                          Unit 5--Eagle Creek Subbasin
----------------------------------------------------------------------------------------------------------------
Eagle Creek.........................  Yes.....................  Yes....................  No.
----------------------------------------------------------------------------------------------------------------
                                      Unit 6--San Francisco River Subbasin
----------------------------------------------------------------------------------------------------------------
San Francisco River.................  No......................  Uncertain..............  Yes.
----------------------------------------------------------------------------------------------------------------

[[Page 10842]]

 
                                           Unit 7--Blue River Subbasin
----------------------------------------------------------------------------------------------------------------
Blue River..........................  No......................  No.....................  No.
Campbell Blue Creek.................  No......................  No.....................  No.
Little Blue Creek...................  No......................  No.....................  No.
Pace Creek..........................  No......................  No.....................  No.
Frieborn Creek......................  No......................  No.....................  No.
Dry Blue Creek......................  No......................  No.....................  No.
----------------------------------------------------------------------------------------------------------------
                                           Unit 8--Gila River Subbasin
----------------------------------------------------------------------------------------------------------------
Gila River..........................  Yes.....................  Yes....................  No.
West Fork Gila River................  Yes.....................  Yes....................  No.
Middle Fork Gila River..............  Yes.....................  Yes....................  No.
East Fork Gila River................  Yes.....................  Yes....................  No.
Mangas Creek........................  Yes *...................  No.....................  No.
----------------------------------------------------------------------------------------------------------------
* Spikedace documented after 1986 listing, including: Mangas Creek, first occupied in 1999.


                     Table 6--Occupancy of Designated Critical Habitat Units by Loach Minnow
----------------------------------------------------------------------------------------------------------------
                                         Occupied at time of
           Stream segment                      listing             Currently occupied    Translocated population
----------------------------------------------------------------------------------------------------------------
                                          Unit 1--Verde River Subbasin
----------------------------------------------------------------------------------------------------------------
Verde River.........................  No......................  No.....................  No.
Granite Creek.......................  No......................  No.....................  No.
Oak Creek...........................  No......................  No.....................  No.
Beaver and Wet Beaver Creek.........  No......................  No.....................  No.
Fossil Creek........................  No......................  Uncertain..............  Yes.
----------------------------------------------------------------------------------------------------------------
                                           Unit 2--Salt River Subbasin
----------------------------------------------------------------------------------------------------------------
White River Mainstem................  Yes.....................  Yes....................  No.
East Fork White River...............  Yes.....................  Yes....................  No.
East Fork Black River...............  No......................  No.....................  No.
North Fork East Fork Black River....  Yes*....................  Yes....................  No.
Boneyard Creek......................  Yes*....................  No.....................  No.
Coyote Creek........................  No......................  Yes....................  No.
----------------------------------------------------------------------------------------------------------------
                                        Unit 3--San Pedro River Subbasin
----------------------------------------------------------------------------------------------------------------
San Pedro River.....................  No......................  No.....................  No.
Hot Springs Canyon..................  No......................  Yes....................  Yes.
Bass Canyon.........................  No......................  No.....................  No.
Redfield Canyon.....................  No......................  Uncertain..............  Yes.
Aravaipa Creek......................  Yes.....................  Yes....................  No.
Deer Creek..........................  Yes*....................  Yes....................  No.
Turkey Creek........................  Yes*....................  Yes....................  No.
----------------------------------------------------------------------------------------------------------------
                                          Unit 4--Bonita Creek Subbasin
----------------------------------------------------------------------------------------------------------------
Bonita Creek........................  No......................  Uncertain..............  Yes.
----------------------------------------------------------------------------------------------------------------
                                          Unit 5--Eagle Creek Subbasin
----------------------------------------------------------------------------------------------------------------
Eagle Creek.........................  Yes*....................  Yes....................  No.
----------------------------------------------------------------------------------------------------------------
                                      Unit 6--San Francisco River Subbasin
----------------------------------------------------------------------------------------------------------------
San Francisco River.................  Yes.....................  Yes....................  No.
Tularosa River......................  Yes.....................  Yes....................  No.
Negrito River.......................  Yes*....................  Yes....................  No.
Whitewater Creek....................  Yes.....................  No.....................  No.
----------------------------------------------------------------------------------------------------------------
                                           Unit 7--Blue River Subbasin
----------------------------------------------------------------------------------------------------------------
Blue River..........................  Yes.....................  Yes....................  No.
Campbell Blue Creek.................  Yes*....................  Yes....................  No.

[[Page 10843]]

 
Little Blue Creek...................  Yes*....................  No.....................  No.
Pace Creek..........................  Yes*....................  Yes....................  No.
Frieborn Creek......................  Yes*....................  Yes....................  No.
Dry Blue Creek......................  Yes*....................  Yes....................  No.
----------------------------------------------------------------------------------------------------------------
                                           Unit 8--Gila River Subbasin
----------------------------------------------------------------------------------------------------------------
Gila River..........................  Yes.....................  Yes....................  No.
West Fork Gila River................  Yes.....................  Yes....................  No.
Middle Fork Gila River..............  Yes.....................  Yes....................  No.
East Fork Gila River................  Yes.....................  Yes....................  No.
Mangas Creek........................  Yes*....................  Yes....................  No.
Bear Creek..........................  Yes*....................  Yes....................  No.
----------------------------------------------------------------------------------------------------------------
* Loach minnow documented after 1986 listing, including: North Fork East Fork Black River in 1996; Boneyard
  Creek in 1996; Deer Creek in 1996; Turkey Creek in 1996; Eagle Creek in 1994; Negrito Creek in 1998; Campbell
  Blue Creek in 1987; Little Blue Creek in 1994; Dry Blue Creek in 1998; Frieborn Creek in 1998; Pace Creek in
  1998; Mangas Creek in 1999; and Bear Creek in 2005.

    The approximate area of each critical habitat unit is shown in 
Table 7.

                                   Table 7--Length of Designated Critical Habitat Units for Spikedace and Loach Minnow
                                       [Length estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Federal                State           Local or tribal*           Private                Total
                   Unit                    -------------------------------------------------------------------------------------------------------------
                                                Km         Mi         Km         Mi         Km         Mi         Km         Mi         Km         Mi
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.........................................        155         96          4          2          3          2        133         82        295        182
2.........................................        117         72          0          0          0          0         14          9        131         81
3.........................................         37         23          4          2          2          2         31         19         74         46
4.........................................         16         10          0          0          0          0          8          5         24         15
5.........................................         19         12          0          0          0          0          8          5         27         17
6.........................................        155         96          3          2          0          0         70         44        228        142
7.........................................         93         58          0          0          0          0         15          9        108         67
8.........................................        161        100         10          6          0          0         88         55        259        161
                                           -------------------------------------------------------------------------------------------------------------
    Total.................................        753        467         21         12          5          4        367        228       1146        711
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Total figures vary from those in the text description. The additional stream miles fall within different
  landowner categories, which were not summarized here.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for spikedace and loach minnow 
or both, below. Table 8 at the end of this section summarizes the 
criteria from the ruleset (above) under which units were included.
Unit 1: Verde River Subbasin
    Within the Verde River Subbasin, we are designating 294.5 km (183.0 
mi) from Sullivan Lake downstream on the Verde River and its 
tributaries Granite Creek, Oak Creek, Beaver and Wet Beaver Creek, West 
Clear Creek, and Fossil Creek for spikedace. For loach minnow, we are 
designating 231.5 km (143.9 mi) from Sullivan Lake downstream on the 
Verde River and its tributaries Granite Creek, Oak Creek, Beaver and 
Wet Beaver Creek, and Fossil Creek. All of the area in the designation 
for loach minnow falls within the designation for spikedace. The Verde 
River and its tributaries included within these designations are in 
Yavapai and Gila Counties, Arizona. From Sullivan Lake, near its 
headwaters, the Verde River flows for 201 km (125 mi) downstream to 
Horseshoe Reservoir. This reach of the Verde River is unique in 
comparison to other desert streams such as the Salt or Gila Rivers in 
that it is free-flowing and perennial (Sullivan and Richardson 1993, 
pp. 19-21; The Nature Conservancy 2010).
    Verde River Mainstem. The Verde River was considered occupied at 
listing for spikedace, but not for loach minnow. None of the 
tributaries within this unit were occupied at listing for either 
species. For spikedace, the Verde River meets criteria for a 1a stream 
as defined in the ruleset, indicating that it was occupied at listing 
and has the features essential to support life-history functions 
essential for the conservation of the species. All of the tributaries 
within this unit meet criteria for 2a streams as defined in the ruleset 
for spikedace, indicating that they were not occupied at listing and 
would serve as an extension of habitat in the unit. For loach minnow, 
the Verde River and its tributaries meet the criteria for 2b streams 
under the ruleset, indicating that they were not occupied at listing, 
but would expand the geographic distribution of the species. We 
determined that those areas classified as 2a or 2b are essential to the 
conservation of both species because they contain suitable habitat, and 
securing both species in this watershed will contribute significantly 
to their recovery by protecting occupied habitat for spikedace, 
extending protection to tributary streams which will serve as 
extensions of occupied habitat, and by protecting habitat for loach 
minnow which will allow for them to expand their current distribution. 
Additional

[[Page 10844]]

details on areas designated under Unit 1 are provided below.
    Spikedace Only. For spikedace, we are designating as critical 
habitat 170.5 km (106.0 mi) of the Verde River from Sullivan Lake 
downstream to the confluence with Fossil Creek. The Verde River 
mainstem was considered occupied at the time of listing (ASU 2002, 51 
FR 23679). While current occupancy remains uncertain, the Verde River 
is essential to the conservation of the species. It currently contains 
suitable habitat for all life stages of spikedace (PCE 1); has an 
appropriate food base (PCE 2); consists of perennial streams with no or 
low levels of pollutants (PCEs 3 and 4); and has an appropriate 
hydrologic regime to maintain suitable habitat characteristics (PCE 6). 
The Verde River is the only occupied stream system in this geographic 
portion of the species' historical range, and represents one of four 
units in this designation in which spikedace are most likely to be 
found. Protection of the species in this portion of the historical 
range will contribute to the long-term conservation of the species. As 
noted above, spikedace are currently restricted to 10 percent of their 
historical range, so that every remaining population is important to 
their recovery. Critical habitat designation will ensure protection of 
the habitat in this occupied unit which in turn will contribute to 
conserving the species in this area. Finally, spikedace in the Verde 
River are genetically (Tibbets 1993, pp. 25-27, 34) and morphologically 
(Anderson and Hendrickson 1994, pp. 148, 154) distinct from all other 
spikedace populations.
    The essential features in this unit may require special management 
considerations and protections due to water diversions; existing and 
proposed groundwater pumping potentially resulting in drying of 
habitat; residual effects of past livestock grazing and impacts to 
uplands riparian vegetation and the stream channel; human development 
of surrounding areas; increased recreation including off-road vehicle 
use; abnormally dry drought conditions (University of Nebraska-Lincoln 
2011, p. 1); and competition with or predation by nonnative aquatic 
species.
    We are designating as critical habitat for spikedace 10.9 km (6.8 
mi) of West Clear Creek from the confluence with the Verde River 
upstream to the confluence with Black Mountain Canyon. Gradient and 
channel morphology changes above Black Mountain Canyon make the 
upstream area unsuitable for spikedace. West Clear Creek is on private 
and Coconino National Forest lands. West Clear Creek was not considered 
occupied at listing; however, one record exists for spikedace from West 
Clear Creek (from 1937; ASU 2002). West Clear Creek does have suitable 
habitat for spikedace, and is under consideration as a translocation 
site for spikedace by a multi-agency team. We consider this tributary 
essential for the conservation of the species based on the presence of 
suitable habitat, its past records of occupancy, and its consideration 
for translocation of spikedace, which indicates the area will serve as 
an important extension of the area occupied by spikedace in the Verde 
River watershed.
    Loach Minnow Only. We are designating as critical habitat 118.5 km 
(73.6 mi) of the Verde River from Sullivan Lake downstream to the 
confluence with Wet Beaver Creek. The Verde River was not considered 
occupied by loach minnow at listing; however, there are later records 
of loach minnow from the Verde River mainstem near its confluence with 
Granite Creek, at the mouth of Beaver Creek, and in portions of the 
Verde River near Beaver Creek (ASU 2002). Subsequent surveys have 
failed to detect loach minnow in the Verde River or its tributaries. 
However, the Verde River is located in the far northwestern portion of 
the species' range, and is the only river system in that geographic 
portion of the species' range. Therefore, because the Verde River 
contains suitable habitat and will allow for the species' range to be 
expanded; we conclude that the Verde River is essential to the 
conservation of the loach minnow.
    Within the Verde River Subbasin, approximately 1.2 km (0.8 mi) of 
the Verde River and 0.2 km (0.1 mi) of Beaver Creek/Wet Beaver Creek 
occur on lands owned by the Yavapai-Apache Nation. These areas have 
been excluded from the final critical habitat designations under 
section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the 
Act'' section below for additional information).

Verde River Tributaries--Spikedace and Loach Minnow

    For both spikedace and loach minnow, the designation of critical 
habitat for each species includes 3.2 km (2.0 mi) of Granite Creek from 
the confluence with the Verde River upstream to an unnamed spring. 
Above the unnamed spring, flows are insufficient to maintain these 
species. Granite Creek occurs predominantly on lands managed by the 
AGFD in their Upper Verde Wildlife Area. The primary emphasis in this 
area is on management of riparian habitat and maintenance of native 
fish diversity. The AGFD parcel includes approximately 1.6 km (1.0 mi) 
of Granite Creek; the remaining landownership is private.
    Both Species. There are no known records of spikedace or loach 
minnow from Granite Creek. However, because of its suitability, 
confluence with occupied portions of the Verde River, and the 
opportunities it provides for extension of occupied habitat for 
spikedace and recovery habitat for loach minnow, this designated 
portion of Granite Creek is essential to the conservation of both 
species. Granite Creek is a perennial tributary of the Verde River, and 
its confluence with the Verde River occurs in that portion of the river 
with the highest species density for spikedace. Granite Creek meets 
criteria for a 2a stream for spikedace, serving as an extension of 
occupied spikedace habitat in the Verde River. For loach minnow, 
Granite Creek meets criteria for a 2b stream, expanding the current 
distribution of the species within its historically occupied range.
    We are designating as critical habitat 54.3 km (33.7 mi) of Oak 
Creek from the confluence with the Verde River upstream to the 
confluence with an unnamed tributary near the Yavapai and Coconino 
County boundary. The lower portions of the creek contain suitable, 
although degraded, habitat. Above the unnamed tributary, the creek 
becomes unsuitable due to urban and suburban development, increasing 
gradient, and substrate size. Oak Creek occurs on a mix of private and 
Coconino National Forest lands.
    Oak Creek was not considered occupied at listing for spikedace or 
loach minnow; however, we consider it to be essential for the 
conservation of both species. It contains suitable habitat for both 
species. A multi-agency team is currently evaluating Oak Creek as a 
translocation site for spikedace and loach minnow. As noted below in 
the Fossil Creek discussion, areas suitable for such actions are rare 
in the desert southwest. As a perennial tributary of the Verde River, 
Oak Creek contains the physical features that provide an important 
extension area for spikedace and would help to expand the current 
distribution of loach minnow within its historical range.
    We are designating as critical habitat 33.3 km (20.7 mi) of Beaver 
and Wet Beaver Creek from the confluence with the Verde River upstream 
to the confluence with Casner Canyon. Beaver and Wet Beaver Creek occur 
on a mix of private, National Park, and Coconino National Forest lands. 
Neither Beaver

[[Page 10845]]

nor Wet Beaver Creek were considered occupied at listing by either 
spikedace or loach minnow. Beaver Creek and its upstream extension in 
Wet Beaver Creek historically supported spikedace (ASU 2002; AGFD 2004) 
and contains suitable, although degraded, habitat. There is one record 
for loach minnow from Beaver Creek but none from Wet Beaver Creek. 
There is an additional record for loach minnow on the mainstem Verde 
River approximately 7.2 km (4.5 mi) above the confluence with Beaver 
and Wet Beaver Creek (ASU 2002; AGFD 2004).
    Beaver and Wet Beaver creeks are essential to the conservation of 
both species, and meet criteria 2a under the ruleset for spikedace as a 
stream that would extend occupied habitat. They meet the criteria for a 
2b stream under the ruleset for loach minnow, expanding the species 
range. As noted under Granite and Oak creeks, habitat within this 
portion of the species' ranges is limited to the Verde River Unit, and 
including the Verde and a few of its perennial tributaries like Beaver 
and Wet Beaver Creeks expands the overall unit size, adding to 
available habitat, as well as expanding recovery potential for both 
species in this portion of their historical ranges.
    We are including within these designations 22.2 km (13.8 mi) of 
Fossil Creek extending from the confluence with the Verde River 
upstream to the confluence with an unnamed tributary. Fossil Creek was 
not known to be occupied by spikedace or loach minnow at listing. 
Historically, sufficient flows were lacking in this creek but, in 2005, 
following decommissioning of the Childs-Irving Hydroelectric Power 
Plant, formerly diverted flows were returned to Fossil Creek (Robinson 
2009b, p. 3). Spikedace and loach minnow were translocated into this 
stream in 2007 (Carter 2007a, p. 1), and additional fish were added in 
2008 (Carter 2008a, pp. 1-2) and 2010 (Crowder, 2010, pers. comm.). 
Fossil Creek occurs primarily on Federal lands, forming the boundary 
between the Coconino and Tonto National Forests.
    We consider this area to be essential to the conservation of the 
species. With the severe reductions in the species' overall 
distribution, and a translocation effort under way, Fossil Creek is 
essential to the recovery of spikedace and loach minnow because, if 
successful, the translocation effort will extend the distribution of 
spikedace in the Verde River watershed, meeting criteria for a 2a 
stream, and expand the distribution of loach minnow within its 
historical range, meeting criteria for a 2b stream. The translocation 
of spikedace and loach minnow into Fossil Creek is part of a larger 
conservation planning effort to restore a native fishery to the creek.
Unit 2: Salt River Subbasin
    We are not designating any portion of the mainstem Salt River as 
critical habitat for spikedace or loach minnow at this time. Those 
portions below Theodore Roosevelt Reservoir have been altered by 
numerous dams and reservoirs, permanently limiting the natural flow 
regime and resulting in regulated flows. Those portions of the Salt 
River above the Reservoir support three historical records of spikedace 
near the confluence with Cibecue Creek (from 1950; ASU 2002). However, 
the majority of the Salt River, as well as the lower portions of 
Cibecue Creek, are canyon bound. While spikedace may occur in or travel 
through canyon areas, long stretches of canyon-bound rivers typically 
do not support the wider, shallower streams in which spikedace occur. 
Canyons are typically associated with a bedrock substrate, rather than 
the sand, gravel, or cobble over which spikedace are typically found. 
Due to its limited available habitat, limited habitat suitability, and 
permanent alteration for reservoirs, we have concluded that the PCEs 
for spikedace are not present at this time in the Salt River, in part 
due to permanent habitat alteration.
    While we are not designating any habitat on the mainstem Salt 
River, we are designating critical habitat for both spikedace and loach 
minnow on other streams within the Salt River Subbasin. Within the Salt 
River Subbasin, there is no overlap between the areas we are 
designating for spikedace and loach minnow. For spikedace, the 
designation includes a total of 98.6 km (61.3 mi) of Tonto Creek and 
its tributaries Rye, Greenback, and Spring Creeks, as well as Rock 
Creek, which is a tributary to Spring Creek. None of these streams were 
known to be occupied by spikedace at listing, and therefore are 
classified as 2b streams under the ruleset, meaning that their 
occupancy by spikedace would allow for an increased distribution of the 
species within its historical range.
    For loach minnow, we are designating a total of 32.0 km (19.9 mi) 
of the East Fork Black River, its tributaries Coyote Creek and North 
Fork East Fork Black River, and Boneyard Creek, a tributary to the 
North Fork East Fork Black. While East Fork Black River and Coyote 
Creek were not considered occupied at listing, the remainder of the 
streams included in the Salt River Subbasin for loach minnow were 
either occupied at listing (White River, East Fork White River) or 
determined to be occupied after listing (North Fork East Fork Black 
River, Boneyard Creek). Therefore, the East Fork Black River and Coyote 
Creek meet criteria for 2a streams under the ruleset, indicating they 
would serve as an extension to occupied habitat on the North Fork East 
Fork Black River, while White River, East Fork White River, North Fork 
East Fork Black River, and Boneyard Creek meet criteria for 1a streams 
under the ruleset. The unit descriptions and their rationale for 
inclusion are described below.
    Spikedace Only. The Salt River Subbasin is a significant portion of 
spikedace historical range but currently has no known extant 
populations of spikedace. None of the streams within the Salt River 
Subbasin were known to be occupied at listing and therefore meet the 
criteria for 2b streams under the ruleset and are considered essential 
to the conservation of the species. Large areas of the subbasin are 
unsuitable, either because of topography or because of reservoirs and 
other stream-channel alterations. However, the presence of substantial 
areas of USFS lands, and suitable habitat in some stream segments makes 
this a promising subbasin for the reestablishment of spikedace, and 
conservation efforts are under way (see Spring Creek below). All stream 
segments designated for spikedace in the Salt River Subbasin are in 
Gila County, Arizona.
    While it was not considered occupied at listing, there are limited 
records for spikedace from Tonto Creek (from 1937 only; ASU 2002). We 
are including within the designation 47.8 km (29.7 mi) of Tonto Creek 
from the confluence with Greenback Creek upstream to the confluence 
with Houston Creek. Tonto Creek below Greenback Creek is influenced by 
Theodore Roosevelt Reservoir, resulting in unsuitable habitat below 
Greenback Creek. Those portions of Tonto Creek above the confluence 
with Houston Creek are of a gradient and substrate that are not 
suitable to spikedace. Tonto Creek is within the historical range of 
spikedace, and occupancy of the creek would serve to increase the 
distribution of the species, as well as add to available, suitable 
habitat. We therefore consider the designated streams in this subbasin 
to be essential to the conservation of the species.
    We are designating 15.1 km (9.4 mi) of Greenback Creek beginning at 
the confluence with Tonto Creek and continuing upstream to the 
confluence with Lime Springs. Portions of Greenback Creek are 
intermittent, but may connect Greenback Creek to Tonto

[[Page 10846]]

Creek during seasonal flows. While there are no known records of 
spikedace from Greenback Creek, the Salt River Subbasin is a 
significant portion of spikedace historical range, and there are 
limited areas of suitable habitat. The suitable habitat in Greenback 
Creek, its connection with Tonto Creek, and the fact that it occurs 
almost entirely on Federal lands makes this area an important expansion 
area for spikedace recovery, and we therefore consider it essential to 
the conservation of spikedace.
    We are including within the designation 2.8 km (1.8 mi) of Rye 
Creek from the confluence with Tonto Creek upstream to the confluence 
with Brady Canyon. There are no known records of spikedace from Rye 
Creek. The entire portion of the designation is perennial. As with 
Greenback Creek, Rye Creek serves as connected perennial stream habitat 
that expands the available suitable habitat associated with Tonto Creek 
and the Salt River Subbasin; therefore, we believe it is essential to 
the conservation of the species.
    We are including within the designation 27.2 km (16.9 mi) of Spring 
Creek from the confluence with Tonto Creek upstream to its confluence 
with Sevenmile Canyon. Portions of Spring Creek are perennial, while 
the lower portions are intermittent. The perennial portions of Spring 
Creek provide suitable habitat, and likely connect to Tonto Creek 
during seasonal flows, thereby expanding the available suitable habitat 
for spikedace. In addition, for both Spring and Rock (see below) 
creeks, conservation efforts for spikedace are under way. The 
feasibility of constructing a barrier and translocating spikedace to 
Spring Creek, a tributary to Tonto Creek, has been initiated with draft 
NEPA documents under development.
    Finally, we are including within the designation 5.7 km (3.6 mi) of 
Rock Creek from its confluence with Spring Creek upstream to its 
confluence with Buzzard Roost Canyon. There are no known records of 
spikedace from Rock Creek; however, Rock Creek will further expand the 
available habitat in the Salt River Subbasin. The suitable habitat, 
perennial flows, and location within the Salt River Subbasin make Rock 
Creek essential to the conservation of the spikedace.
    Within the Salt River Subbasin, a single record exists for 
spikedace on the Agua Fria River, which is located on the extreme 
western edge of the species' range in Yavapai and Maricopa Counties, 
Arizona. The Agua Fria River supports stretches of perennial flows 
interspersed with sections of intermittent flows before entering the 
Lake Pleasant reservoir created by Pleasant Dam. Suitable habitat on 
the Agua Fria River is therefore minimal, with perennial stretches 
mixed with predominantly intermittent stretches, and isolated from any 
mainstem system by a large reservoir. For these reasons, we have 
concluded that the Agua Fria River is not essential to the conservation 
of spikedace at this time.
    Loach Minnow Only. Areas included for loach minnow within the Salt 
River Subbasin include portions of the East Fork Black River, North 
Fork East Fork Black River, and Coyote and Boneyard creeks. The East 
Fork Black River, North Fork East Fork Black River, Coyote, and 
Boneyard creeks are in Apache and Greenlee counties. All of these 
streams are perennial (The Nature Conservancy 2010).
    The Salt River Subbasin encompasses a significant portion of loach 
minnow historical range, and the Salt River mainstem was known at 
listing to have historical records near the U.S. 60 (from 1950; ASU 
2002). The Black and White rivers join to form the Salt River. The 
North Fork East Fork Black River, and Boneyard Creek were newly 
discovered as occupied after listing, and meet the criteria for 1a 
streams. We have no records of loach minnow from East Fork Black River 
or Coyote Creek, and have designated these areas as 2a streams.
    Within the Salt River Subbasin, we are designating a total of 32.0 
km (20 mi) of the East Fork Black River and its tributary Coyote Creek, 
and the North Fork East Fork Black River and its tributary Boneyard 
Creek. The presence of suitable habitat, and the presence of a distinct 
genetic population in the adjoining North Fork East Fork River, makes 
these streams important expansion areas for loach minnow, and they are 
therefore essential to the conservation of the species. We are 
including within this designation 19.1 km (11.9 mi) of the East Fork 
Black River extending from the confluence with the West Fork Black 
River upstream to the confluence with an unnamed tributary just 
downstream of Boneyard Creek and 3.4 km (2.1 mi) of Coyote Creek, 
extending from the confluence with East Fork Black River upstream to 
the confluence with an unnamed tributary. This area is connected to the 
North Fork East Fork Black River, which is occupied by loach minnow 
(Lopez, 2000, pers. comm.; ASU 2002; Gurtin, 2004, pers. comm., 
Robinson et al. 2009b, p. 1). East Fork Black River and Coyote Creek 
contain suitable habitat for loach minnow, and will allow for expansion 
of the existing population of loach minnow in North Fork East Fork 
Black River and Boneyard Creek.
    The presence of multiple PCEs, its occupied status, and the 
presence of a distinct genetic population makes the North Fork East 
Fork Black River and Boneyard Creek essential to the conservation of 
loach minnow. We are including within the designation 7.1 km (4.4 mi) 
of the North Fork East Fork Black River extending from the confluence 
with East Fork Black River upstream to the confluence with an unnamed 
tributary, and 2.3 km (1.4 mi) of Boneyard Creek extending from the 
confluence with the North Fork East Fork Black River upstream to the 
confluence with an unnamed tributary. Above this tributary, the river 
has finer substrate and lacks riffle habitat, making it unsuitable for 
loach minnow. The North Fork East Fork Black River is currently 
occupied (ASU 2002; Gurtin, 2004, pers. comm.; Robinson et al. 2009b, 
p. 1), and is presumed to have been occupied at listing. Boneyard Creek 
is also occupied, and is connected to the North Fork East Fork Black 
River, which is occupied (ASU 2002; Gurtin, 2004, pers. comm.; Robinson 
et al. 2009b, p. 1), and contains suitable habitat for loach minnow. 
North Fork East Fork Black River contains suitable habitat for all life 
stages of loach minnow (PCE 1); has an appropriate food base (PCE 2); 
consists of perennial streams with no or low levels of pollutants (PCEs 
3 and 4); and has an appropriate hydrologic regime to maintain suitable 
habitat characteristics (PCE 6).
    The portions of the North Fork East Fork Black River and Boneyard 
Creek included within this designation are entirely on Apache-
Sitgreaves National Forests lands. Essential features may require 
special management or protection from the residual effects of past 
livestock grazing and impacts to uplands, riparian vegetation, and the 
stream; and competition with and predation by nonnative aquatic 
species. Native trout species are regularly stocked into the Black 
River, possibly resulting in increased competition for resources and 
predation by trout. The Wallow Fire burned through this stream complex 
in 2011, and there may be temporary increases in sediment carried into 
the stream from burned areas in the uplands.
    White River and its tributary East Fork White River were considered 
occupied at listing, and meet criteria for 1a streams under the 
ruleset. We included within the designation 29.0 km (18.0 mi) of the 
White River from the confluence with the Black River upstream to the 
confluence with the

[[Page 10847]]

North and East Forks of the White River, as well as approximately 17.2 
km (10.7 mi) of the East Fork White River from the confluence with 
North Fork White River upstream to the confluence with Bones Canyon. 
These areas have been excluded from the final critical habitat 
designations under section 4(b)(2) of the Act (see ``Application of 
Section 4(b)(2) of the Act'' section below for additional information).
    In previous critical habitat designations, we have included 
portions of Tonto Creek, Rye Creek, and Greenback Creek as critical 
habitat for loach minnow. These areas have no historical records for 
loach minnow. Because there are other suitable areas for loach minnow 
within this portion of the species' range, we believe the limited 
mileage and habitat features in Tonto Creek and its tributaries are 
less important to the overall conservation of loach minnow, and our 
current assessment is that they are therefore not essential to the 
conservation of the species.
Unit 3: San Pedro Subbasin
    Within the San Pedro Subbasin, we are designating 74.1 km (46.1 mi) 
of habitat on Aravaipa Creek and its tributaries Deer and Turkey 
creeks, Redfield Canyon, and Hot Springs canyons and its tributary Bass 
Canyon. All areas within this subbasin were proposed for both species. 
Aravaipa Creek, Redfield and Hot Spring canyons and their tributaries 
included within these designations are in Cochise, Pinal, and Graham 
counties, Arizona. The majority of Redfield Canyon, Hot Springs Canyon, 
and Aravaipa Creek are perennial, with small downstream areas 
considered formerly perennial (The Nature Conservancy 2010) but still 
connected during high flow events. Streams included within this 
subbasin occur primarily on BLM, State, and private lands.
    The San Pedro Subbasin contains streams that are known to have been 
occupied by both species at listing, some of which are currently 
occupied, and some with translocated populations of spikedace and loach 
minnow. Aravaipa Creek was occupied by both species at listing, and is 
classified as a 1a stream for both species. Deer and Turkey creeks are 
considered occupied by loach minnow due to the species being newly 
detected after listing in 1996 (ASU 2002), but were not considered 
occupied at listing by spikedace and therefore meet criteria for 1a 
streams for loach minnow, and for 2a streams for spikedace. Hot 
Springs, Redfield, and Bass canyons were not known to be occupied at 
listing by either species. Both Hot Springs and Redfield canyons 
currently support translocated populations of spikedace and loach 
minnow that were placed into the streams in 2007 (Robinson 2008a, pp. 
1, 15-16). They, along with Bass Canyon, meet criteria for 2a streams 
for both species.
    We proposed as critical habitat 60.0 km (37.2 mi) on the upper San 
Pedro River from the international border with Mexico downstream to the 
confluence with the Babocomari River. However, due to concerns for 
national security, the San Pedro River in its entirety has been 
excluded from the final critical habitat designations under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section below for additional information). In addition, in response to 
comments received, we have reduced the overall mileage included for Hot 
Springs and Redfield canyons. Please see the ``Summary of Changes from 
Proposed Rule'' for more detail.
    With the removal of the San Pedro and decreased mileage on Hot 
Springs and Redfield Canyon, we are including within these designations 
a total of 74.1 km (46.1 mi) for spikedace and loach minnow. This area 
includes 44.9 km (27.9 mi) of Aravaipa Creek from the confluence with 
the San Pedro River upstream to the confluence with Stowe Gulch. Stowe 
Gulch is the upstream limit of sufficient perennial flows to support 
spikedace and loach minnow, and no records of either species are known 
from above this point. Aravaipa Creek currently supports one of the 
largest remaining populations of spikedace and loach minnow, and has 
been monitored regularly since 1943 (ASU 2002; Stefferud and Reinthal 
2005, pp. 15-21; AGFD 2004; Reinthal 2011, pp. 1-2).
    The long-term presence and current occupancy by both species, makes 
this area essential to their conservation. Aravaipa Creek is unique in 
that it supports an intact native fish fauna comprising seven species 
(Stefferud and Reinthal 2005, p. 11). It contains suitable habitat for 
all life stages of spikedace and loach minnow (PCE 1); has an 
appropriate food base (PCE 2); consists of perennial flows (PCE 3); has 
no nonnative aquatic species, or levels of nonnative aquatic species 
are sufficiently low to allow for persistence of both species (PCE 5); 
and has an appropriate hydrologic regime to maintain suitable habitat 
characteristics (PCE 6).
    Land ownership at Aravaipa Creek is predominantly BLM, with large 
parcels of private and State land on either end of the river. The 
essential features in this unit may require special management 
considerations or protection due to contaminants issues with lead, 
arsenic, and cadmium; surface and groundwater removal; limited 
recreation; severe drought (University of Nebraska-Lincoln 2011, p. 1); 
and channelization in upstream portions (Stefferud and Reinthal 2005, 
pp. 36-38).
    We are including within these designations 3.7 km (2.3 mi) of Deer 
Creek from the confluence with Aravaipa Creek upstream to the boundary 
of the Aravaipa Wilderness. Above this point, habitat is no longer 
suitable for spikedace or loach minnow. We are also including 4.3 km 
(2.7 mi) of Turkey Creek from the confluence with Aravaipa Creek 
upstream to the confluence with Oak Grove Canyon. Above this point, 
flows are not suitable for spikedace or loach minnow.
    Both Deer and Turkey creeks are considered occupied by loach minnow 
with the species first detected in 1996, and both creeks are currently 
occupied by loach minnow. Each of these tributary streams contains 
suitable habitat for all life stages of loach minnow (PCE 1); have 
appropriate food bases (PCE 2); consist of perennial streams with no or 
low levels of pollutants (PCEs 3 and 4); and have an appropriate 
hydrologic regime to maintain suitable habitat characteristics (PCE 6). 
Both Deer and Turkey creeks occur on lands managed by the BLM. The 
essential features in these two streams may require special management 
due to surface and ground water removal; limited recreation; severe 
drought (University of Nebraska-Lincoln 2011, p. 1); occasional issues 
with nonnative aquatic species; and proposed utilities projects, such 
as the SunZia Southwest Transmission Project, which is currently in the 
study phase (Service 2010b, pp. 1-7). In addition, Turkey Creek 
experiences low flows through part of most years, limiting occupancy by 
loach minnow during those times. Occupancy by loach minnow, as well as 
the presence of perennial water and other key features indicate that 
Deer and Turkey creeks are likely suitable for spikedace as well. 
Because they are tributaries to Aravaipa Creek, they meet criteria for 
a 2a stream for spikedace. We have therefore determined they are 
essential to the conservation of spikedace.
    We have included within these designations 9.3 km (5.8 mi) of 
stream in Hot Springs Canyon from the confluence with the San Pedro 
River upstream to the confluence with Bass Canyon. (The stream in Hot 
Springs Canyon is not named and is known only

[[Page 10848]]

as Hot Springs Canyon.) Hot Springs Canyon occurs on a mix of State, 
private, and BLM lands. There are no known records of spikedace or 
loach minnow from Hot Springs Canyon, but it is within the geographical 
range known to be occupied by both species, and meets criteria as a 2a 
stream for both species.
    Following coordination by a multi-agency team, spikedace and loach 
minnow were translocated into Hot Springs Canyon in 2007, with 
augmentations in 2008, 2009, 2010, and 2011 (Robinson 2008a, pp. 1, 15-
16; Robinson et al. 2010a, pp. 4-5; Robinson et al. 2010b, pp. 5-6, 20-
22; Robinson and Crowder 2011, In Draft, p. 9). Spikedace and loach 
minnow have been captured each year since the project began (Robinson 
et al. 2010b, p. 7) indicating that conditions in the stream allow the 
species to persist year to year; however, insufficient time has elapsed 
to allow for evaluation of the ultimate success of the translocation 
effort.
    Hot Springs Canyon contains suitable habitat for both spikedace and 
loach minnow, is currently occupied by a translocated population, and 
serves as an extension of habitat in this subbasin. We have therefore 
determined this area essential to the conservation of the two species.
    We are including within this designation 6.5 km (4.0 mi) of stream 
in Redfield Canyon from the confluence with the San Pedro River 
upstream to the confluence with Sycamore Canyon. (The stream in 
Redfield Canyon is not named and is known only as Redfield Canyon.) 
Above Sycamore Canyon, perennial water becomes very scarce, and the 
habitat becomes steeper, and more canyon-confined, thus making it 
unsuitable for spikedace and loach minnow. The majority of Redfield 
Canyon occurs on State lands, with smaller areas of private and Federal 
(BLM) lands. Although there are no known records of spikedace or loach 
minnow from Redfield Canyon, it is within the geographical range known 
to be occupied by both species, and meets criteria as a 2a stream for 
both species.
    Redfield Canyon was specifically identified within the species' 
Recovery Plan as an area with potential for spikedace (Service 1991a, 
p. 21; Service 1991b, p. 20). Following coordination by a multi-agency 
team, spikedace and loach minnow were translocated into Redfield Canyon 
in 2007, with augmentations in 2008 (Robinson 2008b, pp. 1, 15-16; 
Robinson et al. 2010a, pp. 4-5, Robinson et al. 2010b, pp. 5-6, 20-22). 
Redfield Canyon currently supports loach minnow that were translocated 
to the site (Robinson et al. 2010b, pp. 20-22), and contains suitable 
habitat for both spikedace and loach minnow. The most recent surveys of 
Redfield Canyon (Robinson et al. 2010b) did not detect spikedace; 
however, the reintroduction project is not yet complete. The current 
occupancy by loach minnow and the presence of suitable habitat, which 
extends the available habitat in this unit, make this area essential to 
the conservation of both species.
    We are including within these designations 5.5 km (3.4 mi) of 
stream in Bass Canyon from the confluence with Hot Springs Canyon 
upstream to the confluence with Pine Canyon. (The stream in Bass Canyon 
is not named and is known only as Bass Canyon). Bass Canyon occurs on 
private and BLM lands. There are no known records of spikedace or loach 
minnow from Bass Canyon, but it is within the geographical range known 
to be occupied by both species. In addition, spikedace and loach minnow 
have been translocated into Hot Springs Canyon, to which Bass Canyon is 
connected and is a tributary stream (see discussion above under Hot 
Springs Canyon). Bass Canyon contains suitable habitat for spikedace 
and loach minnow, has been identified as a potential stream for 
restoration activities, and meets criteria for a 2a stream under the 
ruleset. Bass Canyon serves as an extension to Hot Springs Canyon fish 
populations. We therefore consider it to be essential to the 
conservation of both species.
Unit 4: Bonita Creek Subbasin
    Within the Bonita Creek Subbasin, we are including 23.8 km (14.8 
mi) of Bonita Creek from the confluence with the Gila River upstream to 
the confluence with Martinez Wash in Graham County, Arizona. The Bonita 
Creek subbasin is not known to have been occupied at listing but is 
within the geographical range known to have been occupied by both 
species. It meets criteria for a 2b stream for both species under our 
ruleset. Land ownership at Bonita Creek is almost entirely Federal 
(BLM), with a few small private parcels. The designations end at the 
San Carlos Indian Reservation boundary.
    Cooperative conservation efforts for spikedace and loach minnow are 
ongoing in Bonita Creek. A Memorandum of Understanding is in place with 
the City of Safford regarding water management for Bonita Creek as part 
of this effort. To date, those activities have resulted in the removal 
of nonnative fish species and translocation of spikedace, loach minnow, 
Gila topminnow, and desert pupfish into Bonita Creek. Spikedace and 
loach minnow were translocated into the lower portions of Bonita Creek 
in 2008 (Robinson, 2008c, pers. comm.). In 2009, an additional small 
population of spikedace was placed above the City of Safford's 
infiltration gallery, but below the southern boundary of the San Carlos 
Indian Reservation. However, due to a reinvasion by nonnative species, 
augmentations of spikedace and loach minnow are temporarily on hold at 
Bonita Creek.
    As noted above for Fossil Creek, Hot Springs Canyon, and Redfield 
Canyon, there are limited opportunities for translocating or 
reintroducing populations of spikedace and loach minnow, and the 
current reduction in the species' distribution necessitates that 
additional populations be established to recover the species. Bonita 
Creek is considered essential to the survival and recovery of spikedace 
and loach minnow because it contains suitable habitat for all life 
stages of both species, occurs within the historical range of both 
species, and allows for the expansion of the geographic distribution of 
the species' ranges.
Unit 5: Eagle Creek Subbasin
    We are including within these designations 26.5 km (16.5 mi) of 
Eagle Creek from the Freeport-McMoRan (FMC) diversion dam upstream to 
the confluence with East Eagle Creek in Greenlee and Graham Counties, 
Arizona. Eagle Creek is a largely perennial system (The Nature 
Conservancy 2010). Eagle Creek occurs primarily on San Carlos Apache 
Tribal and Apache-Sitgreaves National Forests' lands, along with small 
parcels of State, private, and BLM lands. Spikedace and loach minnow 
are both considered currently present, but likely in small numbers 
(Marsh 1996, p. 2; ASU 2002; Bahm and Robinson 2009a, p. 1).
    Eagle Creek was known to be occupied at the time of listing by 
spikedace, and therefore meets criteria for a 1a stream under our 
ruleset. It was determined to be occupied by loach minnow after 
listing, in 1994 (ASU 2002), and therefore meets criteria for a 1a 
stream for loach minnow under our ruleset. Eagle Creek contains 
suitable habitat for all life stages of spikedace and loach minnow (PCE 
1); has an appropriate food base (PCE 2); consists of perennial flows 
with no or low levels of pollutants (PCEs 3 and 4); and has an 
appropriate hydrologic regime to maintain suitable habitat 
characteristics (PCE 6) above the barrier, which serves as the endpoint 
of this unit.
    Approximately 27.5 km (17.1 mi) of Eagle Creek in Graham County are 
on

[[Page 10849]]

the San Carlos Apache Reservation. Additionally, 21.4 km (13.3 mi) of 
Eagle Creek also flow through private lands belonging to Freeport 
McMoRan. These areas have been excluded from the final critical habitat 
designations under section 4(b)(2) of the Act (see ``Application of 
Section 4(b)(2) of the Act'' section below for additional information).
    The essential features in this stream may require special 
management considerations or protection due to competition with and 
predation by nonnative aquatic species; residual effects of past 
livestock grazing and impacts to uplands, riparian vegetation, and the 
stream; mining activities in the uplands; moderate to severe drought 
(University of Nebraska-Lincoln 2011, p. 1); road construction and 
maintenance within and adjacent to the stream channel, and the indirect 
effect of wildfires that have occurred in the watershed since 2007.
Unit 6: San Francisco River Subbasin
    We are including within these designations 228.1 km (141.7 miles) 
of stream segments from the San Francisco River and its tributaries 
Tularosa River, Negrito Creek, and Whitewater Creek. All of this area 
is designated for loach minnow, while 166.6 km (103.5 miles) is also 
designated for spikedace. All of the area included for spikedace is 
within the area designated for loach minnow. The portions of the San 
Francisco, Tularosa River, Negrito Creek, and Whitewater Creek included 
within these designations are in Greenlee County, Arizona, and Catron 
County, New Mexico.
    Portions of the San Francisco River in Greenlee County totaling 
14.1 km (8.8 mi) are on lands owned by FMC. These areas have been 
excluded from the final critical habitat designations under section 
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act'' 
section below for additional information).
    The San Francisco River is one of the larger intact streams 
remaining within the species' ranges, with an overall length of 
approximately 202 km (125 mi). It is considered perennial throughout 
this length, except for seasonal drying in the Alma Valley. Land 
ownership on the San Francisco River includes primarily BLM and Apache-
Sitgreaves National Forest with small parcels of private and State 
lands in Arizona, and the Gila National Forest with small parcels of 
private lands in New Mexico.
    Occupancy within this subbasin is mixed. The San Francisco River 
downstream of the Tularosa River confluence was not known to be 
occupied by spikedace at listing; however, a reintroduction of 
spikedace occurred in 2008 above the town of Alma, New Mexico (NMDGF 
2009, p. 1). The success of this translocation effort remains to be 
determined, but the stream meets criteria for a 2b for spikedace. The 
San Francisco River was known to be occupied by loach minnow at listing 
(NMDGF 2008; Propst et al. 2009, pp. 5-6), and therefore meets the 
criteria for a 1a stream under the ruleset for loach minnow.
    There are no known records of spikedace from the Tularosa River, 
Negrito Creek, or Whitewater Creek, and spikedace have not been known 
to occur any higher in the San Francisco River than Pleasanton (Paroz 
and Propst 2007, pp. 13-15). We are not including any of these 
tributary streams for spikedace in the designation at this time. In 
contrast, the Tularosa River and Whitewater Creek were known to have 
been occupied at listing by loach minnow, and meet the criteria for a 
1a stream under the ruleset. Negrito Creek was not known to have been 
occupied at listing by loach minnow, but loach minnow have since been 
detected in Negrito Creek (Miller 1998, pp. 1-6). For this reason, we 
have included Negrito Creek as a 1a stream under the ruleset.
    Both Species. This designation includes 166.6 km (103.5 mi) of the 
San Francisco River as critical habitat for spikedace from the 
confluence with the Gila River upstream to the confluence with the 
Tularosa River. We are including a total of 203.6 km (126.5 mi) of the 
San Francisco River for loach minnow, from its confluence with the Gila 
River upstream to the town of Cruzville. For loach minnow, the San 
Francisco River was known to be occupied at listing. The San Francisco 
River contains suitable habitat for all life stages of loach minnow 
(PCE 1); has an appropriate food base (PCE 2); consists of perennial 
flows with no or low levels of pollutants (PCEs 3 and 4); and has an 
appropriate hydrologic regime to maintain suitable habitat 
characteristics (PCE 6). The essential features in this stream may 
require special management considerations or protection due to 
livestock grazing and impacts to uplands, riparian vegetation, and the 
stream; severe drought (University of Nebraska-Lincoln 2011, p. 1) in 
those portions in Arizona; competition with and predation by nonnative 
aquatic species; water diversions; road construction and maintenance; 
and channelization.
    The San Francisco River was not known to be occupied by spikedace 
at listing. The presence of loach minnow, suitable habitat 
characteristics, reintroduced population of spikedace, and location 
within the historical range of spikedace indicate that this area is 
suitable for spikedace. The reduced distribution of spikedace and the 
suitability of this large, intact river system in the upper San 
Francisco River indicates that it is essential to the conservation of 
the species.
    Loach Minnow Only. We are designating 30.0 km (18.6 mi) of the 
Tularosa River from the confluence with the San Francisco River 
upstream to the town of Cruzville, New Mexico. Above Cruzville, habitat 
becomes unsuitable for loach minnow. The Tularosa River is currently 
occupied by loach minnow (Propst et al. 2009, pp. 4-5). The Tularosa 
River is perennial throughout this reach, and contains suitable habitat 
for all life stages of loach minnow (PCE 1); has an appropriate food 
base (PCE 2); consists of perennial flows with no or low levels of 
pollutants (PCEs 3 and 4); and has an appropriate hydrologic regime to 
maintain suitable habitat characteristics (PCE 6). Land ownership along 
the Tularosa River is predominantly Gila National Forest, with private 
inholdings. The essential features in this stream may require special 
management considerations or protection due to residual effects of 
livestock grazing, and impacts to uplands, and competition with and 
predation by nonnative aquatic species.
    We include within this designation 6.8 km (4.2 mi) of Negrito Creek 
extending from the confluence with the Tularosa River upstream to the 
confluence with Cerco Canyon. Negrito Creek is perennial through this 
reach. Above this point, gradient and channel morphology make the creek 
unsuitable for loach minnow. Loach minnow in Negrito Creek were newly 
discovered after listing (Miller 1998, pp. 1-6). Negrito Creek contains 
suitable habitat for all life stages of loach minnow (PCE 1); has an 
appropriate food base (PCE 2); consists of perennial flows with no or 
low levels of pollutants (PCEs 3 and 4); and has an appropriate 
hydrologic regime to maintain suitable habitat characteristics (PCE 6). 
Negrito Creek occurs primarily on the Gila National Forest, with a few 
parcels of private land interspersed with the Forest lands. The 
essential features in this stream may require special management 
considerations or protection due to residual effects of past livestock 
grazing and impacts to uplands, riparian vegetation, and the stream, as 
well as other disturbances in the watershed.
    We include within this designation 1.9 km (1.2 mi) of Whitewater 
Creek from the confluence with the San

[[Page 10850]]

