[Federal Register Volume 87, Number 65 (Tuesday, April 5, 2022)]
[Proposed Rules]
[Pages 19657-19660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07165]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2022-0001; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BG36


Endangered and Threatened Wildlife and Plants; Lower Colorado 
River Distinct Population Segment of Roundtail Chub (Gila robusta); 
Gila Chub (Gila intermedia)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notification of petition finding; advance notice of proposed 
rulemaking.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a finding on 
a petition to list the Lower Colorado River basin distinct population 
segment (DPS) of the roundtail chub (Gila robusta) as an endangered or 
threatened species under the Endangered Species Act of 1973, as amended 
(Act). After a thorough review of the best available scientific and 
commercial information, we find that it is not warranted at this time 
to list the Lower Colorado River roundtail chub DPS as an endangered or 
threatened species. However, in conducting the necessary research to 
inform this petition finding, we have determined that we should 
consider removing the Gila chub (Gila intermedia) from the protections 
of the Act. Therefore, this document includes an advance notice of 
proposed rulemaking pertaining to removing the Gila chub, currently 
listed as endangered, from the List of Endangered and Threatened 
Wildlife. We ask the public to submit to us any information relevant to 
the status of these species or their habitats.

DATES: Petition finding: The finding in this document pertaining to the 
Lower Colorado River basin DPS of the roundtail chub (Gila robusta) was 
made on April 5, 2022.
    Comment submission on the advance notice of proposed rulemaking: We 
will accept comments pertaining to Gila chub (Gila intermedia) that are 
received or postmarked on or before June 6, 2022. Comments submitted 
electronically using the Federal eRulemaking Portal must be received by 
11:59 p.m. Eastern Time on the closing date.

ADDRESSES: Petition finding: A detailed description of the basis for 
this finding is available on the internet at https://www.regulations.gov under Docket No. FWS-R2-ES-2022-0001. Supporting 
information used to prepare this finding is available by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Comment submission on the advance notice of proposed rulemaking: 
You may submit comments pertaining to Gila chub (Gila intermedia) by 
one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2022-0001, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2022-0001, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    Information regarding the Lower Colorado River roundtail chub DPS:
    We request that you submit any new information concerning the 
taxonomy of, biology of, ecology of, status of, or stressors to the 
Lower Colorado River roundtail chub DPS, whenever it becomes available, 
to the person listed below under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Mark Lamb, Arizona Ecological Services 
Field Office, 9828 North 31st Ave. C3, Phoenix, AZ 85051-2517; 
telephone 602-242-0210. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Background

    Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.), we 
are required to make a finding whether or not a petitioned action is 
warranted within 12 months after receiving a petition that we have 
determined contains substantial scientific or commercial information 
indicating that the petitioned action may be warranted (``12-month 
finding''). We must make a finding that the petitioned action is: (1) 
Not warranted; (2) warranted; or (3) warranted but precluded by pending 
proposals regarding other species. We must publish a notice of these 
12-month findings in the Federal Register.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations at part 424 of title 50 of the Code of Federal Regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Lists of Endangered and 
Threatened Wildlife and Plants (Lists). The Act states that the term 
``species'' includes any subspecies of fish or wildlife or plants, and 
any distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature. The Act defines an ``endangered 
species'' as any species that is in danger of extinction throughout all 
or a significant portion of its range and a ``threatened species'' as 
any species that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. The Act requires that we determine whether

[[Page 19658]]

any species is an endangered species or a threatened species because of 
any of the following five factors:

    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.