Francisco River upstream to the confluence with Little Whitewater 
Creek. Upstream of this point, gradient and channel changes make the 
habitat unsuitable for loach minnow. Whitewater Creek was known to be 
occupied by loach minnow at the time of listing and has perennial 
flows. It serves as an extension of habitat on the San Francisco River. 
Whitewater Creek contains suitable habitat for all life stages of loach 
minnow (PCE 1); has an appropriate food base (PCE 2); consists of 
perennial flows with no or low levels of pollutants (PCEs 3 and 4); and 
has an appropriate hydrologic regime to maintain suitable habitat 
characteristics (PCE 6). Whitewater Creek occurs entirely on private 
lands. The essential features in this stream may require special 
management considerations or protection due to residual impacts from 
past livestock grazing and impacts to uplands, riparian vegetation, and 
the stream; water diversions; competition with and predation by 
nonnative aquatic species; road construction and maintenance; 
channelization, and moderate drought (University of Nebraska-Lincoln 
2011, p. 1).
Unit 7: Blue River Subbasin
    Within the Blue River Subbasin, we are including 106.6 km (66.3 mi) 
of the Blue River, Campbell Blue and Little Blue creeks in Greenlee 
County, Arizona, and portions of Campbell Blue, Pace, Frieborn, and Dry 
Blue creeks in Catron County, New Mexico, for both spikedace and loach 
minnow. The Blue River, Campbell Blue Creek, and Little Blue Creek 
occur predominantly on Federal lands of the Apache-Sitgreaves National 
Forest. The tributaries Pace, Frieborn, and Dry Blue creeks occur 
entirely on Federal lands on the Gila National Forest in New Mexico.
    Within this subbasin, occupancy by spikedace and loach minnow is 
mixed. None of the streams designated as critical habitat in the Blue 
River Subbasin were known to have been occupied at listing by 
spikedace. Streams within this subbasin are included as 2b streams for 
spikedace under the ruleset. In contrast, the Blue River was known to 
have been occupied at listing, and all of the tributary streams of 
Campbell Blue, Little Blue, Pace, Dry Blue, and Frieborn Creeks were 
discovered to be occupied by loach minnow after listing, as follows: 
Campbell Blue Creek--1987; Pace Creek--1998; Dry Blue Creek--1998, and 
Frieborn Creek--1998 (ASU 2002). We are therefore including each of 
these streams as 1a streams under the ruleset for loach minnow. 
Additional detail on the suitability of each stream is provided below.
    Both Species. We are including within these designations 81.4 km 
(50.6 mi) of the Blue River from the confluence with the San Francisco 
River upstream to the confluence of Campbell Blue and Dry Blue creeks. 
As noted above, this river was not known to have been occupied by 
spikedace at listing. The Blue River is occupied by loach minnow, and 
contains suitable habitat for all life stages of loach minnow (PCE 1); 
has an appropriate food base (PCE 2); consists of perennial streams 
with no or low pollutant issues (PCEs 3 and 4); has no nonnative 
aquatic species, or levels of nonnative aquatic species that are 
sufficiently low to allow persistence of spikedace and loach minnow 
(PCE 5); and has an appropriate hydrologic regime to maintain suitable 
habitat characteristics (PCE 6). The Blue River occurs predominantly on 
Federal lands on the Apache-Sitgreaves National Forest, as well as on 
private parcels of land within the Forest. The essential features in 
this stream may require special management considerations or protection 
due to residual effects of past livestock grazing and impacts to 
uplands, riparian vegetation, and the stream; moderate to severe 
drought (University of Nebraska-Lincoln 2011, p. 1); and competition 
with and predation by nonnative aquatic species.
    The larger size of the Blue River, compared to smaller, tributary 
streams within the species' range, along with its perennial flows and 
conservation management activities, make this area important to 
spikedace. In addition, planning among several State and Federal 
agencies is underway for restoration of native fish species, including 
spikedace, in the Blue River through construction of a barrier that 
will exclude nonnative fish from moving upstream and allow for 
translocation of spikedace. Barrier feasibility studies have been 
completed, as has a draft Memorandum of Understanding with land 
managers and residents in this area. Federal land ownership throughout 
the majority of this proposed critical habitat unit would facilitate 
management for the species. We therefore consider the Blue River to be 
essential to the conservation of spikedace.
    We are including within these designations stream miles on multiple 
tributaries for both spikedace and loach minnow, as follows:
     Campbell Blue Creek--12.4 km (7.7 mi) extending from the 
confluence of Dry Blue and Campbell Blue Creeks upstream to the 
confluence with Coleman Canyon. Above Coleman Canyon, the creek changes 
and becomes steeper and rockier, making it unsuitable for spikedace and 
loach minnow.
     Pace Creek--1.2 km (0.8 mi) of Pace Creek from the 
confluence with Dry Blue Creek upstream to a barrier falls. Habitat 
above the barrier is considered unsuitable.
     Dry Blue Creek--4.7 km (3.0 mi) of Dry Blue Creek from the 
confluence with Campbell Blue Creek upstream to the confluence with 
Pace Creek.
     Frieborn Creek--1.8 km (1.1 mi) of Frieborn Creek from the 
confluence with Dry Blue Creek upstream to an unnamed tributary.
     Little Blue Creek--5.1 km (3.1 mi) of Little Blue Creek. 
This includes the lower, perennial portions of Little Blue Creek 
extending from the confluence with the Blue River upstream to the 
confluence with an unnamed canyon. Above the canyon, flows are not 
perennial.
    Each of these streams were occupied at the time of listing by loach 
minnow, contain suitable habitat for all life stages (PCE 1); have an 
appropriate food base (PCE 2); consist of perennial flows with no or 
low levels of pollutants (PCEs 3 and 4); have no nonnative aquatic 
species, or levels of nonnative aquatic species that are sufficiently 
low to allow persistence of spikedace and loach minnow (PCE 5); and 
have an appropriate hydrologic regime to maintain suitable habitat 
characteristics (PCE 6). the essential features in this subbasin may 
require special management considerations or protection due to residual 
impacts of past livestock grazing and impacts to uplands, riparian 
vegetation, and the stream; moderate to severe drought (University of 
Nebraska-Lincoln 2011, p. 1); and competition with and predation by 
nonnative aquatic species. Campbell Blue Creek and portions of the Blue 
River were burned during the Wallow Fire in 2011, and increased ash and 
sedimentation within the active stream may be a temporary issue in 
these streams.
    Because these streams are occupied by loach minnow, which often co-
occur with spikedace, and because they occur within the historical 
range of the species, we believe these streams are suitable for 
spikedace. In addition, as discussed above, perennial flows, and 
occurrence predominantly on Federal lands make these areas especially 
suitable for spikedace recovery, and cooperative management plans for a 
native fishery in the Blue River enhance opportunities for spikedace 
conservation. We therefore believe the Blue River, Campbell Blue, Pace, 
Dry

[[Page 10851]]

Blue, Frieborn, and Little Blue creeks to be essential to the 
conservation of the species.
Unit 8. Gila River Subbasin
    These designations include approximately 258.6 km (160.7 mi) of the 
upper Gila River and five tributaries including West Fork Gila River, 
Middle Fork Gila River, East Fork Gila River, Mangas Creek, and Bear 
Creek in Hidalgo, Grant, and Catron Counties, New Mexico. A slightly 
larger area was included for loach minnow on the Middle Fork Gila 
River. All mileage included for spikedace on the Middle Fork Gila River 
is included within this area. All streams included within this unit are 
considered occupied at listing by both species (Paroz et al. 2009, p. 
12), and therefore meet the criteria for 1a streams under the ruleset. 
Spikedace and loach minnow were first detected in Mangas Creek after 
listing, which meets the criteria for a 1a stream under the ruleset (in 
1999; NMGFD 2008). Similarly, loach minnow were first detected in Bear 
Creek after listing, which also meets the criteria for a 1a stream (in 
2005; Schiffmiller 2005; NMGFD 2008).
    Both Species. These designations include 153.5 km (95.4 mi) of the 
Gila River from the confluence with Moore Canyon (near the Arizona-New 
Mexico border) upstream to the confluence of the East and West Forks 
are included within these designations. Below Moore Canyon, the river 
is substantially altered by agriculture, diversion, and urban 
development. In addition, there are no loach minnow and only one 
spikedace records known from the Gila River between its confluence with 
Moore Canyon and a spikedace record from Pinal County, Arizona, near 
the Ashurst-Hayden Dam. This portion of the Gila River supports the 
largest remaining populations of spikedace and loach minnow (NMDGF 
2008; Propst et al. 2009, pp. 14-17). In addition, we are designating 
13.0 km (8.1 mi) of the West Fork Gila River from the confluence with 
the East Fork Gila River upstream to the confluence with EE Canyon and 
42.1 km (26.2 mi) of the East Fork Gila River from the confluence with 
the West Fork Gila River upstream to the confluence of Beaver and 
Taylor Creeks. Above EE Canyon, the river becomes unsuitable for 
spikedace and loach minnow due to gradient and channel morphology. All 
stream segments contain suitable habitat for all life stages of 
spikedace and loach minnow (PCE 1); have an appropriate food base (PCE 
2); consist of perennial streams with no or low levels of pollutants 
(PCEs 3 and 4); and have an appropriate hydrologic regime to maintain 
suitable habitat characteristics (PCE 6).
    Spikedace and loach minnow on the Gila River mainstem occur 
primarily on Federal lands managed by the BLM and the Gila National 
Forest, interspersed with private and State lands (NMDGF at Heart Bar 
Wildlife Area). The essential features in the Gila River may require 
special management considerations or protection due to residual impacts 
of past livestock grazing and impacts to uplands, riparian vegetation, 
and the stream; competition with and predation by nonnative aquatic 
species; road construction and maintenance; water diversions; 
recreation; and moderate drought (University of Nebraska-Lincoln 2011, 
p. 1).
    Approximately 11.5 km (7.2 mi) of streams on the Gila River 
mainstem within this unit are owned and managed by FMC. This area has 
been excluded from the final critical habitat designations under 
section 4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the 
Act'' section below for additional information).
    The West Fork Gila River occurs primarily on a mix of Federal lands 
on the Gila National Forest, the National Park Service, and private 
lands. The essential features in this stream may require special 
management considerations or protection due to competition with and 
predation by nonnative aquatic species, road construction and 
maintenance, watershed impacts associated with past wildfires, and 
moderate drought (University of Nebraska-Lincoln 2011, p. 1).
    The East Fork Gila River occurs primarily on Federal lands on the 
Gila National Forest, with small parcels of private lands interspersed. 
The essential features in this stream may require special management 
considerations or protection due to residual impacts of past livestock 
grazing and impacts to uplands, riparian vegetation, and the stream; 
competition with and predation by nonnative aquatic species; watershed 
impacts associated with past wildfires (University of Nebraska-Lincoln 
2011, p. 1).
    We are including within these designations 1.2 km (0.8 mi) of 
Mangas Creek for both species from the confluence with the Gila River 
upstream to the confluence with Willow Creek. Mangas Creek is currently 
occupied by spikedace and loach minnow (NMDGF 2008). Mangas Creek 
contains suitable habitat for all life stages of spikedace and loach 
minnow (PCE 1); has an appropriate food base (PCE 2); and has an 
appropriate hydrologic regime to maintain suitable habitat 
characteristics (PCE 6).
    Approximately 7.9 km (4.9 mi) on Mangas Creek within this unit are 
on lands owned and managed by FMC. These areas have been excluded from 
the final critical habitat designations under section 4(b)(2) of the 
Act (see ``Application of Section 4(b)(2) of the Act'' section below 
for additional information).
    Spikedace and loach minnow on Mangas Creek occur primarily on 
private lands, with small portions occurring on lands managed by the 
BLM. The essential features in Mangas Creek may require special 
management considerations or protection due to residual impacts of past 
livestock grazing and impacts to uplands, riparian vegetation, and the 
stream; impaired water quality due to high organic matter and excessive 
algal growth likely caused by resource extraction (mining), loss of 
riparian habitat, wildlife use of the area, municipal discharges, 
recreation and tourism, agriculture (livestock grazing) (EPA 2002, pp. 
4-12; EPA 2004; EPA 2010, p. 1) and moderate drought (University of 
Nebraska-Lincoln 2011, p. 1).
    Spikedace Only. We are including within the designation 12.5 km 
(7.7 mi) of the Middle Fork Gila River extending from the confluence 
with West Fork Gila River upstream to the confluence with Big Bear 
Canyon. This area is currently occupied by spikedace and is connected 
to currently occupied habitat on the West Fork of the Gila River (NMDGF 
2008; Propst et al. 2009, pp. 9-11). The Gila River contains suitable 
habitat for all life stages of spikedace (PCE 1); has an appropriate 
food base (PCE 2); consists of perennial streams with no or low 
pollutant issues (PCEs 3 and 4); and has an appropriate hydrologic 
regime to maintain suitable habitat characteristics (PCE 6). This area 
is considered essential to the survival and recovery of the species 
because of its historical and current occupancy and multiple PCEs. In 
addition, the Middle Fork Gila River is connected to habitat occupied 
by spikedace on the West Fork Gila River. The Middle Fork Gila River 
occurs primarily on Federal lands managed by the Gila National Forest, 
with small parcels of private lands interspersed with Federal lands. 
The essential features in this stream may require special management 
considerations or protection due to residual impacts of past livestock 
grazing and impacts to uplands, riparian vegetation, and the stream; 
competition with and predation by nonnative aquatic species; watershed 
impacts associated with past wildfires; and

[[Page 10852]]

moderate drought (University of Nebraska-Lincoln 2011, p. 1).
    Loach Minnow Only. In addition to the areas described above for 
this unit, we are including within the designation 19.1 km (11.9 mi) of 
the Middle Fork Gila River extending from the confluence with West Fork 
Gila River upstream to the confluence with Brothers West Canyon. The 
12.5 km (7.7 mi) designated on the Middle Fork Gila River for spikedace 
is completely within this 19.1 km (11.9 mi). This area is currently 
occupied by loach minnow (NMDGF 2008; Propst et al. 2009, pp. 9-11).
    The Middle Fork Gila River contains suitable habitat for all life 
stages of loach minnow (PCE 1); has an appropriate food base (PCE 2); 
consists of perennial flows with no or low levels of pollutants (PCEs 3 
and 4); and has an appropriate hydrologic regime to maintain suitable 
habitat characteristics (PCE 6). This area is considered essential to 
the survival and recovery of loach minnow due to its historical and 
current occupancy, its multiple PCEs, and its connection to the West 
Fork of the Gila River, which is currently occupied by loach minnow. 
See the description above, describing the designation along the West 
and Middle Forks of the Gila River for spikedace for details on land 
ownership and special management needs.
    We are including within this designation 31.4 km (19.5 mi) of Bear 
Creek from its confluence with the Gila River upstream to the 
confluence with Sycamore Creek and North Fork Walnut Creek. Loach 
minnow were first found in Bear Creek in 2005 and again in 2006 
(Schiffmiller 2005, pp. 1-4; NMDGF 2008). Bear Creek is classified as 
perennial interrupted, with stream segments that may dry up seasonally, 
depending on weather events (USFS 2010). While it was initially 
believed that loach minnow detected in 2005 came from the Gila River 
during a period when the upstream, perennial section was temporarily 
connected to the Gila River, further discussions with biologists 
familiar with the stream, a review of the loach minnow records, and 
reconsideration of the species biology make this seem unlikely. The 
location of the loach minnow detections on Bear Creek was approximately 
18 miles upstream of the Gila River confluence. We believe it is 
unlikely that loach minnow were able to swim upstream 18 miles during a 
high flow event to become established in this location. Nearby Dorsey 
Spring maintains perennial flows in the section of river in which the 
loach minnow are found, and we believe it is more likely that loach 
minnow persist in this area of perennial flows.
    Portions of Bear Creek contain suitable habitat for all life stages 
of loach minnow (PCE 1); have an appropriate food base (PCE 2); consist 
of perennial flows with no or low levels of pollutants (PCEs 3 and 4); 
have no nonnative aquatic species, or levels of nonnative aquatic 
species that are sufficiently low to allow persistence of spikedace and 
loach minnow (PCE 5); and have an appropriate hydrologic regime to 
maintain suitable habitat characteristics (PCE 6). The essential 
features in this stream may require special management considerations 
or protection due to some residual impacts of past livestock grazing 
and impacts to uplands, riparian vegetation, and the stream; and 
moderate drought (University of Nebraska-Lincoln 2011, p. 1).
    Approximately .9 km (1.2 mi) on Bear Creek within this unit are on 
lands owned and managed by FMC. These areas have been excluded from the 
final critical habitat designations under section 4(b)(2) of the Act 
(see ``Application of Section 4(b)(2) of the Act'' section below for 
additional information).

Table 8--Stream Segments Considered in These Critical Habitat Designations and the Criteria Under Which They Are
                                                   Identified
----------------------------------------------------------------------------------------------------------------
                                         Occupied by spikedace at the time     Occupied by loach minnow at the
                Stream                       of listing or at any time          time of listing or at any time
                                            thereafter/rule criteria met        thereafter/rule criteria met *
----------------------------------------------------------------------------------------------------------------
                                          Unit 1--Verde River Subbasin
----------------------------------------------------------------------------------------------------------------
Verde River...........................  Yes/1a.............................  No/2b.
Granite Creek.........................  No/2a..............................  No/2b.
Oak Creek.............................  No/2a..............................  No/2b.
Beaver and Wet Beaver Creek...........  No/2a..............................  No/2b.
West Clear Creek......................  No/2a..............................  Not applicable.
Fossil Creek..........................  No/2a..............................  No/2b.
----------------------------------------------------------------------------------------------------------------
                                           Unit 2--Salt River Subbasin
----------------------------------------------------------------------------------------------------------------
Salt River............................  No/................................  Not applicable.
Tonto Creek...........................  No/2b..............................  Not applicable.
Greenback Creek.......................  No/2b..............................  Not applicable.
Rye Creek.............................  No/2b..............................  Not applicable.
Spring Creek..........................  No/2b..............................  Not applicable.
Rock Creek............................  No/2b..............................  Not applicable.
White River...........................  Not Applicable.....................  Yes/1a.
East Fork White River.................  Not Applicable.....................  Yes/1a.
East Fork Black River.................  Not applicable.....................  No/2a.
North Fork East Fork Black River......  Not applicable.....................  Yes/1a.
Boneyard Creek........................  Not applicable.....................  Yes/1a.
Coyote Creek..........................  Not applicable.....................  No/2a.
----------------------------------------------------------------------------------------------------------------
                                        Unit 3--San Pedro River Subbasin
----------------------------------------------------------------------------------------------------------------
San Pedro River.......................  No/2b..............................  No/2b.
Hot Springs Canyon....................  No/2a..............................  No/2a.
Bass Canyon...........................  No/2a..............................  No/2a.

[[Page 10853]]

 
Redfield Canyon.......................  No/2a..............................  No/2a.
Aravaipa Creek........................  Yes/1a.............................  Yes/1a.
Deer Creek............................  No/2a..............................  Yes/1a.
Turkey Creek..........................  No/2a..............................  Yes/1a.
----------------------------------------------------------------------------------------------------------------
                                          Unit 4--Bonita Creek Subbasin
----------------------------------------------------------------------------------------------------------------
Bonita Creek..........................  No/2b..............................  No/2b.
----------------------------------------------------------------------------------------------------------------
                                          Unit 5--Eagle Creek Subbasin
----------------------------------------------------------------------------------------------------------------
Eagle Creek...........................  Yes/1a.............................  Yes1a.
----------------------------------------------------------------------------------------------------------------
                                      Unit 6--San Francisco River Subbasin
----------------------------------------------------------------------------------------------------------------
San Francisco River...................  No/2b..............................  Yes/1a.
Tularosa River........................  Not applicable.....................  Yes/1a.
Negrito Creek.........................  Not applicable.....................  Yes/1a.
Whitewater Creek......................  Not applicable.....................  Yes/1a.
----------------------------------------------------------------------------------------------------------------
                                           Unit 7--Blue River Subbasin
----------------------------------------------------------------------------------------------------------------
Blue River............................  No/2b..............................  Yes/1a.
Campbell Blue Creek...................  No/2b..............................  Yes/1a
Little Blue Creek.....................  No/2b..............................  Yes/1a.
Pace Creek............................  No/2b..............................  Yes/1a
Frieborn Creek........................  No/2b..............................  Yes/1a.
Dry Blue Creek........................  No/2b..............................  Yes/1a.
----------------------------------------------------------------------------------------------------------------
                                           Unit 8--Gila River Subbasin
----------------------------------------------------------------------------------------------------------------
Gila River............................  Yes/1a.............................  Yes/1a.
West Fork Gila River..................  Yes/1a.............................  Yes/1a.
Middle Fork Gila River................  Yes/1a.............................  Yes/1a.
East Fork Gila River..................  Yes/1a.............................  Yes/1a.
Mangas Creek..........................  Yes/1a.............................  Yes/1a.
Bear Creek............................  Not Applicable.....................  Yes/1a.
----------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designations

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our 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, or 
are likely to

[[Page 10854]]

adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the PCEs to an 
extent that appreciably reduces the conservation value of critical 
habitat for spikedace and loach minnow. As discussed above, the role of 
critical habitat is to support life-history needs of the species and 
provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Examples of activities that, when authorized, funded, or carried 
out by a Federal agency, may affect critical habitat and therefore 
should result in consultation for the spikedace and loach minnow 
include, but are not limited to:
    (1) Actions that would significantly diminish flows within the 
active stream channel. Such activities could include, but are not 
limited to: Water diversions; channelization; construction of any 
barriers or impediments within the active river channel; removal of 
flows in excess of those allotted under a given water right; 
construction of permanent or temporary diversion structures; and 
groundwater pumping within aquifers associated with the river. These 
actions could affect water depth, velocity, and flow pattern, all of 
which are essential to the different life stages of spikedace or loach 
minnow.
    (2) Actions that significantly alter the water chemistry of the 
active channel. Such activities could include, but are not limited to: 
Release of chemicals, biological pollutants, or other substances into 
the surface water or connected groundwater at a point source or by 
dispersed release (nonpoint source); and storage of chemicals or 
pollutants that can be transmitted, via surface water, groundwater, or 
air into critical habitat. These actions can affect water chemistry, 
and in turn the prey base of spikedace and loach minnow.
    (3) Actions that would significantly increase sediment deposition 
within a stream channel. Such activities could include, but are not 
limited to: Excessive sedimentation from improper livestock grazing; 
road construction; commercial or urban development; channel alteration; 
timber harvest; ORV use; recreational use; or other watershed and 
floodplain disturbances. These activities could adversely affect 
reproduction of the species by preventing hatching of eggs, or by 
eliminating suitable habitat for egg placement by loach minnow. In 
addition, excessive levels of sedimentation can make it difficult for 
these species to locate prey.
    (4) Actions that could result in the introduction, spread, or 
augmentation of aquatic species in occupied stream segments, or in 
stream segments that are hydrologically connected to occupied stream 
segments, even if those segments are occasionally intermittent, or 
introduction of other species that compete with or prey on spikedace or 
loach minnow. Possible actions could include, but are not limited to: 
Introduction of parasites or disease; stocking of nonnative fishes; 
stocking of sport fish (whether native or nonnative); stocking of 
nonnative amphibians or other nonnative taxa; or other related actions. 
These activities can affect the growth, reproduction, and survival of 
spikedace and loach minnow.
    (5) Actions that would significantly alter channel morphology. Such 
activities could include, but are not limited to: Channelization, 
impoundment, road and bridge construction, mining, dredging, and 
destruction of riparian vegetation. These activities may lead to 
changes in water flows and levels that would eliminate the spikedace or 
loach minnow, degrade their habitats, or both. These actions can also 
lead to increased sedimentation and degradation in water quality to 
levels that are beyond the tolerances of spikedace and loach minnow.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Amendment of 1997 (Sikes Act) (16 U.S.C. 
670a) required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resource management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and

[[Page 10855]]

restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the critical habitat designations for either species. Therefore, 
we are not exempting lands from these final designations of critical 
habitat for spikedace or loach minnow pursuant to section 4(a)(3)(B)(i) 
of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat 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 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 statute on its face, as well 
as the legislative history are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designations, we identify the benefits of including the area in the 
designations, identify the benefits of excluding the area from the 
designations, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide, forego disproportionate economic impacts resulting from the 
designation of critical habitat, or avoid potential conflicts with 
national security issues.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to determine whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designations.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we evaluated whether 
certain lands in the critical habitat in Units 1, 2, 3, 5, and 8 were 
appropriate for exclusion from these final designations pursuant to 
section 4(b)(2) of the Act. As discussed in detail below, the Secretary 
is exercising his discretion to exclude the following areas from 
critical habitat designations for both spikedace and loach minnow:
    (1) The San Pedro River in its entirety within Unit 3 of the 
designations;
    (2) Those portions of the Verde River and Beaver and Wet Beaver 
Creeks in Unit 1 occurring within the boundaries of the Yavapai-Apache 
Nation and subject to the provisions of Tribal Resolution 46-2006;
    (3) Those portions of the mainstem White River and East Fork White 
River within the boundaries of the White Mountain Apache Tribe and 
subject to the provisions of the Loach Minnow Management Plan;
    (4) Those portions of Eagle Creek in Unit 5 that are within the 
boundaries of the San Carlos Apache Nation and subject to the 
provisions of their FMP;
    (5) Those portions of the mainstem Eagle Creek and the San 
Francisco River that are owned by FMC or their subsidiaries; and
    (6) Those portions of the Gila River, Mangas Creek, or Bear Creek 
that are owned by FMC or their subsidiaries.
    The Secretary is also exercising his discretion to exclude the 
areas because we determined the following:
    (1) Their value for conservation will be preserved for the 
foreseeable future by existing protective actions, or
    (2) The benefit of excluding them under the ``other relevant 
factor'' provisions of section 4(b)(2) of the Act outweighs the benefit 
of including them in critical habitat.
    Table 9 below provides approximate length of streams that meet the 
definition of critical habitat but are excluded under section 4(b)(2) 
of the Act from the final critical habitat rule. Table 9 also provides 
our reasons for the exemptions and exclusions.

Table 9--Exclusions and Areas Considered for Exclusion From Designation of Critical Habitat for Loach Minnow and
                                       Spikedace by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                        Areas meeting the
                                                                          definition of       Areas excluded in
         Unit               Specific area       Basis for exclusion    critical habitat in   kilometers (miles)
                                                                       kilometers  (miles)
----------------------------------------------------------------------------------------------------------------
1.....................  Verde River and        Yavapai-Apache Nation  1.2 km (0.8 mi) of    1.2 km (0.8 mi) of
                         Beaver and Wet         Tribal Resolution 46-  the Verde River and   the Verde River and
                         Beaver Creeks on       2006; Tribal           0.2 km (0.1 mi) of    0.2 km (0.1 mi) of
                         Yavapai-Apache         Sovereignty; Working   Beaver Creek and      Beaver Creek and
                         Nation lands.          Relationship with      Wet Beaver Creek.     Wet Beaver Creek.
                                                the Yavapai-Apache
                                                Nation.

[[Page 10856]]

 
2.....................  Mainstem White River   Loach Minnow           29.0 km (18.0 mi) of  29.0 km (18.0 mi) of
                         and East Fork White    Management Plan;       the White River and   the White River and
                         River.                 Tribal Sovereignty;    17.2 km (10.7 mi)     17.2 km (10.7 mi)
                                                Working Relationship   of the East Fork      of the East Fork
                                                with the White         White River.          White River.
                                                Mountain Apache
                                                Tribe.
3.....................  San Pedro River......  National Security....  59.8 km (37.2 mi) of  59.8 km (37.2 mi) of
                                                                       the San Pedro River.  the San Pedro
                                                                                             River.
5.....................  Eagle Creek..........  San Carlos Apache      75.5 km (46.9 mi) of  27.5 km (17.1 mi) of
                                                Tribe Fisheries        Eagle Creek.          Eagle Creek on the
                                                Management Plan;                             San Carlos Apache
                                                Tribal Sovereignty;                          Reservation.
                                                Working Relationship
                                                with the San Carlos
                                                Apache Tribe.
5.....................  Eagle Creek..........  FMC Spikedace and      75.5 km (46.9 mi) of  Approximately 21.4
                                                Loach Minnow           Eagle Creek.          km (13.3 mi) of
                                                Management Plan                              Eagle Creek owned
                                                Eagle Creek and San                          by FMC or its
                                                Francisco River                              subsidiaries.
                                                Greenlee and Graham
                                                County, Arizona.
5.....................  San Francisco River..  FMC Spikedace and      203.6 km (126.5 mi    14.1 km (8.8 mi) of
                                                Loach Minnow           of the San            the San Francisco
                                                Management Plan        Francisco River for   River owned by FMC
                                                Eagle Creek and San    loach minnow; 180.7   or its
                                                Francisco River        km (112.3 mi) of      subsidiaries.
                                                Greenlee and Graham    the San Francisco
                                                County, Arizona.       River for spikedace.
8.....................  Gila River...........  FMC Spikedace and      165.1 km (102.6 mi)   12.9 km (7.2 mi) of
                                                Loach Minnow           of the Gila River.    the Gila River
                                                Management Plan                              owned by FMC or its
                                                Upper Gila River,                            subsidiaries.
                                                Including Bear Creek
                                                and Mangas Creek
                                                Grant County, New
                                                Mexico.
8.....................  Bear Creek...........  FMC Spikedace and      31.4 km (19.5 mi) of  1.9 km (1.2 mi) of
                                                Loach Minnow           Bear Creek.           Bear Creek owned by
                                                Management Plan                              FMC or its
                                                Upper Gila River,                            subsidiaries.
                                                Including Bear Creek
                                                and Mangas Creek
                                                Grant County, New
                                                Mexico.
8.....................  Mangas Creek.........  FMC Spikedace and      9.1 km (5.7 mi) of    7.9 km (4.9 mi) of
                                                Loach Minnow           Mangas Creek.         Mangas Creek owned
                                                Management Plan                              by Freeport McMoRan
                                                Upper Gila River,                            or its
                                                Including Bear Creek                         subsidiaries.
                                                and Mangas Creek
                                                Grant County, New
                                                Mexico.
----------------------------------------------------------------------------------------------------------------

Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
critical habitat designations and related factors (IEc. 2011). The 
draft analysis, dated July 6, 2011, was made available for public 
review from October 4, 2011, through November 3, 2011 (76 FR 61330). 
Following the close of the comment period, a final analysis (dated 
January 24, 2012) of the potential economic effects of the designations 
was developed taking into consideration the public comments and any new 
information (IEc 2012).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for spikedace 
and loach minnow; some of these costs will likely be incurred 
regardless of whether we designate critical habitat (baseline). The 
economic impact of the final critical habitat designations is analyzed 
by comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designations of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designations of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designations of 
critical habitat above and beyond the baseline costs; these are the 
costs we consider in the final designations of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur with the designations of critical habitat.
    While we think that the incremental effects approach is appropriate 
and meets the intent of the Act, we have taken a conservative approach 
in this instance to ensure that we are fully evaluating the probable 
effects of this designation. Given that we do not have

[[Page 10857]]

a new definition of ``destruction or adverse modification,'' there may 
be certain circumstances where we may want to evaluate impacts beyond 
those that are solely incremental. Such is the case with spikedace and 
loach minnow, where we have extensive case law and determinations of 
effects that suggest we gather information concerning not only 
incremental effects, but also coextensive effects.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. Decision-makers can use this information to assess whether 
the effects of the designations might unduly burden a particular group 
or economic sector. Finally, the FEA considers those costs that may 
occur in the 20 years following the designation of critical habitat, 
which was determined to be the appropriate period for analysis based on 
the data available during the analysis. The FEA quantifies economic 
impacts of spikedace and loach minnow conservation efforts associated 
with the following categories of activity: Water use and management; 
livestock grazing; recreation; species management; residential and 
commercial development; transportation, fire management; and Tribal 
lands.
    The FEA estimates that no significant economic impacts are likely 
to result from the designation of critical habitat. Quantified 
incremental impacts are estimated to be $2.95 million to $6.7 million 
over 20 years ($261,000 to $592,000 annually) using a discount rate of 
seven percent. The San Pedro River Unit, is anticipated to bear the 
highest incremental costs in both the low and high end scenarios. 
Quantified incremental costs are related to an anticipated large and 
costly consultation at Fort Huachuca Military Reservation, as well as 
annual monitoring costs on the San Pedro River of $100,000 to $200,000 
annually. It should be noted that the San Pedro River has been excluded 
under section 4(b)(2) of the Act and is not part of the final 
designation, due to national security impacts at Fort Huachuca. The 
next largest quantified incremental impacts are expected in the Gila 
River unit primarily related to anticipated costs related to riparian 
fencing construction.
    In conclusion, there is not significant economic impact are likely 
to be a result from the designation of critical habitat for these two 
species. As a result, the Secretary is not exercising his discretion to 
exclude any particular area from the final designation based on a 
disproportionate economic impact to any entity or sector. A copy of the 
FEA with supporting documents may be obtained by contacting the Arizona 
Ecological Services Field Office (see ADDRESSES) or by downloading from 
the Internet at http://www.regulations.gov or at http://www.fws.gov/southwest/es/arizona/.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing these designations, 
we determined that the lands within the designations of critical 
habitat for spikedace and loach minnow are not owned or managed by the 
DOD. A nexus exists, however, between critical habitat in the San Pedro 
River in Subunit 3 and groundwater pumping by the United States Army 
Garrison Fort Huachuca (Fort Huachuca) in Cochise County, Arizona. An 
additional nexus is created by the geographic areas not owned but 
designated for use by Fort Huachuca. Because of this, and in response 
to comments received from Fort Huachuca, we completed a balancing 
analysis of the benefits of inclusion and the benefits of exclusion of 
lands in the San Pedro River in Subunit 3.
Fort Huachuca
    Fort Huachuca is located in Cochise County, Arizona, approximately 
15 miles north of the international border with Mexico. While the area 
designated as Fort Huachuca itself does not occur along the San Pedro 
River, Fort Huachuca officials indicated in their comment letter that 
there are geographic areas designated for Department of Defense (DOD) 
use including the Buffalo Soldier Electronic Test Range (BSETR), R-2303 
restricted airspace, and groundwater resources in a regional aquifer of 
the Sierra Vista Subwatershed of the San Pedro River that are all 
located within critical habitat in Unit 3. The BSETR covers 
approximately 10.5 square kilometers (4.1 square miles), with 10.1 
square kilometers (3.9 square miles) off-post and encompassing the 
entire 60 km (30.7 mi) of the critical habitat proposed along the San 
Pedro. Their R-2303 restricted airspace covers 3.9 square kilometers 
(1.5 square miles), with 3.4 square kilometers (1.3 square miles) off-
post and nearly totally encompassing the critical habitat along the San 
Pedro River.
    Fort Huachuca notes that the Army and Joint Military testing 
community is co-located at Fort Huachuca because of the BSETR and the 
unique environmental setting in which it occurs, which allows for 
specialized electronic testing. According to Fort Huachuca, the BSETR 
and R-2303 restricted airspace are vital resources to national security 
that are not duplicated elsewhere within the United States. For the 
BSETR, Fort Huachuca notes that ``the metal-bearing mountain ranges on 
the Fort create conditions conducive to testing and that these 
conditions are not replicated anywhere else in the United States with 
the only other known location in the world in the outback of Australia 
(Fort Huachuca 2011).'' With respect to the R-2303 restricted airspace, 
Fort Huachuca notes that the special restricted airspace that extends 
downward to the ground surface is critical for the training of Unmanned 
Aerial Systems operators for the Army, Marines, National Guard, and 
Department of Homeland Security. Fort Huachuca notes that this type of 
restricted airspace, which extends to the ground surface, is not 
duplicated anywhere else in the United States, and that this is one of 
the only Military Restricted Airspace complexes in the country: (1) 
Whose activation has no impact on commercial air traffic corridors; and 
(2) allows for unmanned aircraft to have priority over manned aircraft 
for testing, training, and border security. Fort Huachuca cites several 
other examples of the importance of their activities to national 
security; however, the BSETR and the unique environmental settings in 
which it occurs, as well as the R-2303 restricted airspace, were of 
greatest concerns in this evaluation due to lack of duplicate 
conditions elsewhere in the United States.
    To carry out these missions, Fort Huachuca pumps groundwater to 
serve its on-base military and civilian population. Fort Huachuca's 
pumping results in both removal of groundwater from storage in the 
regional aquifer and the capture of water from discharge. Groundwater 
in storage is that which resides in an aquifer. Such stored water may 
be discharging to a spring or waterway. Water withdrawn from the ground 
by wells initially derives exclusively from storage. As pumping 
continues, increasing proportions of water are derived from the capture 
of discharge, and decreasing proportions are derived from storage. In 
other words, ground water wells are withdrawing not only water residing 
in the aquifer, but also water that was otherwise destined to become 
the surface flow of a stream or be available to sustain riparian

[[Page 10858]]

vegetation. If water withdrawal continues unmitigated, it will 
eventually deplete storage, reverse the flow direction of groundwater, 
and capture (dewater) the stream itself. Deprivation of the base flow 
of the San Pedro River could eventually cause perennial reaches to 
become intermittent or ephemeral. While these portions of the San Pedro 
River are not currently occupied by either species, such a change in 
the hydrologic regime of the San Pedro River, depending upon the reach 
in which it occurred, may not allow the San Pedro River to facilitate 
the expansion of the geographic distribution of spikedace and loach 
minnow in areas not occupied at the time of listing. Expansion within 
the geographic historic range of the species is important to the 
conservation of the species, as identified in the ruleset for ``2b'' 
areas.
    The potential impacts of groundwater pumping by Fort Huachuca on 
several threatened and endangered species are described in detail in a 
2007 section 7 biological opinion (Service 2007; Service 2002b and 
Service 2002c). This opinion also details the actions taken by Fort 
Huachuca to minimize the effects of their groundwater pumping. These 
actions are numerous, and include fixture upgrades (i.e., replacement 
of high water use plumbing fixtures with low water use fixtures), 
facility infrastructure removal/consolidation (i.e., demolition of 
facilities), aggressive leak detection and repair, water conservation 
education, and implementation of a strict landscape watering policy in 
military family housing. Fort Huachuca has also undertaken groundwater 
recharge, acquisition of conservation easements to reduce future 
developments, mitigation for increases in personnel, participation in 
and providing funding to the Upper San Pedro Partnership (USPP), and 
development of a strategic plan for water mitigation.
    According to the biological opinion, costs to Fort Huachuca for 
this work are considerable. As noted in the biological opinion, Fort 
Huachuca typically invests $3.3 to $5.5 million per year in 
environmental, natural resources, and cultural projects. From 1997 
through 2006, Fort Huachuca spent over $42 million in those categories 
exclusive of the $12 million spent for large construction (effluent 
recharge and extension of an effluent distribution system) projects. 
The biological opinion notes that recently, funding emphasis has 
shifted toward management of threatened and endangered species, and 
Fort Huachuca spent an estimated $10 million in a 4-year period for 
conservation work.
    The biological opinion addressed potential impacts of actions taken 
by Fort Huachuca on Huachuca water umbel (Lilaeopsis schaffneriana var. 
recurva) with critical habitat, southwestern willow flycatcher 
(Empidonax traillii extimus) with critical habitat, Mexican spotted owl 
(Strix occidentalis lucida), lesser long-nosed bat (Leptonycteris 
curasoae yerbabuenae), Sonora tiger salamander (Ambystoma tigrinum 
stebbinsi), Huachuca springsnail (Pyrgulopsis thompsoni), Ramsey Canyon 
leopard frog (Rana subaquavocalis), Canelo Hills ladies' tresses 
(Spiranthes delitescens); bald eagle, (Haliaeetus leucocephalus); 
jaguar (Panthera onca); spikedace with critical habitat; Gila topminnow 
(Poeciliopsis occidentalis occidentalis), and desert pupfish 
(Cyprinodon macularius). With respect to the critical habitat 
designation, Fort Huachuca notes they already completely offset 
groundwater pumping associated with on-post groundwater use, and are 
required to mitigate an additional 1,000 acre feet of groundwater use 
due to off-post groundwater usage at an estimated cost of $20,000 to 
$40,000 per acre foot, or a total cost of $20 million to $40 million. 
Fort Huachuca further notes that the completed biological opinion 
allows for up to 16,000 employees, which limits their flexibility with 
respect to DOD's needs to ``* * * bring additional high priority, high 
visibility missions to the fort (Fort Huachuca 2011, p. 11)''. They 
conclude that any additional restrictions placed on them have a strong 
probability of impacting the missions currently present at Fort 
Huachuca as well as DOD's flexibility to respond to changing 
requirements in theater and to protect the lives of military personnel 
(Fort Huachuca 2011, p. 11).
    In a 2011 court decision (See Center for Biological Diversity et 
al. v. Salazar et al. 4:07-cv-00484-AWT), United States District Court, 
District of Arizona), the completed biological opinion was deemed 
inadequate in addressing recovery of the Huachuca water umbel and the 
Southwestern willow flycatcher, among other factors, and Fort Huachuca 
will be required to reconsult with the Service.

Benefits of Inclusion--Fort Huachuca

    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must also consult with us 
on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The jeopardy 
analysis evaluates the action's impact to survival and recovery of the 
species, while the destruction or adverse modification analysis 
evaluates the action's effects to the designated habitat's contribution 
to conservation. Therefore, the difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. This 
will, in many instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than would 
listing alone.
    However, for some species, and in some locations, the outcome of 
these analyses will be similar, because effects to habitat will often 
also result in effects to the species. In the case of spikedace and 
loach minnow in the San Pedro River, consultation would occur strictly 
based on critical habitat as the species are absent from this stream. 
Therefore, this principal benefit of section 7 consultation under the 
Act would be a benefit of inclusion of the San Pedro within the 
designation. BLM manages 50.6 km (31.4 mi), or 84 percent, of the land 
along the portion of the San Pedro River included within the 
designation, so actions taken by them or on their lands would likely 
result in section 7 consultation for any potential effects to critical 
habitat for spikedace or loach minnow.
    An additional benefit of including portions of the San Pedro River 
within the critical habitat designation for spikedace and loach minnow 
is that it provides an additional 59.8 km (37.2 mi) of critical habitat 
within the southeastern portion of their historical range. The San 
Pedro River has collection records for both species that begins in the 
1840s and spans more than 120 years. We categorized the San Pedro River 
as a 2a stream in this rule, as it was not identified as occupied at 
listing by either species, but has the features essential to the 
conservation for spikedace and loach minnow and would serve as an 
extension of occupied habitat in Aravaipa Creek within Unit 3.
    Public education is often cited as another possible benefit of 
including lands in critical habitat as it may help focus conservation 
efforts on areas of

[[Page 10859]]

high value for certain species. A critical habitat designation can 
inform the public about the Act, listed species, their habitat needs, 
and conservation. Only 9.2 km (5.7 mi), or 16 percent, of the portion 
of the San Pedro within the designation are on private lands; however, 
because this area is indirectly tied to Fort Huachuca, and Fort 
Huachuca can have a staff of up to 16,000 individuals and interacts 
with other management groups through the Upper San Pedro Partnership, 
the educational benefits may be expanded beyond private landowners 
immediately adjacent to the stream.
    The designation of critical habitat may strengthen or reinforce 
some Federal laws, such as NEPA or the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental law. Because multiple listed species are known to 
occur along the San Pedro River, the overall impact of the designation 
in strengthening or reinforcing other laws is somewhat diminished as 
there have been and would continue to be awareness for other species 
listed under the Act that would lead to conservation measures.

Benefits of Exclusion--Fort Huachuca

    As noted above, there are benefits to spikedace and loach minnow 
from having this portion of the San Pedro River protected as critical 
habitat for the two species, particularly given that it is currently 
unoccupied by either species. However, the minimal conservation and 
regulatory benefits gained through inclusion of this area as critical 
habitat for spikedace and loach minnow are at least partially offset by 
the fact that this area is already managed for a number of other 
species under which protections would be in place, including those 
covered by the biological opinion, as discussed above.
    According to Fort Huachuca's comment letter, inclusion of the San 
Pedro as critical habitat for spikedace and loach minnow has a high 
probability of negative impacts to missions that are essential to 
national security. While actions taken by Fort Huachuca are already 
analyzed for effects to other species, Fort Huachuca states that, 
should critical habitat be designated in the San Pedro River, 
additional restrictions may result for protection of spikedace and 
loach minnow critical habitat, particularly as both species require 
running streams for habitat. Fort Huachuca currently has a staff of 
approximately 13,100, but anticipates that number could rise to 16,000. 
They note that any additional restrictions to water usage could affect 
their ability to increase staffing when needed, or carry out missions 
critical to national security. Further, because of the unique 
conditions within the BSETR, these missions could not be moved to 
another location as no other areas within the United States currently 
have those conditions. With the recent litigation on the existing 
biological opinion, and the requirement that consultation be completed 
again, the Fort believes there is both uncertainty as to what measures 
may be required of them through section 7 consultation to resolve the 
court's concern, as well as strong evidence that third party litigation 
may influence actions required of them in the future.

Weighing Benefits of Exclusion Against Benefits of Inclusion--Fort 
Huachuca

    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of the 59.8-km (37.2-mi) stretch of the San Pedro 
River for which Fort Huachuca has requested exclusion from these 
designations of critical habitat. Since this portion of the San Pedro 
River is unoccupied, a benefit of inclusion of this portion of the San 
Pedro River would be the requirement of section 7 consultation under 
the adverse modification standard. However, we believe there would be 
minimal additional regulatory and educational benefits from a 
designation of critical habitat for spikedace and loach minnow because 
multiple listed species are known to occur along the San Pedro River 
and are currently being managed.
    Because of the unique conditions within the BSETR, the critical 
national security missions could not be moved to another location as no 
other areas within the United States currently have those conditions. 
Therefore, exclusion of these lands from critical habitat will allow 
Fort Huachuca to continue their critical national security missions. 
Therefore, in consideration of the potential impact to national 
security, we determined the significant benefits of exclusion outweigh 
the benefits of inclusion in the critical habitat designation.
    In summary, we find that excluding this 59.8-km (37.2-mi) stretch 
of the San Pedro River from this final critical habitat will preserve 
Fort Huachuca's ability to continue with their missions critical to 
national security. This benefit of continuing critical national 
security missions are significant and outweigh the minimal additional 
regulatory and educational benefits of including these lands in final 
critical habitat for spikedace and loach minnow.

Exclusion Will Not Result in Extinction of the Species--Fort Huachuca

    The San Pedro River is not currently occupied by either spikedace 
or loach minnow. Loach minnow were last detected in 1961, and spikedace 
in 1966 (ASU 2002). The San Pedro represents a portion of the streams 
included within Unit 3, which also includes Aravaipa Creek, Hot Springs 
Canyon, Redfield Canyon, and Bass Canyon. As a result, this portion of 
the species range would not be void of protected habitat. Finally, the 
Service has identified eight units for designation as critical habitat, 
and the San Pedro River represents a portion of the habitat within one 
of eight units. Because the San Pedro is unoccupied, represents 
approximately eight percent of the overall proposed critical habitat 
designation for either spikedace or loach minnow, does not represent 
the only critical habitat designated within Unit 3, and will receive 
some protection through section 7 consultation for other species, we 
conclude that excluding the San Pedro River will not result in 
extinction of the species. Therefore, the Secretary is exercising his 
discretion to exclude the 59.8-km (37.2-mi) stretch of the San Pedro 
River from the designations of critical habitat for spikedace and loach 
minnow.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designations.

Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships

    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through

[[Page 10860]]

a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We received information and management plans from four different 
entities, including the Yavapai-Apache Nation, White Mountain Apache 
Tribe, the San Carlos Apache Tribe, and from FMC Corporation. We have 
identified the benefits of inclusion and the benefits of exclusion for 
each of these management plans, and we carefully weighed the two sides 
to evaluate whether the benefits of exclusion outweigh those of 
inclusion.

Tribal Exclusions

    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); President's Memorandum of 
November 5, 2009, ``Tribal Consultation'' (74 FR 57881); 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 more 
appropriately managed under tribal authorities, policies, and programs 
than through Federal regulation wherever possible and practicable. In 
most cases, designation of tribal lands as critical habitat provides 
very little additional conservation benefit to endangered or threatened 
species. Conversely, such designation is often viewed by tribes as an 
unwarranted and unwanted intrusion into tribal self-governance, and may 
negatively impact a positive government-to-government relationship 
between the Service and tribal governments essential to achieving a 
mutual goal of successfully managing ecosystems upon which endangered 
and threatened species depend. When conducting our analysis under 
section 4(b)(2) of the Act, we consider our existing and future 
partnerships with tribes and existing conservation actions that tribes 
have implemented or are currently implementing. We also take into 
consideration conservation actions that are planned as a result of 
ongoing government-to-government consultations with tribes.
    Yavapai-Apache Nation--The Yavapai-Apache Nation submitted a 
comment letter during the first comment period in 2010 in which they 
discuss measures in place to protect the Verde River and its 
surrounding habitat on the lands of the Yavapai-Apache Nation. 
According to these comments, the Yavapai-Apache Nation is implementing 
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 
Yavapai-Apache Nation's continued efforts to work cooperatively with 
the Service to protect federally listed species have been demonstrated 
through adoption of a Southwestern Willow Flycatcher Management Plan, 
dated May 25, 2005, which details objectives for protection of the 
riparian community on Tribal lands. The Yavapai-Apache Nation notes 
that the habitat protected under the Southwestern Willow Flycatcher 
Management Plan overlaps those areas proposed as critical habitat for 
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.
    More specifically to spikedace and loach minnow and their habitat, 
the Yavapai-Apache Nation adopted Tribal Resolution 46-2006. Resolution 
46-2006, completed in June of 2006, details land use restrictions and 
management plan goals along the Verde River ``* * * in order to 
continue to protect the traditional and cultural practices of the 
Nation, and to preserve those PCEs found within the riparian corridor 
of the Verde River which are essential to native wildlife species, 
including species listed as endangered or threatened by the federal 
government under the Endangered Species Act, such as the federally 
listed spikedace and loach minnow (Yavapai-Apache Nation 2006).''
    The Resolution provides for conservation of the PCEs for spikedace 
and loach minnow both through conservation of existing habitat, and 
through restriction of some activities. The resolution established a 
riparian conservation corridor along both sides of the Verde River that 
encompasses the critical habitat designations. Protection and 
conservation of the riparian corridor minimizes disturbance in the 
active channel, protects vegetation, which in turn can act as a buffer 
strip and filter out sediment and contaminants from overland flow, 
stabilizes banks and reduces erosion and siltation, and maintains 
temperatures by preserving vegetation that provides shading of the 
stream channel (PCEs 1 and 2). In addition, the Resolution resolved 
that there would be no stocking of nonnative fishes (PCE 5), and that 
livestock, grazing, construction, and other activities would be 
minimized to assure that no net loss of habitat for spikedace and loach 
minnow occurs and that no permanent modification of habitat essential 
to spikedace and loach minnow is allowed. The Resolution also details a 
commitment by the Yavapai-Apache Nation to continue to cooperate with 
the Service on a variety of issues, including habitat monitoring and 
surveys.
    In their 2010 comment letter, the Yavapai-Apache Nation notes that, 
under the Resolution, they have taken additional steps to protect the 
Verde River and its habitat. Specifically, they note that the Yavapai-
Apache Nation's Tribal Housing Department and Planning Committee do not 
allow development within the riparian conservation corridor. The 
Yavapai-Apache Nation has also taken steps to educate Tribal members on 
the importance of protecting and preserving the Verde River and its 
riparian habitat for future generations. The Yavapai-Apache Nation 
further notes that they have pursued and secured grants that will 
enable them to examine ways to protect Verde River water quality and 
remove invasive plant species from the riparian corridor. The Yavapai-
Apache Nation is examining how possible restoration activities and 
instream flow regimes could improve the health of riparian habitat 
within the Verde River and Beaver Creek to provide for restoration of 
native plants. Finally, the Yavapai-Apache Nation notes in their 
comment letter that they are continuing to improve their working 
relationship with the Service through improved coordination. These 
comments demonstrate that the Yavapai-Apache Nation has begun and 
continues to implement the Resolution, and provides the Service with 
the assurance that implementation of the Resolution is likely to 
continue.
    The Yavapai-Apache Nation notes that a critical habitat designation 
on their lands would have adverse impacts to the Yavapai-Apache Nation 
and its ability to exist within its permanent Tribal homeland. 
Specifically, they believe these impacts will include interfering with 
the sovereign right of the Yavapai-Apache Nation to protect and control 
its own resources; undermining the positive and effective

[[Page 10861]]

government-to-government relationship between the Yavapai-Apache Nation 
and the Service; hampering or confusing the Yavapai-Apache Nation's own 
long-standing protections for the Verde River and its habitat; imposing 
an additional and disproportionate impact on the Yavapai-Apache 
Nation's overall land base, and adding additional economic and 
administrative costs, and potentially personnel burdens to the Yavapai-
Apache Nation in order to meet increased section 7 consultations and 
other requirements under the Act. A Federal nexus exists for land use 
decisions or other tribal actions which require approval by the Bureau 
of Indian Affairs due the fact that the United States holds the Yavapai 
Apache land in trust, A federal nexus could also exists if a tribal 
action utilizes other Federal funding, or requires a Federal permit for 
their actions. The Service respects these concerns.

Benefits of Inclusion--Yavapai-Apache Nation

    Those portions of the Verde River on lands belonging to the 
Yavapai-Apache Nation within the critical habitat designations for 
spikedace and loach minnow constitute part of a continuous stream 
habitat for the two species. Spikedace records exist for both the Verde 
River and Beaver Creek, although they are few in number and only as 
recent as 1950. We categorized the Verde River as a 1a stream for 
spikedace in the rule, as it was identified as occupied at listing, and 
supports one or more of the PCEs for the two species. We categorized 
the Verde River as a 2b stream for loach minnow, as it was not known to 
be occupied at listing.
    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. We do consider the 
Verde River occupied, albeit at low numbers. Section 7 consultation 
would therefore require both a jeopardy and an adverse modification 
analysis. The draft and final economic analyses identified a future 
housing project, as well as wastewater treatment facilities and water 
development projects, all with potential ties to Federal funding or 
permitting, that could potentially require section 7 consultation.
    Public education is often another possible benefit of including 
lands in critical habitat as it may help focus conservation efforts on 
areas of high value for certain species. The Service will continue 
ongoing coordination with the Yavapai-Apache Nation. However, we note 
that the Yavapai-Apache Nation has already undertaken education of 
Tribal members, as noted in their comment letter in which they indicate 
that they have taken steps to educate Tribal members on the importance 
of protecting and preserving the Verde River and its riparian habitat 
for future generations.
    Finally, the designation of critical habitat may strengthen or 
reinforce some Federal laws, such as NEPA or the Clean Water Act. These 
laws analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws. However, the Yavapai-Apache Nation is fully 
aware of the sensitive habitat on their lands.

Benefits of Exclusion--Yavapai-Apache Nation

    Under Secretarial Order 3206, American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities and the Endangered Species Act, 
we recognize that we must carry out our responsibilities under the Act 
in a manner that harmonizes the Federal trust responsibility to tribes 
and tribal sovereignty while striving to ensure that tribes do not bear 
a disproportionate burden for the conservation of listed species, so as 
to avoid or minimize the potential for conflict and confrontation. In 
accordance with the Presidential memorandums of April 29, 1994, and 
November 9, 2009, we believe that, to the maximum extent possible, 
tribes are the appropriate governmental entities to manage their lands 
and tribal trust resources, and that we are responsible for 
strengthening government-to-government relationships with tribes. 
Federal regulation through critical habitat designation will adversely 
affect the tribal working relationships we now have and which we are 
strengthening throughout the United States. Maintaining positive 
working relationships with tribes is the key to implementing natural 
resource programs of mutual interest, including habitat conservation 
planning efforts. In light of the above-mentioned Secretarial Order 
3206, and because of their sovereignty status, critical habitat 
designation is typically viewed by tribes as an unwarranted and 
unwanted intrusion into tribal self-governance. In comments submitted 
during the public comment periods on this proposed rule, tribes have 
stated that designation of critical habitat would negatively impact 
government-to-government relations.
    In the case of the critical habitat designations for spikedace and 
loach minnow, the Yavapai-Apache Nation has indicated that designation 
on the Yavapai-Apache Reservation is not necessary to protect the 
habitat as the Nation already protects the riparian areas under its 
jurisdiction. They further note that such a designation is not only 
unwarranted but would be disruptive of the Nation's exercise of its own 
sovereign authority over its Tribal resources and lands. In addition, 
they state that the designation of critical habitat on Yavapai-Apache 
Nation lands would interfere with their ability to preserve themselves 
in their Tribal homeland, and that designation of critical habitat on 
the Reservation is contrary to the United States' obligations under the 
Apache Treaty of 1852 and to the Constitution of the Yavapai-Apache 
Nation, which was approved by the Secretary of the Interior. Finally, 
they note that designation of critical habitat on their lands would 
lead to restrictions and/or other circumstances that would violate the 
trust responsibility of the United States to the Yavapai-Apache Nation, 
as well as the letter and spirit of numerous Secretarial Orders and 
Presidential memoranda, as well as the Department of the Interior's own 
manual. The Yavapai-Apache Nation notes in their comment letter that 
they will use their own regulatory structure, including Resolution 46-
2006, in protecting the Verde River and its riparian corridor. They 
note they have an ongoing commitment to cooperate with the Service on a 
wide variety of matters, including habitat monitoring, surveys, and 
future activities within the riparian corridor that may have the 
potential to adversely impact habitat essential to the conservation and 
recovery of federally listed species such as the spikedace and loach 
minnow.
    We believe there are significant benefits from exclusion of the 
portion of the Verde River on the Yavapai-Apache Nation's lands. These 
benefits include:
    (1) Continuing and strengthening of our ongoing coordination with 
the Tribe to promote conservation of spikedace and loach minnow and 
their habitat, as well as other federally listed species; and
    (2) Allowing continued meaningful collaboration and cooperation in 
working toward recovering these species, including conservation actions

[[Page 10862]]

developed by a partnership with the Tribe that might not otherwise 
occur.
    Because the Yavapai-Apache Nation is the entity that carries out 
protective regulations on Tribal trust reservation land, and we have a 
working relationship with them, we believe exclusion of these lands 
will yield a significant partnership benefit. There has been a 
substantial amount of coordination with the Yavapai-Apache Nation on 
spikedace and loach minnow, other federally listed species, and water 
management issues on the Verde River. In their comment letter, the 
Yavapai-Apache Nation has noted that we have established a positive and 
effective government-to-government relationship with them which in and 
of itself serves to protect federally listed species and their habitat. 
We will continue to work cooperatively with the Yavapai-Apache Nation 
on efforts to conserve spikedace and loach minnow. Therefore, excluding 
these lands from critical habitat would provide the benefit of 
maintaining and strengthening our existing conservation partnership.

Weighing Benefits of Exclusion Against Benefits of Inclusion--Yavapai-
Apache Nation

    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of those portions of the Verde River on the 
Yavapai-Apache Nation. The Yavapai-Apache Nation is educating Tribal 
members on the importance of conservation of the riparian corridor 
along the Verde River. Further, they are applying restrictions for 
building within the 100-year floodplain. The Yavapai-Apache Nation has 
indicated they will continue to use their existing regulatory structure 
in regulating development in this area to protect spikedace and loach 
minnow and their habitat. Further, exclusion of these lands from 
critical habitat will help preserve and strengthen the conservation 
partnership we have developed with the Yavapai-Apache Nation.
    We believe that the Verde River supports one or more of the PCEs 
for spikedace and loach minnow. However, we believe the benefits to be 
gained through the Yavapai-Apache Nation's Tribal Resolution exceed 
those that would be gained through a critical habitat designation. 
Based on the information provided by the Yavapai-Apache Nation in their 
comment letter and Tribal resolution, the concerns outlined by the 
Yavapai-Apache Nation, and the protective measures already in place, we 
conclude that the benefits of excluding the 1.2 km (0.8 mi) of the 
Verde River and 0.2 km (0.1 mi) of Beaver Creek/Wet Beaver Creek 
outweigh the benefits of including this area.

Exclusion Will Not Result in Extinction of the Species--Yavapai-Apache 
Nation

    While we believe these stream segments are important to the 
conservation of the species and currently support one or more PCEs, any 
direct impacts to the fish themselves due to exclusion of these areas 
is unlikely due to the low numbers of fish remaining in the Verde 
River. The protective measures already established by the Yavapai-
Apache Nation will ensure that habitat remains in these streams for 
spikedace and loach minnow and that conservation of the two species and 
their habitat will not be precluded in this area. We therefore believe 
that excluding those portions of the Verde River and Beaver/Wet Beaver 
Creek on Yavapai-Apache Nation lands will not result in extinction of 
the species. Therefore, the Secretary is exercising his discretion to 
exclude the 1.2 km (0.8 mi) of the Verde River and 0.2 km (0.1 mi) of 
Beaver Creek/Wet Beaver Creek on Yavapai-Apache Nation lands from the 
designations of critical habitat for spikedace and loach minnow.
    White Mountain Apache Tribe--The White Mountain Apache Tribe 
provided comments during the first comment period in 2010, and 
incorporated their 2000 Loach Minnow Management Plan (White Mountain 
Apache Tribe 2000) as part of their comments. The Loach Minnow 
Management Plan identifies several Tribal regulation and management 
efforts they believe to be beneficial to loach minnow, including 
Resolution 89-149, which designates streams and riparian zones 
as Sensitive Fish and Wildlife areas, requiring that authorized 
programs ensure these zones remain productive for fish and wildlife. 
The White Mountain Apache Tribe additionally adopted a Water Quality 
Protection Ordinance in 1999 to ``promote the health of Tribal waters 
and the people, plants and wildlife that depend on them through 
holistic management and sustainable use.''
    The White Mountain Apache Tribe has also adopted Livestock and 
Range Management Plans, which regulate their stocking, rotation, and 
management practices for their Cattle Associations. According to their 
comments, their plan is aimed at ``maintaining or improving a stable 
and desired vegetative community, improving water quality and quantity, 
and reducing soil erosion'' while providing for livestock. The White 
Mountain Apache Tribe has also established Recreation Regulations and 
Game and Fish Code which regulates fishing, camping, hunting, and other 
recreational activities. The White Mountain Apache Tribe notes that 
large portions of the Reservation continue to be closed to recreational 
use.
    The White Mountain Apache Tribe notes that they also have a process 
to review and approve all development activities on the Reservation. 
The Tribal Plan and Project Review Panel, among other things, 
investigates impacts to sensitive habitats and species, and provides 
for the implementation of mitigation measures to avoid adverse impacts 
to those resources. Finally, the White Mountain Apache Tribe noted in 
their comment letter that Tribal fish biologists and the sensitive 
species coordinator monitor any land operations or proposed timber 
sales along the East Fork White River, and monitor river levels, so 
that if river flows fall below a certain level, irrigation ditch gates 
that serve Tribal member farmlands are closed until such time as stream 
levels are restored.
    The White Mountain Apache Tribe has a full-time Sensitive Species 
Coordinator and Technician who coordinate and participate in 
protection, research, management, and administrative activities 
involving Federally listed sensitive species on the Reservation, and 
these individuals are responsible for overseeing the implementation and 
ongoing development of the Loach Minnow Management Plan. The goals of 
the Loach Minnow Management Plan are to determine and quantify the full 
extent of loach minnow distribution on the Reservation; continue to 
develop and strengthen management actions that effectively address 
species threats and that provide adequate protection for, and 
sustainability of, existing Reservation loach minnow populations and 
habitats; complete the development and ongoing maintenance of Tribal 
data, information, and mapping for this and other native fish species; 
and evaluate and refine the application of Plan management practices, 
over time, in a manner that promotes the practical and effective long-
term conservation of all Reservation native fish populations and 
assemblages, including those of loach minnow (White Mountain Apache 
Tribe 2000).
    The Loach Minnow Management Plan provides an action and strategy 
outline with eight steps that provide additional detail on how they 
will be carried out. The eight steps and corresponding PCEs that they 
may affect include:
     Determining the distribution of loach minnow within 
Reservation boundaries;

[[Page 10863]]

     Continuing routine surveys and expanding efforts to 
include habitat assessment; continuing to monitor and refine existing 
management treatments involving irrigation uses and activities to 
develop adequate mitigation against related threats;
     Continuing to apply and refine existing monitoring and 
mitigation protocols involving low water and/or drought conditions to 
provide sustainable protection of loach minnow populations (PCEs 1 and 
4);
     Development of contingency plans with responses to 
potential catastrophic events; evaluating and refining existing 
nonnative fish management and mitigation practices to provide 
sustainable protection of loach minnow populations and habitat (PCE 1); 
and
     Organizing data collection, handling, storage, and 
maintenance among partners; and continuing to monitor and refine 
existing Tribal Plan and Project Review Process, management plans, and 
practices to meet loach minnow and native fish management goals.
    The Tribe additionally notes that they have a long-standing history 
of conservation efforts involving listed species and cooperation with 
the Service and other entities. These efforts include development of 
management plans for Mexican spotted owls (Strix occidentalis lucida), 
Arizona willow (Salix arizonica), Apache trout (Oncorhynchus gilae 
apache), and Mexican gray wolf (Canis lupus baileyi). Their comment 
letter notes additional conservation efforts, incorporated herein by 
reference, and the recognition that they have received for their 
conservation ethic.

Benefits of Inclusion--White Mountain Apache Tribe

    Those portions of the mainstem White River and the East Fork White 
River on lands belonging to the White Mountain Apache and within the 
critical habitat designations for loach minnow are part of a continuous 
stream habitat for the species. Loach minnow records exist for both 
streams. We categorized the mainstem White River and the East Fork 
White River as 1a streams for loach minnow in the proposed rule, as 
they were identified as occupied at listing, and supports one or more 
of the PCEs for the species. Neither stream is known to have been 
occupied by spikedace.
    Those portions of the mainstem White River and East Fork White 
River on lands belonging to the White Mountain Apache Tribe that are 
within the critical habitat designation for loach minnow may support a 
genetically distinct population of loach minnow, and comments received 
from peer reviewers note that loach minnow in the White River are 
likely highly divergent and deserving of management as a distinct unit. 
The length of perennial flows with suitable habitat parameters, 
historical occupancy, and potential current occupancy make this area 
important to the conservation of the loach minnow. Both the White River 
and East Fork White River were classified as 1a streams in this 
designation, indicating they were known to be occupied at listing. Both 
are considered currently occupied by loach minnow.
    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The analysis of 
effects of a proposed project on critical habitat is separate and 
different from that of the effects of a proposed project on the species 
itself. The jeopardy analysis evaluates the action's impact to survival 
and recovery of the species, while the destruction or adverse 
modification analysis evaluates the action's effects to the designated 
habitat's contribution to conservation. Therefore, the difference in 
outcomes of these two analyses represents the regulatory benefit of 
critical habitat. This will, in many instances, lead to different 
results and different regulatory requirements. Thus, critical habitat 
designations may provide greater benefits to the recovery of a species 
than would listing alone. However, for some species, and in some 
locations, the outcome of these analyses will be similar, because 
effects to habitat will often also result in effects to the species. 
Lands being evaluated for exclusion in this unit are occupied by loach 
minnow and are subject to consultation requirements of the Act.
    Public education is often another possible benefit of including 
lands in critical habitat as it may help focus conservation efforts on 
areas of high value for certain species. The Service will continue 
ongoing coordination with the White Mountain Apache Tribe for exchange 
of relevant information. However, we note that the White Mountain 
Apache Tribe has developed a management plan for loach minnow, and 
currently employs a Sensitive Species Coordinator through which 
education of Tribal members can occur without critical habitat 
designation. In addition, Tribal fisheries biologists participate in 
review of development projects and timber sales, and can work to 
educate project proponents of the species' needs.
    Finally, the designation of critical habitat may strengthen or 
reinforce some Federal laws, such as NEPA or the Clean Water Act. These 
laws analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws. However, because the White Mountain Apache 
Tribe is fully aware of the sensitive habitat on their lands, 
designation of critical habitat is not necessary to heighten awareness 
when applying these laws.

Benefits of Exclusion--White Mountain Apache Tribe

    Please see the discussion on Secretarial Order 3206, American 
Indian Tribal Rights, and Federal-Tribal Trust Responsibilities and the 
Endangered Species Act under ``Benefits of Exclusion--Yavapai Apache 
Nation'' above. As stated there, we seek to balance our 
responsibilities under the Act in a manner that harmonizes the Federal 
trust responsibility to tribes and tribal sovereignty while ensuring 
that tribes do not bear a disproportionate burden for the conservation 
of listed species. We also note that, to the maximum extent possible, 
tribes are the appropriate governmental entities to manage their lands 
and tribal trust resources, and we are responsible for strengthening 
government-to-government relationships with tribes. We further believe 
that Federal regulation through critical habitat designation can 
adversely affect the tribal working relationships we now have and which 
we are strengthening throughout the United States.
    In the case of this critical habitat designation for loach minnow, 
the White Mountain Apache Tribe states in their comment letter that 
Federal common law embodied in the decisions of the U.S. Supreme Court, 
the Indian Reorganization Act (IRA), the Tribe's IRA Constitution, and 
Congressional policies and laws established for the protection of 
Indian natural resources and forests confirm their retained or residual 
inherent sovereign authority to promulgate regulations and management 
plans to protect and manage Tribal trust lands, wildlife, forests and 
other natural resources. They cite numerous authorities that confirm 
their authority over wildlife and other natural resources existing

[[Page 10864]]

within their ancestral lands and to govern both their members and their 
territory and retain sovereign interests in activities that occur on 
land that they own and control.
    The White Mountain Apache Tribe states in their comment letter that 
the benefits of excluding White Mountain Apache Tribal lands from 
critical habitat will continue to: ``(1) Advance the Service's Federal 
Indian Trust obligations, deference for tribes to develop and implement 
tribal conservation and natural resources management plans for the 
lands and resources, which includes the Loach minnow and other federal 
trust species; (2) maintain the effective working relationship to 
promote the conservation of the Loach minnow and their habitats; (3) 
perpetuate a continued and meaningful collaboration and cooperation on 
the Loach minnow management and other resources of interest to the 
federal government; and (4) enhance the provision of conservation 
benefits to riparian ecosystems and a host of species, including the 
Loach minnow and their habitat, that might not otherwise occur.'' We 
agree with the White Mountain Apache Tribe's explanation regarding the 
benefits of exclusion.

Weighing Benefits of Exclusion Against Benefits of Inclusion--White 
Mountain Apache Tribe

    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The analysis of 
effects of a proposed project on critical habitat is separate and 
different from that of the effects of a proposed project on the species 
itself. The jeopardy analysis evaluates the action's impact to survival 
and recovery of the species, while the destruction or adverse 
modification analysis evaluates the action's effects to the designated 
habitat's contribution to conservation. Therefore, the difference in 
outcomes of these two analyses represents the regulatory benefit of 
critical habitat. This will, in many instances, lead to different 
results and different regulatory requirements. Thus, critical habitat 
designations may provide greater benefits to the recovery of a species 
than would listing alone. However, for some species, and in some 
locations, the outcome of these analyses will be similar, because 
effects to habitat will often also result in effects to the species. 
Lands being evaluated for exclusion in this unit are occupied by both 
species and are subject to consultation requirements of the Act.
    The White Mountain Apache Tribe clearly explained their sovereign 
authority to promulgate regulations and management plans to protect and 
manage Tribal trust lands, wildlife, forests, and other natural 
resources, and cited numerous authorities that confirm their authority 
over wildlife and other natural resources existing within their 
ancestral lands. In addition, they have shown a commitment to other 
federally listed species, such as the Mexican spotted owl (Strix 
occidentalis lucida) and the Arizona willow (Salix arizonica).
    Based on our working relationship with the Tribe, their 
demonstration of conservation through past efforts, and the protective 
provisions of the Loach Minnow Management Plan, we conclude that the 
benefits of excluding the 29.0 km (18.0 mi) of the mainstem White River 
and 17.2 km (10.7 mi) of East Fork White River outweigh the benefits of 
including this area.

Exclusion Will Not Result in Extinction of the Species--White Mountain 
Apache Tribe

    The current occupancy of streams on the White Mountain Apache Tribe 
are unknown due to the proprietary nature of Tribal survey information. 
However, the information contained in the management plan, as well as 
commitments to management through ordinances, codes, and the hiring of 
a sensitive species coordinator indicate that the White Mountain Apache 
Tribe has committed to management of loach minnow on their Tribal 
lands. While we continue to believe these stream segments are important 
to the conservation of the species and currently support one or more 
PCEs, we believe that commitments made by the White Mountain Apache 
Tribe in their management plan and comment letter ensure that habitat 
remains in these streams for loach minnow. We therefore believe that 
excluding those portions of the mainstem White River and East Fork 
White River will not result in extinction of the species. Therefore, 
the Secretary is exercising his discretion to exclude the 29.0 km (18.0 
mi) of the mainstem White River and 17.2 km (10.7 mi) of East Fork 
White River on White Mountain Apache Tribal lands from the designations 
of critical habitat for spikedace and loach minnow.
    San Carlos Apache Tribe--The San Carlos Apache Tribe submitted 
comments during the second comment period. Within their comment letter 
the Tribe notes that Traditional Ecological Knowledge (TEK) is ``* * * 
a key and fundamental principle of species conservation and land 
management on the Reservation,'' and that TEK uses an ecosystem-based 
approach to land and species management and preservation. The Tribe 
notes that use of TEK by Tribal government, Tribal leaders, Tribal 
elders, and the Apache people results in incorporation of adaptive 
management practices for land and species management and preservation. 
The Tribe also notes that jeopardizing the existence of any species 
would be counter to their beliefs, and that TEK was critical in the 
development of the 2005 Fishery Management Plan (FMP).
    In their comment letter, the Tribe notes that the FMP does not 
specifically address loach minnow, but that both loach minnow and 
spikedace benefit from management actions in the FMP. The FMP was 
adopted in 2005, and has been actively implemented since that time on 
Tribal lands. Under the FMP, one management step taken to benefit 
spikedace and loach minnow is that the Tribe no longer stocks nonnative 
fishes in the Bonita Creek or Eagle Creek drainages (PCE 5). In 
addition, the Tribe is working with both the Service and the AGFD to 
complete additional survey work on Eagle Creek. The Tribe is currently 
discussing captive propagation of any spikedace or loach minnow found 
in Eagle Creek for future recovery purposes.
    The Tribe notes that various departments are taking actions that 
benefit the species. The Recreation and Wildlife Department consults 
with other Tribal departments interested in restoration activities and, 
using the FMP, evaluates impacts on spikedace and loach minnow and 
their habitats and determines how to prevent or mitigate any impacts 
(PCE 1). The Soil and Moisture Conservation Department is developing a 
project for the removal of nonnative and invasive salt cedar and 
planting of native species, and has worked with the Recreational and 
Wildlife Department in applying the FMP to the proposal. The Recreation 
and Wildlife Department also surveys all proposed home and construction 
projects, and consults with the Tribal attorneys, providing information 
from the FMP for use in negotiating water exchanges and in determining 
mitigation measures for projects that may impact listed species or 
their habitat. Consultation with the Recreation and Wildlife Department 
is

[[Page 10865]]

for prescribed burns or thinning, and wildfire management actions are 
measured to ensure no net loss or permanent modification to spikedace 
and loach minnow habitat. The Tribe has also built fencing to exclude 
livestock grazing in riparian areas containing native fish or their 
habitats (PCE 1).
    The Tribe's comment letter incorporated information from their FMP. 
The FMP has several goals relevant to native fish management, including 
development and implementation of integrated, watershed-based 
approaches to fishery resource management; conserving, enhancing, and 
maintaining existing native fish populations and their habitats as part 
of the natural diversity of the Reservation and preventing, minimizing, 
or mitigating adverse impacts to all native fishes, especially 
threatened or endangered, and their habitats when consistent with the 
Reservation as a permanent home and abiding place for San Carlos Apache 
Tribal members; restoring extirpated native fishes and degraded natural 
habitats when appropriate and economically feasible; increasing Tribal 
awareness of native fish conservation and values; and aggressively 
pursuing funding adequate to support all Tribal conservation and 
management activities for all native fishes and their habitats. Each of 
the goals has identified objectives, actions, and evaluations, which 
are incorporated here by reference (San Carlos Apache Tribe 2005, pp. 
63-71).

Benefits of Inclusion--San Carlos Apache Tribe

    Evidence of occupancy for Eagle Creek was most recently found in 
1989 for spikedace and in 1997 for loach minnow in 1997 (ASU 2002). 
This area continues to support one or more of the PCEs for the two 
species. The benefits of including this stream within the designations 
include protecting an area with a long record of occupancy, and with 
perennial flows, as well as other PCEs. The length of perennial flows 
with suitable habitat parameters, historical occupancy, and current 
occupancy by both spikedace and loach minnow make Eagle Creek an area 
important to the conservation of both species. Eagle Creek was 
classified as a 1a stream for both species for these designations, 
indicating it was known to be occupied at listing.
    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. A Federal nexus may exist for tribal 
projects such as land leases or water development through either the 
Bureau of Indian Affairs or the U.S. Army Corps of Engineers. The 
analysis of effects of a proposed project on critical habitat is 
separate and different from that of the effects of a proposed project 
on the species itself. The analysis of effects of a proposed project on 
critical habitat is separate and different from that of the effects of 
a proposed project on the species itself. The jeopardy analysis 
evaluates the action's impact to survival and recovery of the species, 
while the destruction or adverse modification analysis evaluates the 
action's effects to the designated habitat's contribution to 
conservation. Therefore, the difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. This 
will, in many instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than would 
listing alone. However, for some species, and in some locations, the 
outcome of these analyses will be similar, because effects to habitat 
will often also result in effects to the species. Lands being evaluated 
for exclusion in this unit are occupied by both species and are subject 
to consultation requirements of the Act.
    Public education is often another possible benefit of including 
lands in critical habitat as it may help focus conservation efforts on 
areas of high value for certain species. The Service will continue 
ongoing coordination with the San Carlos Apache Tribe for exchange of 
relevant information. However, we note that the San Carlos Apache 
Tribe, through their Recreation and Wildlife Department, surveys all 
proposed home and construction projects, and provides information from 
the FMP for use in negotiating water exchanges and in determining 
mitigation measures for projects that may impact listed species or 
their habitat. The Recreation and Wildlife Department therefore has an 
opportunity to provide information regarding the species and their 
habitat across the Reservation. In addition, per their comment letter, 
the San Carlos Apache Tribe has adopted an interdisciplinary team 
approach to all natural resources matters. The team works together to 
provide an ecosystem management approach in developing strategic plans 
and management plans. Through this team, Tribal members can be informed 
of steps necessary to conservation of spikedace and loach minnow and 
their habitat.
    The designation of critical habitat may strengthen or reinforce 
some Federal laws, such as NEPA or the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental law. However, because the San Carlos Apache Tribe 
is fully aware of the sensitive species and habitat on their lands, 
designation of critical habitat is not necessary to heighten awareness 
when applying these laws.

Benefits of Exclusion--San Carlos Apache Tribe

    Please see the discussion on Secretarial Order 3206, American 
Indian Tribal Rights, and Federal-Tribal Trust Responsibilities and the 
Endangered Species Act under ``Benefits of Exclusion--Yavapai Apache 
Nation'' above. As stated there, we seek to balance our 
responsibilities under the Act in a manner that harmonizes the Federal 
trust responsibility to tribes and tribal sovereignty while ensuring 
that tribes do not bear a disproportionate burden for the conservation 
of listed species. We also believe that, to the maximum extent 
possible, tribes are the appropriate governmental entities to manage 
their lands and tribal trust resources, we are responsible for 
strengthening government-to-government relationships with tribes. We 
also note that Federal regulation through critical habitat designation 
can adversely affect the tribal working relationships we now have and 
which we are strengthening throughout the United States.
    In the case of these critical habitat designations for spikedace 
and loach minnow, the San Carlos Apache Tribe notes in their comment 
letter that there is a unique and distinctive relationship between the 
United States and Indian Tribes, as defined by the Constitution, 
treaties, statutes, executive orders, and judicial decisions that 
differentiate tribes from other entities that work with or are affected 
by the Federal government. They note that, in recognition of the 
responsibilities and the relationship between the United States and 
Indian tribes, the Secretaries of Commerce and the Interior issued 
Secretarial Order 3206, which strives to ensure that Indian Tribes do 
not bear a disproportionate burden for the

[[Page 10866]]

conservation of listed species. They conclude that, oftentimes, tribal 
lands provide some of the better quality for federally protected 
species because the lands have not been subjected to the same 
development philosophies and pressures as those on non-tribal lands, 
and that tribal conservation practices, such as those established by 
the FMP, should be embraced, if not rewarded.
    We believe there are significant benefits from exclusion of the 
portion of those portions of Eagle Creek on the San Carlos Apache 
Reservation. These benefits include:
    (1) Continuing and strengthening of our ongoing coordination with 
the Tribe to promote conservation of spikedace and loach minnow and 
their habitat, as well as other federally listed species; and
    (2) Allowing continued meaningful collaboration and cooperation in 
working toward recovering these species, including conservation actions 
that might not otherwise occur.
    Because the San Carlos Apache Tribe is the entity that enforces 
protective regulations on Tribal trust reservation land, and because we 
have a working relationship with them, we believe exclusion of these 
lands will yield a significant partnership benefit. As noted, the San 
Carlos Apache Tribe is coordinating with the AGFD and the Service on 
surveys and captive propagation plans. We will continue to work 
cooperatively with the San Carlos Apache Nation on efforts to conserve 
spikedace and loach minnow. Therefore, excluding these lands from 
critical habitat would provide the benefit of maintaining and 
strengthening our existing conservation partnership.

Weighing Benefits of Exclusion Against Benefits of Inclusion--San 
Carlos Apache Tribe

    As noted above, the San Carlos Apache Tribe has indicated a 
commitment to TEK, which uses an ecosystem-based approach to land and 
species management and preservation. In addition, they have developed 
the FMP, which benefits spikedace and loach minnow by discontinuing 
nonnative fish stocking in the Bonita Creek or Eagle Creek drainages. 
Further, the Tribe is working with both the Service and the AGFD to 
complete additional survey work on Eagle Creek, and is discussing 
captive propagation for spikedace and loach minnow.
    The Tribe has focused on known areas of concern for the species 
management, and has discontinued stocking of nonnative fishes in the 
Bonita and Eagle Creek watersheds. The FMP contains goals of conserving 
and enhancing native fishes on the Reservation; restoring native fishes 
and their habitats; and preventing, minimizing or mitigating impacts to 
native fishes, among others. In addition, the Tribe has indicated that, 
through TEK, they practice an ecosystem-based approach to land-and-
species based management and preservation. We conclude that the 
benefits to be gained through the FMP, coordination with the Service 
and AGFD, discontinuance of sportfish stocking, and proactive measures 
such as captive propagation all indicate that the San Carlos has 
committed to conservation measures that exceed benefits to be gained 
through a critical habitat designation. We, therefore, conclude that 
the benefits of excluding the 27.5 km (16.1 mi) of Eagle Creek on 
Tribal lands of the San Carlos Apache Tribe outweigh the benefits of 
including this area.

Exclusion Will Not Result in Extinction of the Species--San Carlos 
Apache Tribe

    The Service considers Eagle Creek to be an occupied stream for both 
spikedace and loach minnow. The information provided by the San Carlos 
Apache Tribe regarding TEK and the FMP, as well as their discontinuance 
of sportfish stocking in the Eagle Creek watershed and continued 
coordination with the Service, will help to ensure that habitat remains 
in Eagle Creek for spikedace and loach minnow, and will reduce the 
potential for harm to the fish. We, therefore, believe that excluding 
those portions of Eagle Creek on the San Carlos Apache Reservation will 
not result in extinction of the species. Therefore, the Secretary is 
exercising his discretion to exclude the 27.5 km (16.1 mi) of Eagle 
Creek on Tribal lands of the San Carlos Apache Tribe from the 
designations of critical habitat for spikedace and loach minnow.
    Freeport-McMoRan--Freeport-McMoRan provided two separate management 
plans during the second comment period. The first plan focuses on Eagle 
Creek and the San Francisco River in Arizona, while the second focuses 
on the Gila River, Mangas Creek, and Bear Creek in New Mexico. These 
two plans are evaluated separately below.
    Background--Freeport-McMoRan is a member of the International 
Council on Mining and Minerals (ICMM). In their management plan for 
Eagle Creek and the San Francisco River, FMC notes that, as a member of 
ICMM, their parent company, FMC Copper & Gold Inc. (FCX), adheres to 
ten sustainable development principles, including integration of 
sustainable development considerations within the corporate decision 
making process; seeking continual improvement of our environmental 
performance; and contributing to conservation of biodiversity and 
integrated approaches to land use planning. In addition, FCM adhere to 
the ICMM requirement to report its performance against the Global 
Reporting Initiative (GRI) G3 metrics and identify/manage and report 
against key sustainable development risks and opportunities. As part of 
this effort, FCX annually establishes corporate Sustainable Development 
Performance Targets and reports progress against those targets in its 
annual Working Towards Sustainable Development Report (See 
www.fcx.com). In support of the company's efforts in implementing the 
ICMM Sustainable Development principles, FCX established a 
corporatewide Biodiversity Task Force in 2010. In accordance with these 
principles and reporting obligations, FMC has prepared these management 
plans to guide actions associated with the management of its lands 
along portions of Eagle Creek, the lower San Francisco River in 
Arizona, and portions of the Gila River, Bear Creek, and Mangas Creek 
in New Mexico. According to their management plans, it is FMC's 
intention, through implementation of these plans, to provide for the 
long-term protection and multiple use benefits of these natural 
systems.
    FMC recognizes that the conservation of the spikedace, the loach 
minnow, and other native aquatic species is an important goal. In the 
southwest, FMC has funded studies and granted access to company land 
along Eagle Creek for many years, allowing the development of detailed 
information on the creek's native and nonnative fish communities. In 
addition, FMC has implemented a management system on its U-Bar Ranch, 
which is located along the upper Gila River in the vicinity of Cliff in 
Grant County, New Mexico. The Pacific Western Land Company (PWLC), a 
subsidiary of FMC, owns the U-Bar Ranch. Under FMC's existing 
management system, the riparian zone adjacent to the Gila River has 
expanded in width, benefitting the endangered southwestern willow 
flycatcher and other riparian species. Currently, the U-Bar Ranch 
supports one of the largest flycatcher populations in the Southwest. 
Freeport-McMoRan has been conducting surveys for flycatchers since 
1994.
    The land management practices that have allowed the flycatcher to 
flourish are compatible with the maintenance of spikedace and loach 
minnow habitat,

[[Page 10867]]

and the Gila/Cliff Valley segment of the Gila River currently supports 
the largest number of spikedace and loach minnow of any area within the 
species' ranges. In addition, surveys show that there are low levels of 
nonnative fishes in this stream segment. Freeport-McMoRan also has 
funded surveys for spikedace, loach minnow, and other fishes. 
Monitoring supported by FMC along Mangas Creek determined that, at that 
time, Mangas Creek supported only native fish species. Most of the 
lower 9.3 km (5.8 mi) of Mangas Creek is located on private land 
belonging to an FMC subsidiary, and has been grazed at moderate levels 
for decades.
    Freeport-McMoRan has previously developed and implemented 
management plans for the conservation of listed species. In 2005, FMC 
prepared and submitted a plan to the Service for the management of the 
U-Bar Ranch, which supported exclusion of the FMC's land from the 2006 
southwestern willow flycatcher critical habitat designation. The 
following year, FMC prepared and submitted management plans for the 
spikedace and loach minnow in Eagle Creek and in the upper Gila River, 
in the Gila/Cliff Valley. Those management plans supported the 
exclusion of FMC's land along Eagle Creek and the upper Gila River from 
the 2007 spikedace and loach minnow critical habitat designations.
    Freeport-McMoRan has supported biological surveys for spikedace and 
loach minnow, as well as other species, on Eagle Creek for several 
years by allowing access to private lands to researchers, and also 
contracted with BIOME, a consulting firm, who provided assistance in 
completing surveys on Eagle Creek. During the 2007 critical habitat 
designation process, FMC developed management plans for Eagle Creek 
that involved monitoring the distribution and abundance of the loach 
minnow and spikedace in Eagle Creek passing through the FMC reach; 
providing the Service with reasonable notice of any significant changes 
to the water supply management system outside of historical operating 
parameters; making reasonable efforts to attend regularly scheduled 
fisheries management working group meetings; and continuing historical 
land use practices and water supply practices that enhance water flows 
in the FMC reach; and consideration of loach minnow and spikedace 
habitat when deviating from such historic management practices. In 
implementing these management plans, FMC provided annual reports to the 
Service regarding changes in management, or anticipated changes in 
management for the coming year. No changes were made to management 
during the time period covered by these plans.

Spikedace and Loach Minnow Management Plan--Eagle Creek and San 
Francisco River, Greenlee and Graham County, Arizona

    Freeport-McMoRan owns land and water rights in the watersheds of 
both Eagle Creek and the San Francisco River, which are used in 
connection with the operation of the Morenci Mine near Clifton, 
Arizona. Under the current management plan, FMC will spend up to 
$4,000,000 over the next 10 years to investigate, design, and implement 
conservation measures along Eagle Creek upstream of its diversion dam 
and on the lower San Francisco River near Clifton, Arizona.
    As part of the overall management plan, FMC has established a 
coordination process for review of all conservation measures. In order 
to ensure that their proposed projects are consistent and compatible 
with the goals and actions of the Gila River Basin Native Fishes 
Conservation Program (Native Fishes Program), under which much of the 
management of spikedace and loach minnow occurs, FMC will develop 
individual work plans and submit the plans to the Native Fishes Program 
Technical Committee during their annual project review period. This 
Committee consists of personnel from the Service, Bureau of 
Reclamation, USFS, Bureau of Land Management, New Mexico Department of 
Game and Fish, and the AGFD, all of whom are actively involved in 
native fish management. The purposes of the Native Fishes Program are: 
(1) to undertake conservation actions (recovery and protection) for 
Federal and state-listed or candidate fish species native to the Gila 
River Basin by implementing existing and future recovery plans for 
those fishes; and (2) to implement nonnative control activities to 
manage nonnative aquatic organisms where they interfere with native 
fish conservation activities, or provide funding for research in 
support of nonnative control actions. Freeport-McMoRan may revise work 
plans to meet comments received from the Native Fishes Program, or may 
respond to their recommendations and submit a final work plan to the 
Native Fishes Program. If necessary, FMC will meet with the Native 
Fishes Program to present revised work plans at that time.
    As part of their management plan, FMC would submit a Safe Harbor 
Agreement and application for a permit pursuant to 50 CFR 17.22(c) 
which may also include a request for a permit under 50 CFR 17.22(d) and 
17.32(d). The permit would address all listed fish species currently 
found in Eagle Creek and the San Francisco River, as well as other 
species that might be listed as threatened or endangered in the future. 
The Safe Harbor Agreement would be based on the conservation measures 
set forth in the management plan.
    Eagle Creek. Eagle Creek was occupied by both species at listing, 
and is classified as a 1a stream under this designation. The management 
plan consists of four conservation measures, the first of which is 
investigation and construction of a fish passage barrier. Within their 
management plan, FMC commits to completing a feasibility study to 
determine three possible sites for the construction of a fish barrier 
above the Willow Creek confluence. Freeport-McMoRan has indicated that 
the area above Willow Creek is most suitable for a barrier due to the 
fact that nonnative fishes still enter Eagle Creek from the San Carlos 
Apache Reservation. Following review of the proposed sites by the 
Service, FMC will prepare a preliminary work plan that describes 
barrier construction, which will be submitted for review to the Native 
Fishes Program by September 1, 2014, using the coordination process 
described above. If the Native Fish Program finds the work plan 
acceptable, and if the barrier will cost $1.5 million or less, FMC will 
prepare an engineering study and prepare related documents for the fish 
barrier. Upon approval by the Native Fishes Program, FMC will secure 
required permits and approvals and build the fish barrier. For those 
portions of Eagle Creek upstream of the barrier, this conservation 
measure would be effective in addressing PCE 5, regarding no 
nonnative aquatic species, or levels of nonnative aquatic species that 
are sufficiently low as to allow persistence of spikedace and loach 
minnow.
    The second conservation measure involves alternatives to barrier 
construction. Should barrier construction exceed $1.5 million in cost 
to build or be determined to be infeasible, FMC and the Service will 
develop other projects that will provide conservation benefits to 
spikedace and loach minnow in Eagle Creek and its tributaries. 
Alternative conservation measures, such as crayfish removal, and 
chemical treatment of the stream, or others that will contribute to the 
recovery of the two species, be technically sound and be implemented in 
a reasonable timeframe, and will not be redundant in scope with other 
projects will be considered. All alternative measures will be submitted

[[Page 10868]]

for review to the Native Fishes Program, as described above. Freeport-
McMoRan will fund alternative projects not to exceed $1.5 million.
    The third conservation measure is an exotic species removal study. 
Freeport-McMoRan will develop and implement a 3-year monitoring program 
to detect the presence of other types of invasive aquatic species 
(e.g., bullfrogs and crayfish) within the upper reach of Eagle Creek, 
and will investigate the practicability and cost of removal actions to 
suppress the populations of these species in the upper reach of Eagle 
Creek. The results of the study would be used to inform future 
management actions to remove nonnative species within Eagle Creek. This 
conservation measure would inform management agencies on how to better 
achieve PCE 5 regarding no nonnative aquatic species, or levels of 
nonnative aquatic species that are sufficiently low as to allow 
persistence of spikedace and loach minnow.
    The fourth conservation measure is ecological monitoring for 
spikedace, loach minnow, and other warm water fish species. The 
Recovery Plans for both the spikedace and the loach minnow emphasize 
the need to consistently monitor the status of existing populations, 
including the establishment of standard monitoring locations and 
techniques, as well as investigate and quantify through field research 
the habitat needs of the species and effects of physical habitat 
modification (Service 1991a, pp.12-27; Service 1991b, pp. 11-27). 
Freeport-McMoRan will use the existing permanent sample locations that 
have been used in previous survey efforts, and will undertake a more 
robust monitoring program on both Eagle Creek and the lower reach of 
the San Francisco River, from its confluence with the Gila River 
upstream to its confluence with the Blue River. Monitoring will be 
conducted annually, with reports on information gathered provided to 
the Service and the Native Fishes Program. As part of this management 
plan, FMC will study and analyze the ecology of the loach minnow, 
spikedace, other native fish, and their habitat in Eagle Creek, 
including the relationship between native fish preferences for selected 
habitats and various associated environmental factors (e.g., 
substrates, channel characteristics, vegetation, and channel 
morphology). A key component of this effort will be the regular 
monitoring of PCEs within targeted stream segments that can affect the 
suitability of these streams for native fish and inform adaptive 
management decisions.
    As mentioned earlier, in conjunction with the submission of the 
preliminary studies of possible fish barrier sites on Eagle Creek and 
the San Francisco River, FMC will submit a Safe Harbor Agreement and 
application for a permit pursuant to 50 CFR 17.22(c).

Benefits of Inclusion--Freeport-McMoRan at Eagle Creek

    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must also consult with us 
on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The jeopardy 
analysis evaluates the action's impact to survival and recovery of the 
species, while the destruction or adverse modification analysis 
evaluates the action's effects to the designated habitat's contribution 
to conservation. Therefore, the difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. This 
will, in many instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than would 
listing alone.
    However, for some species, and in some locations, the outcome of 
these analyses will be similar, because effects to habitat will often 
also result in effects to the species. Lands being evaluated for 
exclusion in this unit are occupied by both species and are subject to 
consultation requirements of the Act. Approximately 20.5 km (12.7 mi) 
of Eagle Creek are on Federal lands, and projects with a Federal nexus 
through permitting or funding on non-Federally owned areas along Eagle 
Creek may also require section 7 consultation. As proposed, the 
designation included 75.5 km (46.9 mi) of contiguous habitat. However, 
it should be noted that those portions on the San Carlos Apache Indian 
Reservation have been excluded under a separate management plan, as 
noted above, and that not all of the remaining 75.5 km (46.9 mi) occur 
on Federal lands or would have a Federal nexus for purposes of section 
7 consultation.
    All lands considered for exclusion are currently considered 
occupied by spikedace and loach minnow and will be subject to the 
consultation requirements of the Act in the future. Although a jeopardy 
and adverse modification analysis must satisfy two different standards, 
because any modifications to proposed actions resulting from a section 
7 consultation to minimize or avoid impacts to spikedace and loach 
minnow would be habitat-based, it is difficult to differentiate 
measures implemented solely to minimize impacts to the critical habitat 
from those implemented to minimize impacts to the species. Therefore, 
in the case of spikedace and loach minnow, we believe the incremental 
benefits of critical habitat designation are minimal as compared to the 
conservation and regulatory benefits derived from the species being 
listed.
    The Service has completed one consultation on a water diversion 
structure modification on FMC mining operations in the past. Generally, 
the mining operations have not resulted in consultation, as the Morenci 
Mine (as well as the Tyrone Mine) are not located adjacent to the 
stream channel. As noted in the water quality section above, spills 
associated with mines have occurred in spikedace and loach minnow 
habitat in the past. However, even absent a section 7 connection, other 
safeguards are in place, including water quality parameters and 
monitoring by the Arizona Department of Environmental Quality and the 
EPA. The Service also has an Environmental Contaminants Program and 
staff involved in identification of environmental contaminant problems 
affecting threatened and endangered species and other resources. 
Through this program, the Service identifies contaminant problems and 
pursues appropriate actions to eliminate contaminant threats and 
restore affected resources.
    Public education is often cited as another possible benefit of 
including lands in critical habitat as it may help focus conservation 
efforts on areas of high value for certain species. Eagle Creek occurs 
in an isolated area; however, there are ranchers in the area, and the 
area is used for sportfishing by the general public. Designation of 
critical habitat could inform those who either live locally or use the 
area for recreation about listed species and their habitat needs. 
Freeport-McMoRan has indicated that this area is heavily used by 
employees of the Morenci Mine, and it is possible that a public 
outreach campaign could be used to educate

[[Page 10869]]

those who fish in the area about native fish species. Partnership 
efforts with FMC to conserve spikedace and loach minnow have resulted 
in awareness about the species that occur within the Eagle Creek. 
However, we believe there is little, if any, educational benefit 
attributable to critical habitat beyond those achieved from listing the 
species under the Act, and FMC's continued work in conserving these 
species.
    The designation of critical habitat for spikedace and loach minnow 
within Eagle Creek may strengthen or reinforce some Federal laws, such 
as NEPA or the Clean Water Act. These laws analyze the potential for 
projects to significantly affect the environment. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws; however, the 
listing of these species, prior designations of critical habitat and 
consultations that have already occurred will provide this benefit. 
Therefore, in this case we view the regulatory benefit to be largely as 
redundant with the benefit the species will receive from listing under 
the Act and may only result in minimal additional benefits.
    In summary, we do not believe that designating critical habitat 
within lands owned and managed by FMC along Eagle Creek will provide 
significant additional benefits for spikedace and loach minnow. 
Projects on these lands with a Federal nexus will require section 7 
consultation with the Service (regardless of critical habitat 
designation) because the habitat is occupied and we believe the 
incremental benefit from critical habitat would be minimal. 
Furthermore, FMC continues to show a commitment to conservation of 
these species.