    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself. However, the mere 
identification of any threat(s) does not necessarily mean that the 
species meets the statutory definition of an ``endangered species'' or 
a ``threatened species.''
    In determining whether a species meets either definition, we must 
evaluate all identified threats by considering the expected response by 
the species, and the effects of the threats--in light of those actions 
and conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    In conducting our evaluation of the five factors provided in 
section 4(a)(1) of the Act to determine whether the Lower Colorado 
River roundtail chub distinct population segment (DPS) meets the 
definition of an endangered species or a threatened species, we 
considered and thoroughly evaluated the best scientific and commercial 
information available regarding the past, present, and future stressors 
and threats. Petition evaluations may include information from 
recognized experts; Federal, State, and Tribal governments; academic 
institutions; foreign governments; private entities; and other members 
of the public. Therefore, we reviewed the petition, information 
available in our files, and other available published and unpublished 
information.
    The species assessment form for the species contains more detailed 
biological information, a thorough analysis of the listing factors, a 
list of literature cited, and an explanation of why we determined that 
the species does not meet the Act's definition of an endangered species 
or a threatened species. Additionally, a thorough review of the 
taxonomy, life history, ecology, and stressors to the Lower Colorado 
River roundtail chub DPS is presented in the species status assessment 
report (Service 2022, entire). This supporting information can be found 
on the internet at https://www.regulations.gov under Docket No. FWS-R2-
ES-2022-0001. The following is an informational summary for the finding 
in this document.

Previous Federal Actions

    On August 9, 2002, we published a proposed rule to list the Gila 
chub (Gila intermedia), which historically was found throughout the 
Gila River basin in southern Arizona, southwestern New Mexico, and 
northeastern Sonora, Mexico, as endangered with critical habitat (67 FR 
51948). On April 14, 2003, we received a petition from the Center for 
Biological Diversity (CBD) requesting that we list both the headwater 
chub (Gila nigra) and a DPS of the roundtail chub (Gila robusta) in the 
Lower Colorado River basin as an endangered or threatened species under 
the Act. The petition also requested designating critical habitat 
concurrently with the listing for both species. Following receipt of 
the 2003 petition, and pursuant to a stipulated settlement agreement, 
we published a 90-day finding on July 12, 2005 (70 FR 39981), stating 
that the petitioners had provided sufficient information to indicate 
that listing of both species may be warranted.
    On November 2, 2005, we published a final rule listing the Gila 
chub (Gila intermedia) as endangered with critical habitat (70 FR 
66664).
    On May 3, 2006, we published a 12-month finding (71 FR 26007) that 
listing was not warranted for the Lower Colorado River roundtail chub 
DPS, and that listing for the headwater chub was warranted but 
precluded by higher priority listing actions. On September 7, 2006, we 
received a complaint from CBD for declaratory and injunctive relief, 
challenging our decision not to list the Lower Colorado River basin DPS 
of the roundtail chub as an endangered species under the Act. On 
November 5, 2007, in a stipulated settlement agreement, we agreed to 
commence a new status review of the petitioned Lower Colorado River 
basin DPS of the roundtail chub and to submit a 12-month finding to the 
Federal Register by June 30, 2009.
    On July 7, 2009, we published a 12-month finding (74 FR 32352) on 
the Lower Colorado River roundtail chub DPS. The finding determined 
that the entity qualified as a DPS by satisfying the discreteness and 
significance elements of the Interagency Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments Under the Act 
(DPS Policy; 61 FR 4722,

[[Page 19659]]

February 7, 1996). However, we further concluded that listing of the 
Lower Colorado River roundtail chub DPS was warranted but precluded due 
to higher priority listing actions at the time. The DPS remained on the 
candidate list from 2009 to 2014 (74 FR 57804, November 9, 2009; 75 FR 
69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69993, 
November 21, 2012; 78 FR 70103, November 22, 2013; 79 FR 72449, 
December 5, 2014).
    On October 7, 2015, following completion of a species status 
assessment, we published a proposed rule to list the headwater chub and 
the Lower Colorado River roundtail chub DPS as threatened species under 
the Act (80 FR 60754). On April 7, 2017, we withdrew the 2015 proposed 
rule following a taxonomic revision that concluded the available 
evidence did not support species-level status for the headwater chub 
(G. nigra) and the Gila chub (G. intermedia), collapsing them into 
roundtail chub (G. robusta) (Page et al. 2017, p. 459) (82 FR 16981). 
However, despite this taxonomic revision, Gila chub was unaffected by 
the 2017 withdrawal and remains listed as endangered on the List of 
Endangered and Threatened Wildlife.
    In 2018, CBD challenged our withdrawal of the proposed rule on the 
headwater chub and Lower Colorado River roundtail chub DPS. On March 
31, 2021, the U.S. District Court found the withdrawal of the 2015 
proposed rule was arbitrary and capricious because we withdrew the rule 
based on taxonomic revisions, but never fully reevaluated the 
petitioned entity, the DPS. In other words, the taxonomic revisions 
created a new biological entity in the Lower Colorado River basin that, 
under the Act, we were still obligated to assess under the original 
2003 petition. The court vacated the withdrawal of the proposed rule 
and ordered that a new 12-month finding be completed by March 31, 2022. 
Importantly, the court order concerns only the Lower Colorado River 
basin DPS, since that was the portion of the roundtail chub range for 
which the Service was originally petitioned. This finding addresses 
that court order.