Benefits of Exclusion--Freeport-McMoRan at Eagle Creek

    The significant benefit of exclusion of FMC owned lands which are 
subject to the management plan for the Eagle Creek is the maintenance 
and strengthening of the ongoing partnership with the Service. 
Freeport-McMoRan has demonstrated a partnership with the Service 
beginning with the management plan submitted to the Service in 2005 for 
the southwestern willow flycatcher, the 2007 management plans for 
spikedace and loach minnow, and they have indicated a willingness to 
continue as a partner to the Service in the conservation of spikedace 
and loach minnow on Eagle Creek. Evidence of this partnership can be 
shown through the assistance with past monitoring efforts for spikedace 
and loach minnow on Eagle Creek, carried out under their 2007 
management plan, and the continued occupancy of Eagle Creek by 
spikedace and loach minnow. Additional evidence of the partnership 
between FMC and the Service is shown by FMC's past commitment in 2005 
to develop and implement a management plan for southwestern willow 
flycatcher and their current commitment to pursue a safe harbor 
agreement for all native fish in Eagle Creek. In addition, the 
identified coordination procedures and funding indicate a commitment on 
the part of FMC to on-the-ground spikedace and loach minnow 
conservation. And, FMC has also identified monitoring and exotic 
species removal studies. Information gained by both studies would be 
useful in guiding future management of the species and in managing 
Eagle Creek. In summary, exclusion of this area from the designation 
would maintain, and strengthen the partnership between the Service and 
FMC. The exclusion of these lands may enhance opportunities to partner 
with other entities not yet identified.

Weighing Benefits of Exclusion Against Benefits of Inclusion--Freeport-
McMoRan at Eagle Creek

    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of FMC owned lands along Eagle Creek as critical 
habitat for spikedace and loach minnow. We believe past, present, and 
future coordination with FMC has provided and will continue to provide 
sufficient education regarding spikedace and loach minnow habitat 
conservation needs on these lands, such that there would be minimal 
additional educational benefit from designation of critical habitat. 
Further, because any potential impacts to spikedace and loach minnow 
habitat from future projects with a Federal nexus will be addressed 
through a section 7 consultation with the Service under the jeopardy 
standard, we believe that the incremental conservation and regulatory 
benefit of designated critical habitat on Freeport-McMoRan owned lands 
would largely be redundant with the combined benefits of listing and 
existing management. Therefore, the incremental conservation and 
regulatory benefits of designating critical habitat on FMC owned lands 
along Eagle Creek are minimal.
    On the other hand, the benefits of excluding FMC owned lands along 
Eagle Creek from critical habitat are significant. Freeport-McMoRan's 
management plan establishes a framework for cooperation and 
coordination with the Service in connection with resource management 
activities based on adaptive management principles, including, if 
necessary, the development of alternative conservations measures, at a 
total cost of up to $1,500,000 to protect habitat for spikedace and 
loach minnow on Eagle Creek. Most importantly, the management plans 
indicate a continuing commitment to ongoing management that has 
resulted in habitat that supports spikedace and loach minnow.
    Exclusion of these lands from critical habitat will help preserve 
and strengthen the conservation partnership we have developed with FMC, 
reinforce those we are building with other entities, and foster future 
partnerships and development of management plans; whereas inclusion 
will negatively impact our relationships with FMC and other existing or 
future partners. We are committed to working with FMC to further the 
conservation of spikedace and loach minnow and other endangered and 
threatened species. Freeport-McMoRan will continue to implement their 
management plans and play an active role to protect spikedace and loach 
minnow and their habitat. Therefore, in consideration of the relevant 
impact to our partnership with FMC, and the ongoing conservation 
management practices of FMC, we determined the significant benefits of 
exclusion outweigh the benefits of inclusion in the critical habitat 
designation.
    In summary, we find that excluding FMC owned lands along Eagle 
Creek from this final critical habitat will preserve our partnership 
and may foster future habitat management and species conservation plans 
with FMC and with other entities now and in the future. These 
partnership benefits are significant and outweigh the minimal 
additional regulatory and educational benefits of including these lands 
in final critical habitat for spikedace and loach minnow.

Exclusion Will Not Result in Extinction of the Species--Eagle Creek

    We have determined that the exclusion of 21.4 km (13.3 mi) of FMC 
owned lands along Eagle Creek from the designation of critical habitat 
for spikedace and loach minnow will not result in the extinction of 
either species. The jeopardy standard of section 7 of the Act and 
routine implementation of conservation measures through the section 7 
process due to spikedace and loach minnow occupancy provide assurances 
that this species will not go extinct as a result of excluding these 
lands from the critical habitat designation. Therefore, based on the

[[Page 10870]]

above discussion, the Secretary is exercising his discretion to exclude 
approximately of 21.4 km (13.3 mi) of FMC owned lands along Eagle Creek 
from the designation of critical habitat for spikedace and loach 
minnow.
    San Francisco River. The San Francisco River was not occupied by 
spikedace at listing, and is classified as a 2b stream for spikedace, 
indicating it would serve as an expansion of the species' range. 
Spikedace were reintroduced into the San Francisco River in 2007; 
however, insufficient time has elapsed to determine if the 
reintroduction program will be a success. The San Francisco River was 
occupied at listing by loach minnow and is currently occupied, and is 
therefore classified as a 1a stream under this designation.
    Freeport-McMoRan notes that they are the primary private property 
owner along the lower reach of the San Francisco River in Arizona. 
Under the Eagle Creek and San Francisco River Management Plan, FMC 
proposes to spend $2,500,000 on the San Francisco River. The 
coordination process with the Native Fishes Program, as detailed above, 
would apply to conservation measures for the San Francisco River as 
well.
    The management plan describes the lower reach of the San Francisco 
River as a well-known sport fishery, with channel catfish, carp, and 
red shiner. For the San Francisco River, FMC's management plan proposes 
completing a feasibility study to evaluate three potential barrier 
sites. Provided that a suitable barrier site is found, FMC will prepare 
a preliminary work plan following the coordination procedures outlined 
above, and will submit it to the Service for review and comment, and 
then to the Native Fishes Program by September 1, 2014.
    If approved by the Native Fish Program, and provided the cost does 
not exceed $2,500,000, FMC will construct a barrier on the San 
Francisco River with the goal of completing construction in 5 years. 
Freeport-McMoRan will report progress on the report semi-annually until 
barrier construction is complete. For those portions of the San 
Francisco River upstream of the barrier, this conservation measure 
would be effective in addressing PCE 5, regarding no nonnative 
aquatic species, or levels of nonnative aquatic species that are 
sufficiently low as to allow persistence of spikedace and loach minnow.
    As with Eagle Creek, should barrier construction costs be estimated 
to exceed $2,500,000, if barrier construction is deemed infeasible, or 
if the Native Fish Program determines that it is not advisable to 
construct a fish barrier, FMC commits in the management plan to 
conferring in good faith with the Service to identify other projects 
that will provide conservation benefits to spikedace and loach minnows 
in the San Francisco River and its tributaries. Any identified 
conservation measures would contribute to the recovery of the two 
species, would be technically sound and able to be implemented in a 
reasonable timeframe, and would not be redundant in scope. Any 
alternative proposals developed would be reviewed through the 
coordination process described above, and FMC commits to paying 
$2,500,000 for the development, review, and implementation of 
conservation measures, including any expenditures to investigate the 
feasibility of a fish barrier.
    In addition, FMC commits in the management plan to implementing a 
detailed monitoring program along the lower reach of the San Francisco 
River to assist in the conservation of spikedace and loach minnow. As 
noted above, the Recovery Plans for both the spikedace and the loach 
minnow emphasize the need to consistently monitor the status of 
existing populations, including the establishment of standard 
monitoring locations and techniques, as well as investigating and 
quantifying through field research the habitat needs of the species and 
effects of physical habitat modification (Service 1991a, pp. 12-27; 
Service 1991b, pp. 11-27). There is no regular monitoring of the 
portions of the San Francisco River in Arizona at this time. The 
monitoring program would include a minimum of 15 permanent sample 
locations. As with Eagle Creek, standardized sampling techniques and 
protocols would be used, and the management plan contains additional 
detail on equipment and procedures.
    Freeport-McMoRan commits to providing an annual report to the 
Service regarding its implementation of the management plan. The report 
will provide a description of implementation of plan elements over the 
course of the previous year and discuss anticipated implementation for 
the coming year. Each year's report would be provided to the Service by 
April of the following year.

Benefits of Inclusion--Freeport-McMoRan on the San Francisco River

    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must also consult with us 
on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The jeopardy 
analysis evaluates the action's impact to survival and recovery of the 
species, while the destruction or adverse modification analysis 
evaluates the action's effects to the designated habitat's contribution 
to conservation. Therefore, the difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. This 
will, in many instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than would 
listing alone. However, for some species, and in some locations, the 
outcome of these analyses will be similar, because effects to habitat 
will often also result in effects to the species. Lands being evaluated 
for exclusion in this unit are occupied by loach minnow (and possibly 
by spikedace, if the translocation efforts are successful) and are 
subject to consultation requirements of the Act. Approximately 13.2 km 
(8.2 mi) of those portions of the San Francisco River covered by the 
management plan are on Federal lands, and projects impacting other non-
Federally owned areas may require section 7 consultation for impacts to 
critical habitat if they require Federal permitting or use Federal 
funds.
    It is possible that projects impacting other non-Federally owned 
areas may require section 7 consultation for impacts to critical 
habitat if they require Federal permitting or use Federal funds. 
However, we do not anticipate there being many consultations along 
FMC's lands on the San Francisco River due to the lack of a Federal 
nexus and due to the lack of a history of consultations. Due to the 
lack of consultations in these areas, we conclude the benefit of 
inclusion based on consultation requirements under the Act is reduced.
    All lands considered for exclusion are currently considered 
occupied by loach minnow and will be subject to the consultation 
requirements of the Act in the future. Although a jeopardy and adverse 
modification analysis must satisfy two different standards, because any 
modifications to proposed actions resulting from a section 7 
consultation

[[Page 10871]]

to minimize or avoid impacts to loach minnow would be habitat-based, it 
is difficult to differentiate measures implemented solely to minimize 
impacts to the critical habitat from those implemented to minimize 
impacts to the species. Therefore, in the case of spikedace and loach 
minnow, we believe the incremental benefits of critical habitat 
designation are minimal as compared to the conservation and regulatory 
benefits derived from the species being listed.
    Public education is often cited as another possible benefit of 
including lands in critical habitat as it may help focus conservation 
efforts on areas of high value for certain species. The San Francisco 
River occurs near the towns of Clifton and Morenci. The area is 
currently heavily used for sportfishing by the general public, and 
designation of critical habitat could inform those who either live 
locally or use the area for recreation about listed species and their 
habitat needs. Partnership efforts with FMC to conserve spikedace and 
loach minnow have resulted in awareness about the species that occur 
within the San Francisco River. However, we believe there is little, if 
any, educational benefit attributable to critical habitat beyond those 
achieved from listing the species under the Act, and FMC's continued 
work in conserving these species.
    The designation of critical habitat for spikedace and loach minnow 
within the San Francisco River may strengthen or reinforce some Federal 
laws, such as NEPA or the Clean Water Act. These laws analyze the 
potential for projects to significantly affect the environment. 
Critical habitat may signal the presence of sensitive habitat that 
could otherwise be missed in the review process for these other 
environmental laws; however, the listing of these species, prior 
designations of critical habitat, and consultations that have already 
occurred will provide this benefit. Therefore, in this case we view the 
regulatory benefit to be largely redundant with the benefit the species 
will receive from listing under the Act and may only result in minimal 
additional benefits.
    In summary, we do not believe that designating critical habitat 
within lands owned and managed by FMC along the San Francisco River 
will provide significant additional benefits for spikedace and loach 
minnow. Projects on these lands with a Federal nexus will require 
section 7 consultation with the Service (regardless of critical habitat 
designation) because the habitat is occupied and we believe the 
incremental benefit from critical habitat would be minimal. However, 
due to the lack of a consultation history along the San Francisco 
River, the benefits of inclusion that stem from consultation 
requirements under the Act are reduced. Furthermore, FMC continues to 
show a commitment to conservation of these species through the 
development and implementation of the management plans which cover the 
San Francisco River for spikedace and loach minnow.

Benefits of Exclusion--Freeport-McMoRan on the San Francisco River

    The significant benefit of exclusion of FMC owned lands which are 
subject to the management plan for the San Francisco River is the 
maintenance and strengthening of the ongoing partnership with the 
Service. Freeport-McMoRan has demonstrated a partnership with the 
Service beginning with the management plan submitted to the Service in 
2005 for the southwestern willow flycatcher, the 2007 management plans 
for spikedace and loach minnow, and they have indicated a willingness 
to continue as a partner to the Service in the conservation of 
spikedace and loach minnow on San Francisco River. Evidence of this 
partnership can be shown through the past monitoring efforts for 
spikedace and loach minnow on Eagle Creek, carried out under their 2007 
management plan. Additional evidence of the partnership between FMC and 
the Service is shown by FMC's past commitment in 2005 to develop and 
implement a management plan for southwestern willow flycatcher and 
their current commitment to pursue a safe harbor agreement for all 
native fish in the San Francisco River. In addition, the identified 
coordination procedures and funding indicate a commitment on the part 
of FMC to on-the-ground spikedace and loach minnow conservation. 
Finally, Freeport-McMoRan has demonstrated a commitment to the 2007 
management plans, and indicated a willingness to continue as a partner 
to the Service in the conservation of spikedace and loach minnow in the 
San Francisco River. Excluding the San Francisco River would promote 
that partnership. The identified coordination procedures and funding 
indicate a commitment on the part of FMC to on-the-ground spikedace and 
loach minnow conservation. And, FMC has also identified increased 
monitoring on the San Francisco River. The lower portions of the San 
Francisco River have been surveyed with less frequency and regularity 
than most spikedace and loach minnow streams. The commitment to 
monitoring in the management plan would assist conservation management 
efforts for the species. In summary, exclusion of this area from the 
designation would maintain, and strengthen the partnership between the 
Service and FMC. The exclusion of these lands may enhance opportunities 
to partner with other entities not yet identified.

Weighing Benefits of Exclusion Against Benefits of Inclusion--Freeport-
McMoRan on the San Francisco River

    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of FMC owned lands along the San Francisco River 
as critical habitat for spikedace and loach minnow. We believe past, 
present, and future coordination with FMC has provided and will 
continue to provide sufficient education regarding spikedace and loach 
minnow habitat conservation needs on these lands, such that there would 
be no additional educational benefit from designation of critical 
habitat. Further, because any potential impacts to spikedace and loach 
minnow habitat from future projects with a Federal nexus will be 
addressed through a section 7 consultation with the Service under the 
jeopardy standard, we believe that the incremental conservation and 
regulatory benefit of designated critical habitat on FMC owned lands 
would largely be redundant with the combined benefits of listing and 
existing management. Therefore, the incremental conservation and 
regulatory benefits of designating critical habitat on FMC owned lands 
along the San Francisco River are minimal.
    On the other hand, the benefits of excluding FMC owned lands along 
the San Francisco River from critical habitat are significant. 
Freeport-McMoRan's management plan establishes a framework for 
cooperation and coordination with the Service in connection with 
resource management activities based on adaptive management principles, 
including, if necessary, the development of alternative conservations 
measures, at a total cost of up to $2,500,000 to protect habitat for 
spikedace and loach minnow on the San Francisco River. Most 
importantly, the management plans indicate a continuing commitment to 
ongoing management that has resulted in habitat that supports spikedace 
and loach minnow.
    Exclusion of these lands from critical habitat will help preserve 
and strengthen the conservation partnership we have developed with FMC, 
reinforce those we are building with other entities, and foster future 
partnerships and development of management plans; whereas inclusion 
will negatively impact our relationships with FMC and

[[Page 10872]]

other existing or future partners. We are committed to working with FMC 
to further the conservation of spikedace and loach minnow and other 
endangered and threatened species. Freeport-McMoRan will continue to 
implement their management plans and play an active role to protect 
spikedace and loach minnow and their habitat. Therefore, in 
consideration of the relevant impact to our partnership with FMC, and 
the ongoing conservation management practices of FMC, we determined the 
significant benefits of exclusion outweigh the benefits of inclusion in 
the critical habitat designation.
    In summary, we find that excluding FMC owned lands along the San 
Francisco River from this final critical habitat will preserve our 
partnership and may foster future habitat management and species 
conservation plans with FMC and with other entities now and in the 
future. These partnership benefits are significant and outweigh the 
minimal additional regulatory and educational benefits of including 
these lands in final critical habitat for spikedace and loach minnow.

Exclusion Will Not Result in Extinction of the Species--San Francisco 
River

    We have determined that the exclusion of 14.1 km (8.8 mi) FMC owned 
lands along the San Francisco River from the designation of critical 
habitat for spikedace and loach minnow will not result in the 
extinction of either species. The jeopardy standard of section 7 of the 
Act and routine implementation of conservation measures through the 
section 7 process due to loach minnow occupancy (and spikedace if the 
translocation efforts are successful) provide assurances that this 
species will not go extinct as a result of excluding these lands from 
the critical habitat designation. Therefore, based on the above 
discussion, the Secretary is exercising his discretion to exclude 
approximately 14.1 km (8.8 mi) of FMC owned lands along the San 
Francisco River from the designation of critical habitat for spikedace 
and loach minnow.

Spikedace and Loach Minnow Management Plan--Upper Gila River, Including 
Bear Creek and Mangas Creek, Grant County, New Mexico

    Freeport-McMoRan provided this management plan during the second 
comment period. Freeport-McMoRan currently owns more than 11.5 km (7.2 
mi) along the Gila River, approximately 7.9 km (4.9 mi) along Mangas 
Creek, and approximately 1.9 km (1.2 mi) along Bear Creek. Much of this 
area is owned by the Pacific Western Land Company (PWLC), a subsidiary 
of FMC, and is included in the U-Bar Ranch. Freeport-McMoRan's land and 
water rights in the Gila/Cliff Valley support operations at the Tyrone 
Mine in addition to its agricultural operations along the Gila River. 
Freeport-McMoRan diverts water from the Gila River for use at the 
Tyrone Mine located southwest of Silver City, New Mexico. Their water 
right includes a diversion structure on the Gila River above its 
confluence with Mangas Creek, which diverts water into a canal. A pump 
station moves water from the canal to the Bill Evans Reservoir, and 
water is pumped from the reservoir through a 35.4-km (22-mi) pipeline 
to the Tyrone Mine. The Bill Evans Reservoir is managed by the NMDGF as 
a recreational facility, and stocked with sportfish. The Reservoir is 
separated from the active stream channel.
    Freeport-McMoRan's management plan provides background on steps 
taken by FMC for environmental management in this region in general, as 
well as conservation measures for spikedace and loach minnow. One such 
measure is FMC's participation in a voluntary water conservation 
program administered by the New Mexico Office of the State Engineer 
(OSE). Under this program, FMC has enrolled 2,876 acre feet of its 
annual average diversion rights through 2018. The program allows FMC to 
increase or decrease the amount of water rights that are restricted 
from diversion and consumptive use on an annual basis, depending on 
their current water needs.
    As detailed in the plan, this portion of the Gila River maintains a 
healthy stream and riparian system, and supports the largest 
populations of spikedace and loach minnow in the two species' ranges. 
The river in this area is perennial, and has very low levels of 
nonnative fishes. Under the plan, FMC will continue participation in 
the water conservation program noted above, and commits to re-enrolling 
to continue their participation in the water conservation program 
should their enrollment lapse during the life of the management plan.
    The management plan would also maintain minimum flow levels in the 
Gila River during periods of drought. Specifically, FMC will not divert 
water from the Gila River at the Bill Evans Reservoir diversion 
structure into the reservoir if both of the following conditions exist: 
(1) The Gila River is flowing at less than 25 cfs at the USGS Gage 
09431500 near Redrock, New Mexico; and (2) the water level in Bill 
Evans Reservoir is at 1,424 meters (4,672 feet) above sea level. Should 
Gila River flows be less than 25 cfs, but the reservoir levels fall 
below 1,424 meters (4,672 feet), FMC will consult with the NMDGF 
regarding a temporary curtailment of water. Freeport-McMoRan concludes 
that the 25 cfs trigger will ensure that FMC diversions do not cause 
the river to dry up during low-flow conditions. Should FMC need to 
modify its water use and diversion activities due to unanticipated 
circumstances, they will confer with FWS regarding the impacts of such 
changes for the purpose of developing alternative conservation 
measures. Should such measures be needed, FMC commits to spending up to 
$500,000 for these measures. This measure would assist in maintaining 
perennial flows, as described under PCE 4.
    Freeport-McMoRan has funded monitoring on Mangas Creek and the Gila 
River in the past, and commits to funding surveys on these two streams 
on a biennial basis, and furnishing the results of the surveys to the 
Service. The Recovery Plans for both the spikedace and the loach minnow 
emphasize the need to consistently monitor the status of existing 
populations, including the establishment of standard monitoring 
locations and techniques, as well as investigating and quantifying 
through field research the habitat needs of the species and effects of 
physical habitat modification (Service 1991a; Service 1991b). In 
addition, FMC will develop and implement a program to detect and remove 
crayfish from Mangas Creek. Removal of this nonnative aquatic species 
would help in improving habitat conditions for spikedace and loach 
minnow by reducing/minimizing the number of nonnative aquatic species 
as described in PCE 5.
    Freeport-McMoRan commits to making a reasonable effort to 
coordinate with other landowners in the Gila/Cliff Valley regarding 
conservation-related issues and activities. They will ask that 
neighboring landowners assist in FMC's conservation efforts, and will 
provide assistance to neighboring landowners who wish to implement 
conservation measures. Freeport-McMoRan will also confer with the 
Service regarding activities that might be undertaken to increase 
public awareness of the habitat needs of spikedace and loach minnow.
    The management plan contains provisions for reporting requirements, 
as well as for adaptive management. For reporting requirements, FMC 
notes that they will provide an annual report to the Service discussing 
implementation of the management plan, which will include information 
affirming plan implementation; note any changes from

[[Page 10873]]

historic operating parameters; and discuss anticipated implementation 
of the plan for upcoming years. Reports will be submitted each year by 
April 1 for the previous year.
    With respect to adaptive management, FMC anticipates that 
operational requirements may require modification of its land and water 
use in the Gila/Cliff Valley, or that future surveys and monitoring 
activities could detect significant changes in the native and nonnative 
fish populations or key habitat parameters, indicating that an 
alternative conservation measure is needed to protect spikedace and low 
minnow. They commit to conferring in good faith in the development of 
alternative conservation measures and, as noted above, will spend up to 
$500,000 on these measures.
    For Bear Creek, FMC indicates that they will continue to discourage 
trespass on their lands in the lower portions of Bear Creek, which can 
aid in maintaining or improving water quality by minimizing 
sedimentation. In addition, the management plan states that FMC will 
continue its existing land uses and management practices in the Gila/
Cliff Valley. The lower portions of Bear Creek included in the 
management plan are part of the U-Bar Ranch and managed by an FMC 
subsidiary. Freeport-McMoRan notes that they will continue their 
existing land uses and management practices on this property, unless 
unanticipated circumstances arise that necessitate changes. In such an 
event, FMC would provide the Service with notice of any significant 
changes in land use and management practices that are outside the range 
of the historic operating parameters they provide in the management 
plan, and discuss potential impacts to loach minnow.
    We conclude that the management plans provide benefits to spikedace 
and loach minnow that are equivalent to those that would be provided by 
critical habitat designation. Under FMC's past and current management, 
portions of the Gila River and Mangas Creek continue to support the 
largest numbers of spikedace and loach minnow in their range. Nonnative 
species currently appear to be at levels that have a minimal impact on 
native species in the Gila River, and are currently nonexistent in 
Mangas Creek, meeting PCE 5 for these streams. Freeport-McMoRan has 
made a commitment to maintaining perennial flows in the Gila River 
downstream of their diversion. Should the situation change, FMC has 
committed to meeting with the Service to develop additional 
conservation measures, and has dedicated funding in the amount of 
$500,000 to this task. The management plan details reporting 
requirements and effective dates for the initiation of the plan.

Benefits of Inclusion--Freeport-McMoRan on the Gila River, Mangas 
Creek, and Bear Creek

    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must also consult with us 
on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The jeopardy 
analysis evaluates the action's impact to survival and recovery of the 
species, while the destruction or adverse modification analysis 
evaluates the action's effects to the designated habitat's contribution 
to conservation. Therefore, the difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. This 
will, in many instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than would 
listing alone.
    However, for some species, and in some locations, the outcome of 
these analyses will be similar, because effects to habitat will often 
also result in effects to the species. Lands being evaluated for 
exclusion in this unit are occupied by both species and are subject to 
consultation requirements of the Act. Within the stream reach managed 
by FMC, only approximately 0.25 mile is managed by BLM, while the 
remainder of this reach is private or State owned. It is possible that 
projects impacting other non-Federally owned areas may require section 
7 consultation for impacts to critical habitat if they require Federal 
permitting or use Federal funds. However, we do not anticipate there 
being many consultations along the Gila River, Mangas Creek, and Bear 
Creek due to the lack of a Federal nexus and due to the lack of a 
history of consultations. Due to the lack of consultations in these 
areas, we conclude the benefit of inclusion based on consultation 
requirements under the Act is reduced.
    All lands considered for exclusion are currently considered 
occupied by either spikedace or loach minnow and will be subject to the 
consultation requirements of the Act in the future. Although a jeopardy 
and adverse modification analysis must satisfy two different standards, 
because any modifications to proposed actions resulting from a section 
7 consultation to minimize or avoid impacts to spikedace and loach 
minnow would be habitat-based, it is not possible to differentiate any 
measures implemented solely to minimize impacts to the critical habitat 
from those implemented to minimize impacts to the species. Therefore, 
in the case of spikedace and loach minnow, we believe the incremental 
benefits of critical habitat designation are minimal as compared to the 
conservation and regulatory benefits derived from the species being 
listed.
    Public education is often cited as another possible benefit of 
including lands in critical habitat as it may help focus conservation 
efforts on areas of high value for certain species. Partnership efforts 
with FMC to conserve spikedace and loach minnow have resulted in 
awareness about the species that occur within the Gila River, Mangas 
Creek, and Bear Creek. However, we believe there is little, if any, 
educational benefit attributable to critical habitat beyond those 
achieved from listing the species under the Act and FMC's continued 
work in conserving these species.
    The designation of critical habitat for spikedace and loach minnow 
within the Gila River, Mangas Creek, and Bear Creek may strengthen or 
reinforce some Federal laws, such as NEPA or the Clean Water Act. These 
laws analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws; however, the listing of these species, prior 
designations of critical habitat and consultations that have already 
occurred will provide this benefit. Therefore, in this case we view the 
regulatory benefit to be largely as redundant with the benefit the 
species will receive from listing under the Act and may only result in 
minimal additional benefits.
    In summary, we do not believe that designating critical habitat 
within lands owned and managed by FMC along the Gila River, Mangas 
Creek, and Bear Creek will provide significant additional benefits for 
spikedace and loach minnow. Projects on these lands with a Federal 
nexus will require section 7 consultation with the Service

[[Page 10874]]

(regardless of critical habitat designation) because the habitat is 
occupied and we believe the incremental benefit from critical habitat 
would be minimal. However, due to the lack of a consultation history 
along the Gila River, Mangas Creek, and Bear Creek, the benefits of 
inclusion that stem from consultation requirements under the Act are 
reduced. Furthermore, FMC continues to show a commitment to 
conservation of these species through the development and 
implementation of the management plans which cover the Gila River, 
Mangas Creek, and Bear Creek for spikedace and loach minnow.

Benefits of Exclusion--Freeport-McMoRan on the Gila River, Mangas 
Creek, and Bear Creek

    The significant benefits of exclusion of FMC owned lands that are 
subject to the management plan for the Gila River, Mangas Creek, and 
Bear Creek is the maintenance and strengthening of the ongoing 
partnership with the Service. Freeport-McMoRan has demonstrated a 
partnership with the Service beginning with the management plan 
submitted to the Service in 2005 for the southwestern willow 
flycatcher, and the 2007 management plans for spikedace and loach 
minnow, and they have indicated a willingness to continue as a partner 
to the Service in the conservation of spikedace and loach minnow on the 
Gila River, Mangas Creek, and Bear Creek. Freeport-McMoRan has 
demonstrated a commitment to this partnership through conservation in 
this area by voluntarily enrolling in a water conservation program with 
the OSE for which they have dedicated 2,876 af of water that may be 
used for nonconsumptive purposes.
    Evidence of this partnership can be shown through the management of 
those portions of the Gila River, Mangas Creek, and Bear Creek on FMC 
lands, which has resulted in expansion of riparian areas that provide 
suitable habitat for spikedace and loach minnow. Additional evidence of 
the partnership between FMC and the Service is shown by FMC's 
commitment to provide for adaptive management, such that should FMC 
need to modify its water use and diversion activities due to 
unanticipated circumstances, they will confer with the Service 
regarding the impacts of such changes and will adopt alternative 
conservation measures not to exceed $500,000 in cost. Exclusion of this 
area from the designation would maintain, and strengthen the 
partnership between the Service and FMC. The exclusion of these lands 
may enhance opportunities to partner with other entities not yet 
identified.

Weighing Benefits of Exclusion Against Benefits of Inclusion--Freeport-
McMoRan on the Gila River, Mangas Creek, and Bear Creek

    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of FMC-owned lands along the Gila River, Mangas 
Creek, and Bear Creek as critical habitat for spikedace and loach 
minnow. We believe past, present, and future coordination with FMC has 
provided and will continue to provide sufficient education regarding 
spikedace and loach minnow habitat conservation needs on these lands, 
such that there would be minimal additional educational benefit from 
designation of critical habitat. Further, because any potential impacts 
to spikedace and loach minnow habitat from future projects with a 
Federal nexus will be addressed through a section 7 consultation with 
the Service under the jeopardy standard, we believe that the 
incremental conservation and regulatory benefit of designated critical 
habitat on FMC-owned lands would largely be redundant with the combined 
benefits of listing and existing management. Therefore, the incremental 
conservation and regulatory benefits of designating critical habitat on 
FMC owned lands along the San Francisco River are minimal.
    On the other hand, the benefits of excluding FMC-owned lands along 
the Gila River, Mangas Creek, and Bear Creek from critical habitat are 
significant. Freeport-McMoRan's management plan establishes a framework 
for cooperation and coordination with the Service in connection with 
resource management activities based on adaptive management principles. 
Most importantly, the management plans indicate a continuing commitment 
to ongoing management that has resulted in habitat that supports 
spikedace and loach minnow. Exclusion of these lands from critical 
habitat will help preserve and strengthen the conservation partnership 
we have developed with FMC, reinforce those we are building with other 
entities, and foster future partnerships and development of management 
plans whereas inclusion will negatively impact our relationships with 
FMC and other existing or future partners. We are committed to working 
with FMC to further the conservation of spikedace and loach minnow and 
other endangered and threatened species. Freeport-McMoRan will continue 
to implement their management plans and play an active role to protect 
spikedace and loach minnow and their habitat. Therefore, in 
consideration of the relevant impact to our partnership with FMC, and 
the ongoing conservation management practices of FMC, we determined 
that the significant benefits of exclusion outweigh the benefits of 
inclusion in the critical habitat designation.
    In summary, we find that excluding FMC-owned lands along the Gila 
River, Mangas Creek, and Bear Creek from this final critical habitat 
will preserve our partnership and may foster future habitat management 
and species conservation plans with FMC and with other entities now and 
in the future. These partnership benefits are significant and outweigh 
the minimal additional regulatory and educational benefits of including 
these lands in final critical habitat for spikedace and loach minnow.

Exclusion Will Not Result in Extinction of the Species--Gila River, 
Bear and Mangas Creek

    We have determined that the exclusion of 20.3 km (13.3 mi) FMC 
owned lands along the Gila River, Mangas Creek, and Bear Creek from the 
designation of critical habitat for spikedace and loach minnow will not 
result in the extinction of either species. The jeopardy standard of 
section 7 of the Act and routine implementation of conservation 
measures through the section 7 process due to spikedace and loach 
minnow occupancy provide assurances that this species will not go 
extinct as a result of excluding these lands from the critical habitat 
designation. Therefore, based on the above discussion, the Secretary is 
exercising his discretion to exclude approximately 20.3 km (13.3 mi) of 
FMC-owned lands along the Gila River, Mangas Creek, and Bear Creek from 
the designation of critical habitat for spikedace and loach minnow.

Summary of Comments and Responses

    We requested written comments from the public on the proposed 
designations of critical habitat for the spikedace and the loach minnow 
during two comment periods. The first comment period was associated 
with the publication of the proposed rule opened on October 28, 2010 
(75 FR 66482) and closed on December 27, 2010. The second notice 
reopening the comment period opened on October 4, 2011, (76 FR 61330) 
and closed on November 3, 2011. We held a public hearing on October 17, 
2011. We also contacted appropriate Federal, State, and local agencies; 
scientific organizations; peer reviewers, and other interested parties 
and invited them to

[[Page 10875]]

comment on the proposed rule and draft economic and environmental 
analyses during these comment periods.
    During the first comment period we received 36 comment letters 
directly addressing the proposed critical habitat designations. During 
the second comment period we received 25 comment letters addressing the 
proposed critical habitat designations or the draft economic and 
environmental analyses. No individuals or organizations made comments 
on the proposed designations of critical habitat or the analyses for 
the spikedace and loach minnow during the October 17, 2011, public 
hearing, All substantive information provided during comment periods 
has either been incorporated directly into this final determination or 
addressed below. Comments received were grouped into four general 
issues specifically relating to reclassification for spikedace and 
loach minnow and the proposed critical habitat designations and are 
addressed in the following summary.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from 13 knowledgeable 
individuals outside the Service with scientific expertise to review our 
technical assumptions, interpretations of biology, and use of 
ecological principles with respect to the spikedace and loach minnow, 
and our analysis of the primary constituent elements (PCEs) and areas 
essential to the conservation of these species. We also asked for 
review on our adherence to regulations related to species 
reclassification and the critical habitat designations, and on whether 
or not we had used the best available information. We received 
responses from 6 of the 13 peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding threats to critical 
habitat for the spikedace and loach minnow. The peer reviewers 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve the 
final critical habitat and reclassification rule. One peer reviewer 
noted that the literature cited contained a thorough listing of 
relevant reports and other literature relating to species status 
reclassification and critical habitat designation, which represents the 
best available scientific information to the best of the reviewer's 
knowledge. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: The reviewer stated that the term ``reasonably 
occupied'' in the proposed rule is not clear; suggest using the term 
``occupied by the species at the time of listing.''
    Our Response: In the October 4, 2011, NOA (76 FR 61330), we stated 
that, in order to improve clarity, we were revising the definition of 
occupied to include those areas identified as occupied for each species 
in the original listing documents, as well as any additional areas 
determined to be occupied after 1986. Our reasoning for including these 
additional, post-1986 areas is that it is likely that those areas were 
occupied at the time of the original listings, but had not been 
detected in surveys due to minimal or no survey efforts in some areas; 
low capture efficiencies associated with seining, and their small size. 
This language from the NOA has been incorporated into the final rule.
    (2) Comment: The water temperature discussion should address the 
effects of shading on water temperature, including how water 
temperature would be affected by reductions in streambank vegetation. 
Belsky et al. 1999, Larson and Larson 1996, LeBlank et al. 1997, and 
Rutherford et al. 2004 were provided as potential sources of 
information for this discussion.
    Our Response: We reviewed and added literature to address the 
possible increase in water temperatures as a result of the loss of 
vegetation by wildfire and recreation. Specifically, we added 
information indicating that indirect effects of wildfire, such as 
increases in stream temperatures, can last for several years to more 
than a decade after the fire.
    (3) Comment: The term ``essential feature'' is used in the 
document, but is not defined. The peer reviewer noted that they would 
assume this means physical and biological features ``essential to the 
conservation of the species.''
    Our Response: We have changed the language at the first use of 
essential feature to read ``essential feature to the conservation of 
the species.''
    (4) Comment: Although the criteria for designating critical habitat 
are well described in the proposed rule, they seem overly focused on 
historical and present occupancy standards and do not always take into 
account how the species could best be recovered. For example, failing 
to consider designation of critical habitat within the Agua Fria 
drainage simply due to rejection of its single historical collection 
locality seems imprudent without more thoughtful deliberation.
    Our Response: Please see page 66518, column 1 of the proposed rule. 
The Agua Fria was not included in the designation for spikedace for 
several reasons as stated there, including its location on the western 
edge of the species' range, and its relatively short stretches of 
perennial flows that enter the Lake Pleasant reservoir. Even with those 
conditions, we may have designated the Agua Fria had it served as an 
extension to any other spikedace area; however, it does not connect to 
any other occupied area. We do note elsewhere in the proposed rule (see 
page 66496, column 2) and the NOA (see page 61330) that we recognize 
that we have not necessarily included all areas that may be needed for 
recovery, and that other areas may be considered important for the 
species conservation by species managers or the Spikedace and Loach 
Minnow Recovery Team in the future. Page 66493, column 3 of the 
proposed rule further notes that critical habitat designations made on 
the basis of the best available information at the time of designations 
will not control the direction and substance of future recovery plans.
    (5) Comment: It would seem that future designations of critical 
habitat should first be drafted by recovery teams to ensure that the 
entire process of recovery planning is comprehensively integrated and 
will produce the best possible chance of overall success.
    Our Response: We agree. In the 1994 designation of critical 
habitat, the recovery plans from 1991 were in place to guide the 
designation. We used a revised and updated recovery outline to guide 
the current designation. There is no requirement in the Act that 
recovery plans need to be in place before critical habitat is 
designated, but we agree that recovery plans can be useful for critical 
habitat designations.
    (6) Comment: The proposed rule states (page 66504, column 3) that 
all areas proposed for designation contain the physical and biological 
features (PBFs) for spikedace and loach minnow. However, on prior pages 
one PBF is defined as ``habitat devoid of nonnative aquatic species, or 
habitat in which nonnative aquatic species are at levels that allow 
persistence of spikedace and loach minnow.'' This is probably not true 
for most of the designation reaches, and actions such as barrier 
construction, chemical renovations upstream, and species augmentation 
or repatriations to achieve this PCE will be exceedingly difficult to 
implement. The document

[[Page 10876]]

falls short in its discussion of the intricacies associated with this 
PCE and the critical importance it has toward recovery of both species.
    Our Response: Both the proposed and final rules provide a lengthy 
discussion of the impacts on spikedace and loach minnow from nonnative 
fishes. In addition, the descriptions of the streams throughout the 
document note the presence of nonnatives. In the final rule, we have 
added a section discussing the interaction between altered flow regimes 
and nonnatives. We recognize that nonnative aquatic species are a 
persistent threat throughout much, if not all, of the two species' 
ranges. Two facts about the PBFs are important to note. First, as 
written, the PCE on nonnatives is ``No nonnative aquatic species, or 
levels of nonnative aquatic species that are sufficiently low as to 
allow persistence'' of spikedace or loach minnow. It is not required 
that nonnative aquatic species be absent. Second, we look for one or 
more PBFs within a given unit in order to include it within the 
designations. In other words, a stream segment does not need to have 
all the PCEs in order to be designated as critical habitat.
    (7) Comment: The potential for establishment of spikedace and loach 
minnow in Fossil Creek is much higher above the barrier than below, in 
the area proposed as critical habitat.
    Our Response: Following review of comments received during the two 
comment periods, as well as new information received on the presence of 
spikedace, we have amended the area included within the designations to 
include that portion of Fossil Creek from its confluence with the Verde 
River, past and upstream of the barrier up to the old Fossil Diversion 
Dam. Please see the discussion under the section on ``Summary of 
Changes from Proposed Rule'' above for more detail.
    (8) Comment: For Spring and Rock creeks in the Tonto River basin 
there was not enough justification provided to explain why spikedace 
was included but loach minnow was not. The chances of reestablishing 
both species are equal. It is not possible to accurately predict the 
outcome of the Rock and Spring Creeks translocation effort, and an a 
priori exclusion seems illogical and ill-advised.
    Our Response: Please refer to the ruleset described in both the 
proposed rule and this final rule. Because there are no loach minnow 
known from Tonto Creek, Rock Creek, Spring Creek, Rye Creek, or 
Greenback Creek, these areas do not meet the category 1a criterion 
under the ruleset for occupied at the time of listing. Because none of 
these streams are tributary to an occupied stream, they do not meet 
criterion for category 2a of the ruleset. Because other streams are 
designated for loach minnow within this Subbasin (North Fork East Fork 
Black River, Coyote Creek, Boneyard Creek, and East Fork Black River), 
these areas would not significantly expand the distribution of loach 
minnow within its historical range (category 2b).
    (9) Comment: With respect to reclassification, there seems to be 
little evidence presented to justify that the situation for either 
species is different (i.e., worse) now than at the time of listing. 
More recent reports may not show population decrease. Many surveys 
showed a boom for both species following the winter 2007-2008 flooding.
    Our Response: As noted under the Reclassification Determination 
section of this rule, the decision to reclassify the two species began 
in 1991 with a 5-year review during which we determined that the 
species' status was precarious and that a change in status from 
threatened to endangered was warranted. While some recovery actions 
have occurred in the intervening years, and while we occasionally see 
an increase in numbers in a given area in response to flooding, the 
majority of areas occupied by spikedace and loach minnow have seen an 
increase in nonnative species, with nonnatives dominating some streams. 
The low numbers of spikedace and loach minnow, their isolation in 
tributary waters, drought, ongoing water demands, and other threats 
indicate that the species are now in danger of extinction throughout 
their ranges. While streams that were occupied at listing may continue 
to be occupied, the overall length of the occupied segment has shrunk 
in some areas (e.g., Verde River, East Fork Gila River), or the two 
species occur in extremely limited numbers (e.g., Eagle Creek). In 
other areas, the species are considered extirpated (e.g., San Pedro 
River).
    (10) Comment: There are inconsistencies between the occupancy table 
(Tables 3 and 4) in the proposed rule and the tables in the draft 
Environmental Assessment (Tables 5 and 6).
    Our Response: We agree and the tables have been modified for the 
final rule and final environmental assessment.
    (11) Comment: Section A Threats need to include the need for 
flushing flows to provide loose/clean substrate.
    Our Response: Please see the discussion under Stream Channel 
Alteration within the Factor A analysis, which discusses disruptions to 
natural channel dynamics. In the final rule, we have also added a 
section on the relationship between altered flow regimes and nonnative 
predators which also highlights the importance of stream flow.
    (12) Comment: There is no mention of yellow grubs or black spot 
parasites under the disease discussion, and they are fairly prevalent 
in the San Francisco River.
    Our Response: In response to this comment, we have added 
information regarding both yellow grub and black grub parasites to the 
discussion under Factor C.
    (13) Comment: Loose substrate should be included as a PBF for the 
two species.
    Our Response: We discuss substrate within PCE 1 for both species, 
which includes ``Appropriate stream microhabitat types include glides, 
runs, riffles, the margins of pools and eddies, and backwater 
components over loose sand, gravel, and cobble substrates with low or 
moderate amounts of fine sediment and substrate embeddedness.''
    (14) Comment: There are no records of spikedace for those portions 
of the Blue River in New Mexico, and it may not be good habitat for 
that species.
    Our Response: We do not have any records of spikedace for those 
portions of the Blue River in New Mexico. Within the proposed rule, we 
classified this stream as a 2b stream for spikedace, indicating that it 
would serve to expand the geographic distribution of the species. The 
Blue River system provides the PCEs for suitable habitat for spikedace, 
and we note that loach minnow, which often co-occur with spikedace, are 
found throughout the system, including those portions in both Arizona 
and New Mexico.
    (15) Comment: Spikedace in the Verde River are very distinct from 
those in the Gila River. Hendrickson's morphology paper emphasizes the 
significance of thoroughly sampling the Verde to see if spikedace can 
be found.
    Our Response: Please see the discussion under the Summary of 
Factors Affecting the Species. We include information regarding genetic 
and morphological differences, and cited Anderson and Hendrickson 
(1994) under Factor A in the proposed rule, and have added Anderson and 
Hendrickson (1994) as a cite under Factor E in the final rule.
    (16) Comment: Populations of loach minnow actually show higher 
levels of differentiation than those of spikedace. Each unit identified 
to date is very distinct and each of the geographic subdrainages needs 
to be managed

[[Page 10877]]

independently. White River is likely highly divergent and deserving of 
management as a distinct unit.
    Our Response: While not a criteria in the critical habitat 
designations, this information is used in ongoing management for the 
two species, and genetics is an important consideration in all captive 
propagation and translocation efforts. Additionally, information 
regarding the genetic and morphological distinctness of the two species 
will be considered as a revised recovery plan is completed.
    (17) Comment: Throughout the document, but especially under the 
Available Conservation Measures section, the terms reintroduction, 
translocation, and augmentation are used. I would suggest they be 
defined, and defined early. I assume that for these purposes, 
reintroduction and translocation, when referring to loach minnow and 
spikedace, are synonymous. If so, defining them as synonymous early on 
or selecting one term and using it throughout the document would be of 
great value
    Our Response: We have added definitions of reintroduction, 
translocation, and augmentation to the text. Briefly, a reintroduction 
occurs where the species was known to be present previously, but is 
believed likely absent based on a lack of detections; translocation 
occurs where the species was not known to be present previously, and 
augmentations are additions of more fish to streams as follow-up to 
reintroduction or translocation efforts.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the proposal to designate 
critical habitat for the spikedace and loach minnow are addressed 
below.
    (18) Comment: Some commenters questioned whether it is appropriate 
to include as critical habitat those areas used for reintroduction 
sites when no success has yet been shown. They note that, if the 
species do not become established then it is likely that the habitat is 
unsuitable and, therefore, should not be included in the critical 
habitat designations. If designated, the AGFD would like the rule to 
state these areas will be removed if it is determined they are 
unsuitable. This would apply to Rock and Spring Creek, Fossil Creek, 
Hot Springs Canyon, Redfield Canyon, and Bonita Creek for both species, 
and the Blue River for spikedace only.
    Our Response: Our studies indicate that inclusion of these areas is 
appropriate at this time. The translocation sites were chosen 
carefully, after field and scientific review of their suitability for 
spikedace and loach minnow. In some instances (e.g., spikedace in the 
San Francisco River in New Mexico), the species have been eradicated 
from the area, but previously occurred there, so that suitability is 
more certain. In other instances, a translocation may ultimately prove 
successful, and designation of critical habitat in the area will 
further protect and conserve habitat for the species. In some areas, 
should the translocation prove unsuccessful, it would be necessary to 
determine which factors are responsible for the failure. For example, a 
reinvasion by nonnative aquatic species, health issues, or water 
quality issues may ultimately prove responsible. Additional 
translocation efforts may be appropriate if these factors are 
addressed. Should this be the case, but suitable habitat is otherwise 
present, these streams could ultimately prove beneficial in the 
conservation of the species.
    (19) Comment: The lower 33.7 kilometers (20.9 miles) of Oak Creek 
should not be included within the designations because there are no 
known records of either species, and this area is degraded. The 
upstream portions are in an urban area. In addition, this area is not 
currently being considered for translocation.
    Our Response: We agree that there are no known records from this 
stream for either species, that some degradation has occurred, and 
there are no translocation efforts currently planned for this stream. 
However, spikedace and loach minnow are known to have occurred in the 
mainstem Verde River both above and below Oak Creek. Oak Creek does 
have perennial flows, and none of the degradation is permanent in 
nature (i.e., a dam, reservoir, or other permanent alteration). Because 
of its lack of occupancy records, Oak Creek is classified as an 
essential area for the conservation of both species. For spikedace, it 
was classified as a 2a stream, indicating that it will serve as an 
extension of habitat in the unit. For loach minnow, it was classified 
as a 2b stream, indicating it can serve to expand the geographic 
distribution of the species across its historical range.
    (20) Comment: The lower portions of Fossil Creek below the barrier 
should not be included in the designations because of the presence of 
nonnatives.
    Our Response: We agree that nonnative species are present in the 
lower portions of Fossil Creek. Ultimately, this is a situation which 
may be resolved, although that is not likely in the short term. Because 
we are attempting to conserve the species, and attempting to develop 
connectivity between occupied stream systems wherever possible, 
inclusion of this portion of the stream could ultimately serve as a 
connective corridor between the Verde River and upstream portions of 
Fossil Creek.
    (21) Comment: The lower 2.8 km (1.7 miles) of Sycamore Creek should 
be included within the designations.
    Our Response: We developed a ruleset, as described in both the 
proposed and final rules, which we applied in making determinations 
about the appropriateness of including or excluding specific areas. In 
addition, we used the best available information in determining which 
stream segments to include. At this time, we have no information 
regarding the suitability of this area.
    (22) Comment: Those portions of the Verde River downstream of Tapco 
should be removed from the designations, as this area is developed.
    Our Response: Development, in and of itself, does not make an area 
unsuitable for spikedace or loach minnow. The Verde River through these 
areas is classified as perennial, and spikedace are known to have 
occurred throughout this portion of the Verde River, while loach minnow 
records occur both above and below Tapco. The area may ultimately prove 
to provide suitable habitat, or serve as an important connective 
corridor between upstream portions of the Verde River and downstream 
areas, including tributary streams.
    (23) Comment: The Salt River within the Salt River Canyon 
Wilderness should be included as there are records of spikedace from 
the Salt River confluence with Cibecue Creek.
    Our Response: There are records for spikedace at the confluence 
with Cibecue Creek, with the most recent in 1967. Under the ruleset, 
however, we categorized this stream as a 1b stream, indicating the 
stream has been permanently altered by Theodore Roosevelt Dam and Lake, 
so that restoration is unlikely.
    (24) Comment: Bass Canyon dries up into pools and is therefore not 
suitable for either species and should be removed from the 
designations.
    Our Response: We have reviewed the site and spoken with individuals 
familiar with the site's flow regime and habitat. While the stream is 
not considered perennial, it provides suitable expansion habitat when 
flowing, and is a tributary to Hot

[[Page 10878]]

Springs Canyon. As such, we have classified it as an essential area 
(see discussion at 75 FR 66504). Hot Springs Canyon is the site of 
translocated populations of spikedace and loach minnow. These species 
were placed in Hot Springs Canyon in 2007, with annual augmentations of 
fish. Monitoring efforts showed that both species were present in 2011 
(Robinson, 2011, pers. comm.). We anticipate that this translocation 
effort will be a success, and that Bass Canyon will serve as an 
extension of habitat in Hot Springs Canyon.
    (25) Comment: The designations should exclude areas that have an 
economic impact on recreational fishing.
    Our Response: Potential changes to recreational activities are 
discussed in Section 6 of the draft economic analysis. Potential 
impacts on recreational fishing losses are specifically discussed and 
estimated in Sections 6.4.1 and 6.5.2. The draft economic analysis 
notes that the AGFD has no planned or ongoing sportfish stocking 
projects on occupied reaches, with the exception of native Apache trout 
stocking on Fossil Creek. In New Mexico, the NMDGF stocked the East 
Fork Gila River in 2008 and 2009 and plans to continue stocking in the 
future. However, the Service completed a biological opinion on 
sportfish stocking activity in August 2011 that suggests that future 
stocking activities will not be found to jeopardize spikedace or loach 
minnow.
    (26) Comment: Those portions of the Verde River covered by the SRP 
HCP should be excluded from the designations.
    Our Response: While implementation of the HCP will provide some 
conservation measures for spikedace and loach minnow on the Verde 
River, the HCP does not involve all landowners on this portion of the 
Verde River, and therefore does not allow for exclusion of the area 
under section 4(b)(2) of the Act.
    (27) Comment: Inclusion of Mangas Creek is appropriate.
    Our Response: We agree, however, we have opted to exclude portions 
of Mangas Creek due to protections afforded by the FMC management plan 
for this area. We are retaining 1.2 km (0.7 mi) of Mangas Creek that 
are not on lands owned by FMC. Please see the discussion under the 
Exclusions section for additional detail.
    (28) Comment: The decision not to include the Agua Fria River and 
those portions of the Gila River within Arizona is appropriate.
    Our Response: We agree with this comment.
    (29) Comment: The lower 4.2 kilometers (2.6 miles) of Negrito Creek 
are proposed as critical habitat and stated as occupied. The NMDGF is 
unaware of any records for this area. The lower 2.0 kilometers (1.25 
miles) of Negrito will likely provide suitable habitat.
    Our Response: Dennis Miller (1998) identified loach minnow from 
Negrito Creek in 1998, approximately 2.0 km (1.25 mi) upstream of its 
confluence with the Tularosa River. While the known collection sites 
are at this point, biologists from the Service and NMDGF had determined 
that Negrito Creek provided suitable habitat upstream as far as the 
Cerco Canyon confluence, as reflected in the designation.
    (30) Comment: One State commenter noted a lack of awareness of any 
records for Frieborn Creek and stated that Frieborn Creek is marginal 
habitat for either species.
    Our Response: Two monitoring efforts in 1998 and 2000 located loach 
minnow in Frieborn Canyon, indicating the suitability of the stream for 
loach minnow (ASU 2002; NMDGF 2008). We anticipate translocating 
spikedace to the Blue River system within the next 2 to 3 years, and 
conclude that Frieborn Canyon may serve as expansion habitat for 
spikedace as well.
    (31) Comment: We recommend that the portions of the Gila River 
mainstem that are owned by FMC not be excluded from the final 
designations unless they adopt comprehensive plans that protect and 
enhance habitat within their ownership.
    Our Response: Under Section 4(b)(2) of the Act, we consider a 
number of factors, during the development of a critical habitat 
designation, including whether the landowners have developed any HCPs 
or other management plans for an area. As with the 2007 designation, 
FMC provided a management plan for the Gila River, Mangas Creek, and 
Bear Creek in New Mexico. We have determined that it is appropriate to 
exclude portions of these three streams on FMC lands based on their 
management plans, with additional conditions. See the Exclusions 
section for further detail.
    (32) Comment: We recommend that original work, especially 
published, be the primary source of information rather than synthesis 
documents or reports (e.g., Sublette et al. 1990, Propst 1999, and 
Minckley and Marsh 2009) unless synthesis documents report original 
sources of information.
    Our Response: We are charged with using the best scientific 
information and commercial information available in a rule. In many 
instances, especially with monitoring data, ``synthesis'' documents are 
the only source of information available. Wherever possible, we attempt 
to use the original information.
    (33) Comment: Stock tanks are an attractive nuisance and potential 
sources of nonnative fishes, and the problem of nonnatives caught in 
stock tanks and being released in the river should be identified.
    Our Response: We agree that stock tanks can be a concern in native 
fish management, and have added language to our threats assessment to 
address this issue.
    (34) Comment: The proposed rule states (p. 66483) that population 
estimates have not been developed as a result of the difficulty in 
detecting the species. The NMDGF notes that they do not find them 
difficult to detect in appropriate habitats with appropriate gear, but 
rather that population estimates likely have not been attempted, or 
reported, because of broad confidence intervals associated with 
estimates, the considerable effort associated with making reliable 
population estimates, and the brief time any estimate is relevant.
    Our Response: Spikedace and loach minnow can be difficult to detect 
when at low numbers, as is the case for Eagle Creek or the Verde River. 
We agree, however, that at least in part, population estimates have not 
been attempted for the reasons cited in this comment. In addition, we 
note that different methodologies are applied in different streams by 
different survey teams, which can also complicate discussions on 
population numbers across the species' ranges as a whole.
    (35) Comment: Soles 2003 should be added as a citation to the 
statement ``In the Gila River, agricultural diversions and groundwater 
pumping have caused declines in the water table, and surface flows in 
the central portion of the river basin are diverted for agriculture.''
    Our Response: We have reviewed Soles 2003 and added the citation as 
recommended.
    (36) Comment: Under the Water withdrawals section, the AWSA is 
discussed as a potential diversion on the Gila River. The AWSA also has 
the potential to facilitate diversions on the San Francisco River.
    Our Response: This is correct, and we have made appropriate 
modifications to reflect this information.
    (37) Comment: Additional or different citations should be used for 
portions of the document, including Propst et al. 2008, Paroz et al. 
2009, and Pilger et al. 2010.
    Our Response: We reviewed the citations and the text in the 
proposed

[[Page 10879]]

rule, and have made appropriate modifications in the final rule.
    (38) Comment: The proposed rule states that the State of New Mexico 
lacks adequate regulatory mechanisms to address the issue of 
introduction and spread of nonnative aquatic species. It should be 
noted that New Mexico State regulations prohibit the use of nonnative 
baitfish, except for the use of fathead minnow (Pimephales promelas) as 
a baitfish in the Gila and San Francisco river drainages.
    Our Response: This comment is, in part, correct. The remainder of 
the text on this point states that regulation of activities that can 
lead to the spread of nonnative species is inadequate, as many 
introductions are the result of incidental or unregulated actions.
    (39) Comment: The NMDGF suggests adding language to the discussion 
on ``Available Conservation Measures'' regarding repatriation of 
spikedace to the San Francisco River, removal of nonnative fishes from 
the Forks area, beginning in 2007, and removal of nonnative fishes in 
Little Creek beginning in 2010; and efforts to acquire and hold 
separate stocks of spikedace and loach minnow in a refuge facility.
    Our Response: Appropriate modifications were made to this section 
in the final rule.
    (40) Comment: The rule should be updated to include Propst et al. 
2008 as a reference regarding nonnative fishes, in place of Propst 
1986.
    Our Response: We have included Propst et al. 2008 in several places 
within the document in regards to nonnative fish.
    (41) Comment: The final rule should include information about 
competition with and predation by smallmouth bass as a likely threat, 
and Pilger et al. 2010 should be added as a citation.
    Our Response: Smallmouth bass are mentioned in several places 
within the rule. Pilger et al. 2010 is also cited in the text. Please 
see the Disease or Predation section. In addition, results of the study 
by Pilger et al. 2010 are discussed.
    (42) Comment: Riffles are identified as a PBF for spikedace, but 
they prefer runs and glides, not riffles.
    Our Response: While we agree that spikedace are primarily 
associated with runs and glides, they may be associated with other 
habitat types and many authors (Barber and Minckley 1966, p. 31; Propst 
et al. 1986, p. 12; Rinne and Kroeger 1988, p. 1; Rinne 1991, pp. 8-10) 
note use of riffles by spikedace.
    (43) Comment: The San Francisco River dries annually through the 
Alma Valley and is not perennial throughout as stated on page 66515.
    Our Response: This correction has been made within the text, with 
an appropriate citation.

General Comments Issue 1: Biological Concerns

    (44) Comment: There were many comments submitted with technical 
corrections, additional literature citations, and specific biological 
information on stream segments.
    Our Response: We have reviewed all of these comments and have 
incorporated the information in this final rule, as appropriate.
    (45) Comment: We received comments that Bear Creek should be 
included within the designation for loach minnow, and conversely that 
Bear Creek should not be included within the designation.
    Our Response: In reviewing the information on Bear Creek, including 
surveys and habitat, we have determined that inclusion of Bear Creek is 
appropriate. Please see the discussion on Bear Creek in the section on 
Summary of Changes from Proposed Rule.
    (46) Comment: The lowermost mileage on the Gila River in New 
Mexico, as it travels through the Virden Valley, is predominantly dry, 
and has three diversion structures, rarely supports fish, and is not 
connected to any other suitable habitats at this time.
    Our Response: We reviewed occupancy data for this area. Spikedace 
have been detected occasionally within the area downstream of the 
diversion structures during surveys conducted over a 50-year period, 
with the most recent detection in 1999 (Rinne et al. 1999, p. 22; NMDGF 
2008). Spikedace and loach minnow have been detected immediately 
upstream of the diversion more recently, into 2003, and the area around 
the Sunset Diversion had sufficient potential for spikedace and loach 
minnow that it was added to regularly monitored sites in 2010 and 2011 
(Propst, 2011, pers. comm.).
    With respect to flow patterns, the nearest gage station is just 
downstream of the confluence with Blue Creek, so does not accurately 
portray the flow patterns below the diversion structures. The next 
nearest USGS gage downstream of the barriers is 09439000 on the Gila 
River at Duncan. The monthly statistical data for this gage, recorded 
since 2003, show that flows have been at 0 cfs on one occasion, and 
been below 5 cfs on five occasions in the months of May, June, or July. 
However, in the area immediately downstream of the Sunset Diversion, 
native suckers and channel catfish are frequently present, indicating 
that water remains in this area and may indicate that the area serves 
as a refuge. While the diversion structure may serve as an impediment 
to upstream movement, it is not necessarily a barrier to upstream 
movement of fish (Propst, 2011, pers. comm.). With water present below 
the diversion, and the presence of spikedace in this area, albeit not 
consistently, over the last 50 years, we conclude it is appropriate to 
retain this area within the critical habitat designations.
    (47) Comment: Bass Canyon is unsuitable for spikedace and loach 
minnow due to lack of flows.
    Our Response: We have visited the site and conclude that, while it 
may not be classified as perennial, it contains adequate flows and 
appropriate substrates during significant portions of the year to 
support the two species. In addition, it joins with Hot Springs Canyon, 
where a spikedace and loach minnow translocation effort has been under 
way since 2007. Bass Canyon can serve as an extension of habitat for 
that population, and we are therefore retaining Bass Canyon within the 
designations at this time.
    (48) Comment: The Biological Opinion issued by the Service for Fort 
Huachuca on 14 June 2007 states that the ``most likely sites for such 
reestablishments appear to be springs within the tributaries to the 
mainstem San Pedro River rather than along the mainstem river where 
critical habitat would be designated. A scientific basis for changing 
the approach from reestablishing the spikedace at springs within the 
tributaries to the mainstem San Pedro River needs to be provided.
    Our Response: This is an error in the biological opinion, and not 
in the proposed rule. The habitat use, as described in the proposed 
rule at pages 66483 and 66497 through 66498 is correct. All 
reestablishment efforts to date have occurred on flowing streams (Hot 
Springs Canyon, Redfield Canyon, Fossil Creek, Bonita Creek, and the 
San Francisco River) and not in springs.
    (49) Comment: The proposed rule assumes that these species were 
present in the San Pedro River at the time of listing in 1986 but were 
undetected due to infrequent or inconsistent surveys.
    Our Response: This statement is incorrect, and reflects a 
misunderstanding in the terminology used within the proposed rule. Our 
determination of ``occupied at listing'' was based on whether or not 
the species was present up to the date of listing in 1986, and not on 
the presumption that the species was present but undetected. It should 
be noted that in the NOA, we announced that we were modifying our 
definition of occupied to improve

[[Page 10880]]

clarity on our approach to the critical habitat designation. In the 
NOA, we defined areas occupied at the time of listing to be those areas 
where the fish were identified in the original listing documents, as 
well as any additional areas determined to be occupied after 1986. Our 
reasoning for the inclusion of these additional areas (post-1986) is 
that it is likely that those areas were occupied at the time of the 
original listings, but had not been detected in surveys. This change in 
definition does not result in a change to any of the areas included or 
excluded as critical habitat in the proposed rule.
    (50) Comment: The statement that ``After leaving the Mogollon 
Mountains in New Mexico, the Gila River is affected by agricultural and 
industrial water diversions, impoundment, and channelization'' is 
incorrect. There have been no significant modifications to the river 
channel or further commercial activities along the river from Mogollon 
Creek to the New Mexico/Arizona State line since listing these species 
in 1986.
    Our Response: This statement encompasses present uses of the area 
as well. Propst et al. 2008 (pp. 1237-1238) notes that irrigated 
agriculture and livestock grazing are the predominant uses, and that 
human settlement has increased since 1988. Soles (2003 p. 69) notes 
that diversions for agriculture in the Cliff-Gila Valley are modest, 
but that, during dry seasons, may remove the Gila's entire baseflow of 
about 40 cubic feet per second (cfs).
    Part of the language in this statement pertains primarily to the 
Gila River below the Arizona border. We have separated these statements 
for accuracy and added the Propst et al. 2008 and Soles 2003 citations 
to the rule.
    (51) Comment: Additional data should be supplied to support the 
conclusion that declines of native fish species appear linked to 
increases in nonnative fishes (p. 66491). FWS cites data with a 28-year 
gap, which is not good science because the periodicity cannot be used 
to establish a reasonable trend.
    Our Response: We have added additional information from Propst et 
al. 2008. Propst et al. 2008 found that physical modification of 
streams, coupled with widespread introduction and establishment of 
nonnative aquatic species led to the decline of native fishes (Propst 
et al. 2008, p. 1236, 1246). This study took place just downstream of 
the town of Cliff. While this study does implicate both altered flow 
regimes and nonnative aquatic species, Propst et al. 2008 (p. 1246) 
conclude that managing for natural flow alone would not be sufficient 
to conserve native fish assemblages where nonnatives are present.
    (52) Comment: The Service failed to establish that there is a need 
for uplisting spikedace and loach minnow, and does not give population 
estimates or know the status of the species. The Service should provide 
actual population counts.
    Our Response: Please see our response at Comment 9 above, which 
addresses the status of the species.
    (53) Comment: The Service is not using best scientific and 
commercial information available. Fifty percent of the citations are 10 
or more years old. A number of links to Web sites cited were broken; at 
least nine of the citations referenced data about species other than 
the spikedace or loach minnow, or referenced different ecological 
environments than that of the spikedace or loach minnow.
    Our Response: Critical habitat designations use the best available 
commercial and scientific data to identify lands that contain the 
physical and biological features essential to the conservation of the 
species. The Act requires that we use the best available scientific 
information regardless of the age of the information. In some cases, 
the best available information is derived from different species with 
similar habitat requirements. In designating critical habitat for 
spikedace and loach minnow, we have used the best available scientific 
and commercial information, including results of numerous surveys, 
peer-reviewed literature, unpublished reports by scientists and 
biological consultants, and expert opinion from biologists with 
extensive experience with these species. Further, information provided 
in comments on the proposed designations and the draft environmental 
and economic analysis were evaluated and taken into consideration in 
the development of these final designations, as appropriate.
    (54) Comment: The Service has failed to specify what ``residual 
effects of past livestock grazing and impacts to uplands, riparian 
vegetation'' and streams actually entail.
    Our Response: Please see the discussion on livestock grazing under 
``The Present or Threatened Destruction, Modification, or Curtailment 
of Habitat or Range'' section. This section outlines the types of 
impacts that can occur as a result of improper livestock grazing. We 
used the term ``residual effects'' to indicate that, in some areas, 
these impacts are due to past, and not ongoing, livestock grazing.
    (55) Comment: The Service should state what is accomplished by 
uplisting.
    Our Response: The Act provides definitions of threatened and 
endangered species. A threatened species is one which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. An endangered species is one 
which is in danger of extinction throughout all or a significant 
portion of its range. We provide justification for the reclassification 
within the proposed and final rule, and note that we determined that 
listing the species as endangered was warranted but precluded in 1994 
(59 FR 35303). In part, reclassifying the two species to endangered 
status fulfills our obligation for finalizing the reclassification. In 
addition, appropriately classifying the species notifies Federal 
agencies of the correct status of the species so that they can manage 
for the species appropriately.
    The Service treats endangered animal species similarly to 
threatened species with regard to prohibitions on take and requirements 
for consultation by Federal agencies. However, the Act provides 
management flexibility for threatened species that is not allowed for 
endangered species. The Service sometimes makes exceptions to the take 
rule for threatened species (for example, to allow some traditional 
land-use activities to continue), and is able to issue take permits to 
allow more activities that affect threatened species than would be 
permitted for endangered species.
    (56) Comment: We received several comments indicating that the 
Service did not adequately show that an individual land use 
necessitated designation of critical habitat. Specifically, one comment 
noted that numbers of cows and elk are down and that the Service should 
justify designation of critical habitat in light of the reduced 
populations of grazing animals. Another comment noted that the Service 
failed to provide justification for the designations of critical 
habitat due to improperly managed wildfire and the use of chemicals for 
fire suppression.
    Our Response: We note that grazing animals and fire management are 
only one of several concerns for spikedace and loach minnow. Please see 
the discussion under Summary of Factors Affecting the Species.
    (57) Comment: The spikedace and loach minnow coexisted with the 
diversion dams that have been a part of the local agricultural culture 
and heritage for hundreds of years. The Service should demonstrate how 
water uses today could impact habitat

[[Page 10881]]

although these same uses have not done so in the past.
    Our Response: Please see the discussion on water diversions under 
the subheading of Water Withdrawals, which details the potential 
impacts associated with diversions and water withdrawals. In addition, 
climate change and drought are compounding the impacts of water 
withdrawals on these species.
    (58) Comment: The Service has failed to acknowledge the causes for 
portions of the rivers, streams, and tributaries indicated on the maps 
as critical habitat periodically drying up. Human population, human 
use, livestock and wildlife populations and water diversion do not 
account for this phenomenon. According to the Northern Arizona 
University Forestry Department, the reason for reduced water flow is 
due to in excess of 300 percent greater tree density today, compared to 
presettlement. The Service should examine the relationship between tree 
density and water reduction, and should specify amount of water flow 
reduction due to tree density vs. other potential causes. The Service 
should further specify how designation of critical habitat would 
address the reduction of tree density issue.
    Our Response: No literature citations were provided with this 
comment, and we were unable to locate any literature relevant to this 
comment. Please note that a critical habitat designation is not the 
process through which we rule out habitat suitability due to threats, 
nor is it the process through which we conduct research as suggested in 
the comment.
    (59) Comment: The Service has failed to provide justification for 
the critical habitat designations due to human use of resources, 
including agriculture, mining, road building, residential development, 
and recreation. The Service should specify how these uses contribute to 
habitat loss and stream degradation.
    Our Response: Please see the section on Summary of Factors 
Affecting the Species. This section addresses these, as well as other 
natural and human use impacts to the species.
    (60) Comment: We received several comments indicating that we 
failed to look at the benefits of grazing to fish or wrongfully assumed 
that livestock grazing is harmful to spikedace and loach minnow and 
their habitat. In some instances, commenters noted that the work of 
Rinne and Medina should be included within our review.
    Our Response: Please see the response to comment 51 above regarding 
use of the best scientific and commercial information available. The 
discussion on livestock grazing cites many studies and authors on the 
topic of livestock grazing, and we have added a citation from Medina et 
al. (2005). We have reviewed additional work by Rinne (Rinne 1999b) and 
considered the information in this literature. We believe the 
discussion on livestock grazing and impacts to fish provides a thorough 
discussion on this topic.
    (61) Comment: Nonnative fish are the biggest problem for spikedace 
and loach minnow, and this is a threat that requires removal of the 
nonnatives and construction of barriers to prevent their spread, 
neither of which is facilitated by designation of critical habitat.
    Our Response: The purpose of designating critical habitat is not to 
remove threats for the species, but is instead to identify those areas 
that are essential to the conservation of the species. While 
designation of critical habitat does not remove the threat from 
nonnative species, it does identify those areas that are critical to 
the conservation of the species, which allows land managers and others 
to prevent further degradation in areas critical to the species' 
conservation
    (62) Comment: The current threat to spikedace and loach minnow from 
nonnative fish in the Gila River and Mangas Creek where they pass 
through FMC lands is greatly overstated.
    Our Response: The discussion of Mangas Creek and the Gila River 
encompasses landowners other than FMC, and there are additional 
management considerations for these areas. We have updated the 
information for Mangas Creek.
    (63) Comment: Road impacts to the species would be dealt with 
through section 7, and, therefore, designating critical habitat would 
not address this issue.
    Our Response: This comment is incorrect. First, 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. Second, should future road projects have impacts on 
critical habitat, section 7 would be the process used to identify and 
minimize those threats, as appropriate. In areas where the species are 
not currently present, but that are designated as critical habitat, it 
would be the nexus between the project and critical habitat which would 
lead to section 7 consultation under the Act, assuming the action was 
either Federally funded, permitted, or carried out.
    (64) Comment: Recreation is listed as a threat for the Gila River. 
No recreation occurs in the Cliff-Gila Valley.
    Our Response: Our list of potential impacts to spikedace and loach 
minnow for the Gila River encompassed more than the Cliff-Gila Valley, 
including lands managed by the USFS, and we conclude the original 
assessment is correct.
    (65) Comment: Occupancy by spikedace and loach minnow in Eagle 
Creek for only brief periods of time indicates that they suggest fish 
may have been placed there via bait bucket transfer.
    Our Response: We have no evidence of bait bucket transfer, or any 
reasons to believe that such a transfer occurred. Marsh et al. 1990 (p. 
112) provide a discussion on the likely cause for the sporadic records 
of spikedace and loach minnow in Eagle Creek, concluding it likely that 
the species were missed in some survey efforts while detected in others 
due to their tendency to expand and contract spatially in response to 
natural variations in their habitat. We further note that portions of 
Eagle Creek are not readily accessible, and are not regularly surveyed, 
so that the species could have been missed, yet present, during some of 
the survey efforts. Finally, we note that there are other gaps in the 
survey record for other streams. These gaps may be due to a lack of 
survey efforts, or to lack of detection during survey effort. For 
example, on the Verde River, spikedace were not detected from 1950 to 
1975 (ASU 2002).
    (66) Comment: The lower San Francisco is not occupied, with nearest 
detections 20 miles upstream, in the vicinity of Apache-Sitgreaves 
National Forests boundary.
    Our Response: The San Francisco River, as a system, was classified 
as occupied at listing, and the designation reflects this.
    (67) Comment: Both Eagle Creek and the San Francisco River have 
nonnatives and are not occupied by either spikedace or loach minnow. 
Neither can therefore be considered essential to the conservation of 
the species.
    Our Response: We agree that both Eagle Creek and the San Francisco 
River have nonnative aquatic species; however, this alone does not 
preclude them from being considered for critical habitat designation. 
Further, as noted in the proposed rule, we consider Eagle Creek to be 
occupied by both species, while the San Francisco River is occupied by 
loach minnow and the site of a reintroduction effort for spikedace.
    (68) Comment: The presence of a large nonnative fish population and 
refugia

[[Page 10882]]

that allow nonnative fish to persist and repopulate portions of 
proposed critical habitat on Eagle Creek and the lower reach of the San 
Francisco River following significant flood events make these streams 
unsuitable for both spikedace and loach minnow. Absent a comprehensive 
management plan agreed to by affected parties, the complex land 
ownership patterns and current uses of lower Eagle Creek and the lower 
San Francisco River substantially compromise the logistics and 
practicability of achieving adequate control of nonnative fish required 
to make the segment of these rivers suitable for spikedace and loach 
minnow.
    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. 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 that support PBFs and the threats to 
those areas assists resource managers in their conservation planning 
efforts for threatened and endangered species like spikedace and loach 
minnow.
    (69) Comment: Eagle Creek is listed as perennial, and this is 
incorrect.
    Our Response: We have modified the description of Eagle Creek to 
indicate that the stream is largely a perennial system.
    (70) Comment: We received comments that additional studies were 
needed, including a study of the future impacts of increased vegetation 
near the San Pedro River on the ability of groundwater to reach the 
river, and on pebble counts or other substrate evaluations of spikedace 
and loach minnow critical habitat.
    Our Response: The Service makes every attempt to use the best 
scientific and commercial information available when evaluating areas 
to be included within critical habitat; however, the critical habitat 
designation process does not undertake studies of the kind recommended.
    (71) Comment: Fossil Creek is the only stream on the Tonto National 
Forest that is occupied by loach minnow. Translocations for spikedace 
appear to be unsuccessful. Inclusion of Fossil Creek as critical 
habitat for spikedace may be premature.
    Our Response: We recognize that Fossil Creek is a translocation 
site for both spikedace and loach minnow. We are designating Fossil 
Creek as a 2a stream, indicating that it could serve as an extension of 
habitat in the unit, as existing habitat is insufficient to recover the 
species. Please note the updated language regarding the potential 
success of the spikedace reintroduction effort in the section below on 
Summary of Changes from Proposed Rule. In addition, please see our 
response at Comment 18 to a similar question.
    (72) Comment: The statement ``the majority of historical native 
habitat'' is overbroad and unclear as it applies to the Gila River in 
New Mexico. Also, this statement is incorrect, as it pertains to the 
Gila River in New Mexico, and the activities described have not, nor do 
they threaten destruction, modification, or curtailment of the loach 
minnow or spikedace habitat or range in New Mexico. Within New Mexico, 
the Gila River has not been altered significantly since the time of 
listing in 1986. The middle, east, and west forks of the Gila all lay 
within the Gila National Forest and watershed conditions have improved 
in these areas.
    Our Response: This statement is found at the beginning of the 
discussion at Factor A, the Present or Threatened Destruction, 
Modification, or Curtailment of Habitat or Range, and applies to the 
species rangewide, not to the Gila River in New Mexico specifically. As 
noted elsewhere in the proposed rule, we estimate the present range of 
spikedace to be approximately 10 percent of its historical range, while 
that of loach minnow is estimated to be 15 to 20 percent of its 
historical range. While watershed conditions may have improved within 
the Gila National Forest, there are still threats in those areas, 
including wildfires, residual impacts of livestock grazing, and 
competition with and predation by nonnative species.
    (73) Comment: Additional data should be supplied to support the 
conclusion that declines of native fish species appear linked to 
increases in nonnative fishes. The Service cites data with a 28-year 
gap, which is not good science because the periodicity cannot be used 
to establish a reasonable trend.
    Our Response: This comment addresses the information found in the 
proposed rule under the discussion at Factor C for Predation. Please 
also see the information on competition under Factor E on Nonnative 
Fishes, which provides additional citations.
    (74) Comment: Portions of the proposed critical habitat in Units 6, 
7, and 8 overlap sections of river currently occupied by Gila trout. 
The designations appear to create a conflict in management objectives; 
for example, adult Gila trout potentially prey on juvenile spikedace 
and loach minnow. The dynamics of this potential fish community are not 
yet clearly understood.
    Our Response: We would agree that the dynamics of the interactions 
between Gila trout and spikedace and loach minnow may not yet be fully 
understood. However, this does not eliminate the possibility of the 
three species occurring in the same stream. For example, both Gila 
trout and spikedace are known to occur in the Verde River.
    (75) Comment: Spikedace were found in the Middle Fork Gila River in 
2008 and 2010.
    Our Response: In response to this question, we have updated our 
information on the Middle Fork Gila River to reflect that spikedace 
were found in the Middle Fork Gila River in these years (Propst et al. 
2009, p. 10; Gilbert 2011 pers. comm.).
    (76) Comment: Propst et al. (2008) determined that the primary 
driver affecting native fish in the Upper Gila River and San Francisco 
River catchments was long-term discharge, with nonnative fish 
exacerbating the effects of low discharges. In the water withdrawal 
section, it should be noted that both existing and potential water 
withdrawals are one of the primary threats to spikedace and loach 
minnow. Long-term reductions of instream flow have been shown to 
negatively affect both species.
    Our Response: In response to this and other comments, we have 
incorporated information from Propst et al. (2008) within the Flow 
Regime, Nonnative Fishes, and Connectivity discussion under Factor E 
above.
    (77) Comment: A settlement agreement regarding pumping wells in the 
Big Chino Valley was effected between the Salt River Project and the 
towns of Prescott and Prescott Valley in 2010. This agreement will 
allow the withdrawal of approximately 2.5 billion gallons of water/year 
from the Big Chino

[[Page 10883]]

Valley aquifer, and could seriously impact surface flow in the upper 
Verde River. Implementation of this proposal lends credence to the need 
for uplisting to endangered of spikedace.
    Our Response: We have added information and citations regarding the 
Agreement in Principle signed between Salt River Project, Prescott, and 
Prescott Valley indicating that they have agreed to try to move forward 
without litigation in the development of the Big Chino project.
    (78) Comment: Some of the language under the Nonnative Fishes 
subheading of Factor E appears to discount the detrimental effect of 
larger nonnative species, e.g., green sunfish, smallmouth bass, 
flathead catfish, and others, all of which are highly predacious on 
spikedace and loach minnow.
    Our Response: This language has been modified to indicate the 
specific problems associated with small and large nonnative fish 
species.
    (79) Comment: Many of the descriptions of PBFs essential for 
spikedace and loach minnow are vague and undefined. They provide little 
detail as to their exact meaning. While this may be a result of the 
relative lack of research and knowledge of the species, it should also 
encourage the Service to advocate more applied investigations on the 
species in order to better understand their requirements.
    Our Response: We acknowledge that additional research would be 
valuable; however, the discussion under the subheading of PBFs presents 
the best information currently available for the species.
    (80) Comment: In addition to fishes, nonnative species that also 
affect spikedace and loach minnow include parasites, crayfish, 
mollusks, and probably others.
    Our Response: We have modified the language under the subheading of 
Nonnative Aquatic Species to reflect this. Information regarding other 
nonnative aquatic species is found under Factor C.
    (81) Comment: Although the concern for livestock grazing as a 
threat has lessened, the threat still remains. Livestock permittees on 
the National Forest lands continually request livestock access to 
riparian areas that were closed for resource protection. Also many of 
the areas proposed for critical habitat are not currently protected 
from livestock, either by structures or in their allotment management 
plans. Additionally, disturbance of soil and vegetation in upper 
watersheds will continually increase sedimentation in drainages.
    Our Response: We include a discussion of the impacts of livestock 
grazing within Factor A of the rule. We note that adverse effects to 
species such as spikedace and loach minnow are decreasing, due to 
improved management on Federal lands (Service 1997c, pp. 121-129, 137-
141; Service 2001, pp. 50-67), largely due to discontinuing grazing in 
the riparian and stream corridors. However, we also note that livestock 
grazing within watersheds where spikedace and loach minnow and their 
habitats are located continues to cause adverse effects. Following 
finalization of the critical habitat designations, existing 
consultations on livestock allotment management plans may require 
additional consultation.
    (82) Comment: The recovery objectives for spikedace and loach 
minnow in the current recovery plans is delisting through protection of 
existing populations and restoration of populations into historical 
habitats. The downlisting and delisting criteria expressed in the 
proposed rule make no mention of the existing natural populations or 
their habitats. Assuring recovery and long-term conservation of 
existing natural populations should be the primary emphasis in any 
down- or delisting proposal.
    Our Response: In response to this comment, we have amended the 
language to indicate that, in addition to increasing the number of 
occupied streams, there will be a continued protection of existing 
populations and habitat. This was implied in the text of the proposed 
rule, but we have clarified the language to place more emphasis on 
protection of existing populations and habitats.
    (83) Comment: The Service should include bridges, diversion 
structures, and other structures in the designations. Although they 
lack the PBFs, it is often these structures that cause the most 
degradation, and including them would provide impetus to management 
agencies to modify their detrimental features in order to reduce 
effects on the species during both normal and extraordinary 
maintenance.
    Our Response: Generally, areas without PBFs cannot be considered 
essential to the conservation of the species. However, it should be 
noted that, should one of these features require maintenance, the 
Service would evaluate potential up and downstream effects from such an 
action, assuming it has a Federal nexus.
    (84) Comment: Current occupation of Fossil Creek and San Francisco 
should be uncertain.
    Our Response: We agree, and have modified the table to reflect this 
for all translocated or reintroduced populations.
    (85) Comment: Critical habitat in Fossil Creek should be extended 
upstream to Fossil Springs. Both spikedace and loach minnow have been 
translocated into Fossil Creek between the springs and downstream to 
Irving. Fossil Creek is considered recovery habitat for loach minnow 
and spikedace, but the habitat is threatened by recreational 
development and degraded by excessive human use. Fossil Creek was 
designated a Wild and Scenic River in 2010.
    Our Response: Please see the response to comment 7, as well as the 
discussion below on Summary of Changes from Proposed Rule.
    (86) Comment: It is unclear why West Clear Creek was excluded from 
critical habitat. The lower 7.2 miles of West Clear Creek was included 
in the 2000 designation.
    Our Response: We are including the lower 10.9 km (6.8 mi) of West 
Clear Creek for spikedace only, as there are no known records for loach 
minnow from this stream.
    (87) Comment: We do not agree that Tonto Creek, Rye Creek, and 
Greenback Creek should be excluded from critical habitat. Loach minnow 
and spikedace typically co-occurred historically. The lack of records 
of loach minnow from Tonto Creek was more likely an artifact of 
incomplete sampling, rather than lack of occurrence. We believe that 
Tonto Creek does have suitable habitat for loach minnow and is worthy 
of inclusion.
    Our Response: Please see the response to comment 8 above.
    (88) Comment: We question why West Fork Black River was excluded 
from critical habitat. The lower 6.4 miles was included in the 2000 
designation.
    Our Response: We have included within the designation 19.1 km (11.9 
mi) of the East Fork Black River, 7.1 km (4.4 mi) of the North Fork 
East Fork Black River, 3.4 km (2.1 mi) of Coyote Creek, and 2.3 km (1.4 
mi) of Boneyard Creek. There are no known records from the West Fork 
Black River. East Fork Black River is directly connected to the North 
Fork East Fork Black River, where loach minnow have been detected, 
whereas the West Fork Black River is not directly connected, and 
therefore does not provide an extension of habitat (i.e., is not a 2a 
stream) for loach minnow in this complex.
    (89) Comment: Threats along the Gila River include water 
withdrawal, stream channelization, water quality degradation, roads and 
bridges, and

[[Page 10884]]

livestock grazing, as well as the spread of nonnative species and 
climate variability and change, especially drought.
    Our Response: This issue has been addressed within the rule. Please 
see the discussion under Unit 8 for special management considerations, 
as well as the information on climate change and nonnative species.
    (90) Comment: The proposed rule notes that grazing may cause 
increased erosion and deposition and increased sediment loads from 
livestock, but nowhere in the proposed rule does the document 
acknowledge the Chitty flood of July 2007 from Chitty Creek that 
changed the entire area and affected East Eagle and Eagle Creek. The 
Chitty, Hot Air, and Eagle wildfires have occurred since 2007. The 
Clifton Range District under the Mogollon Rim is prone to large 
lightning strikes and has no prescribed burns scheduled; therefore, the 
potential of another wildfire is evident and large-scale erosion 
occurring, making East Eagle and Eagle Creek not suitable for spikedace 
and loach minnow as stable habitat.
    Our Response: We have added information regarding wildfires to the 
discussion for Eagle Creek. Eagle Creek continues to support one or 
more of the PBFs for spikedace and loach minnow, and we therefore 
believe it is reasonable to include Eagle Creek within the designation. 
East Eagle Creek was not included at the proposed rule stage, and is 
not included in the final rule for either species.
    (91) Comment: The proposed rule states that open stock tanks 
contain nonnative aquatic species, which is not documented on East 
Eagle or Mud Springs allotment, and in fact all stock tanks go dry a 
minimum of once each year.
    Our Response: The discussion on nonnative species and stock tanks 
is under the general discussion for livestock grazing, and is not 
attributed to Eagle Creek, or the East Eagle or Mud Springs allotments.
    (92) Comment: The crayfish population is the only increasing 
aquatic life on Eagle Creek. Numerous studies over the last 10 years 
show no increase in native fish. A proposed rule change is not the 
solution.
    Our Response: We have included discussions on the presence of 
nonnative aquatic species and potential impacts to spikedace and loach 
minnow; however, 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. Please see additional 
discussion on this point at comment 66.
    (93) Comment: Eagle Creek has two year-round stream crossings and a 
third seasonal crossing, and all are on private land. There are private 
land holdings from Honeymoon Campground south on Eagle Creek. In 
addition, there are Upper Eagle Creek Watershed Association Management 
plans. For these reasons, Eagle Creek should be exempt from critical 
habitat.
    Our Response: Critical habitat designation does not impose 
restrictions on private lands unless Federal funds, permits, or 
activities are involved. Federal agencies that undertake, fund, or 
permit activities that may affect critical habitat are required to 
consult with the Service to ensure that such actions do not adversely 
modify or destroy designated critical habitat. There will likely be 
minimal, if any, impact to private land holdings along Eagle Creek from 
the critical habitat designation, unless a Federal nexus exists, as 
described above. Appropriate exclusions along Eagle Creek have been 
made for the San Carlos Apache Tribe and FMC. With respect to the Upper 
Eagle Creek Watershed Association Management Plans, no such management 
plan was submitted to the Service for consideration during this 
rulemaking.
    (94) Comment: Eagle Creek should be excluded as neither species has 
been seen there in more than 10 years.
    Our Response: We refer the reader back to the ruleset used in 
determining which areas would be included as critical habitat, and to 
the definitions of occupancy within the rule. Eagle Creek was occupied 
at listing by both species, and is classified as a 1a stream under the 
ruleset, as it continues to provide suitable habitat for the species.
    (95) Comment: The Upper Eagle Creek Watershed Association is 
participating in the Ranch Heritage alliance and has worked for the 
last two years with the National Riparian Service Team to develop 
plans, methods, and monitoring protocols to develop habitat for 
numerous species. This new method should be encouraged and the Greenlee 
County Rivers and tributaries should be excluded from the critical 
habitat designations for loach minnow and spikedace to give the 
management plans an opportunity to succeed. The past plan of just 
fencing the riparian areas has not been a total success, and a more 
positive approach of collaboration is recommended.
    Our Response: We agree that collaboration is a positive approach to 
recovering threatened and endangered species. At this time, however, we 
have not received a complete management plan from the Upper Eagle Creek 
Watershed Association and, therefore cannot exclude this area from the 
designations.
    (96) Comment: There were several comments referring to the 
unsuitability of the San Pedro River as critical habitat, especially 
because of the nonnative fishes and problems with pollution in the 
upstream portions of the river, which is in Mexico.
    Our Response: The Service is aware of the challenges posed by 
nonnative aquatic species in the San Pedro River, particularly given 
that a suitable barrier site has not been found at this time. However, 
we have determined that inclusion of the San Pedro River may impact 
operations at Fort Huachuca critical to national security. Therefore, 
we are excluding the San Pedro River as critical habitat for the two 
species. See the Exclusion discussion in the text.
    (97) Comment: Does the Service have any information regarding 
possible causes of the spikedace decline in New Mexico and the 
magnitude of the decline?
    Our Response: The proposed and final rules contain a complete five-
factor analysis, which describes threats to the species and presents 
the best available scientific information.
    (98) Comment: Proposed critical habitat creates a conflict in 
management objectives between spikedace and loach minnow and Gila 
trout.
    Our Response: There is some overlap in the species' distribution; 
however, designation of critical habitat would lead to protection of 
the stream habitat in which all three species occur, and we do not 
believe there will be conflicts in management.
    (99) Comment: The Fish and Wildlife Service has stated that any 
final action resulting from this proposed rule will be based on the 
best scientific and commercial data available and be as accurate and as 
effective as possible. The proposed designation of the Redfield Canyon 
stream segment as critical habitat (CH) is based upon inaccurate 
information and would have no beneficial effect on the survival of the 
spikedace or loach minnow. In representing all private landowners along 
this segment and having the most firsthand and long-term knowledge of 
the area, we request that this segment be removed from consideration.
    Our Response: Redfield Canyon is currently the site of a species 
translocation effort and it provides suitable habitat for the species. 
However, in response to information

[[Page 10885]]

received during the comment period, we have revised the designation 
within Redfield Canyon, and reduced the area to be designated as 
critical habitat to 6.5 km (4.0 miles) from the confluence with 
Sycamore Canyon downstream to the barrier constructed at Township 11 
South, Range 19 East, section 36.
    (100) Comment: Within the DEA for the designation you state: 
``Conservation actions that might be performed for a variety of fish 
species include, but are not limited to (7) application of chemicals to 
eradicate fishes, etc.'' The chemical rotenone is most often used for 
this purpose. The Bureau of Reclamation (BOR) has recently acquired 
state lands along Redfield Canyon where the fish were translocated in 
2007. BOR intends to construct a fish barrier in the Canyon to prevent 
nonnative fish from threatening the translocated fish. Generally 
following such a construction project rotenone is used to ensure that 
the area above the dam is clean of nonnatives. It is likely that 
rotenone will be used in Redfield Canyon and this is not reviewed or 
even mentioned in the DEA, which is in error given that the Arizona 
Game and Fish heavily depend upon this tool for managing native fish 
populations especially for threatened and endangered species. Analysis 
of this action should be included in the DEA and the effects it will 
have on local drinking water.
    Our Response: For Redfield Canyon, nonnative aquatic species are 
limited to green sunfish, which are being mechanically removed. There 
are no plans to use rotenone in Redfield Canyon.
    (101) Comment: The proposed rule and the environmental assessment 
lack specific discussions for each segment regarding how the unoccupied 
segment is ``essential for the conservation of the species.'' Both 
documents describe conditions in each segment that may be favorable to 
the species but do not explain how the Service determined that the 
unoccupied segment was essential. In addition, there is no discussion 
regarding the conservation value of unoccupied segments.
    Our Response: We refer the commenter to the ruleset, as well as 
Table 6 within the proposed rule. For each stream, we indicated which 
portion of the ruleset was met. For example, the San Pedro is listed in 
Table 6 as a ``1a'' stream, and from the ruleset, this indicates that 
this stream was occupied at listing, and has sufficient PBFs to support 
life-history functions essential for the conservation of the species. 
The PBFs present in any stream segment are listed in the unit 
descriptions for each stream.
    The conservation value of unoccupied segments is in their ability 
to allow the species to expand from their current distribution until 
recovery is reached. As noted in the rule, both species currently occur 
in a small percentage of their historical range, and cannot be 
recovered in place.
    (102) Comment: How the Service expects success when they are only 
going to try to manage ``a portion of the Blue River'' and ``a small 
portion of Bonita Creek'' for native fish is confusing. We don't know 
the location of the proposed fish barrier on the Blue River but we do 
know that the failed fish barrier that is being fixed on Bonita Creek 
is almost at the confluence with the Gila River. That means that all 
the fish above the fish barrier for over 14 miles will mix.
    Our Response: At this time, the only portion of the Blue River that 
may be mechanically treated for nonnative fishes are a few larger pools 
near where the barrier construction will take place, in the lower 
portions of the Blue River. For Bonita Creek, chemical renovation 
occurred in an approximately 2-mile stretch of the river. Both of these 
areas are limited in scope.
    (103) Comment: The Service has relied on ephemeral reference points 
to describe critical habitat areas and is in violation of 50 CFR 
424.12(c).
    Our Response: The ephemeral reference point referred to is the use 
of the bankfull stage in describing critical habitat. Bankfull stage is 
described in the section Criteria Used to Identify Critical Habitat. It 
is not an ephemeral feature, in other words, it does not disappear. It 
can always be determined and delineated for any stream we have 
designated as critical habitat. We acknowledge that the bankfull stage 
of any given stream may change depending on the magnitude of a flood 
event, but it is a definable and standard measurement for stream 
systems.
    (104) Comment: The precise areas proposed as critical habitat are 
improperly described, and their location and impacts on land and water 
uses are uncertain. The proposed critical habitat includes developed 
areas and improperly relies on post-designation exclusion criteria.
    Our Response: As noted within the proposed rule, the scale of the 
maps we prepared under the parameters for publication within the Code 
of Federal Regulations may not reflect the exclusion of such developed 
lands. However, any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule are considered 
excluded by text in the rule and are not designated as critical 
habitat. Should Federal action occur involving these lands it will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the PBFs in the adjacent critical habitat.
    (105) Comment: The PBFs must be present before land is eligible to 
be designated as critical habitat. The Service cannot designate land 
that does not contain the PBFs, and then rely on exclusion criteria and 
subsequent Section 7(a)(2) consultations to filter out land that should 
not have been included in the designation.
    Our Response: Each of the areas within the critical habitat 
designation contain one or more of the PBFs, and do not use exclusions 
or a section 7 consultation to filter out land after the listing action 
is complete. In fact, exclusions are developed before the listing is 
completed, and are based on several factors, which can be found in the 
``Exclusions'' section of the rule. Section 7 is used to analyze the 
impacts of actions on PBFs present within a given area.
    (106) Comments: There were several comments regarding discrepancies 
in stream miles proposed for critical habitat, especially in the draft 
economic and environmental analyses.
    Our Response: We have revisited all of the mileage to ensure that 
it is accurate in this final rule. The final environmental and economic 
analyses will reflect the correct mileages.
    (107) Comment: One commenter noted that, with respect to 
translocation or reintroduction sites for the species, the Service 
indicated that monitoring will be conducted at each of these sites to 
determine if populations ultimately become established at these new 
locations. The fish were translocated in 2007, yet there is no 
information included within the DEA or the Federal Register notice that 
describes the monitoring that has been done in these locations or gives 
the results of this monitoring. It is stated that the areas of Hot 
Springs and Redfield Canyon have been augmented. It is unknown to the 
public whether this augmentation was because the fish are not surviving 
or if the action was to increase what has been established. The need 
for augmentation is questionable if the fish are established, and if 
they are not surviving, it needs to be analyzed in this document so as 
to better determine whether the PFBs at this location are accurately 
analyzed. This information is critical to making the designation of 
critical habitat.

[[Page 10886]]

    Our Response: Information is provided in the rule regarding the 
translocation and reintroduction efforts, monitoring, and augmentation. 
Please see comment 18 regarding the appropriateness of including 
reintroduction and translocation sites within the critical habitat 
designation.
    (108) Comments: We received several comments regarding the adequacy 
of the information cited in discussions on livestock grazing. Some 
commenters also indicated that we should be using Minckley (In 
Stromberg and Tellman 2009) regarding the discussion on livestock 
grazing, and that the citations used were either dated or focused on 
salmonid species.
    Our Response: Minckley (In Stromberg and Tellman 2009) did not 
focus on grazing. Minckley does indicate that threats from nonnative 
fish are the primary concern for native fish, which the Service 
acknowledges. However, we complete a five-factor analysis, looking at 
all potential concerns. With respect to literature by Rinne, we have 
reviewed this information and are familiar with the position that Rinne 
has taken regarding grazing and its benefits to native fishes. Resource 
management agencies continue to cite Platts 1990, which focuses not on 
salmonids, but the effects of grazing on stream habitats (See Cowley 
2002, Guidelines for Establishing Allowable Levels of Streambank 
Alteration, Howery et al. 2000, A Summary of Livestock Grazing Systems 
Used on Rangelands in the Western United States and Canada, or the USFS 
Web site at www.fs.fed.us/r5/snfpa/final-seis/biological-documents, 
which all continue to cite Platts 1990).
    (109) Comment: Item Number 7 in the Service's October 27, 2010, 
Question and Answer document reads: ``What sort of actions would 
continue to be allowed within areas designated as critical habitat? The 
Service's response to the question was, in part, ``We believe, based on 
best available information, that the following actions will not result 
in a violation of the ESA: Release, diversion, or withdrawal of water 
from or near spikedace or loach minnow habitat in a manner that (1) 
DOES NOT displace or result in desiccation or death of eggs, larvae, or 
adults, (2) DOES NOT result in disruption of perennial flows, (3) DOES 
NOT disrupt spawning activities * * * and (4) DOES NOT alter vegetation 
(emphasis added).'' How does anyone divert or withdraw water from the 
Gila River where fish are or may be present, without violating one or 
more of the ``DOES NOTS'' listed?
    Our Response: Throughout the range of spikedace and loach minnow, 
numerous diversion structures are present, including in systems such as 
the Gila River, Blue River, and Verde River. These areas continue to 
divert water, and fish continue to persist, indicating that such 
diversions can take place. We anticipate that, should any new 
diversions be constructed, they would operate in a similar fashion.
    (110) Comment: One commenter suggested that we discuss the pending 
decisions associated with the New Mexico Interstate Stream Commission's 
(SC) approval of 21 projects on the Gila River that could qualify to 
become part of the New Mexico Unit of the CAP approved in the AWSA.
    Our Response: The AWSA provides for New Mexico water users to 
deplete 140,000 acre-feet of additional water from the Gila Basin in 
any 10-year period. The settlement also provides the ability to divert 
that water without complaint from downstream pre-1968 water rights in 
Arizona. New Mexico will receive $66 million to $128 million in non 
reimbursable Federal funding. The ISC Funds may be used to cover costs 
of an actual water supply project, planning, environmental mitigation, 
or restoration activities associated with or necessary for the project, 
and may be used on 1 or more of 21 alternative projects ranging from 
Gila National Forest San Francisco River Diversion/Ditch improvements 
to a regional water supply project (the Deming Diversion Project). It 
is not known how the funds will be spent, or which potential 
alternative(s) may be chosen. In addition, the AWSA mandates that the 
ISC make the final determination of contracts for water and allocation 
of funding and provide notice to the Secretary of the Interior by 
December 31, 2014. New Mexico ISC must make any final determination 
during an open, public meeting, and only after consultation with the 
Gila San Francisco Water Commission, the citizens of southwestern New 
Mexico, and other affected interests. Due to the timeline associated 
with this project, as well as the uncertainties in how funding will be 
spent, and which potential alternative or alternatives will be chosen, 
The Service is unable to determine the outcome of this process at this 
time.
    (111) Comment: The draft environmental assessment states that 
quality fish habitat is intrinsically linked to the quality of the 
existing adjacent upland habitat that provides key habitat components 
(e.g., large woody debris) crucial for fish species. Spikedace and 
loach minnows do not need large woody debris.
    Our Response: We note 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. However, 
we are removing this language from the draft environmental assessment 
at this time.
    (112) Comment: The proposed loach minnow critical habitat in Apache 
County is made up of reaches of the East Fork of the Black River. The 
entire East Fork of the Black River and the upland watershed was burnt 
in the recent Wallow Fire. The effects of the Wallow Fire will 
adversely impact any existing loach minnow populations and greatly 
alter the habitat for this fish as sediments are washed into the Black 
River following the fire. There is a high probability that the reaches 
of the Black River in Apache County, which are being proposed for loach 
minnow critical habitat, will no longer support the species and remain 
uninhabitable by loach minnow for a considerable length of time. The 
Apache County Board of Supervisors feels the Service should reconsider 
their decision to propose the reaches of the Black River in Apache 
County as loach minnow critical habitat until it can be determined that 
these reaches of stream contain any of the PBFs of the loach minnow. 
The management required in order to again support the loach minnow in 
the Black River may well be beyond what can be reasonably accomplished 
under a critical habitat designation.
    Our Response: Portions of Units Two (Black River Complex) and Seven 
(Blue River Complex) of the critical habitat designation fall within 
the Wallow Fire perimeter. While all of Unit Two is within the Wallow 
Fire burn perimeter, most of the area designated as critical habitat 
falls within areas that experienced either no or low burn severity. The 
North Fork East Fork Black River falls within an unburned area inside 
the perimeter of the fire, as does most of Boneyard Creek. The majority 
of East Fork Black River falls within an area that experienced low burn 
severity, but does cross a few areas that were either unburned or 
burned at moderate burn severity. Coyote Creek is in an area almost 
entirely burned at low severity. Within Unit 7, the majority of 
Campbell Blue Creek is within unburned or low

[[Page 10887]]

burn severity areas; however, approximately 2.4 km (1.5 mi) of the 
upper end of Campbell Blue Creek is within moderate and high burn 
severity. The Wallow Fire stopped just west of the Blue River, but came 
within approximately 0.3 km (0.2 mi) of the River.
    The impacts from fire on fish and their habitat are described in 
greater detail within the discussion of threats. While the fire itself 
may not have reached high severity in proximity to the areas designated 
as critical habitat, the following ash and sediment that can be 
displaced from within the watershed into the streams is of primary 
concern. During the monsoon, which began before the fire was 
extinguished, ash and sediment entered Campbell Blue Creek and the Blue 
River. In the Blue River, ash and sediment travelled as far downstream 
as the San Francisco River, resulting in fish kills (Blasius, 2011, 
pers. comm.). Fish surveys completed during the fall of 2011 found 
reduced numbers of loach minnow (Adelsberger et al. 2011, p. 1). It is 
important to note however, that these areas, while temporarily affected 
by the ash and sediment resulting from the fire, are not permanently 
altered. We anticipate that they will continue to support loach minnow, 
albeit at reduced levels, and that, given sufficient time, they will 
recover sufficiently to provide habitat for loach minnow in Unit 2 and 
both spikedace and loach minnow in Unit 7.
    (113) Comment: More than a century of stream and riparian habitat 
abuses does not indicate some happy coexistence between the livestock 
industry and conserving and recovering these two imperiled cyprinids 
that are facing extinctions largely from habitat alterations and 
fragmentation. There are clear and serious conflicts between domestic 
livestock grazing and conserving and fully recovering endangered 
spikedace and loach minnows throughout their historic ranges in the 
Gila River Basin of Arizona, New Mexico, and Northern Mexico.
    Our Response: As noted in the threats analysis within the document, 
the Service recognizes that there are impacts from livestock grazing on 
riparian and stream systems and the species that depend on them. As 
also noted in the threats analysis, we believe that progress has been 
made with grazing management, but that legacy effects of past improper 
livestock grazing persist. At this time, we believe that progress has 
been made within the range of spikedace and loach minnow. However, 
because not all conflicts between grazing and fish have been 
eliminated, there is still a discussion on the types of impacts that 
can occur.
    (114) Comment: We strongly support additional mileage and acreage 
of designated critical habitat for proposed endangered spikedace and 
loach minnow, but oppose the omission of much of the historic, 
unoccupied habitats necessary for not only the conservation, but the 
successful full recovery at a natural rate, without retardation, of 
these imperiled Southwestern cyprinids, and the eventual delisting of 
these species from the Act. While the Service proposes occupied habitat 
of an additional 14.2 miles of the San Francisco River and 19.5 miles 
of Bear Creek in New Mexico for the proposed endangered loach minnow 
critical habitat designations, it freely admits in the Federal Register 
Notice (at page 61332) to the fatal omission of stream reaches that 
connect occupied habitat for both imperiled cyprinids. We strongly 
disagree with the Service proposed critical habitat designation rule 
for omitting connecting reaches that would allow genetic exchanges 
between dwindling populations and pockets of individual spikedace and 
loach minnows--which do not constitute viable, sustainable 
populations--as well as other historic unoccupied habitats that may be 
crucial for the survival and full recovery of the two fishes. This 
blatant oversight ignores the basic precepts of modern conservation 
biology and the accepted science of conservation genetics needed to 
sustain viable populations of rare and declining species like the 
spikedace and loach minnow.
    Our Response: As noted in the NOA (76 FR 61330), we were unable to 
identify additional areas within the historical range of the species 
that currently have sufficient habitat parameters to serve as 
connective corridors between occupied and unoccupied habitat. As also 
stated in the NOA, we believe that both loach minnow and spikedace 
conservation will require genetic exchange between the remaining 
populations to allow for genetic variation, which is important for 
species' fitness and adaptive capability. Our inability to identify 
unoccupied streams that would provide connections between occupied 
areas is a result of the highly degraded condition of unoccupied 
habitat and the uncertainty of stream corridor restoration potential. 
We anticipate that we will further address the issue of restoration of 
genetic exchange in our revised Recovery Plan. A Spikedace and Loach 
Minnow Recovery Team has been formed, and will be meeting in early 
2012.
    (115) Comment: We urge the Service to reevaluate the proposed 300-
foot riparian strips and to consider them only as a minimum with wider 
riparian buffers required for larger stream reaches like the mainstem 
San Francisco River and Gila River. A similar approach is incorporated 
in the PACFISH/INFISH extant consultations in the interior Pacific 
Northwest, like the Land and Resource Management Plans Biological 
Opinion, which the Service issued for bull trout and other native 
fishes and the National Marine Fisheries Service issued for ESA-listed 
anadromous salmonids. In these consultations and agreements, while the 
minimum standard for a Riparian Conservation Area or Riparian Habitat 
Conservation Area (RHCA) is set, there are additional science-based 
criteria for increasing the area or breadth of the designated critical 
habitat surrounding critical stream reaches based on the stream order 
or size of the reach, and how the riparian ecosystems actually 
function. For an example, you should examine the designated critical 
habitat rule for the threatened Snake River spring/summer Chinook 
salmon. In that Designated Critical Habitat Final Rule, smaller 
tributaries are protected with the minimum RHCA, while larger rivers 
like the Salmon River or Snake River, maintain much broader RHCAs to 
conserve ecological functionality of the designated critical habitats 
and help ensure to maintain sustainable, viable populations and 
Distinct Population Segments or Evolutionarily Significant Units (or 
``species'' under the Act).
    Our Response: As stated in the 2007 Federal Register notice 
designating critical habitat, 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

[[Page 10888]]

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).
    (116) Comment: We urge the Service to expand the proposed critical 
habitat designation rules to encompass upstream stream reaches and 
riparian habitats, whether they are occupied, historic but currently 
unoccupied, or even historically unoccupied stream/riparian reaches 
that are upstream of designated critical habitats and/or spikedace and/
or loach minnows. As a broadly accepted scientific principle that is at 
the heart of watershed science, hydrology, and stream ecology, what 
happens upstream in a watershed, including adverse effects like 
dewatering, accelerated bank and upland erosion, and subsequent 
increases in siltation and turbidity of streams like that associated 
with domestic livestock grazing, logging, road encroachment, and poorly 
regulated off-road vehicle use, has significant adverse effects 
downstream on listed fishes and/or their designated critical habitats.
    Our Response: Some areas have been expanded as described in the 
notice of availability and in this document; other areas have been 
reduced. Federal actions that may affect critical habitat will be 
evaluated under section 7 of the Act, regardless of in which portion of 
the watershed those actions occur.
    (117) Comment: While it is not as intuitive to consider upstream 
reaches and watersheds as part of the designated critical habitats and 
section 7 consultations, the Service also needs to include downstream 
reaches if the goal is conservation, and full recovery without 
retardation of the natural rates. As explained eloquently by Dave 
Rosgen in his 1996 book, Applied River Morphology, by other stream 
hydrologists and watershed scientists, and from our extensive 
experiences examining stream channel alterations across the West caused 
by domestic livestock grazing, restrictive culverts, and other habitat 
threats, what happens downstream can certainly affect upstream reaches 
in stream and riparian ecosystems, particularly in the Arid West. 
Fluvial morphological actions like downcutting, headcutting, stream 
widening, stream channel filling with increased sediment loads, and the 
simplification of stream channel morphology with the accompanying 
disconnection of impacted streams with their natural floodplains, not 
only adversely affects the impacted reaches and downstream riparian and 
stream habitats, but also can result in upstream bank sloughing, 
riparian vegetation collapse, alluvial water declines, stream channel 
straightening, steepening, and water velocity increase. These actions 
just feed the cycle and accelerate the habitat destabilization and 
degradation, to the detriment of the dependent fish populations like 
spikedace and loach minnows in the Gila River Basin of Arizona, New 
Mexico, and Northern Mexico.
    Our Response: The Service is aware of the information provided in 
Rosgen's book titled Applied River Morphology, which is, in fact, cited 
within the rule. Under section 7 of the Act, the Service evaluates 
impacts to the species and their habitat and ecological needs based on 
the best information available, regardless of where those impacts 
originate.
    (118) Comment: The Service should be conducting section 7 
consultations with the USFS, BLM, Bureau of Indian Affairs, and others 
to conserve and recover endangered spikedace and loach minnow 
populations, prevent non exempted section 9 take of individual fishes, 
prevent the adverse modification of designated critical habitats, and 
closely examine if proposed Federal actions may retard the natural 
rates of recovery of these two Southwestern cyprinids. These 
consultations should occur in upland, riparian, and aquatic ecosystems 
in the Gila River Basin, whether the Federal actions are within 
occupied or unoccupied designated critical habitat or they are upstream 
of them. We remind the Service that it can expand the action areas 
presented to it in an action agency's biological assessment and as 
such, section 7 consultations are not restricted to the footprint of 
the proposed project or action or even to the property boundaries of 
lands managed by a Federal agency like the USFS, BLM, or the Service. 
Likewise, the Service, according to its own Section 7 Consultation 
Handbook, is not restrained by the action agency's effects 
determinations and in meeting the spirit and intent of the Act, should 
always err towards the conservation of listed species and their 
protected habitats, especially endangered species, which by their 
nature, are facing potential extinctions, by replacing the 
determinations with their own, stricter effects determinations for 
species, designated critical habitats, and recoveries.
    Our Response: We agree that the ``action area'' of a project refers 
to all areas to be affected directly or indirectly by the Federal 
action and not merely the immediate area involved in the action, as 
defined in 50 CFR 402.02.
    (119) Comment: In the arid West, including in the Gila River of 
Arizona and New Mexico, as well as Northern Mexico, water diversions 
and artificial impoundments are prized for agricultural production, 
livestock watering, and domestic water supplies. Often, the diversion 
structures are not properly screened or designed to prevent impingement 
(i.e., fish get stuck on the screens or filters, if there are any, or 
entrainment such that fish get caught in water conveyance pipes and 
ditches and may end up stranded in dewatered structures), allow fish 
passage upstream and downstream, or completely dewater occupied reaches 
of stream or disconnect isolated populations. The Service must ensure 
that Federally funded, permitted, and/or designed water diversion works 
are not lethally or non lethally taking listed spikedace and loach 
minnow in the Gila River Basin. Additionally, we expect the Service to 
enforce the Act and fully prosecute water users taking spikedace and 
loach minnow without exemptions under a biologically sound and legal 
incidental take statement or habitat conservation plan under section 10 
of the Act.
    Our Response: Section 9 of the Act prohibits actions including, but 
are not limited to, take (i.e., harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or attempt to engage in such 
activity) for all listed species.
    (120) Comment: While we recognize that the Service views western 
water law and individual water rights as a states issue, the Federal 
government does have some significant influence on modifying the 
diversion, conveyance, storage, and use of western waters diverted from 
watersheds like the Gila River Basin, including through section 7 
consultations with Federal action agencies that are permitting, 
designing or funding such activities, whether they are on Federal 
public, military reservations, tribal lands, or state or private lands. 
For example, many diversions originate on Federal lands managed by the 
USFS or BLM and include conveyances and rights-of-way that cross public 
lands or are used, as in the case of livestock water, in troughs, 
tanks, and artificial ponds, actually on Federal lands. There is 
precedent for having Federal action agencies like the USFS condition 
how water is diverted and conveyed across Federal lands even if the 
water rights are held by private or corporate entities. For example, 
the Salmon-Challis National Forest and Sawtooth National Forest in 
Idaho have entered into a legal settlement agreement with Western

[[Page 10889]]

Watershed Project to condition diversions and conveyances in the Salmon 
River Basin to the benefit of listed anadromous salmonids and bull 
trout. The USFS has also executed a programmatic biological assessment 
for lockable head gates, measuring devices, and fish screens and has 
completed formal consultation with the Service and National Marine 
Fisheries Service. We strongly encourage the Service to lead the way 
with a similar effort in the water-limited Gila River Basin with its 
BLM, USFS, military and tribal consultation problems.
    Our Response: A recovery team is being established to develop on-
the-ground strategies to conserve these two species.
    (121) Comment: It is alarming to note how the Service has carefully 
dissected the occupied and historic unoccupied reaches of the loach 
minnow and spikedace in their proposed critical habitat rule just to 
avoid existing water diversion structures. This ``gerrymandering'' of 
the proposed riparian and stream reaches goes well beyond the precepts 
of broadly accepted conservation biology and should be eliminated from 
the Final Rule.
    Our Response: We acknowledge the absence of connective corridors in 
the proposed designation. We continue to believe that both loach minnow 
and spikedace conservation will require genetic exchange between the 
remaining populations. However, the designation was not developed with 
existing water diversion structures as a focal point. Instead, we 
developed a ruleset, which was applied across the historical ranges of 
the two species. Many of the stream segments included, such as the 
Verde River, Blue River, Eagle Creek, and Gila River, have existing 
diversion structures within the designated area.
    (122) Comment: Endangered species should not be subject to section 
4 permits with States like Arizona and New Mexico and the tribal 
governments for angling, fish stocking, and possibly stock assessments 
and research/experiments. The Service has expressed that endangered 
spikedace and loach minnow face real threats from predation, 
competition, and transmission of disease and parasites by nonnative 
species, some of which are managed by fish and game agencies as game or 
sport fishes. In most cases, through Dingell-Johnson Federal funds 
administered by the Service, states like Arizona and New Mexico operate 
sport fisheries including stocking of nonnative predators, lethal and 
nonlethal take associated with angling, fisheries inventories and 
research, and hatchery programs. These actions should be considered 
and, if continued, be subject to section 7 consultations to protect 
spikedace and loach minnow and their designated critical habitats.
    Our Response: Federal funding of the Urban Stocking Program in 
Arizona was completed in 2011. The consultation resulted in a Statewide 
conservation program for native fishes while continuing sport fish 
stocking and management in designated streams.
    (123) Comment: The Service should be carefully assessing the 
environmental risks to individuals and critical habitats of spikedace 
and loach minnow with the types, amounts, seasons, and methods of 
chemical control of pests and weeds. In the case of the USFS, BLM, 
Bureau of Indian Affairs, military, and the Service's wildlife refuges, 
environmental risk analyses scaled down for endangered fishes to the No 
Observed Effects Levels (``NOELs'') are necessary as are consultations 
and new labeling that restricts the uses of accepted chemicals and 
surfactants (and other carriers and adjutants) to protect spikedace and 
loach minnows. Special care is needed within the 300  ft 
riparian buffers, but effectiveness and implementation monitoring as 
well as water quality testing is needed to prevent unwanted 
extirpations or even extinctions.
    Our Response: The Service has a long history of conducting section 
7 consultations on a wide variety of pesticide and herbicide 
treatments, weed control, and related topics.
    (124) Comment: Simply adding some 34 miles of streams to the 
designated critical habitats is insufficient when some 80 to 90 percent 
of the historical range is adversely modified and/or vacant. These 
meager actions on behalf of spikedace and loach minnow will not stem 
the slippery slope towards extinctions for these native desert stream 
fishes, especially with a significant portion of the two species' 
ranges altered or vacated.
    Our Response: We are not certain where the figure of 34 additional 
miles came from in this comment. With this designation, we are 
increasing the overall mileage by 305 km (188 mi), compared to the 2007 
designation.

General Comments Issue 2: Legal or Policy Concerns

    (125) Comment: The Service needs to complete a regulatory 
flexibility analysis.
    Our Response: Compliance with the Regulatory Flexibility Act is 
part of this final rule, and can be found under the subheading of 
``Regulatory Flexibility Act (5 U.S.C. 601 et seq.)''.
    (126) Comment: The use of only one PBF in determining suitability 
is inadequate. If an area cannot support a viable population, then by 
definition it cannot be critical habitat.
    Our Response: In accordance with section 3(5)(A)(i) and 4(b)(1)(A) 
of the Act and regulations at 50 CFR 453.12, in determining which areas 
within the geographical area occupied at the time of listing to 
designate as critical habitat, we consider the physical and biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. In our final 
critical habitat designations, we did not include any occupied areas 
that contained only one PBF. All of the areas occupied at the time of 
listing for both species, or each individual species, contain more than 
one PBF, as described in the unit descriptions.
    (127) Comment: Please explain why the word ``only'' is in the 
phrase ``* * * be included only if those features may require special 
management considerations or protection.'' The word ``only'' is not in 
section 3 of the Act (see page 66496, 1st column, item (II). It appears 
that this proposed rule is trying to narrow the scope of what can be 
included in critical habitat (i.e., make policy).
    Our Response: We agree with the commenter that the language in the 
proposed rule was incorrect. We have inserted the following language in 
the final rule: ``For inclusion in a critical habitat designation, the 
habitat within the geographical area occupied by the species at the 
time it was listed must contain physical and biological features which 
are essential to the conservation of the species and which may require 
special management considerations or protection.''
    (128) Comment: The Service received several requests for an 
extension of the comment period.
    Our Response: We believe the two comment periods allowed for 
adequate opportunity for public comment. A total of 90 days was 
provided for document review and the public to submit comments. In 
addition, a public hearing was scheduled on October 17, 2011, as 
another venue for comment submission.
    (129) Comment: The Nation supports the Service's proposal to 
exclude those lands located within the exterior boundaries of the 
Yavapai-Apache Reservation from the final critical habitat designation 
under section 4(b)(2) of the Act, as the benefit of such exclusion 
outweighs the benefits of designating these lands as critical habitat, 
and such exclusion will not result in the extinction of the species.

[[Page 10890]]

    Our Response: Within the proposed rule, we identified areas that we 
would consider for exclusion, including those of the Yavapai-Apache 
Reservation. Please see the Exclusions section for the analysis on the 
benefits of inclusion and exclusion for this area.
    (130) Comment: There were several comments regarding the proposed 
exclusions in the proposed rule and that our rationale was not clear in 
determining which areas were proposed for exclusion. FWS should provide 
support for all exclusion determinations.
    Our Response: We may exclude an area from designated critical 
habitat based on economic impacts, impacts on national security, or any 
other relevant impacts. In addition, we can consider exclusion of areas 
covered by other management plans or agreements such as habitat 
conservation plans which provide equal or better protection than would 
be gained from a critical habitat designation. 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, and determine 
whether the benefits of exclusion outweigh the benefits of inclusion. 
See the discussion in the exclusions section of the final rule for 
further details.
    (131) Comment: Fort Huachuca is requesting that a national security 
analysis in compliance with section 4(b)(2) be performed in 
consultation with the fort. In addition, the fort would like to 
continue dialogue beyond November 3, 2011, on the issues that have been 
raised in both letters regarding the national security impacts and the 
lack of justification for critical habitat designation in Unit 3.
    Our Response: We conducted an exclusion analysis based on a comment 
in which national security issues were raised by Fort Huachuca 
following closure of the second comment period. In this final rule, the 
San Pedro River has been excluded from the designation because the 
benefits of exclusion outweigh the benefits of inclusion based on 
potential impacts to national security. Refer to the discussion in the 
Exclusions section for further details.
    (132) Comment: The Service is not following their own regulations, 
policies and guidelines by allowing a long list of major Federal 
actions, such as fish recovery projects carried out under the Central 
Arizona Project (CAP) Biological Opinion, and the proposed spikedace 
and loach minnow critical habitat designation, to occur without NEPA 
analysis.
    Our Response: While actions taken under the CAP Fund Transfer 
Program do benefit spikedace and loach minnow, these are projects that 
are largely derived from the section 7 process. While ideally, recovery 
actions and critical habitat designation support one another to achieve 
recovery and delisting of the species, critical habitat designation is 
independent of these types of management actions. Had the Bureau of 
Reclamation and the Service decided for example, not to complete 
recovery actions on Bonita Creek or Hot Springs Canyon with barrier 
construction and translocations of the two species, we would still be 
designating critical habitat. These actions are therefore independent 
of one another and require separate NEPA analysis.
    (133) Comment: The way the Service implements consultations, the 
designation of critical habitat does impose universal rules and 
restrictions on land use. It does automatically trigger consultation 
with Service for modifications and results in prohibiting and altering 
certain land uses and water development activities. An example is the 
Upper San Pedro River where the habitat is unoccupied. With designated 
critical habitat there is a universal rule and restriction that any 
activity within 300 feet of the river cannot adversely modify critical 
habitat. This automatically prohibits a land owner from creating a 
tilapia farm, alfalfa farm, alpaca ranch, livestock corral or otherwise 
lawful activity within 300 feet of the river. This is a universal 
blanket rule in critical habitat. To state otherwise is disingenuous.
    Our Response: It should be noted that adverse modification is 
rarely reached. Designation of critical habitat does not prohibit 
projects, but should an action be proposed, permitted, or funded by a 
Federal agency, section 7 consultation may be required. The purpose of 
section 7 consultation is to provide minimization measures that reduce 
the impacts to listed species or their critical habitat. There are no 
automatic prohibitions to activities under the ESA.
    (134) Comment: The term ``sufficient conservation measures'' is 
used three times in the Environmental Assessment. The subsequent EIS 
needs to detail the measures deemed sufficient so that the costs and 
benefits of excluding areas due to economic, national security, and 
other needs can be assessed.
    Our Response: Please see the Exclusions section of this document, 
which describes the process that the Service uses to determine if 
exclusions are warranted. Generally, the process weighs whether the 
benefits of exclusion outweigh the benefits of inclusion. In the case 
of a management plan that details conservation measures, the Service 
would consider conservation measures sufficient if they would lead to 
conservation that meets or exceeds what we would anticipate occurring 
through designation of critical habitat.
    (135) Comment: An issue was raised regarding large floods in the 
streams proposed for critical habitat and if the designation would make 
it more difficult to complete repair work since some funding will be 
from Federal agencies.
    Our Response: Flooding, along with other activities, often does 
involve a Federal nexus that might trigger a section 7 consultation. 
Should flooding occur, Federal assistance may be used through programs 
such as the Natural Resource Conservation Service's Emergency Watershed 
Protection Program, which has been used in the past to provide 
assistance to landowners in protecting their property from flood 
damage. The Service has established emergency consultation procedures 
that allow for this type of Federal action to move forward quickly, 
with emphasis on protection of human life and property.
    (136) Comment: The designation of critical habitat for these 
species is an attempt by the Service to gain additional control over 
the use of public and private land and resources.
    Our Response: Critical habitat identifies geographic areas that 
contain features essential for the conservation of a threatened or 
endangered species and that may require special management 
considerations. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Critical habitat designation does not impose 
restrictions on private lands unless Federal funds, permits or 
activities are involved. Federal agencies that undertake, fund, or 
permit activities that may affect critical habitat are required to 
consult with the Service to ensure that such actions do not adversely 
modify or destroy designated critical habitat. Requirements for 
consultation on critical habitat do not apply to entirely private 
actions on private lands. Critical habitat designations apply only to 
Federal lands, or federally funded or permitted activities on non 
federal lands. Activities on private or State lands that are funded, 
permitted, or carried out by a Federal agency, such as a permit from 
the U.S. Army Corps of Engineers under section 404 of the Clean Water 
Act, will be subject to the

[[Page 10891]]

section 7 consultation process with the Service if those actions may 
affect critical habitat or a listed species.
    (137) Comment: One commenter noted that the development of 
conservation agreements with agencies and private landowners to gain 
similar protection to that afforded by designation of critical habitat 
would preclude the need to designate critical habitat but that, as no 
such efforts were under way across the species' range during the 2010 
proposed rule development, the Service rejected an alternative to 
accept conservation agreements in lieu of critical habitat designation. 
The commenter noted that conservation agreements would allow the 
Service to save money by putting a large part of the conservation 
burden on agencies and landowners, and that it may have been premature 
for the Service to reject this alternative. There may be potential for 
better results than through designation. Specifically, the AWSA offers 
opportunity to easily improve habitat for the loach minnow and 
spikedace.
    Our Response: We agree that the use of conservation agreements may, 
in some instances, provide a conservation benefit equal to or greater 
than the designation of critical habitat. However, at the time that the 
critical habitat designation was proposed and subsequently finalized, 
no such conservation agreements were under way or in place. The Service 
has a court-determined deadline for designation of critical habitat. 
While we considered those conservation agreements that are under way, 
we are not able to delay the designation of critical habitat until such 
agreements are developed, and we are not able to exclude areas from 
critical habitat based on conservation agreements that might be 
developed in the future.
    (138) Comment: In the past the Service has published information 
which states that designation of critical habitat provides little 
additional protection to species (69 FR 53182). The information states 
that in 30 years of implementing the Act, the Service has found that 
the designation of statutory critical habitat provides little 
additional protection to most listed species, while consuming 
significant amounts of available conservation resources. Additionally, 
we have also found that comparable conservation can be achieved by 
implementation of laws and regulations obviating the need for critical 
habitat. This statement supports the preparation of an EIS.
    Our Response: The Service has changed how it evaluates the value of 
critical habitat due to guidance provided by the Ninth Circuit Court. 
Formal consultation under section 7 of the Act 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 to destroy or adversely modify critical habitat (50 
CFR 402.14[h]). In 2004, the Ninth Circuit Court determined through 
Gifford Pinchot Task Force et al. v. United States Fish and Wildlife 
Service (2004) that, while the jeopardy standard concerns the survival 
of a species or its risk of extinction, the adverse modification 
standard concerns the value of critical habitat for the recovery, or 
eventual delisting, of a species. As pointed out in the Ninth Circuit 
decision, survival of a species and recovery (or conservation) of a 
species are distinct concepts in the ESA. Implementation of the two 
standards, therefore, involves separate and distinct analyses based on 
these concepts.
    In light of the Gifford Pinchot decision, the Service no longer 
relies on the regulatory definition of ``destruction or adverse 
modification'' of critical habitat at 50 CFR 402.02. Instead, the 
Service relies on the statutory provisions of the ESA to complete the 
analysis with respect to critical habitat. The potential for 
destruction or adverse modification of critical habitat by a Federal 
action is assessed under the statutory provisions of the ESA by 
determining whether the effects of the implementation of the proposed 
Federal action would allow the affected critical habitat to remain 
functional (or retain those PBFs that relate to the ability of the area 
to periodically support the species) to serve its intended conservation 
role for the species (75 FR 66519). This analysis provides the basis 
for determining the significance of anticipated effects of the proposed 
federal action on critical habitat. The threshold for destruction or 
adverse modification is evaluated in the context of whether the 
critical habitat would remain functional to serve the intended 
conservation role for the species. The direction provided by the Ninth 
Circuit Decision in Gifford Pinchot has changed the way the Service is 
analyzing the value of critical habitat.
    (139) Comment: Under Section 7 ESA consultations, FWS should urge 
the reinitiation of extant consultations, including programmatic 
consultations, with the uplisted statuses of spikedace and loach minnow 
in mind as well as the expanded designated critical habitats. This 
includes the 18 BLM domestic livestock grazing allotments in the mid-
Gila River Basin.
    Our Response: Reinitiation of consultation is required if a new 
species or critical habitat designation may be affected by an 
identified Federal action. Any consultations for projects that are 
within the proposed critical habitat designation may need to be 
reinitiated to evaluate impacts on the critical habitat. However, it 
should be noted that the 2007 critical habitat designation remains in 
place until the 2012 designation is published, and many projects went 
through consultation under the 2007 designation. For projects that have 
been developed in the interim, preliminary consultation is under way in 
many areas.
    (140) Comment: It is our understanding that FMC has not submitted a 
draft management plan for spikedace and loach minnow conservation on 
reaches of the San Francisco and Gila Rivers and Eagle Creek. Without 
management plans, FMC's contention that these stream reaches and their 
spikedace and loach minnow populations do not require special 
management is invalid. If FMC does submit management plans in support 
of a request for exclusion of their lands from the critical habitat, 
please send us copies for our information and review.
    Our Response: Freeport-McMoRan developed two management plans. One 
plan addressees Eagle Creek and the San Francisco River in Arizona, 
while the other addresses the Gila River, Bear Creek, and Mangas Creek 
in New Mexico. A description of the management plans and our decision 
regarding exclusions can be found in the ``Exclusions'' section of the 
final rule. The management plans themselves are available on http://www.regulations.gov for public viewing.
    (141) Comment: An earlier management plan by Phelps-Dodge (acquired 
by FMC) used to support the exclusion of their lands along the upper 
Gila River in the 2007 final critical habitat rule was vague and 
completely inadequate. It was primarily a study plan for the USFS's 
Rocky Mountain Research Station. This study plan received strong 
criticism from within the USFS and those comments were made available 
to the Service. We submitted a critical review of the Phelps-Dodge/
Rocky Mountain Research Station management/study plan in a letter of 
October 14, 2006, to the Service. In our letter we also commented on 
the inadequacy of a similarly vague and insubstantial Phelps-Dodge 
management plan for Eagle Creek. Neither of these two defective plans 
should be considered in

[[Page 10892]]

this revision of the critical habitat, both are inadequate and out-of-
date.
    Our Response: Freeport-McMoRan provided updated management plans 
during the second comment period. The revised plans provide for the 
commitment of significant additional resources for construction of 
barriers to limit movement of nonnative fish into spikedace and loach 
minnow habitat, monitoring, and other conservation actions.
    (142) Comment: In April 2007 the Service informed us they do not 
believe the 2003 Policy for Evaluation of Conservation Efforts When 
Making Listing Decisions (PECE) applies to critical habitat 
designations and so will not conform to it when assessing the quality 
and sustainability of management plans submitted in seeking critical 
habitat exclusions. The PECE is a strong and well constructed policy 
for assessing the value to species from proposed private conservation 
efforts, and regardless of whether or not it can be legally required, 
we urge the Service to use PECE in its analysis of management or 
conservation plans submitted in support of requested exclusions from 
critical habitat designation for spikedace and loach minnow. An 
analysis using PECE guidelines, and made available to the public, would 
be a worthwhile and informative method for documenting the Service's 
rationale and process for critical habitat exclusion decisions.
    Our Response: The PECE Policy identifies criteria we use in 
determining whether formalized conservation efforts that have yet to be 
implemented or to show effectiveness contribute to making listing a 
species as threatened or endangered unnecessary. We believe that a 
recovery plan is the appropriate vehicle to provide guidance on actions 
necessary to delist a species.
    (143) Comment: For the reasons set forth here and as explained in 
(a) prior filings with the Service by the Nation; and (b) in face-to-
face meetings and other communications with the Service (all of which 
are incorporated in full here by reference), it remains the Nation's 
position that the Secretary of the Interior lacks legal authority to 
designate critical habitat on the Nation's lands. (See written comments 
of the Yavapai-Apache Nation, dated February 16, 2006, February 21, 
2006, February 26, 2006, July 6, 2006, and December 27, 2010 
specifically addressing prior and current proposals by the Service to 
designate critical habitat for the spikedace and loach minnow on the 
Yavapai-Apache Reservation.)
    Our Response: 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. In recognition 
of the Nation's sovereignty, our working relationship with the Tribe, 
and the management efforts taken by the Yavapai-Apache Nation on their 
tribal lands that benefit spikedace and loach minnow, all proposed 
critical habitat has been removed from the final rule.

General Comments Issue 3: Economic Analysis Concerns

    (144) Comment: There were several comments concerning the effects 
of the critical habitat designation on the operation of Ft. Huachuca, 
especially the economic costs and cumulative effects.
    Our Response: The economic effects were analyzed in the draft 
economic analysis, however, the San Pedro River has been excluded based 
on national security issues related to the operation of Ft. Huachuca. 
See our discussion in the Exclusion section of this text.
    (145) Comment: The cumulative impact of the endangered species 
program combined with critical habitat designations in Arizona and New 
Mexico over the last 9 years has been severe. More than a one-third 
reduction in the number of USFS permittees and a 33.8 percent reduction 
in the number of animal unit months occurred (AUMs) in the period 2000 
to 2009. This information is from the USFS, Annual Grazing Statistical 
Reports.
    Our Response: We agree with the commenter that the comparison of 
2000 (USDA 2000, p. 31) to 2009 (USDA 2011, p. 33-34) data indicates an 
overall reduction in the number of permittees, head months (HMs), and 
animal unit months. However, these documents report the figures cited 
in the comment, without stating any conclusions as to the cause of the 
decline between 2000 to 2009, so it would be in error to conclude that 
the cumulative impact of the endangered species program and critical 
habitat designations in Arizona and New Mexico have led to this 
decline.
    (146) Comment: We challenge the validity of the draft environmental 
assessment especially with its proposed exclusions of Federal lands 
managed by agencies like the USFS or BLM, just because they have paper 
plans in place that one would expect to protect designated critical 
habitat and promote the conservation and recovery of listed species 
like spikedace and loach minnow that are facing potential extinctions. 
Using the grazing allotment examples with which we are most familiar, 
paper Land and Resource Management Plans and Resource Management Plans 
do not guarantee the necessary protections and recovery under the Act 
for these two imperiled fish species. In fact, our field and legal work 
have proven how weak the paper promises are and how important 
enforcement of the Act and legal actions are for just conserving what 
remains of the 10 to 20 percent of the occupied habitats for the two 
cyprinids in the lands. By eliminating those from the final critical 
habitat rules, the Service will undermine the conservation and recovery 
without retardation of the natural rates of loach minnow and spikedace.
    Our Response: At this time, we are not excluding Federal lands from 
the designation of spikedace and loach minnow critical habitat and are 
not including any Land and Resource Management Plans or Resource 
Management Plans as the means for any exclusions. Our rationale for 
excluding tribal and military lands are provided within the Exclusions 
section of this rule.
    (147) Comment: The Communities have existing rights to groundwater 
and surface water within the Upper Verde River Watershed. Additionally, 
the Communities have invested in the development of additional water 
rights owned by the City of Prescott in the City's Big Chino Water 
Ranch in order to preserve and enhance the economic viability of the 
region.
    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.
    (148) Comment: Participation in the National Resource Conservation 
Service (NRCS) program may be impacted by the critical habitat 
designation due to time delay impacts on NRCS activities, including 
those under the Environmental Quality Incentives Program (EQIP) that 
would require section 7 consultation. Also, NRCS programs might be 
affected because farmers could refuse federal funding to avoid a 
federal nexus that would require section 7 consultation.
    Our Response: Exhibits ES-1 and ES-2 in the Economic Analysis 
recognize the potential for impacts to participation in NRCS funding 
and programs. However, considerable uncertainty exists surrounding the 
effect of critical habitat designation on the level of participation in 
the NRCS and other Federal programs. At this time, we are unaware of 
any instances where critical habitat designation has resulted in

[[Page 10893]]

delays to NRCS project implementation. Therefore, these impacts are not 
quantified. Section 3.6 of the final economic analysis does, however, 
discuss potential impacts of critical habitat on NRCS programs in more 
detail, including the potential for reduced farmer participation in 
these programs. Further, it should be noted that the Service and NRCS 
completed a programmatic consultation in 2011 which will facilitate the 
review of EQIP projects.
    (149) Comment: The number of wells in the Virden Valley area of the 
Gila River is underestimated because the analysis only considers wells 
within critical habitat areas.
    Our Response: The geographic scope of the final economic analysis 
was estimated using information provided in the proposed rule, in which 
the Service states that critical habitat designation extends 300 feet 
to either side of a stream's bank full width. While it is certainly 
possible that wells outside of this area draw water from critical 
habitat reaches, those particular wells were not easily identified. It 
should be noted that because groundwater withdrawals frequently do not 
involve a Federal nexus, groundwater issues have rarely been addressed 
through section 7 consultations in the past. The analysis therefore 
reports the number of groundwater wells in proposed critical habitat 
areas, but does not assign a cost associated with potential impacts to 
these wells.
    (150) Comment: In the economic analysis for the critical habitat 
designation, the Service uses faulty logic by comparing projected 
dollar costs to the public weighed against projected biological 
benefits of protecting habitat for the endangered species. This is 
performed under the specious argument that conserving and recovering 
endangered and threatened species should not be reduced to dollars and 
cents. While this appears noble, it places portions of designated 
critical habitat at the great risk of being excluded for economic 
reasons, even when some of the economic costs can be countered with 
local or regional economic benefits. The Service totally ignores these 
benefits and weighs the full weight of the costs for their economic 
exclusion decisions.
    Our Response: Section 2.3.3 of the final economic analysis 
recognizes that ``the published economics literature has documented 
that social welfare benefits can result from the conservation and 
recovery of endangered and threatened species. In its guidance for 
implementing Executive Order 12866, the OMB acknowledges that it may 
not be feasible to monetize, or even quantify, the benefits of 
environmental regulations due to either an absence of defensible, 
relevant studies or a lack of resources on the implementing agency's 
part to conduct new research. Rather than rely on economic measures, 
the Service believes that the direct benefits of the proposed rule are 
best expressed in biological terms that can be weighed against the 
expected cost impacts of the rulemaking. Critical habitat designation 
may also generate ancillary benefits. Critical habitat aids in the 
conservation of species specifically by protecting the primary 
constituent elements on which the species depends. To this end, 
critical habitat designation can result in maintenance of particular 
environmental conditions that may generate other social benefits aside 
from the preservation of the species. That is, management actions 
undertaken to conserve a species or habitat may have coincident, 
positive social welfare implications, such as increased recreational 
opportunities in a region. While they are not the primary purpose of 
critical habitat, these ancillary benefits may result in gains in 
employment, output, or income that may offset the direct, negative 
impacts to a region's economy resulting from actions to conserve a 
species or its habitat.'' Section 11 qualitatively describes coincident 
benefits of the designation on water quality, stream flow levels, 
property values, and aesthetic and educational benefits. The Service 
considers these benefits while weighing the benefits of inclusion 
against the benefits of exclusion before excluding any area from the 
designation.
    (151) Comment: Commenters recommend that the authors of the 
spikedace and loach minnow economic analysis and environmental analysis 
documents cite Dr. Rinne's publications that describe the increase in 
predatory nonnative fish and the disappearance of native fish on the 
Verde River after removal of livestock.
    Our Response: Section 2.3.3 of the final economic analysis 
recognizes that ``the published economics literature has documented 
that social welfare benefits can result from the conservation and 
recovery of endangered and threatened species. In its guidance for 
implementing Executive Order 12866, the OMB acknowledges that it may 
not be feasible to monetize, or even quantify, the benefits of 
environmental regulations due to either an absence of defensible, 
relevant studies or a lack of resources on the implementing agency's 
part to conduct new research. Rather than rely on economic measures, 
the Service believes that the direct benefits of the proposed rule are 
best expressed in biological terms that can be weighed against the 
expected cost impacts of the rulemaking. Critical habitat designation 
may also generate ancillary benefits. Critical habitat aids in the 
conservation of species specifically by protecting the primary 
constituent elements on which the species depends. To this end, 
critical habitat designation can result in maintenance of particular 
environmental conditions that may generate other social benefits aside 
from the preservation of the species. That is, management actions 
undertaken to conserve a species or habitat may have coincident, 
positive social welfare implications, such as increased recreational 
opportunities in a region. While they are not the primary purpose of 
critical habitat, these ancillary benefits may result in gains in 
employment, output, or income that may offset the direct, negative 
impacts to a region's economy resulting from actions to conserve a 
species or its habitat.'' Section 11 qualitatively describes coincident 
benefits of the designation on water quality, stream flow levels, 
property values, and aesthetic and educational benefits. The Service 
considers these benefits while weighing the benefits of inclusion 
against the benefits of exclusion before excluding any area from the 
designation.
    (152) Comment: The commenter believes that economic benefits at the 
local, regional, and national levels exist, but are not included in the 
draft Economic Analysis.
    Our Response: As stated in Section 2.3.3 of the final economic 
analysis, ``Critical habitat aids in the conservation of species 
specifically by protecting the primary constituent elements on which 
the species depends. To this end, critical habitat designation can 
result in maintenance of particular environmental conditions that may 
generate other social benefits aside from the preservation of the 
species. That is, management actions undertaken to conserve a species 
or habitat may have coincident, positive social welfare implications, 
such as increased recreational opportunities in a region. While they 
are not the primary purpose of critical habitat, these ancillary 
benefits may result in gains in employment, output, or income that may 
offset the direct, negative impacts to a region's economy resulting 
from actions to conserve a species or its habitat.''
    (153) Comment: Rather than applying the `but for' test for some of 
the projected costs, the costs attributed to

[[Page 10894]]

the designation of critical habitat for spikedace and loach minnow 
should be independent of other costs that would exist, whether there is 
designated critical habitat or not for spikedace and loach minnow. In 
other words, the coextensive framework used in the draft Economic 
Analysis is inappropriate.
    Our Response: The estimation of incremental impacts is consistent 
with direction provided by the Office of Management and Budget to 
Federal agencies for the estimation of the costs and benefits of 
Federal regulations (see Office of Management and Budget, Circular A-4, 
2003). It is also consistent with several recent court decisions, 
including Cape Hatteras Access Preservation Alliance v. U.S. Department 
of the Interior, 344 F. Supp. 2d 108 (D.D.C.) and Center for Biological 
Diversity v. U.S. Bureau of Land Management, 422 F. Supp. 2d 1115 (N.D. 
Cal. 2006). Those decisions found that estimation of incremental 
impacts stemming solely from the designation is proper. However, in 
order to address the divergent opinions of the courts and provide the 
most complete information to decision-makers, this economic analysis 
reports both the baseline impacts of protections afforded spikedace and 
loach minnow absent critical habitat designation; and the estimated 
incremental impacts precipitated specifically by the designation of 
critical habitat for the species. Summed, these two types of impacts 
comprise the fully co-extensive impacts of conservation in areas 
considered for critical habitat designation.
    (154) Comment: The Economic Analysis and Environmental Assessment 
should cite Dr. Rinne's publications that describe the increase in 
predatory nonnative fish and the disappearance of native fish on the 
Verde River after removal of livestock.
    Our Response: Section 4.1 of the final economic analysis now 
recognizes that studies by J. N. Rinne have suggested that current 
management has been successful at mitigating the negative effects of 
grazing on riparian habitat, that further limitation of grazing may 
create conditions conducive to non-native species, and that fencing 
could be detrimental to riparian species.
    (155) Comment: Each addition of a species and/or critical habitat 
area takes its toll on the economic viability of ranching and this 
cumulative impact was not discussed in the critical habitat documents. 
A single additional restriction or requirement that decreases the 
profitability of an operation could be the one that causes the operator 
to go out of business.
    Our Response: This concern is now reflected in Section 3 and 
Appendix A of the FEA.
    (156) Comment: The NRCS agency is the best agency to provide 
current and accurate actual costs of conservation practices. The 
Economic Analysis states that the cost of fencing ranges from $1,690 to 
$16,900 per river mile of fence construction. NRCS costs, which are 
updated yearly to be as close to actual as possible, estimates the cost 
of fence construction at $3.05 per foot for level ground to $4.30 per 
foot for rough county and $5.75 per foot for rough county where 
materials must be packed in. This would make the cost of fence building 
to range from $16,104 to $30,360. The articles by Miller 1961, Platts 
1990, Belsky 1999 referenced in the draft Economic Analysis are not the 
best commercially available information.
    Our Response: In response to two public comments, the final 
economic analysis now incorporates updated fence construction and 
maintenance cost estimates, maintained and updated by NRCS for 2012. In 
Section 4.3.1 of the final economic analysis, fencing costs are 
estimated to range from $8,940 per mile fenced to $14,500 per mile 
fenced, with annual fence maintenance costs ranging from $179 to $725 
per mile of fencing.
    (157) Comment: The use of 2002 census data in the draft Economic 
Analysis and the draft Environmental Assessment is not compliant with 
requirements to use the best scientific and commercial data available. 
The Economic Analysis and Environmental Assessment need to be updated 
to use 2011 data.
    Our Response: The final economic analysis and final environmental 
assessment now incorporate 2010 census data where possible throughout 
the report to more accurately estimate the magnitude and distribution 
of economic impacts.
    (158) Comment: The draft Economic Analysis does not consider 
impacts to grazing related to the necessity for water in all livestock 
operations.
    Our Response: As shown in Exhibit 4-3 of the final economic 
analysis, the Service has historically recommended that off-river water 
systems be used to supply water to cattle where possible, but has not 
disallowed watering areas.
    (159) Comment: The designation of critical habitat for spikedace 
and loach minnow could possibly be the ``final straw'' for what 
Department of Defense is willing to spend on Fort Huachuca's support of 
the Act and it is significant as a cumulative impact. If one more 
element of critical habitat is added over and above the current cost of 
all the other management actions for endangered species the Fort is 
financing, it could be the factor that triggers the Fort to reduce its 
missions or close the Fort and move all the missions to other 
locations.
    Our Response: The final economic analysis now recognizes the 
commenters concern in Section 3.5. In addition, please note that the 
San Pedro River has been removed from the designation. Additional 
detail is provided in the ``Exclusions'' section above.
    (160) Comment: The commenter believes the draft Economic Analysis 
fails to consider three classes of small entities defined by the Small 
Business Administration as: businesses with an average income under 
$750,000, cities and towns with a population under 50,000 and local 
governments such as school districts.
    Our Response: In the final economic analysis, Appendix A, Section 
A.1.2, details the types of small entities included in the analysis, 
and includes those categories of small entities identified in the 
comment. The analysis, as described in Exhibit A-1, considers small 
businesses on the basis of the Risk Management Association's Small 
Business Size Standards, including, for some industries, businesses 
with revenues under $750,000. In addition, Appendix A states, ``Section 
601(5) of the Regulatory Flexibility Act defines small governmental 
jurisdictions as governments of cities, counties, towns, townships, 
villages, school districts, or special districts with a population of 
less than 50,000. Special districts may include those servicing 
irrigation, ports, parks and recreation, sanitation, drainage, soil and 
water conservation, road assessment, etc.''
    (161) Comment: The Economic Analysis needs to consider impacts to 
operations falling into numerous NAICS codes: 111940 Hay Farming; 
112111 Beef Cattle Ranching and Farming; 112112 Cattle Feedlots; 112120 
Dairy Cattle and Milk Production; 112210 Hog and Pig Farming; 112410 
Sheep Farming; 112920 Horses and Other Equine Production; 113110 Timber 
Tract Operations; 113210 Forest Nurseries and Gathering of Forest 
Products; 113310 Logging; 114210 Hunting and Trapping; 115112 Soil 
Preparation, Planting, and Cultivating; 115113 Crop Harvesting, 
Primarily by Machine; 115114 Postharvest Crop Activities (except Cotton 
Ginning); 115115 Farm Labor Contractors and Crew Leaders; 115116 Farm 
Management Services; 115210 Support Activities for Animal Production;

[[Page 10895]]

115310 Support Activities for Forestry; etc.
    Our Response: Exhibit A-1 lists the NAICS codes used to identify 
potentially affected small entities in the industries most likely to 
incur impacts related to the critical habitat designation. The final 
economic analysis considers nine NAICS classifications in agricultural, 
ranching, and development sectors, including Hay Farming (111940) and 
Beef Cattle Ranching and Farming (112111). It is not clear why the 
commenter expects impacts to the remaining sectors listed.
    (162) Comment: The commenter claims the economic analysis is flawed 
because it failed to coordinate development of the Proposed Rule 
changes with local government.
    Our Response: As noted in Section 7.3, the analytic approach to the 
Economic Analysis is explained. Based on projected growth rates, the 
analysis identified counties that were likely to undergo high levels of 
development and were thus most likely to incur impacts to residential 
and commercial development activities. Based on this process, a subset 
of county and local government planning offices that were likely to 
incur costs to development was contacted. Due to time constraints, 
every county and local government could not be contacted.
    (163) Comment: Appendix A recognizes that there will be economic 
impacts to small entities but underestimates the impacts due to the 
omission, throughout both the draft Environmental Assessment and the 
draft Economic Analysis, of not taking into account the potential 
restrictions to groundwater extraction and use in areas outside the 
actual critical habitat designation corridor. Similarly, the draft 
Economic Analysis and draft Environmental Assessment generally fail to 
address water and land uses outside the proposed critical habitat, 
focusing instead on impacts occurring within the proposed critical 
habitat--a corridor that extends 300 feet from each side of the stream 
edge at ``bank full discharge.'' As a consequence, the full range of 
impacts has not been considered.
    Our Response: As noted in comment 149 above, the geographic scope 
of the final economic analysis was estimated using information provided 
in the Proposed Rule, in which the Service states that critical habitat 
designation extends 300 feet to either side of a stream's bank full 
width. However, the analysis is not limited to assessing impacts 
derived from activities occurring inside that area. For example, 
Section 5 of the final economic analysis focuses on mining activities 
which are not located in proposed critical habitat areas. The potential 
for impacts to groundwater users is discussed qualitatively.
    (164) Comment: Because of differing court rulings in the Ninth and 
Tenth Circuit Courts, the Service must perform a full analysis of all 
of the economic impacts of the critical habitat designated in New 
Mexico, regardless of whether an impact is co-extensive with the 
species' listing, while for critical habitat proposed in Arizona, the 
Service may use the baseline approach. However, the different 
approaches adopted by the two circuits are relevant only where 
currently occupied areas are designated as critical habitat. In the 
absence of recent records of occupancy, the area should be treated as 
unoccupied and all impacts attributed to the designation.
    Our Response: As stated in Section 2 of the final economic 
analysis, in order to address the divergent opinions of the courts and 
provide the most complete information to decision-makers, this economic 
analysis reports both the baseline impacts of protections afforded the 
two species absent critical habitat designation; and the estimated 
incremental impacts precipitated specifically by the designation of 
critical habitat for the species. When summed, these two types of 
impacts comprise the fully co-extensive impacts of conservation in 
areas considered for critical habitat designation.
    (165) Comment: The draft economic analysis erroneously used an 
incremental impact approach for critical habitat proposed in New 
Mexico.
    Our Response: Please see the comment above regarding use of the 
incremental versus baseline approaches for critical habitat designated 
in New Mexico.
    (166) Comment: Smallmouth bass, along with channel catfish, are the 
primary sport fish in Eagle Creek, as well as other streams proposed as 
critical habitat, including the lower San Francisco River and the Verde 
River and its tributaries. The draft Economic Analysis fails to address 
the economic impacts of removing these warmwater sportfish, which in 
many locations are the primary sportfish.
    Our Response: Section 6.3 of the final economic analysis states 
``non-native fish species that could potentially impact spikedace and 
loach minnow include catfish, largemouth bass, smallmouth bass, green 
sunfish, brown trout, rainbow trout, and red shiner. Possible recovery 
actions include the installation of fish barriers, increased 
monitoring, and non-native fish removal.'' The AGFD identified planned 
or ongoing non-native fish removal activity on the Verde River, as 
noted in Exhibit 6-7, amounting to a one-time cost of $150,000 to 
$200,000 in undiscounted dollars between 2016 and 2031, with the 
possibility of an additional one-time cost of $50,000 (undiscounted) 
for follow-up activity over that period. However, neither the AGFD nor 
the NMDGF identified non-native fish removal activity as being planned 
on Eagle Creek or the lower San Francisco River.
    (167) Comment: The volumes of water used at Morenci are so 
significant that sufficient quantities of substitute water sources may 
be impossible to obtain. The DEA should be revised to reflect the costs 
of restricting or preventing mining production and limiting expansion 
capabilities.
    Our Response: Section 5 of the final economic analysis is focused 
exclusively on a discussion of potential impacts to the mining 
industry, and specifically focuses on facilities owned by FMC. The 
discussion includes data supplied by the commenters on the scope and 
scale of potential impacts to those operations. Information received as 
part of the comment above provided a value of potential lost water 
rights and associated replacement costs based. 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 final economic analysis includes 
estimates of the cost of replacing water sources in Section 5 of the 
analysis, to provide additional context for understanding the potential 
magnitude of impacts, should they occur.
    (168) Comment: The draft Economic Analysis does not address the 
impacts of critical habitat on water supplies for the communities of 
Morenci and Clifton.
    Our Response: The final economic analysis now acknowledges this 
concern in Section 5.
    (169) Comment: The critical habitat designation threatens rights of 
the Town of Sierra Vista, Cochise County, and the Coalition of New 
Mexico Counties to surface and groundwater.
    Our Response: Impacts to municipal water use are discussed 
qualitatively in Section 3 of the final economic analysis. Considerable 
uncertainty surrounds the specific quantity of water, if any, that 
Service would request to be conserved for spikedace and loach minnow as 
part of a section 7 consultation. As such, this analysis does not 
quantify the probability or extent to which water use would need to be 
curtailed or modified

[[Page 10896]]

to remedy impacts on spikedace and loach minnow.
    (170) Comment: The draft Economic Analysis states that 29 percent 
of the land in critical habitat is privately owned. This is a 
significant amount of private land, especially when you consider how 
little streamside acreage there is within the arid states of Arizona 
and New Mexico. For many purposes, land adjacent to flowing water is 
the most valuable land in the arid west. The draft Economic Analysis 
understates impacts to development on streamside land.
    Our Response: As stated in Section 7 of the final economic 
analysis, potential modifications to development projects related to 
spikedace and loach minnow conservation activities depend on the scope 
of spikedace and loach minnow conservation activities, pre-existing 
land use and regulatory controls in the region, and the nature of 
regional land and real estate markets. In this case, consultations on 
development activities have been rare (one to date). In addition, 
riparian development buffers already exist in many areas, and some 
developments may not require any Federal permits. Further, the Service 
does not expect that conservation efforts related to future development 
activities in critical habitat areas are likely. The analysis 
nonetheless includes an estimate that assumes that all private parcels 
in the Verde unit are required to conduct conservation efforts for 
spikedace and loach minnow. Separate from that, Section 11 of the final 
economic analysis describes published studies that have examined 
increased property values associated with stream habitat. For example, 
Colby and Wishart estimated the value to property arising from 
proximity to open space provided by streambeds, arroyos, and dry washes 
in the city of Tucson, Arizona. The authors found that existence of 
permanent easements and other policies to protect these areas increased 
the property values of homes within one-half mile of the streambed by 
an average of five percent. However, compliance costs for development 
projects are not anticipated to be higher for streamside homes than in 
other areas.
    (171) Comment: There are potential mathematical errors in the 
calculation of impacts. In the Executive Summary, it states that 
``Incremental impacts are estimated to be $2.20 million to $8.79 
million over twenty years ($194,000 to $776,000 annually) using a real 
rate of seven percent, or $2.77 million to $11.2 million over 20 years 
($181,000 to $728,000 annually) using a real rate of three percent.'' 
However, $194,000 x 20 years = $3.88 million (not $2.2 million); 
776,000 x 20 years = $15.52 million (not $8.79 million); $181,000 x 20 
years = $3.62 million (not $2.77 million) and $728,000 x 20 = $14.56 
million (not $11.2 million). Taking into account the 3 and 7 percent 
analysis does not fix this error.
    Our Response: The Economic Analysis presents economic impacts that 
may be incurred in different time periods in present value terms and 
annualized terms. As described, annualized values are calculated to 
provide comparison of impacts across activities with varying forecast 
periods and distribution over time. For this analysis, activities 
employ a forecast period of 20 years. The discrepancies identified by 
the commenter appear to be related to the commenter's assumptions that 
reported costs are annual costs, rather than annualized costs.
    (172) Comment: The draft Economic Analysis does not consider the 
costs of developing alternate water sources, reductions in the number 
of cattle the operator can run, or additional consultant and meeting 
costs for grazing activities.
    Our Response: Based on a review of the consultation history, the 
economic analysis determined that the Service is not likely to request 
restrictions or reductions on water use for grazing activities during 
section 7 consultation. Therefore, water use impacts are not expected 
for grazing operations. It would be helpful if we can show that the 
consultation allowed watering areas too, since I think the issue is not 
having access to the water itself due to fencing.
    (173) Comment: The cost of fish barrier installation used in the 
draft Economic Analysis is too low. The cost of building a fish barrier 
is between $800,000 and $1 million.
    Our Response: Fish barrier costs are given in Exhibit 6-6 of the 
analysis. Undiscounted fish barrier costs range from $1 million on the 
low end to $10 million of the high end. These costs have been confirmed 
with Bureau of Reclamation officials responsible for fish barrier 
installation in Arizona and New Mexico.
    (174) Comment: Transportation costs are too low and the economic 
analysts should consult with the affected entities.
    Our Response: Section 9 of the final economic analysis reports 
costs associated with transportation projects that were estimated by 
the Arizona Department of Transportation related to a consultation for 
an endangered fish species.
    (175) Comment: The fire management costs in the draft Economic 
Analysis are too low.
    Our Response: Based on information received during the comment 
period, we have adjusted estimated impacts to fire management 
activities to include costs related to the 2011 Coronado Fire. The 
analysis estimates three total fire management activities throughout 
all of the critical habitat designation, one in Unit 3. Impacts to fire 
management are presented in Section 10.3. Impacts are estimated at 
$14,200 over the next 20 years ($1,250 on an annualized basis).
    (176) Comment: The draft economic analysis should use more up-to-
date administrative cost figures than the 2002 dollar figures from 
across the country. The cost figures used should be based on a review 
of consulting records from Arizona and New Mexico from 2010 through 
2011.
    Our Response: The draft Economic Analysis provided an incorrect 
citation in Exhibit 2-3. Data from the ``Federal Government Schedule 
Rates, Office of Personnel Management'' is from 2011, not 2008. The 
draft Economic Analysis and underlying cost models incorporated the 
most recent estimates of administrative effort during section 7 
consultation, based on data from the Federal Government Schedule Rates, 
Office of Personnel Management, 2011, and a review of consultation 
records from several Service field offices across the country conducted 
in 2002. This citation error has been corrected in the final economic 
analysis.
    (177) Comment: The commenter believes the administrative costs are 
too low.
    Our Response: The commenter did not provide a basis for assuming 
the administrative costs estimated in this report are too low.
    (178) Comment: The statement that the Service ``anticipates 
requesting few additional changes'' is nebulous.
    Our Response: The commenter did not provide a basis for questioning 
the Service's statements.
    (179) Comment: The Federal Register and the draft Economic Analysis 
give different total impacts estimates for incremental and coextensive 
costs.
    Our Response: The information printed in the revised Proposed Rule 
and Notice of Availability released by the Federal Register on October 
4, 2011 represents an error. The costs reported in the draft Economic 
Analysis posted to www.regulations.gov are correct.
    (180) Comment: In Exhibit ES-1, the draft Economic Analysis 
underestimates or avoids stating the true impacts due to designation of 
the San Pedro River. Cochise County and the City of Sierra

[[Page 10897]]

Vista cannot withstand an impact of $3,240,000. An EIS is necessary to 
analyze the economic impacts of the proposed designation.
    Our Response: Exhibits ES-1 and ES-2 summarize the expected 
administrative costs and project modification impacts developed in the 
analysis. These costs are detailed in Chapter 3 of the final economic 
analysis.
    (181) Comment: The Service has failed to provide the requisite 
analysis required by law prior to designating critical habitat. This is 
evidenced by the fact that the spikedace and loach minnow economic 
analysis was done by IEc, the same firm that performed the cactus 
ferruginous pygmy-owl economic analysis.
    Our Response: As described in detail in Section 2.1 of the final 
economic analysis, the analysis adheres to OMB Circular A-4 guidelines 
for providing assessments of the social costs and benefits of proposed 
regulatory actions. Also, in response to relevant rulings in both the 
U.S. Ninth and Tenth District Court of Appeals, in order to address the 
divergent opinions of the courts with respect to NEPA, and in order to 
provide the most complete information to decision-makers, this economic 
analysis reports both the baseline impacts of protections afforded the 
four invertebrates absent critical habitat designation and the 
estimated incremental impacts precipitated specifically by the 
designation of critical habitat for the species. Summed, these two 
types of impacts comprise the fully co-extensive impacts of 
conservation in areas considered for critical habitat designation.
    (182) Comments: One section 7 consultation for a development 
project occurred in Yavapai County and considered potential impacts to 
the spikedace, loach minnow and the southwestern willow flycatcher on 
the lower Verde River. The Homestead Project consultation recommended 
the following conservation measures: Fencing; producing educational 
materials for homeowners; conducting scientific studies over 20 years; 
surveying and monitoring over 20 years; and off-setting mitigation 
(habitat set-asides). To ensure that the action would not adversely 
affect the spikedace and loach minnow, the following measures were 
added: developing a recreation and habitat monitoring plan; monitoring 
effects of recreation on habitat; implementing measures to ensure that 
habitat and streambanks are not degraded; reducing risk of exotic 
species reintroduction through educational programs, prohibiting 
backyard ponds, and prohibiting fishing and in-stream recreation in the 
25-acre Conservation Area on the property; improving human barriers to 
entrance to the river area and preventing trespass; and increasing 
fence maintenance. The developer for this project stated that 95 
percent of costs to accommodate threatened and endangered species 
stemmed from southwestern willow flycatcher needs, and that total costs 
to implement conservation measures would have been $4.4 million to $4.8 
million. However, the Service states that this project did not go 
forward, and that the property has since been sold. Many developments 
do not go forward due to these types of onerous government restrictions 
that often add enormous costs, yet provide little benefit to the 
species. The true economic costs of the proposed critical habitat 
designation include the cost of foregone development opportunities 
because the developers and their consultants do not even have to ask 
the Service what the development restrictions will be. Instead, they 
choose to avoid the entire costly process of consultation with the 
Service.
    Our Response: Section 7 of the final economic analysis addresses 
impacts to development activities. As discussed in that section, the 
analysis utilizes a range of assumptions to estimate the potential 
impact of critical habitat on development activities in these areas. 
Individual single-family home development has rarely been subject to 
consultation or habitat conservation planning requirements in Arizona. 
As noted in the comment, only one development has undergone a formal 
section 7 consultation related to development activities and impacts to 
multiple species, including spikedace and loach minnow, in the past, 
and this development was never, so no actual cost information is 
available.
    A number of existing baseline requirements prohibit development in 
floodplain areas, which limits the likelihood of developments within 
the critical habitat designation. In addition to the rarity of 
consultations in the past, potential for baseline protections, as well 
as the potential lack of a Federal permit requirement for some 
development projects, the Service does not expect that conservation 
efforts related to future development activities in critical habitat 
areas are likely to occur. As a result, the low end scenario assumes 
that no future consultations or conservation efforts on development 
will occur related to spikedace and loach minnow over the next 20 
years. However, because it is not certain that no consultations or 
conservation efforts for spikedace and loach minnow will occur related 
to development activities, the analysis also considers a high end 
scenario, where proposed critical habitat areas will be built out at a 
rate that is proportional to the county-wide housing unit growth rate 
within the next 20 years. To the extent that developers avoid critical 
habitat areas, this effect would be considered a stigma effect and is 
recognized in the analysis.
    (183) Comment: Census data is compromised in areas of low 
population density due to Privacy Act considerations. In these areas 
the disclosure of economic activities by individuals and businesses 
would entail disclosing identifiable personal information. Such data 
needs to be determined by on-the-ground surveying to produce reliable 
information on potential impacts. To do anything less will result in 
failure to disclose impacts on the most vulnerable segments of the 
economy.
    Our Response: The final economic analysis includes, to the extent 
possible, data sources that represent the most accurate population and 
demographic data publicly available. Performing an on-the-ground survey 
of undisclosed personal business is outside the scope of the final 
economic analysis.
    (184) Comment: There is a total omission of the affected counties 
and other local government road and bridge maintenance and construction 
impacts. Had the Service properly contacted the affected counties and 
other local governments, they could have obtained numerous impacts that 
are not catalogued by the state departments of transportation. The 
failure to obtain and analyze these impacts renders this section 
deficient.
    Our Response: As stated in the final economic analysis, county road 
and bridge construction and maintenance projects often require state 
Department of Transportation involvement on some level. Due to Federal 
funds accepted by most state Departments of Transportation, county road 
and bridge construction activity can be subject to a Federal nexus. The 
Arizona Department of Transportation and the New Mexico Department of 
Transportation were contacted and responded with information on all 
county and state road and bridge construction projects that required 
state Department of Transportation involvement. All county and state 
road construction projects that may potentially require section 7 
consultation were captured in these communications and are presented in 
Section 9 of the final economic analysis. Those projects that do not 
require Department of Transportation

[[Page 10898]]

involvement lack a Federal nexus and would not be subject to section 7 
consultation, and thus are not anticipated to incur costs associated 
with this rule.
    (185) Comments: The draft Economic Analysis at Section 8-4 makes 
note of the fact that the Bureau of Indian Affairs provides technical 
assistance to the Tribes on forest-management planning and oversees a 
variety of programs on tribal lands. While the purpose of this 
statement is not made clear by the Service, any suggestion that the BIA 
presently has or will in the future have sufficient funding and/or 
programs to ``offset'' the increased administrative and other costs 
resulting from the designation of critical habitat on tribal lands such 
as the Yavapai-Apache Reservation is misplaced. In truth, federal 
funding for tribal programs and programs for technical assistance 
within the BIA are increasingly threatened in today's tough economic 
and budget climate. The Service simply cannot rely on the BIA as a 
means to potentially ``mitigate'' for the increased costs that the 
Nation will suffer if critical habitat is designated on the Nations 
lands.
    Our Response: The draft Economic Analysis did not intend to imply 
that BIA involvement would mitigate costs to the Tribes, only that BIA 
involvement could potentially provide a Federal nexus for projects 
associated with BIA programs. This has been clarified in Section 8 of 
the final economic analysis.
    (186) Comment: The draft environmental assessment states that ``As 
a result the Fort has reduced its water usage from 3,300 acre-feet per 
year (20 years ago) to 1,142 acre-feet currently.'' There is a 
difference between water usage and groundwater pumping volume. The 
values used in this sentence are groundwater pumping rather than water 
usage. This statement is inaccurate and needs to be revised.
    Our Response: The language in the final economic analysis has been 
revised to reflect this comment.
    (187) Comment: The Federal Register and DEA give different total 
impacts estimates for incremental and coextensive costs.
    Our Response: The information printed in the proposed rule and NOA 
released by the Federal Register on October 4, 2011, represents an 
error. The costs reported in the draft economic analysis posted to 
http://www.regulations.gov are correct. Total incremental impacts for 
all of the above activities are estimated to be $2.29 to $47.2 million 
over 20 years ($202,000 to $4.16 million annually) using a real rate of 
seven percent. The final draft economic analysis values were $2.20 
million to $8.79 million over twenty years ($194,000 to $776,000 
annually) using a real rate of seven percent.

General Comments Issue 4: National Environmental Policy Act Concerns

    (188) Comment: The mission of the Service is to conserve, protect 
and enhance fish, wildlife, plants and their habitats for the 
continuing benefit of the American people. This mission will work much 
better when done with full disclosure of agency analysis processes as 
is called for by NEPA. FWS should consider the impacts of their actions 
on the local citizens and should give due weight to feedback from those 
who will bear the direct burden of FWS actions.
    Our Response: The Service has made available a draft economic 
analysis and a draft environmental assessment which considered the 
impacts of the critical habitat designation on local citizens. In 
addition, we completed two comment periods totaling 90 days, which 
included an open house and public hearing, during which comments were 
submitted by the public. The comment and response section of this 
document provides the feedback requested.
    (189) Comment: There were several comments on the inadequacy of the 
draft environmental assessment, especially in respect to making a 
determination of negligible to minor impacts on the environment.
    Our Response: We determined through the NEPA process that the 
overall 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 comment periods and 
a public hearing. 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 a preparation of an EIS. We have 
determined that 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)
    (190) Comment: A commenter requested that the actual size or 
distance of stream proposed as critical habitat be clarified. The 
information in the October 4, 2011, Federal Register notice, draft 
environmental assessment and draft economic analysis caused some 
confusion.
    Our Response: Because fishes occupy stream habitat, we have 
determined that 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. In addition, see the discussion on 
lateral extent of the stream in the Criteria Used to Identify Critical 
Habitat section.
    (191) Comment: Several comments asked why different alternatives 
were not evaluated in the environmental and economic analyses, 
including the 1994 critical habitat designation (with and without 
appropriate exclusions), evaluating only river and streams that are 
currently occupied, and, an alternative that evaluates the designation 
of critical habitat in light of the Service's policy of supporting and 
enhancing recreational fishing opportunities with the designation of 
critical habitat.
    Our Response: Critical habitat is defined in section 3 of the Act 
as: (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    We do not believe the area encompassed by the 1994 designation 
would include areas essential for the conservation of the species. In 
addition, if we were to limit critical habitat to the 257 km (159 mi) 
in the 1994 designation, any impacts to that limited amount of area 
would be much more difficult to minimize or offset, and the likelihood 
of reaching the adverse modification threshold would be substantially 
increased. Also, the goal for management of spikedace and loach minnow 
is to recover the two species so that they may be removed from the 
endangered species list, and recovery would not be possible within the 
confines of the limited area included in 1994. Finally, the Service is 
charged with using the best scientific and

[[Page 10899]]

commercial information available. New information has been gained about 
the species, their habitat requirements, and distribution, and the use 
of the 1994 rule would not reflect this information.
    In addition, for a species that is currently limited to 10 to 20 
percent of its range, recovery in the remaining occupied areas is 
impractical. Areas outside of the currently occupied areas will be 
needed to recover both species, and we have included these areas as 
essential to the conservation of the species.
    Finally, with respect to conflicts with sportfishing opportunities, 
the Service is currently completing a sportfish stocking consultation 
that addresses management for native fish and sportfish. In addition, 
the Service coordinates closely with the Arizona Game and Fish 
Department on management of native fishes and sportfish.
    (192) Comment: Hidalgo County officials and residents were not 
aware of the status of the critical habitat proposal until March of 
this year. We need to point out that the only published newspaper in 
Hidalgo County, the Hidalgo County Herald, was not included in the 
Service's contacts for publishing the notices.
    Our Response: The Hidalgo County Herald was included in our 
notification list, and Hidalgo County officials are included in our 
interested parties mailing list. We believe the two comment periods 
allowed for adequate opportunity for public comment. A total of 90 days 
was provided for document review and for the public to submit comments. 
In addition, a public hearing was scheduled on October 17, 2001, as 
another venue for comment submission.
    (193) Comment: The first paragraph of the discussion of Alternative 
A in the draft environmental assessment indicates that the current 
critical habitat designation includes an increase of up to 239 miles of 
designated critical habitat over the 2007 designation of 522 miles, and 
then states that addition would result in a small but unknown number of 
new or reinstated consultations and that the economic analysis projects 
at a similar rate and in similar units as the past. Considering the 
addition of 239 miles is approximately a 45 percent increase in habitat 
designation, the impacts are being understated. In addition, unoccupied 
habitat does not currently require consultation.
    Our Response: The overall designation does include an increase in 
total mileage over that designated in 2007. The Service cannot predict 
the number of consultations that will occur as that number is dictated 
by as-yet-undefined projects that will occur within critical habitat 
and that have a Federal nexus. Therefore, we have made the best 
predictions possible based on existing information, which is the level 
of section 7 consultation that has occurred in the past.
    (194) Comment: The use of introduction of nonnative predators and 
prolonged periods of low or no stream flow as catastrophic events in 
the draft environmental assessments ensures 100 percent chance of a 
``catastrophic event'' as there is continued stocking of nonnative fish 
by State fish and wildlife agencies and because every year there are 
widespread and common ``prolonged periods of low or no stream flow'' 
along large portions of the Upper San Pedro River and a number of other 
stream and river segments proposed for critical habitat.
    Our Response: The language in this comment comes from the ``Need 
for the Action'' section of the draft environmental assessment. Taken 
in context, the information in this section highlights the fact that 
habitat loss or alteration has occurred in the past, and that 
additional losses or further restrictions in the species' distributions 
increases their vulnerability to a variety of threats. The intent of 
this section was not to highlight any one threat or management concern, 
but to provide background information on the need for the critical 
habitat designation.
    (195) Comment: To state that the impact of excluding an area due to 
economic, national security, or other needs would depend on issues not 
addressed in the environmental assessment is an admission that the 
environmental assessment is inadequate. The EA never analyzes 
conservation measures at Fort Huachuca or anywhere else except Ttribal 
and FMC lands. These facts continue to support the argument that all 
the major decisions were made before the environmental assessment was 
written. The EA is a post-decision document, in violation of NEPA.
    Our Response: The draft environmental assessment was completed 
following the publication of the proposed rule, but prior to the 
development of a final rule for critical habitat. Comment letters, 
including management plans, can be accepted up through the closing of 
the second comment period, which follows the publication of the draft 
environmental assessment. Therefore, there is no possible way for the 
draft environmental assessment to address conservation measures, as its 
publication preceded receipt of comments and management plans detailing 
those conservation measures. The final rule describes several exclusion 
decisions that were made, including one for Fort Huachuca, following 
closure of the second comment period and review of all materials 
received.
    (196) Comment: The word ``unknown'' was used at least 26 times in 
relation to impacts, which triggers an EIS. The primary purpose of 
preparing an environmental assessment under NEPA is to determine 
whether a proposed action would have significant impacts on the human 
environment. If significant impacts may result from a proposed action, 
then an EIS is required (40 CFR 1502.3). Whether a proposed action 
exceeds a threshold of significance is determined by analyzing the 
context and the intensity of the proposed action (40 CFR 1508.27). 
Under Council of Environmental Quality (CEQ) regulations, which are 
responsible for ensuring compliance with NEPA, intensity is determined 
by considering 10 criteria (CFR 40 1508.27[b]) including ``the degree 
to which the proposed action would impose unique, unknown, or uncertain 
risks (emphasis added).'' The proposed alternatives in the EA would 
impose at least 26 ``unknown'' risks including the risk of compromising 
national security by taking money away from the War on Global 
Terrorism. An EIS is required under 40 CFR 1508.27.
    Our Response: If some of the impacts will occur in the future, the 
Federal agency still has an obligation to consider reasonably 
foreseeable future impacts. 40 CFR 1508.7 defines ``cumulative impact'' 
as the impact on the environment which results from the incremental 
impact of the action when added to other past, present, and reasonably 
foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions (Custer County Action 
Ass'n v. Garvey, 256 F.3d 1024 (10th Cir. 2001)). The record of 
decision must contain a ``useful analysis of the cumulative impacts of 
past, present, and future projects,'' which requires ``discussion of 
how [future] projects together with the proposed project will affect 
[the environment] (Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 
F.3d 800, 810 (9th Cir. 1999)).''
    Nevertheless, NEPA does not require the government to do the 
impractical (Kleppe v. Sierra Club, 427 U.S. 390, 1976). Determining 
the environmental impacts of reasonably foreseeable actions does not 
mean that the Federal agency has to wait to make its decision on the 
current project until the details of other foreseeable actions are 
known

[[Page 10900]]

(Kleppe v. Sierra Club, id.; Inland Empire Public Lands Council v. U.S. 
Forest Service, 88 F.3d 754 (9th Cir. 1996). If a future action is 
foreseeable but not imminent and its details are not yet known, the 
Federal agency is not required to wait until the details of the other 
action are known before proceeding (Kleppe v. Sierra Club, supra). When 
further investigation would provide no definitive information to 
resolve the issues during the time frame for the decision on the 
project, further investigation in an EIS is not required (Kleppe v. 
Sierra Club, 427 U.S. 390 (1976); Neighbors of Cuddy Mountain v. United 
States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)).
    (197) Comment: We strongly challenge the adequacy of the draft 
environmental assessment, especially in how it glosses over the serious 
and significant adverse effects to loach minnow and spikedace 
populations and adverse modifications to critical habitats that the 
livestock industry has imposed after a century of devastation and 
stream and riparian ecosystem destruction in the Gila River Basin.
    Our Response: The proposed rule and final rule acknowledge the 
significant impact grazing has had on many watersheds in the West. We 
also acknowledge significant improvements on Federal lands due to 
restrictions in riparian and stream corridors and other management 
practices.
    (198) Comment: The draft environmental assessment (and where 
relevant, draft economic analysis) fails, among other things, to 
accurately characterize (and therefore consider) (a) the substantive 
protections that already exist on the Yavapai-Apache Reservation for 
the spikedace and loach minnow; (b) the nature of surface water rights 
within the Verde River Subbasin, including the Federal reserved water 
rights that are held by the United States of America in trust for the 
Nation; and (c) the adverse impacts that the designation will have on 
the Nation's ability to preserve itself in its permanent tribal 
homeland as outlined by the Nation in prior comments and discussions 
with the Service on this matter.
    Our Response: We appreciate the concerns of the Tribe and have 
excluded all lands of the Yavapai-Apache Nation in consideration of 
impacts to the Tribe, their sovereign nation status, existing 
management practices, and ongoing relationship with the Service. The 
Exclusions section of the final rule details our rationale for the 
exclusion.
    (199) Comment: Furthermore, the draft environmental assessment 
fails to discuss (or even reference) those portions of the Nation's 
recent written comments submitted to the Service on December 27, 2010, 
which summarize the steps that the Nation has taken since enactment of 
Tribal Resolution No. 46-2006, to provide continuing protection for the 
habitat within the Verde River Conservation Corridor. See Draft EA at 
141 (referencing only the Nation's comments from 2006 relative to the 
Verde River Conservation Corridor and ignoring recent comments updating 
the Service on this matter).
    Our Response: The purpose of the draft environmental assessment is 
to reflect the impacts of the decision, as made by the Service, of the 
critical habitat designation. The Service does not make decisions on 
exclusions until both comment periods have been closed, in order to 
ensure that all parties have an opportunity to provide relevant 
information. Therefore, at the time the draft environmental assessment 
was published, the Service had not yet decided that the Yavapai-Apache 
Nation lands would be excluded from the designation. The comments 
regarding the steps the Nation has taken are most relevant to the 
Service's decision, which is then ultimately reflected in the draft 
environmental assessment.
    (200) Comment: In reviewing the existing conditions of water 
resources of the Verde River, the draft environmental assessment 
discusses the ``water rights'' of the Salt River Project and other non-
Indian users along the River, but fails to mention the important fact 
that the Yavapai-Apache Nation, and the United States as the trustee 
for the Nation, also hold present and perfected, high-priority water 
rights to the surface flows of the Verde River and its tributaries 
under principles of Federal law. See, e.g., Arizona v. California, 373 
U.S. 546, 600 (1963); see also, In Re The General Adjudication of All 
Rights to Use Water In the Gila River System and Source, 201 Ariz. 307, 
35 P.3d 68, 71-72 (2001) (``Gila V''). In addition, other tribes, 
including the Fort McDowell Yavapai Nation and the Salt River Pima-
Maricopa Indian Community, hold high-priority water rights to the Verde 
River, yet the draft environmental assessment fails to mention this 
fact as well.
    Our Response: The purpose of the draft environmental assessment is 
to reflect the impacts of the decision, as made by the Service on the 
critical habitat designation. The final environmental assessment will 
be updated where needed, in response to the two comment periods.
    (201) Comment: In the ``Environmental Consequences'' section of the 
draft environmental assessment (3.9.2), the Service concludes, with 
almost no substantive analysis or discussion, that the impacts of 
designating critical habitat on the Nation's lands for the spikedace 
and loach minnow under Alternative B ``would be minor.'' Draft EA at 
pp. 145-146. The Nation disagrees.
    Our Response: In the final rule, Yavapai-Apache lands have been 
excluded from the designation. Both the economic analysis and 
environmental assessment have been updated in response to these 
comments.
    (202) Comment: The Service is requested to once again review the 
Nation's prior written and oral comments (2006 through 2010) regarding 
the potential designation of critical habitat on the Yavapai-Apache 
Reservation and to meaningfully discuss these concerns in the final 
environmental analysis (Alternative B) and in the final economic 
analysis.
    Our Response: In the final rule, Yavapai-Apache lands have been 
excluded as we determined that the Yavapai-Apache Nation's resolution 
specifically addresses conservation of these species, and the benefits 
of exclusion outweighed the benefits of inclusion.
    (203) Comment: It must also be noted that the draft environmental 
assessment wrongly states that the Tribal lands considered for critical 
habitat designation ``are primarily used for livestock grazing, 
fuelwood cutting, roads, and recreation.'' By lumping all Tribal lands 
together in its analysis, the draft environmental assessment 
misrepresents how the Yavapai-Apache Nation utilizes the lands within 
the Verde River Subbasin that are proposed for designation in this 
instance. These lands are used to satisfy the permanent tribal homeland 
needs of the Yavapai-Apache Nation. It should also be pointed out that 
contrary to the Draft EA, these lands are not utilized for livestock 
grazing and they remain protected pursuant to tribal law under tribal 
Resolution No. 46-2006. In addition, the Nation generally does not 
permit fuelwood cutting within this area and the Nation has only one 
minor access road across the River. Although the Nation does utilize 
the Verde River to satisfy the recreational needs of its tribal 
members, this does not involve large-scale recreational activities. In 
addition, it is important to understand the fundamental role that the 
Verde River and its habitat continues to play in the traditional, 
cultural, and religious practices of the Nation. Indeed, as the Nation 
has repeatedly explained to the Service, the Verde River is intertwined 
with the identity of the Yavapai and Apache people, including with 
regard to

[[Page 10901]]

certain ceremonial and religious practices that are deliberately 
conducted within the Verde River Corridor. None of these important 
points have been meaningfully considered in the Draft EA. The Nation 
respectfully requests that the Service address as part of the final 
environmental assessment and final economic analysis the Nation's 
previously stated concerns pertaining to the myriad of very real and 
specific impacts that are likely to stem from the proposed designation 
on the Nation's lands, which includes impacts on the Nations ability to 
preserve itself in its permanent tribal homeland.
    Our Response: Thank you for the response. We note that the lands 
are used to satisfy the permanent tribal homeland needs of the Yavapai-
Apache Nation. We further note that the Nation does not permit fuelwood 
cutting within certain areas, and that some portion of the land is used 
for certain ceremonial and religious practices.
    (204) Comment: The summary for the August 26, 2011, draft 
environmental assessment indicates that two additional proposed stream 
segments were added for critical habitat designation in some places, 
and that three additional stream segments were added in other places 
within the document. The location and description of these two or three 
added stream segments are not described in the description of the 
alternatives found in Chapter 2 of the DEA.
    Our Response: The Service has made changes to five stream segments 
proposed for critical habitat designation subsequent to publication of 
the proposed rule. These include: (1) Increasing the length of the San 
Francisco River critical habit segment for loach minnow only from 112.3 
miles to 126.5 miles; (2) adding a 19.5-mile critical habitat segment 
of Bear Creek for loach minnow only; (3) reducing the Redfield Canyon 
critical habitat segment for spikedace and loach minnow from 14.0 miles 
to 4.0 miles; (4) reducing the Hot Springs Canyon critical habitat 
segment for spikedace and loach minnow from 11.8 miles to 5.8 miles; 
and (5) increasing the Fossil Creek critical habitat segment for 
spikedace and loach minnow from 4.7 miles to 13.8 miles. These changes 
are reflected in the final environmental assessment.
    (205) Comment: The Service has failed to provide adequate 
information regarding the actual environmental impacts of critical 
habitat designation for spikedace and loach minnow. Statements in the 
draft environmental assessment explaining the requirements of the Act 
and the rationale for the Service to propose and then designate 
critical habitat for the spikedace and loach minnow may help the public 
understand the mindset of the Service, however they do little to 
provide information concerning the actual environmental effects of 
designating critical habitat for the species. The Service should revise 
the draft environmental assessment to remove much of the explanation 
language for the Act and replace it with analysis of the environment 
effects of designating SD/LM critical habitat. As stated in 40 CFR, 
Part 1500.1(b), ``Most important, NEPA documents must concentrate on 
the issues that are truly significant to the action in question, rather 
than amassing needless detail.''
    Our Response: The 2011 draft and 2012 final environmental 
assessment largely follow the format and methodology used to prepare 
the 2006 final environmental assessment. Additional information has 
been provided to the more recent environmental assessments, where 
needed, to refine habitat requirements (physical and biological 
features) essential to the conservation of the species, changes to 
stream segments proposed for critical habitat designation. Additional 
information has also been provided, where necessary, with respect to 
the affected environment and environmental consequences. The 
conclusions of the environmental consequence analysis have not 
substantially changed from the 2006 final environmental assessment to 
the 2012 final environmental assessment.
    (206) Comment: In comparison to Alternatives A and B, the No Action 
Alternative includes three stream segments not in the 2010 proposed 
rule. These stream segments are now considered by the Service to be 
highly degraded and likely not occupied by spikedace or loach minnow. 
The ISC would like to know where those segments are located, what 
degradation supports removal from listing.
    Our Response: The no action alternative is the 2007 final rule. 
When compared to the 2010 proposed rule, the no action alternative 
includes three stream segments not included in the 2010 proposed rule: 
(1) For spikedace only, the middle Gila River from Ashurst-Hayden Dam 
upstream to the confluence of the San Pedro River; (2) for spikedace 
only, the lower San Pedro River from the confluence with the Gila River 
to the confluence with Aravaipa Creek; and (3) for loach minnow only, 
the San Francisco River upstream of the confluence with the Tularosa 
River. The Service has re-evaluated the suitability of these three 
stream segments for critical habitat designation and now considers the 
middle Gila segment and the lower San Pedro segment to no longer meet 
the rule set for spikedace or loach minnow critical habitat. For loach 
minnow only, the 22.9 km (14.2 mi) segment of the San Francisco River 
segment upstream of the Tularosa River confluence is included in the 
final rule for critical habitat designation for loach minnow.
    (207) Comment: The Statement in Chapter 4 of the draft 
environmental assessment states that the potential impacts on the 
quality of the environment are not likely to be highly controversial, 
which is not true, especially for the upper San Pedro River area.
    Our Response: The Service has reviewed the comments submitted by 
Fort Huachuca regarding the potential impacts of the designation on 
national security activities conducted (in some cases exclusively) at 
Fort Huachuca and determined that the San Pedro River should be 
excluded based on potential impacts to national security.
    (208) Comment: Under topics dismissed from detailed analysis in the 
draft environmental assessment, the last bullet at the bottom of the 
page on Urban quality and design of the built environment (1502.16) 
states that the proposed critical habitat segments are not located in 
urban or other built environments and would not affect the quality of 
such environments. While this is a true with respect to the actual 
critical habitat location, it is misleading when considering the 
location of the critical habitat with regard to the City of Sierra 
Vista and Fort Huachuca. Surface water flow in the San Pedro River 
includes a component referred to as base flow from the regional aquifer 
outside of the potential critical habitat designation. This is 
acknowledged at other points in the documents (see the top of page 85). 
Considering the possibility of future limitations on groundwater uses 
in these built[hyphen]up areas, the effect on the quality of such 
environments needs to be analyzed as part of this environmental 
assessment.
    Our Response: The Service has reviewed the comments submitted by 
Fort Huachuca regarding the potential impacts of the designation on 
national security activities conducted (in some cases exclusively) at 
Fort Huachuca and determined that the San Pedro River should be 
excluded based on potential impacts to national security. There is 
therefore no potential for the potential impacts discussed in this 
comment to occur as a result of the final critical habitat designation.
    (209) Comment: The draft environmental assessment indicates that 
``the stream channel at bank full width,

[[Page 10902]]

plus 300 feet on either side of bank full width * * *'' This would 
result in a designation of 600 feet lateral distance plus the stream 
channel. Throughout this draft environmental assessment the critical 
habitat designation is referred to as a 300-foot corridor and not a 
600[hyphen]foot corridor. Considering this discrepancy, if the analysis 
was actually done on a 300[hyphen]foot width rather than a 
600[hyphen]foot width, it would seem that this draft environmental 
assessment would be significantly flawed and will need to be redone.
    Our Response: The critical habitat designation includes the width 
of the stream (which will vary), and 300 feet on either side of 
bankfull width. This has been corrected in the final environmental 
assessment.
    (210) Comment: Under alternative B, the draft environmental 
assessment states that there is a potential increase of 313 miles of 
designated critical habitat from the existing designation of 522 miles 
and again states there would be a small but unknown increase in section 
7 consultations. When considering this is approximately a 65 percent 
increase in the critical habitat designation, the impacts are being 
understated.
    Our Response: The increase in consultations is anticipated to be 
small based on historical information about past consultations. There 
is potential for new consultations not already covered by the Act in 
stream segments currently unoccupied by either spikedace or loach 
minnow.
    (211) Comment: The Cumulative Impacts section should be revised to 
emphasis on the significance of the socioeconomics and water management 
impacts of the listings.
    Our Response: The Service has evaluated the potential environmental 
consequences of the proposed critical habitat designation for spikedace 
and loach minnow and determined that the incremental impact of 
designating additional critical habitat for the spikedace and loach 
minnow when added to other past, present, and reasonably foreseeable 
future actions in the analysis area would be minor on water resources, 
wetlands and floodplains, natural resources, land use and management 
(including livestock grazing), wildlife fire management, and 
recreation. Tribal socioeconomics, tribal Trust resources, and tribal 
environmental justice may incur additional impacts if alternative B is 
selected. Fort Huachuca could also incur additional impacts on national 
security activities if alternative B is selected.
    (212) Comment: Portions of the discussion on the San Pedro River 
center on adversely affecting livestock grazing but there is no 
discussion on the impacts associated with Fort Huachuca.
    Our Response: The Service has reviewed the comments submitted by 
Fort Huachuca regarding the potential impacts of the designation on 
national security activities conducted (in some cases exclusively) at 
Fort Huachuca and determined that the San Pedro River should be 
excluded based on potential impacts to national security.
    (213) Comment: While the draft environmental assessment discusses 
impacts such as drought, current and future market trends and 
fluctuations, and supplemental forage availability contribute to the 
cumulative impacts on livestock grazing. While the impacts from 
critical habitat designation are expected to have generally minor 
adverse effects on current livestock grazing conditions, an 
acknowledgment must be given to other factors that contribute to the 
cumulative impacts on grazing. Though the draft environmental 
assessment document acknowledges cumulative impacts in the above 
statement, it does not analyze them and it does not take into 
consideration that it is the incremental addition of species after 
species and critical habitat restriction upon critical habitat 
restriction that is killing the livestock industry. The cumulative 
impacts need to be identified and quantified.
    Our Response: The 2011 draft and 2012 final environmental 
assessment largely follow the format and methodology used to prepare 
the 2006 final environmental assessment. Additional information has 
been provided to the more recent environmental assessments, where 
needed, to refine habitat requirements (physical and biological 
features) essential to the conservation of the species, changes to 
stream segments proposed for critical habitat designation. Additional 
information has also been provided, where necessary, with respect to 
the affected environment and environmental consequences. The 
conclusions of the environmental consequence analysis have not 
substantially changed from the 2006 final environmental assessment to 
the 2012 final environmental assessment, including the section of text 
that is referred to in the comment.
    (214) Comment: Several commenters noted that, in order to be in 
compliance with various case law, policies, or regulations including 
Chapter 1 of NEPA, Bennett v. Spear 550 FW 1, the Citizens Guide to 
NEPA (2007); and page 16 of the 550 FW 1 and NEPA regulations in 40 CFR 
1501.6, it is the continuing responsibility of the Federal government 
to use all practicable means, consistent with other essential 
considerations of national policy, to improve and coordinate Federal 
plans, functions, programs, and resources. The City of Sierra Vista, 
Cochise County, and affected counties within the Coalition respectfully 
request agency coordination.
    Our Response: Local governments have been provided with adequate 
opportunity to comment on the proposed rule, draft environmental 
assessment, and draft economic analysis. As noted at comment 128, we 
believe the two comment periods allowed for adequate opportunity for 
public comment. A total of 90 days was provided for document review and 
the public to submit comments. In addition, an open house and public 
hearing were held on October 17, 2011, providing another opportunity 
for comment submission. Per our Regional Solicitor, there is no 
designation for ``Coordinator Status.'' However, in addition to the 
comment period we personally visited with these commenters on several 
occasions to ensure that their concerns were heard and considered. The 
Service met with representatives of Hidalgo County, Grant County, and 
Catron County in March of 2011; Apache County, Grant County, Hidalgo 
County, and Catron County in Springerville in July 2011; and with the 
City of Sierra Vista, Cochise County, the Hereford Natural Resource 
Conservation District, Hidalgo County, and Fort Huachuca in November of 
2011. We held an additional conference call with Fort Huachuca in 
August of 2011. We concluded that cooperator status would be limited to 
New Mexico and Arizona Game and Fish Departments. Per our Regional 
Solicitor, there is no designation for ``Coordinator Status.'' However, 
in addition to the comment period we personally visited with these 
commenters on several occasions to ensure that their concerns were 
heard and considered.
    (215) Comment: The Service must use the best scientific and 
commercial information available as required by the Act and the Data 
Quality Act of 2000 (Paperwork Reduction Act (44 U.S.C. 3501 et seq.), 
here forth referred to as Data Quality Act) standards. Had Service 
employees followed the requirements in the laws and regulations and 
used the best scientific and commercial information available and their 
internal agency guidelines contained in Chapter 1 of NEPA--Policy and 
Responsibilities--550 FW 1, the agency would have had the necessary

[[Page 10903]]

information to properly prepare the NEPA document and economic impact 
analysis.
    Our Response: Under the Act, the Service must make decisions to 
designate critical habitat on the basis of the best available 
scientific and commercial data. When making critical habitat decisions, 
the Service consults with experts within and external to the Federal 
government and considers studies or data from Federal and state 
agencies, other stakeholders, and the general public. Proposed and 
final rules are reviewed by the Service at the field, regional, and 
national level to help ensure that the analysis is sound and conforms 
to the ``best available science'' requirement. Additionally, the 
Service also has a policy to ask at least three independent scientific 
experts in a relevant field to provide a ``peer review'' of the 
proposed decisions to ensure that best available science is considered. 
When considering a critical habitat proposal, the Service is also 
required to consider economic impacts through completion of an economic 
analysis.
    (216) Comment: Impacts to surface flows in streams may also result 
from pumping of groundwater wells located outside of the proposed 300-
foot critical habitat corridor. The groundwater-surface water 
interactions of each hydrologic system are unique and require site-
specific analysis to fully understand potential interactions and 
impacts. The NEPA process requires decisionmakers be informed of 
impacts. It is unclear from the draft environmental assessment whether 
groundwater wells outside the 300 foot critical habitat boundary will 
be shut down if they are determined to impact surface flows. This 
impact needs to be made very clear. Significant economic impacts to 
well owners outside the 300 foot critical habitat boundary could occur 
if their wells are shut down. An Environmental Impact Statement is 
necessary to address this issue.
    Our Response: While potential administrative costs and impacts to 
existing infrastructure are relatively predictable, potential impacts 
on water use that could result from spikedace and loach minnow 
conservation, particularly in areas that are currently unoccupied by 
the species are, in large part, uncertain. The majority of past 
consultations on water issues have not focused on water availability or 
water quantity issues. Instead, they have focused on nonnative species 
reintroduction issues for multiple native fish species, diversion 
repair and bank stabilization projects, and occasionally proposed water 
exchanges. To date there has been only one known example of a Section 7 
consultation affecting water use and this affected a Federal entity 
(Fort Huachuca).
    (217) Comment: The draft environmental assessment indicates that 
channelization of streams for purposes of flood control may increase 
the risk of flooding. This statement is confusing to the reader and it 
should be explained better or removed from the next version of the NEPA 
document.
    Our Response: We refer the reader to page the October 28, 2010, 
proposed rule (page 66487). Language in the proposed rule states that 
sections of many Gila Basin Rivers and streams have been, and continue 
to be, channelized for flood control, which disrupts natural channel 
dynamics (sediment scouring and deposition) and promotes the loss of 
riparian plant communities. Various changes to stream channels occur 
through channelization, including increases in water velocity in the 
channelized section, subsequent increases in rates of erosion, and in 
some instances deposits of sediment in downstream reaches that may 
increase the risk of flooding. The final environmental assessment has 
been modified to provide clarification on this topic.
    (218) Comment: The draft environmental assessment indicates that 
the effects on future water management activities and water resources 
from critical habitat designation are expected to be minor and are not 
anticipated to constrain any proposed water management activities 
because most all of the proposed segments are occupied by the spikedace 
and loach minnow. The impact of critical habitat designation on future 
water management activities was not addressed for unoccupied habitat, 
and this is a fatal flaw in the draft environmental assessment. The 
impacts to the Upper San Pedro River were not addressed because the 
draft environmental assessment is too general and fails to take a 
``hard look'' at the impacts of designating critical habitat. No 
attempt has been made to analyze the full range of impacts resulting 
from the critical habitat designation, including water development and 
use outside the critical habitat boundary. Instead, impacts on 
agricultural, municipal and industrial water development projects are 
``unknowable at this time,'' ``cannot be predicted with precision'' and 
are ``mostly uncertain.'' Similar statements appear throughout the 
document, indicating that the Service has failed to take the required 
``hard look'' at the environmental consequences of the proposed 
alternatives.
    Our Response: While potential administrative costs and impacts to 
existing infrastructure are relatively predictable, potential impacts 
on water use that could result from spikedace and loach minnow 
conservation, particularly in areas that are currently unoccupied by 
the species are, in large part, uncertain. The majority of past 
consultations on water issues have not focused on water availability or 
water quantity issues. Instead, they have focused on nonnative species 
reintroduction issues for multiple native fish species, diversion 
repair and bank-stabilization-type projects, and occasionally proposed 
water exchanges. To date there has been only one known example of a 
Section 7 consultation affecting water use and this affected a Federal 
entity (Fort Huachuca). The Service has reviewed the comments submitted 
by Fort Huachuca regarding the potential impacts of the designation on 
national security activities conducted (in some cases exclusively) at 
Fort Huachuca and determined that the San Pedro River should be 
excluded based on potential impacts to national security.
    (219) Comment: The draft environmental assessment notes that some 
required Section 7 conservation measures could have minor to moderate 
adverse impacts on water management activities (e.g., groundwater 
pumping, surface water diversion, channelization). The term ``minor to 
moderate adverse impacts'' should be defined, as water is not a small 
matter. Every impact to water should be addressed in an EIS to the 
extent required by law.
    Our Response: The NEPA and related supporting regulations require 
that an Environmental Impact Statement be prepared and approved when a 
proposed Federal action would cause significant impacts. The Service 
has determined through its completion of a NEPA environmental 
assessment that the proposed designation of critical habitat for 
spikedace and loach minnow would not result in significant impacts. 
This is not to say that there would be no impacts to water or other 
resources, but that the impacts are not anticipated to be significant 
based on the Service's analysis. At this time, the Service does not 
believe there is a legitimate basis for preparing an environmental 
impact statement.
    (220) Comment: The draft environmental assessment states that 
adverse impacts of critical habitat designation on livestock grazing, 
however, are expected to be generally minor in part because livestock 
grazing operations typically occur on a large

[[Page 10904]]

scale, and designated critical habitat within any one allotment is 
likely to be small; and therefore, few grazing allotments are likely to 
be subject to consultation requirements based solely on the presence of 
the spikedace and loach minnow designated critical habitat. As required 
by Bennett v. Spear (1997), each agency must ensure that the Act not be 
implemented haphazardly, or on the basis of speculation or surmise. 
This statement in the draft environmental assessment shows a complete 
lack of understanding of western livestock grazing operations. There is 
a very limited amount of water in the arid west, and the portion of an 
allotment that is most valuable is the water source because without 
water you cannot graze livestock. To state that the impacts are 
expected to be generally minor because designated critical habitat (the 
water) is likely to be a small part of the allotment, is haphazard 
implementation of the Act.
    Our Response: The 2011 draft environmental assessment and 2012 
final environmental assessment are generally aligned in format and 
methodology with the 2006 final environmental assessment. The 
environmental consequence analysis has not substantially changed. This 
same text pertaining to livestock grazing appeared in the 2006 final 
environmental assessment (see p.72).
    (221) Comment: The draft environmental assessment fails to 
distinguish the impact of critical habitat in areas that are presently 
unoccupied by spikedace and loach minnows. By erroneously assuming that 
``most all'' of the proposed critical habitat is currently occupied, 
and will remain occupied over the next 20 years, the draft 
environmental assessment overlooks significant impacts on land and 
water users.
    Our Response: This text is in error and has been updated in the 
draft environmental assessment. However, the analysis completed in the 
draft economic analyses and in the draft environmental assessment 
correctly reflects occupancy status for the river segments within this 
critical habitat designation.
    (222) Comment: There are several additional alternatives that are 
consistent with the purpose and need of the proposed action and are not 
too remote, speculative or impractical for critical review as part of 
the NEPA process.
    Our Response: The scope of reasonable alternatives to be considered 
is a function of the purpose and need of the proposed action. This 
environmental assessment generally follows the format and methodology 
of the 2006 final environmental assessment used to prepare the 2007 
final rule, including the structure of alternatives. In the 2011 draft 
environmental assessment, alternative A included a number of stream 
segments being considered by the Service for exclusion. Additional 
stream segments have been considered by the Service for exclusion under 
this Alternative based on comments received subsequent to publication 
of the 2010 proposed rule, 2011 draft environmental assessment, and 
2011 draft economic analysis.
    (223) Comment: To ``occupy'' to us implies perennial, year-round 
and year after year occurrence, and we conclude that the Service, in 
the draft environmental assessment, was implying the same thing. To use 
occupy for any status other than permanent residence is misleading. If 
occupation is intermittent, such should be stated.
    Our Response: Please see the discussion under the subheading 
``Occupied Versus Unoccupied Areas in the final rule for our definition 
of occupied habitat and a discussion of the rationale for that 
definition.
    (224) Comment: The environmental consequence determinations for 
each of the various resource categories that are presented throughout 
the draft environmental assessment are not environmental consequence 
determinations, but a listing of the changes in the Act's procedural 
requirements that would take place if the proposed critical habitat is 
implemented. In each of the ``Environmental Consequence'' section of 
the various resource categories there is a detailed description of how 
the section 7 consultation processes would change if the proposed 
spikedace and loach minnow critical habitat is implemented. The various 
``Environmental Consequence'' sections also contain a listing of 
potential new management requirements for each resource category. These 
procedural changes and potential new management requirements do not 
give the public any idea of what changes will occur to ecosystem health 
or spikedace and loach minnow habitat if the proposed critical habitat 
is implemented. At best the current environmental consequences 
determinations infer that by implementing Service control over the 
management of the federal spikedace and loach minnow critical habitat 
units (or lands with a Federal nexus), the physical and biological 
features for the spikedace and loach minnow will improve to the point 
that the designated critical habitat areas will again somehow sustain a 
population of the two species. All of the vague environmental 
consequence language only serves to put local citizens on notice that 
the designation of the proposed critical habitat could impact their use 
of federal land and the future management of their private land, where 
their land is included in a proposed critical habitat unit.
    Our Response: The 2011 draft and 2012 final environmental 
assessment largely follow the format and methodology used to prepare 
the 2006 final environmental assessment. Additional information has 
been provided to the more recent environmental assessment, where 
needed, to refine habitat requirements (physical and biological 
features) essential to the conservation of the species, changes to 
stream segments proposed for critical habitat designation. Additional 
information has also been provided, where necessary, with respect to 
the affected environment and environmental consequences. The 
conclusions of the environmental consequence analysis have not 
substantially changed from the 2006 final environmental assessment to 
the 2012 final environmental assessment.
    (225) Comment: The draft environmental assessment contains the 
statement; ``It is not expected, based on past consultations in the 
Southwest that designation of critical habitat would result in the 
infringement of any existing water rights.'' This statement does not 
meet the standard of utility and objectivity required by the Data 
Quality Act.
    Our Response: We believe the statement is accurate based on our 
past experience and section 7 consultation history in the southwest. 
However, if the commenter feels that the statement is not accurate, 
there is a defined process under the Data Quality Act for requesting a 
correction. The commenter can follow the process outlined on our Web 
site: http://www.fws.gov/southwest/science/informationquality.html?region=5 under the U.S. Fish and Wildlife 
Service Information Quality Guidelines.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (Regulatory Planning and Review). OMB bases its 
determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on

[[Page 10905]]

the economy or adversely affect an economic sector, productivity, jobs, 
the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities. The SBREFA 
amended the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designations for spikedace and loach minnow will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the Small Business Administration, 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 on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the 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 consider the number of small entities 
affected within particular types of economic activities (e.g., water 
use and management, grazing, mining, species management and 
recreational fishing, development, transportation, fire management, and 
tribal activities). 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 these designations, 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 number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out 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 authorize, fund, or carry out 
that may affect the spikedace or loach minnow. Federal agencies also 
must 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 (see Application 
of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat 
designations, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
designations of critical habitat for spikedace and loach minnow. The 
analysis is based on the estimated impacts associated with the 
rulemaking as described in Chapters 3 through 10 and Appendix A of the 
analysis and evaluates the potential for economic impacts related to: 
(1) Mining; (2) Species Management; (3) Tribes; (4) Transportation; (5) 
Fire Management; (6) Water Management; and (7) Grazing. The final 
economic analysis indicates that incremental impacts are not expected 
to impact small entities for mining, species management, tribal, 
transportation, or fire management activities.
    The final economic analysis indicates that incremental impacts 
associated with water management, grazing, and development may 
potentially be borne by small entities. The entities potentially 
affected under water management include cotton farming, hay farming, 
cotton ginning, and food manufacturing. The potential incremental costs 
to water management activities that may be borne by small entities are 
estimated at $125,000 to $252,000 on an annualized basis (discounted at 
seven percent) over the next 20 years. The final economic analysis 
indicates of the 312 entities in this sector, 47 (or 15 percent) that 
may be small entities may be affected. If each of them are small and 
each undergoes section 7 consultation, annualized impacts per small 
entity would be expected to range from 0.16 to 0.32 percent of annual 
revenues. Based on our analysis, we have determined that there will not 
be a significant impact to small businesses in this sector.
    Grazing entities potentially affected by the critical habitat rule 
include beef cattle ranching and farming. The final economic analysis 
indicates of the 147 entities in this sector, 33 (or 22 percent) small 
entities may be affected. Incremental costs to small grazing entities 
are estimated at $20,300 to $295,000 on an annualized basis. Assuming 
that all 33 entities were to undergo section 7 consultation, and all of 
the entities are small, annualized impacts per small entity are 
expected to range from 0.08 to 1.18 percent of annual revenues. Based 
on our analysis, we have determined that there will not be a 
significant impact to small businesses in this sector.
    Development entities potentially affected by the critical habitat 
designations could include new single-family housing, new multifamily 
housing construction, new housing operative builders, and land 
subdivision. The final economic analysis indicates of the 4,673 
entities in this sector, that four (or 0.9 percent) entities could be 
affected. Incremental costs to small development firms are

[[Page 10906]]

estimated to range from $0 to $77,000 on an annualized basis. Assuming 
that impacts are borne by four small entities that undergo section 7 
consultation, annualized impacts are anticipated to range from 0 to 
0.30 percent of annual revenues. Based on our analysis, we have 
determined that there will not be a significant impact to small 
businesses in this sector.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the designations of critical habitat for 
spikedace and loach minnow would not have a significant economic impact 
on a substantial number of small business entities. Therefore, 
regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, there are no expected energy-
related impacts associated with designations of critical habitat for 
spikedace and loach minnow. As such, the designation of critical 
habitat 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.), we make the following findings:
    (1) 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; Aid to Families 
with Dependent Children 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 that receive 
Federal funding, assistance, or permits, or that 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, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. By definition, Federal agencies are not 
considered small entities, although the activities they fund or permit 
may be proposed or carried out by small entities.
    In the past, local county governments have indicated a concern in 
the perceived regulatory burden imposed by critical habitat designation 
on management issues within the county, and particularly in relation to 
public safety issues such as bridge and road repair or flood 
management. These counties have indicated that State agencies might opt 
not to complete necessary repairs or management activities, or would 
not pursue Federal funding to address these issues if such actions 
could trigger a section 7 consultation. We note that not all actions 
would necessarily trigger section 7 consultation unless a Federal nexus 
exists. Where a Federal nexus does exist, the county or state have 
options to facilitate the section 7 process. Programmatic consultations 
can provide the planning agency with a long-term ability to affect 
repairs as needed over a specified length of time, without repeating 
the section 7 process. In addition, the Service has emergency 
consultation procedures so that any management entity can carry out 
necessary actions in which lives or property are in danger without 
first completing section 7 consultation. Once the emergency is handled, 
section 7 consultation can be completed. As such, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

    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 spikedace and loach minnow in a takings 
implications assessment. Critical habitat designation does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. The takings implications 
assessment concludes that these designations of critical habitat for 
spikedace and loach minnow do not pose significant takings implications 
for

[[Page 10907]]

lands within or affected by the designations.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this critical habitat designation with 
appropriate State resource agencies in Arizona and New Mexico. We 
received comments from both States and have addressed them in the 
Summary of Comments and Recommendations section of the rule. The 
designations of critical habitat in areas currently occupied by 
spikedace and loach minnow may impose few additional regulatory 
restrictions to those currently in place and, therefore, may have 
little incremental impact on State and local governments and their 
activities. The designations may have some benefit to these governments 
in that the areas that contain the physical and biological features 
essential to the conservation of the species are more clearly defined, 
and the elements of the features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designations of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the regulation meets the applicable standards set forth in sections 
3(a) and 3(b)(2) of the Order. We are designating critical habitat in 
accordance with the provisions of the Act. This final rule uses 
standard property descriptions and identifies the physical and 
biological features essential to the conservation of spikedace and 
loach minnow within the designated areas to assist the public in 
understanding the habitat needs of the species.

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 of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49534). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).
    However, when the range of the species includes States within the 
Tenth Circuit, such as that of spikedace and loach minnow, under the 
Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. 
Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will 
undertake a NEPA analysis for the critical habitat designations and 
notify the public of the availability of the draft environmental 
assessment for the critical habitat designations when it is finished.
    We performed the NEPA analysis, and drafts of the environmental 
assessment were available for public comment on October 4, 2011 (76 FR 
61330). The final environmental assessment has been completed and is 
available for review with the publication of this final rule. You may 
obtain a copy of the final environmental assessment online at http://www.regulations.gov, by mail from the Arizona Ecological Services Field 
Office (see ADDRESSES), or by visiting our Web site at http://
www.fws.gov/southwest/es/Arizona/.
    The final environmental assessment included a detailed analysis of 
the potential effects of the critical habitat designations on resource 
categories, including: Water resources; wetlands and floodplains, 
natural resources (fish, wildlife and plants), land use and management, 
Wildland fire management, recreation, socioeconomics, tribal trust 
resources, and environmental justice. The scope of the effects were 
primarily limited to those activities involving Federal actions, 
because critical habitat designation does not have any impact on the 
environment other than through the section 7 consultation process under 
the Act which is conducted for Federal actions. Private actions that 
have no Federal involvement are not affected by critical habitat 
designation.
    Based on the review and evaluation of the information contained in 
the environmental assessment, we determined that the designations of 
critical habitat for spikedace and loach minnow do not constitute a 
major Federal action having a significant impact on the human 
environment under the meaning of section 102(2)(c) of NEPA.
    Pursuant to the Council on Environmental Quality regulations for 
implementing NEPA, preparation of an environmental impact statement is 
required if an action is determined to significantly affect the quality 
of the human environment (40 CFR 1502.3). Significance is determined by 
analyzing the context and intensity of a proposed action (40 CFR 
1508.27). Context refers to the setting of the proposed action and 
includes consideration of the affected region, affected interests, and 
locality (40 CFR 1508.27[a]). The context of both short- and long-term 
effects of critical habitat designations are the critical habitat units 
in Apache, Cochise, Gila, Graham, Greenlee, Pinal, and Yavapai 
Counties, Arizona, and Catron, Grant, and Hidalgo Counties, New Mexico, 
totaling about 1,168 km (726 mi) for spikedace, and (742 mi) for loach 
minnow. The effects of critical habitat designation at this scale, 
although long-term, would be small. Intensity refers to the severity of 
an impact and is evaluated by considering ten factors (40 CFR 
1508.27[b]).
    The intensity of potential impacts that may result from 
designations of critical habitat for the spikedace and loach minnow 
under the proposed action is not anticipated to be significant. This 
conclusion is reached based on the following findings in the 
environmental assessment:
    (1) The potential impacts on environmental resources may be both 
beneficial and adverse, but would generally be minor.

[[Page 10908]]

    (2) There would be negligible to minor impacts on public health or 
safety from designations of critical habitat.
    (3) The increased risks of wildland fire or flooding was analyzed 
and determined to be minor.
    (4) Potential impacts from critical habitat designations on the 
quality of the environment are unlikely to be highly controversial.
    (5) Designation of critical habitat for spikedace and loach minnow 
is not a precedent-setting action with significant effects.
    (6) Designation of critical habitat would not result in significant 
cumulative impacts.
    (7) Designation of critical habitat is not likely to affect sites, 
objects, or structures of historical, scientific, or cultural 
significance because Federal and State laws enacted to protect and 
preserve those resources would address any such potential impacts.
    (8) The critical habitat designations would have long-term, 
beneficial impacts for spikedace and loach minnow.
    (9) Critical habitat designations would not violate any Federal, 
State, or local laws or requirements imposed for the protection of the 
environment.
    The effects of critical habitat designations at this scale would be 
insignificant. Therefore, we found that the designations will not 
significantly affect the quality of the human environment and an 
environmental impact statement is not required.

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 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    For spikedace and loach minnow, tribal lands associated with three 
tribes occur within the designations. The coordination efforts with the 
tribes are described below, and additional detail on the exclusions of 
each are provided above in the Exclusions section.
    Yavapai-Apache Nation--We coordinated early with the Yavapai-Apache 
Nation on the proposed rule for spikedace and loach minnow critical 
habitat. A coordination meeting was held in October 2010 to gain a 
better understanding of Tribal positions and concerns regarding the 
designations. We have maintained contact with the Tribe through 
letters, phone calls, and emails, and have provided the Tribe with 
notice of publication dates of various documents. We received comments 
from the Tribe during the first open comment period. Their comment 
letter provided a copy of Tribal Resolution 46-2006, which details the 
development exclusion zone they have created for the 100-year 
floodplain of the Verde River, where it crosses their lands. In 
addition, in their comment letter, the Tribe detailed the actions they 
have taken in the past several years under the resolution for 
protection of the Verde River, as noted above in the Exclusions 
section. We have determined that the benefits of excluding lands on the 
Yavapai-Apache Nation outweigh the benefits of including these areas.
    San Carlos Apache Tribe--The San Carlos Apache Tribe submitted 
comments during the second comment period. Within their comment letter 
the Tribe notes their adherence to TEK, which is an ecosystem-based 
approach to land and species management; their 2005 Fishery Management 
Plan; development of various codes and regulations that benefit the 
species and/or their habitat; and a commitment to no longer stocking 
nonnative sportfish in the Eagle Creek watershed.
    As noted in the Exclusions section above, we find that the Tribe's 
lands should be excluded on the basis of our relationship with the 
Tribe, the goals of the FMP, and the information provided during the 
second comment period. The Tribe has focused on known areas of concern 
for the species management, and has discontinued stocking of nonnative 
fishes in the Bonita and Eagle Creek watersheds. The FMP contains goals 
of conserving and enhancing native fishes on the Reservation; restoring 
native fishes and their habitats; and preventing, minimizing or 
mitigating impacts to native fishes, among others. In addition, the 
Tribe has indicated that, through TEK, they practice an ecosystem-based 
approach to land and species based management and preservation.
    White Mountain Apache Tribe--We coordinated early with the White 
Mountain Apache Tribe regarding the critical habitat designations. A 
coordination meeting was held in October 2010 to gain a better 
understanding of any concerns White Mountain Apache Tribe might have 
regarding the upcoming proposed rule for spikedace and loach minnow 
critical habitat. Representatives of the White Mountain Apache Tribe 
attended the public hearing in October of 2011. We subsequently 
received comments from White Mountain Apache Tribe on the proposed 
rule, including the request for a 4(b)(2) exclusion and a copy of their 
Loach Minnow Management Plan. Their comment letter and management plan 
detail various conservation measures that will benefit loach minnow, 
including adoption of various ordinances, hiring of key personnel, and 
contingency plans for disaster management.
    After reviewing their comment letter and management plan, and in 
recognition of our special Tribal relationship with White Mountain 
Apache Tribe, we determined that benefits of exclusion of the mainstem 
White River and East Fork White River outweighed the benefits of 
including it in the designations of critical habitat for the species.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Arizona Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this rulemaking are the staff members of the 
Arizona Ecological Services Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    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.

[[Page 10909]]


0
2. Amend Sec.  17.11(h) by revising the entries for ``Minnow, loach'' 
and ``Spikedace'' under ``Fishes'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Minnow, loach....................  Tiaroga cobitis.....  U.S.A. (AZ, NM),     Entire.............  E                       247     17.95(e)           NA
                                                          Mexico.
 
                                                                      * * * * * * *
Spikedace........................  Meda fulgida........  U.S.A. (AZ, NM),     Entire.............  E                       236     17.95(e)           NA
                                                          Mexico.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.44, remove and reserve paragraphs (p) and (q).
0
4. In Sec.  17.95, amend paragraph (e) by revising the entries for 
``Loach Minnow (Tiaroga cobitis)'' and ``Spikedace (Meda fulgida),'' to 
read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Loach Minnow (Tiaroga cobitis)
    (1) Critical habitat units are depicted for Apache, Cochise, Gila, 
Graham, Greenlee, Pinal, and Yavapai Counties, Arizona, and for Catron, 
Grant, and Hidalgo Counties, New Mexico, on the maps below.
    (2) Within these areas, the primary constituent elements (PCE) of 
the physical or biological features essential to the conservation of 
loach minnow consist of six components:
    (i) Habitat to support all egg, larval, juvenile, and adult loach 
minnow. This habitat includes perennial flows with a stream depth of 
generally less than 1 m (3.3 ft), and with slow to swift flow 
velocities between 0 and 80 cm per second (0.0 and 31.5 in. per 
second). Appropriate microhabitat types include pools, runs, riffles, 
and rapids over sand, gravel, cobble, and rubble substrates with low or 
moderate amounts of fine sediment and substrate embeddedness. 
Appropriate habitats have a low stream gradient of less than 2.5 
percent and are at elevations below 2,500 m (8,202 ft). Water 
temperatures should be in the general range of 8.0 to 25.0 [deg]C (46.4 
to 77 [deg]F).
    (ii) An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddis flies, stoneflies, and dragonflies.
    (iii) Streams with no or no more than low levels of pollutants.
    (iv) Perennial flows or 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.
    (v) No nonnative aquatic species, or levels of nonnative aquatic 
species that are sufficiently low to allow persistence of loach minnow.
    (vi) Streams with a natural, unregulated flow regime that allows 
for periodic flooding or, if flows are modified or regulated, a flow 
regime that allows for adequate river functions, such as flows capable 
of transporting sediments.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule. We have determined that all designated 
areas contain at least one PCE for loach minnow.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 7.5' quadrangles along with shapefiles 
generated by the Arizona Land Resource Information Service for land 
ownership, streams, counties, and the Public Land Survey System. 
Information on species locations was derived from databases developed 
by the Arizona Game and Fish Department, the New Mexico Department of 
Game and Fish, and Arizona State University.
    (5) Note: Index map follows:
BILLING CODE 4310-55-P

[[Page 10910]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.000

    (6) Unit 1: Verde River Subbasin, Yavapai County, Arizona.
    (i) Verde River for approximately 118.5 km (73.6 mi), extending 
from the confluence with Beaver and Wet Beaver Creek in Township 14 
North, Range 5 East, southeast quarter of section 30 upstream to 
Sullivan Dam in Township 17 North, Range 2 West, northwest quarter of 
section 15. This mileage does not include the 1.2 km (0.8 mi) belonging 
to the Yavapai-Apache Nation, which is excluded from this designation.
    (ii) Granite Creek for approximately 3.2 km (2.0 mi), extending 
from the confluence with the Verde River in Township 17 North, Range 2 
West, northeast quarter of section 14 upstream to a spring in Township 
17 North, Range 2 West, southwest quarter of the southwest quarter of 
section 13.
    (iii) Oak Creek for approximately 54.3 km (33.7 mi), extending from 
the confluence with the Verde River in Township 15 North, Range 4 East, 
southeast quarter of section 20 upstream to the confluence with an 
unnamed tributary from the south in Township 17 North, Range 5 East, 
southeast quarter of the northeast quarter of section 24.
    (iv) Beaver Creek and Wet Beaver Creek for approximately 33.3 km 
(20.7 mi), extending from the confluence with the Verde River in 
Township 14 North, Range 5 East, southeast quarter of

[[Page 10911]]

section 30 upstream to the confluence with Casner Canyon in Township 15 
North, Range 6 East, northwest quarter of section 23. This mileage does 
not include the 0.2 km (0.1 mi) belonging to the Yavapai-Apache Nation, 
which is excluded from this designation.
    (v) Fossil Creek for approximately 22.2 km (13.8 mi) from its 
confluence with the Verde River at Township 11 North, Range 6 East, 
northeast quarter of section 25 upstream to the old Fossil Diversion 
Dam site at Township 12 North, Range 7 East, southeast quarter of 
section 14.
    (vi) Note: Map of Unit 1, Verde River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.001
    

[[Page 10912]]


    (7) Unit 2: Salt River Subbasin, Apache and Gila Counties, Arizona.
    (i) East Fork Black River for approximately 19.1 km (11.9 mi) from 
the confluence with the West Fork Black River at Township 4 North, 
Range 28 East, southeast quarter of section 11 upstream to the 
confluence with an unnamed tributary approximately 0.82 km (0.51 mi) 
downstream of the Boneyard Creek confluence at Township 5 North, Range 
29 East, northwest quarter of Section 5.
    (ii) North Fork East Fork Black River for approximately 7.1 km (4.4 
mi) of the North Fork East Fork Black River extending from the 
confluence with East Fork Black River at Township 5 North, Range 29 
East, northwest quarter of section 5 upstream to the confluence with an 
unnamed tributary at Township 6 North, Range 29 East, center of Section 
30.
    (iii) Boneyard Creek for approximately 2.3 km (1.4 mi) extending 
from the confluence with the East Fork Black River at Township 5 North, 
Range 29 East, SW quarter of section 5 upstream to the confluence with 
an unnamed tributary at Township 6 North, Range 29 East, southeast 
quarter of section 32.
    (iv) Coyote Creek for approximately 3.4 km (2.1 mi) from the 
confluence with East Fork Black River at Township 5 North, Range 29 
East, northeast quarter of section 8 upstream to an unnamed confluence 
at Township 5 North, Range 29 East, northwest quarter of section 10.
    (v) Note: Map of Unit 2, Salt River Subbasin follows.

[[Page 10913]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.002

    (8) Unit 3: San Pedro River Subbasin, Cochise, Pinal, and Graham 
Counties, Arizona.
    (i) Aravaipa Creek for approximately 44.9 km (27.9 mi) extending 
from the confluence with the San Pedro River in Township 7 South, Range 
16 East, center of section 9 upstream to the confluence with Stowe 
Gulch in Township 6 South, Range 19 East, southeast quarter of the 
northeast quarter of section 35.
    (ii) Deer Creek--3.7 km (2.3 mi) of the 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.
    (iii) Turkey Creek--4.3 km (2.7 mi) of the 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.
    (iv) Hot Springs Canyon for approximately 9.3 km (5.8 mi) extending 
from the confluence with Bass Canyon in Township 12 South, Range 20 
East, northeast quarter of section 36 downstream to Township 12

[[Page 10914]]

South, Range 20 East, southeast quarter of section 32.
    (v) Redfield Canyon for approximately 6.5 km (4.0 mi) extending 
from Township 11 South, Range 19 East, northeast quarter of section 36 
upstream to the confluence with Sycamore Canyon in Township 11 South, 
Range 20 East, northwest quarter of section 28.
    (vi) Bass Canyon for approximately 5.5 km (3.4 mi) from the 
confluence with Hot Springs Canyon in Township 12 South, Range 20 East, 
northeast quarter of section 36 upstream to the confluence with Pine 
Canyon in Township 12 South, Range 21 East, center of section 20.
    (vii) Note: Map of Unit 3, San Pedro River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.003
    
    (9) Unit 4: Bonita Creek Subbasin, Graham County, Arizona.
    (i) Bonita Creek for approximately 23.8 km (14.8 mi) from the 
confluence with the Gila River in Township 6 South, Range 28 East, 
southeast quarter

[[Page 10915]]

of section 21 upstream to the confluence with Martinez Wash in Township 
4 South, Range 27 East, southeast quarter of section 27.
    (ii) Note: Map of Unit 4, Bonita Creek Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.004
    
    (10) Unit 5: Eagle Creek Subbasin, Graham and Greenlee Counties, 
Arizona.
    (i) Eagle Creek for approximately 26.5 km (16.5 mi) from the 
Freeport-McMoRan diversion dam at Township 4 South, Range 28 East, 
southwest quarter of the northwest quarter of section 23 upstream to 
the confluence of East Eagle Creek in Township 2 North, Range 28 East, 
southwest quarter of section 20.
    This mileage does not include approximately 21.4 km (13.3 mi) of 
Eagle Creek on lands belonging to Freeport-McMoRan, which is excluded 
from this designation.
    (ii) Note: Map of Unit 5, Eagle Creek Subbasin follows.

[[Page 10916]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.005

    (11) Unit 6: San Francisco River Subbasin, Greenlee County, Arizona 
and Catron County, New Mexico.
    (i) San Francisco River for approximately 189.5 km (117.7 mi) of 
the San Francisco River extending from the confluence with the Gila 
River in Township 5 South, Range 29 East, southeast quarter of section 
21 upstream to the northern boundary of Township 6 South, Range 19 
West, section 2. This mileage includes approximately 14.1 km (8.8 mi) 
of the San Francisco River on lands belonging to Freeport-McMoRan, 
which is excluded from this designation.
    (ii) Tularosa River for approximately 30.0 km (18.6 mi) from the 
confluence with the San Francisco River at Township 7 South, Range 19 
West, southwest quarter of section 23 upstream to the town of Cruzville 
at Township 6 South, Range 18 West, southern boundary of section 1.
    (iii) Negrito Creek for approximately 6.8 km (4.2 mi) extending 
from the confluence with the Tularosa River at Township 7 South, Range 
18 West, southwest quarter of the northwest quarter of section 19 
upstream to the confluence with Cerco Canyon at Township 7 South, Range 
18 West, west boundary of section 22.
    (iv) Whitewater Creek for approximately 1.9 km (1.2 mi) from the 
confluence with the San Francisco River

[[Page 10917]]

at Township 11 South, Range 20 West, Section 27 upstream to the 
confluence with Little Whitewater Creek at Township 11 South, Range 20 
West, southeast quarter of section 23.
    (v) Note: Map of Unit 6, San Francisco River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.006
    
    (12) Unit 7: Blue River Subbasin, Greenlee County, Arizona, and 
Catron County, New Mexico.
    (i) Blue River for approximately 81.4 km (50.6 mi) from the 
confluence with the San Francisco River at Township 2 South, Range 31 
East, southeast quarter of section 31 upstream to the confluence of 
Campbell Blue and Dry Blue creeks at Township 7 South, Range 21 West, 
southeast quarter of section 6.
    (ii) Campbell Blue Creek for approximately 12.4 km (7.7 mi) from 
the confluence of Dry Blue and Campbell Blue Creeks at Township 7 
South, Range 21 West, southeast quarter of section 6 to the confluence 
with Coleman Canyon in Township 4.5 North, Range 31 East, southwest 
quarter of the northeast quarter of section 32.

[[Page 10918]]

    (iii) Little Blue Creek for approximately 5.1 km (3.1 mi) from the 
confluence with the Blue River at Township 1 South, Range 31 East, 
center of section 5 upstream to the mouth of a canyon at Township 1 
North, Range 31 East, northeast quarter of section 29.
    (iv) Pace Creek for approximately 1.2 km (0.8 mi) from the 
confluence with Dry Blue Creek at Township 6 South, Range 21 West, 
southwest quarter of section 28 upstream to a barrier falls at Township 
6 South, Range 21 West, northeast quarter of section 29.
    (v) Frieborn Creek for approximately 1.8 km (1.1 mi) from the 
confluence with Dry Blue Creek at Township 7 South, Range 21 West, 
southwest quarter of the northwest quarter of section 5 upstream to an 
unnamed tributary flowing from the south in Township 7 South, Range 21 
West, northeast quarter of the southwest quarter of section 8.
    (vi) Dry Blue Creek for approximately 4.7 km (3.0 mi) from the 
confluence with Campbell Blue Creek at Township 7 South, Range 21 West, 
southeast quarter of Section 6 upstream to the confluence with Pace 
Creek in Township 6 South, Range 21 West, southwest quarter of section 
28.
    (vii) Note: Map of Unit 7, Blue River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.007
    

[[Page 10919]]


    (13) Unit 8: Gila River Subbasin, Catron, Grant, and Hidalgo 
Counties, New Mexico.
    (i) Gila River for approximately 153.5 km (95.4 mi) from the 
confluence with Moore Canyon at Township 18 South, Range 21 West, 
southeast quarter of the southwest quarter of section 32 upstream to 
the confluence of the East and West Forks of the Gila River at Township 
13 South, Range 13 West, center of section 8. This mileage does not 
include approximately 11.5 km (7.2 mi) of the Gila River on lands owned 
by Freeport-McMoRan, which is excluded from this designation.
    (ii) West Fork Gila River for approximately 13.0 km (8.1 mi) from 
the confluence with the East Fork Gila River at Township 13 South, 
Range 13 West, center of Section 8 upstream to the confluence with EE 
Canyon at Township 12 South, Range 14 West, east boundary of Section 
21.
    (iii) Middle Fork Gila River for approximately 19.1 km (11.9 mi) of 
the Middle Fork Gila River extending from the confluence with West Fork 
Gila River at Township 12 South, Range 14 West, southwest quarter of 
section 25 upstream to the confluence of Brothers West Canyon in 
Township 11 South, Range 14 West, northeast quarter of section 33.
    (iv) East Fork Gila River for approximately 42.1 km (26.2 mi) 
extending from the confluence with West Fork Gila River at Township 13 
South, Range 13 West, center of section 8 upstream to the confluence of 
Beaver and Taylor Creeks in Township 11 South, Range 12 West, northeast 
quarter of section 17.
    (v) Mangas Creek for approximately 1.2 km (0.8 mi) extending from 
Township 17 South, Range 17 West, at the eastern boundary of section 3 
upstream to the confluence with Blacksmith Canyon at Township 17 South, 
Range 17 West, northwest quarter of section 3. This mileage does not 
include approximately 7.9 km (4.9 mi) of Mangas Creek on lands 
belonging to Freeport-McMoRan, which are excluded from the designation.
    (vi) Bear Creek for approximately 29.5 km (18.4 mi) extending from 
Township 15 South, Range 17 West, eastern boundary of section 33 
upstream to the confluence with Sycamore and North Fork Walnut Creek at 
Township 16 South, Range 15 West, eastern boundary of section 15. This 
designation does not include approximately 1.9 km (1.2 mi) of Bear 
Creek on lands belonging to Freeport-McMoRan, which are excluded from 
this designation.
    (vii) Note: Map of Unit 8, Gila River Subbasin follows.

[[Page 10920]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.008


[[Page 10921]]


    Spikedace (Meda fulgida)
    (1) Critical habitat units are depicted for Cochise, Gila, Graham, 
Greenlee, Pinal, and Yavapai Counties, Arizona, and for Catron, Grant, 
and Hidalgo Counties, New Mexico, on the maps below.
    (2) Within these areas, the primary constituent elements (PCE) of 
the physical or biological features essential to the conservation of 
spikedace consist of six components:
    (i) Habitat to support all egg, larval, juvenile, and adult 
spikedace. This habitat includes perennial flows with a stream depth 
generally less than 1 m (3.3 ft), and with slow to swift flow 
velocities between 5 and 80 cm per second (1.9 and 31.5 in. per 
second). Appropriate stream microhabitat types include glides, runs, 
riffles, the margins of pools and eddies, and backwater components over 
sand, gravel, and cobble substrates with low or moderate amounts of 
fine sediment and substrate embeddedness. Appropriate habitat will have 
a low gradient of less than approximately 1.0 percent, at elevations 
below 2,100 m (6,890 ft). Water temperatures should be in the general 
range of 8.0 to 28.0 [deg]C (46.4 to 82.4 [deg]F).
    (ii) An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddis flies, stoneflies, and dragonflies.
    (iii) Streams with no or no more than low levels of pollutants.
    (iv) Perennial flows, or 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.
    (v) No nonnative aquatic species, or levels of nonnative aquatic 
species that are sufficiently low as to allow persistence of spikedace.
    (vi) Streams with a natural, unregulated flow regime that allows 
for periodic flooding or, if flows are modified or regulated, a flow 
regime that allows for adequate river functions, such as flows capable 
of transporting sediments.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule. We have determined that all designated 
areas contain at least one PCE for spikedace.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 7.5' quadrangles along with shapefiles 
generated by the Arizona Land Resource Information Service for land 
ownership, streams, counties, and the Public Land Survey System. 
Information on species locations was derived from databases developed 
by the Arizona Game and Fish Department, the New Mexico Department of 
Game and Fish, and Arizona State University.
    (5) Note: Index map follows:

[[Page 10922]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.009

    (6) Unit 1: Verde River Subbasin, Yavapai County, Arizona.
    (i) Verde River for approximately 170.6 km (105.9 mi), extending 
from the confluence with Fossil Creek in Township 11 North, Range 6 
East, northeast quarter of section 25 upstream to Sullivan Dam in 
Township 17 North, Range 2 West, northwest quarter of section 15. This 
mileage does not include the 1.2 km (0.8 mi) belonging to the Yavapai-
Apache Nation, which is excluded from this designation. Granite Creek 
for approximately 3.2 km (2.0 mi), extending from the confluence with 
the Verde River in Township 17 North, Range 2 West, northeast quarter 
section 14 upstream to a spring in Township 17 North, Range 2 West, 
southwest quarter of the southwest quarter of section 13.
    (ii) Oak Creek for approximately 54.3 km (33.7 mi), extending from 
the confluence with the Verde River in Township 15 North, Range 4 East, 
southeast quarter section 20 upstream to the confluence with an unnamed 
tributary from the south in Township 17 North, Range 5 East, southeast 
quarter of the northeast quarter of section 24.
    (iii) Beaver Creek/Wet Beaver Creek for approximately 33.3 km (20.7 
mi), extending from the confluence with the Verde River in Township 14 
North, Range 5 East, southeast quarter of section 30 upstream to the 
confluence with Casner Canyon in Township 15

[[Page 10923]]

North, Range 6 East, northwest quarter of section 23. This mileage does 
not include the 0.2 km (0.1 mi) belonging to the Yavapai-Apache Nation 
and excluded from these designations.
    (iv) West Clear Creek for approximately 10.9 km (6.8. mi), 
extending from the confluence with the Verde River in Township 13 
North, Range 5 East, center section 21, upstream to the confluence with 
Black Mountain Canyon in Township 13 North, Range 6 East, southeast 
quarter of section 17.
    (v) Fossil Creek for approximately 22.2 km (13.8 mi) from its 
confluence with the Verde River at Township 11 North, Range 6 East, 
northeast quarter of section 25 upstream to the old Fossil Diversion 
Dam site at Township 12 North, Range 7 East, southeast quarter of 
section 14.
    (vi) Note: Map of Unit 1, Verde River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.010
    

[[Page 10924]]


    (7) Unit 2: Salt River Subbasin, Gila County, Arizona.
    (i) Tonto Creek for approximately 47.8 km (29.7 mi) extending from 
the confluence with Greenback Creek in Township 5 North, Range 11 East, 
northwest quarter of section 8 upstream to the confluence with Houston 
Creek in Township 9 North, Range 11 East, northeast quarter of section 
18.
    (ii) Greenback Creek for approximately 15.1 km (9.4 mi) from the 
confluence with Tonto Creek in Township 5 North, Range 11 East, 
northwest quarter of section 8 upstream to Lime Springs in Township 6 
North, Range 12 East, southwest quarter of section 20.
    (iii) Rye Creek for approximately 2.8 km (1.8 mi) extending from 
the confluence with Tonto Creek in Township 8 North, Range 10 East, 
northeast quarter of section 24 upstream to the confluence with Brady 
Canyon in Township 8 North, Range 10 East, northwest quarter of section 
14.
    (iv) Spring Creek for approximately 27.2 km (16.9 mi) extending 
from the confluence with the Tonto River at Township 10 North, Range 11 
East, southeast quarter of section 36 upstream to the confluence with 
Sevenmile Canyon at Township 8 North, Range 13 East, northern boundary 
of section 20.
    (v) Rock Creek for approximately 5.8 km (3.6 mi) extending from the 
confluence with Spring Creek at Township 8 North, Range 12 East, 
southeast quarter of section 1 upstream to the confluence with Buzzard 
Roost Canyon at Township 8 North, 12 East, center of section 24.
    (vi) Note: Map of Unit 2, Salt River Subbasin follows.

[[Page 10925]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.011

    (8) Unit 3: San Pedro River Subbasin, Cochise, Graham, and Pinal 
Counties, Arizona.
    (i) Aravaipa Creek for approximately 44.9 km (27.9 mi) extending 
from the confluence with the San Pedro River in Township 7 South, Range 
16 East, center of section 9 upstream to the confluence with Stowe 
Gulch in Township 6 South, Range 19 East, southeast quarter of the 
northeast quarter of section 35. Deer Creek--3.7 km (2.3 mi) of the 
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.
    (ii) Turkey Creek--4.3 km (2.7 mi) of the 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.
    (iii) Hot Springs Canyon for approximately 9.3 km (5.8 mi) 
extending from the confluence with Bass Canyon in Township 12 South, 
Range 20 East, northeast quarter of section 36 downstream to Township 
12 South, Range 20 East, southeast quarter of section 32.
    (iv) Redfield Canyon for approximately 6.5 km (4.0 mi)

[[Page 10926]]

extending from Township 11 South, Range 19 East, northeast quarter of 
section 36 upstream to the confluence with Sycamore Canyon in Township 
11 South, Range 20 East, northwest quarter of section 28.
    (v) Bass Canyon for approximately 5.5 km (3.4 mi) from the 
confluence with Hot Springs Canyon in Township 12 South, Range 20 East, 
northeast quarter of section 36 upstream to the confluence with Pine 
Canyon in Township 12 South, Range 21 East, center of section 20.
    (vi) Note: Map of Unit 3, San Pedro River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.012
    
    (9) Unit 4: Bonita Creek Subbasin, Graham County, Arizona.
    (i) Bonita Creek for approximately 23.8 km (14.8 mi) from the 
confluence with the Gila River in Township 6 South, Range 28 East, 
southeast quarter of section 21 upstream to the confluence with 
Martinez Wash in Township 4 South, Range 27 East, southeast quarter of 
Section 27.
    (ii) Note: Map of Unit 4, Bonita Creek Subbasin follows.

[[Page 10927]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.013

    (10) Unit 5: Eagle Creek Subbasin, Graham and Greenlee Counties, 
Arizona.
    (i) Eagle Creek for approximately 26.5 km (16.5 mi) from the 
Freeport-McMoRan diversion dam at Township 4 South, Range 28 East, 
southwest quarter of the northwest quarter of section 23 upstream to 
the confluence of East Eagle Creek in Township 2 North, Range 28 East, 
southwest quarter of section 20. This mileage does not include 
approximately 21.4 km (13.3 mi) of Eagle Creek on lands belonging to 
Freeport-McMoRan, which is excluded from this designation.
    (ii) Note: Map of Unit 5, Eagle Creek Subbasin follows.

[[Page 10928]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.014

    (11) Unit 6: San Francisco River Subbasin, Greenlee County, 
Arizona, and Catron County, New Mexico.
    (i) San Francisco River for approximately 166.7 km (103.5 mi) of 
the San Francisco River extending from the confluence with the Gila 
River in Arizona in Township 5 South, Range 29 East, southeast quarter 
of section 21 upstream to Township 6 South, Range 19 West, section 2 in 
New Mexico. This mileage does include approximately 14.1 km (8.8 mi) of 
the San Francisco River on lands belonging to Freeport-McMoRan, which 
is excluded from this designation.
    (ii) Note: Map of Unit 6, San Francisco River Subbasin follows.

[[Page 10929]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.015

    (12) Unit 7: Blue River Subbasin, Greenlee County, Arizona, and 
Catron County, New Mexico.
    (i) Blue River for approximately 81.4 km (50.6 mi) from the 
confluence with the San Francisco River at Township 2S., Range 31 East, 
southeast quarter of section 31 upstream to the confluence of Campbell 
Blue and Dry Blue Creeks at Township 7 South, Range 21 West, southeast 
quarter of section 6.
    (ii) Campbell Blue Creek for approximately 12.4 km (7.7 mi) from 
the confluence of Dry Blue and Campbell Blue Creeks at Township 7 
South, Range 21 West, southeast quarter of section 6 to the confluence 
with Coleman Canyon in Township 4.5 North, Range 31 East, southwest 
quarter of the northeast quarter of section 32.
    (iii) Little Blue Creek for approximately 5.1 km (3.1 mi) from the 
confluence with the Blue River at Township 1 South, Range 31 East, 
center Section 5 upstream to the mouth of a canyon at Township 1 North, 
Range 31 East, northeast quarter of section 29.
    (iv) Pace Creek for approximately 1.2 km (0.8 mi) from the 
confluence with Dry Blue Creek at Township 6 South, Range 21 West, 
southwest quarter of Section 28 upstream to a barrier falls at Township 
6 South, Range 21 West, northeast quarter of section 29.

[[Page 10930]]

    (v) Frieborn Creek for approximately 1.8 km (1.1 mi) from the 
confluence with Dry Blue Creek at Township 7 South, Range 21 West, 
southwest quarter of the northwest quarter of section 5 upstream to an 
unnamed tributary flowing from the south in Township 7 South, Range 21 
West, northeast quarter of southwest quarter of section 8.
    (vi) Dry Blue Creek for approximately 4.7 km (3.0 mi) from the 
confluence with Campbell Blue Creek at Township 7 South, Range 21 West, 
southeast quarter of Section 6 upstream to the confluence with Pace 
Creek in Township 6 South, Range 21 West, southwest quarter of section 
28.
    (vii) Note: Map of Unit 7, Blue River Subbasin follows.
    [GRAPHIC] [TIFF OMITTED] TR23FE12.016
    

[[Page 10931]]


    (13) Unit 8: Gila River Subbasin, Catron, Grant, and Hidalgo 
Counties, New Mexico.
    (i) Gila River for approximately 153.5 km (95.4 mi) from the 
confluence with Moore Canyon at Township 18 South, Range 21 West, 
southeast quarter of the southwest quarter of section 32 upstream to 
the confluence of the East and West Forks of the Gila River at Township 
13 South, Range 13 West, center of section 8. This mileage does not 
include approximately 11.5 km (7.2 mi) of the Gila River on lands owned 
by Freeport-McMoRan, which is excluded from this designation.
    (ii) West Fork Gila River for approximately 13.0 km (8.1 mi) from 
the confluence with the East Fork Gila River at Township 13 South, 
Range 13 West, center of section 8 upstream to the confluence with EE 
Canyon at Township 12 South, Range 14 West, east boundary of Section 
21.
    (iii) Middle Fork Gila River for approximately 12.5 km (7.7 mi) of 
the Middle Fork Gila River extending from the confluence with West Fork 
Gila River at Township 12 South, Range 14 West, southwest quarter of 
section 25 upstream to the confluence of Big Bear Canyon in Township 12 
South, Range 14 West, southwest quarter of section 2.
    (iv) East Fork Gila River for approximately 42.1 km (26.2 mi) 
extending from the confluence with West Fork Gila River at Township 13 
South, Range 13 West, center of section 8 upstream to the confluence of 
Beaver and Taylor Creeks in Township 11 South, Range 12 West, northeast 
quarter of section 17.
    (v) Mangas Creek for approximately 1.2 km (0.8 mi) extending from 
Township 17 South, Range 17 West, at the eastern boundary of section 3 
upstream to the confluence with Blacksmith Canyon at Township 17 South, 
Range 17 West, northwest quarter of section 3. This mileage does not 
include approximately 7.9 km (4.9 mi) of Mangas Creek on lands 
belonging to Freeport-McMoRan, which are excluded from the designation.
    (vi) Note: Map of Unit 8, Gila River Subbasin follows.

[[Page 10932]]

[GRAPHIC] [TIFF OMITTED] TR23FE12.017

* * * * *

    Dated: February 7, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-3591 Filed 2-22-12; 8:45 am]
BILLING CODE 4310-55-C