Summary of Finding

    The original petition to list roundtail chub in the Lower Colorado 
River basin included populations found in the Bill Williams, Gila, and 
Little Colorado River basins, which are located in Arizona and New 
Mexico. Traditionally, the Colorado River basin has been divided into 
two sections, the Upper and Lower basins, that are demarcated by Lee's 
Ferry, which is located in northern Arizona downstream of Glen Canyon 
Dam. This demarcation combines the Bill Williams, Gila, and Little 
Colorado River basins into the traditional geographical definition of 
the Lower Colorado River basin.
    In regard to roundtail chub populations in these basins, genetic 
research has revealed that roundtail chub in the Lower and Upper 
Colorado River basins are genetically distinct. This research has also 
found that roundtail chub from the Little Colorado River, traditionally 
geographically placed in the Lower Colorado River basin, belong to the 
same genetic lineage as roundtail chub in the Upper Colorado River 
basin. Therefore, as part of this finding, we separated roundtail chub 
occupying the Little Colorado River from those occupying the remainder 
of the Lower Colorado River basin (i.e., Bill Williams and Gila River 
basins) and considered them a separate biological entity.
    After reviewing the DPS Policy, we determined that the Lower 
Colorado River basin (i.e., Bill Williams and Gila River basins) 
portion of the roundtail chub's range was both discrete and 
significant. This entity will hereafter be referred to as the ``Lower 
Colorado River roundtail chub DPS.'' Roundtail chub in the Little 
Colorado River do meet the threshold of discrete under the policy, but 
not the standard for significant. Therefore, this 12-month finding 
specifically addresses the status of roundtail chub only in the Lower 
Colorado River DPS. A more thorough examination of the DPS 
determination can be found in the species assessment form that 
accompanies this 12-month finding.
    Within the Lower Colorado River DPS, roundtail chub exhibit a 
complex population structure determined by hydrological regimes and 
connections. Roundtail chub occupy a variety of aquatic habitats within 
this range, and the amount and complexity of available habitat 
influences population abundance and resiliency. Across the roundtail 
chub's range, there is variation in ecological settings and genetic 
diversity that represent potential adaptive capacity for the species.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Lower Colorado River roundtail chub DPS, and we evaluated all 
relevant factors under the five listing factors, including any 
regulatory mechanisms and conservation measures addressing these 
threats. We identified several influences that could affect the 
viability of the species. These influences include nonnative species 
and alterations to the hydrological regime, which have reduced the 
distribution and abundance of roundtail chub in the past and continue 
to impact populations today. These influences may be exacerbated by 
climate change into the future, which will affect precipitation 
patterns, drought, and water usage. Several Federal and State agencies 
and Tribal nations have been implementing conservation measures through 
best management practices, specific to the roundtail chub, to help 
sustain the species and its habitat where possible. These efforts have 
stabilized most existing populations and expanded the species' 
distribution through translocations. Since 2004, to increase population 
sizes and aid in population establishment and persistence, 20 
populations of roundtail chub have been introduced, reintroduced, or 
expanded within the Lower Colorado River basin and at least 37 
augmentations in 14 streams have occurred at locations occupied by 
roundtail chub.
    Currently, we estimate that the Lower Colorado River basin 
roundtail chub DPS occupies around 34 percent of its historical range 
in the basin and has been extirpated from two of the nine major basins 
it historically occupied. Within its current range, 83 populations 
occupy a cumulative total of 1,146 miles (1,845 kilometers) of stream 
length. Most of these populations are stable or increasing, despite the 
co-occurrence of nonnative species across much of the range.
    The factors most likely to influence the future status of roundtail 
chub in the Lower Colorado River basin are nonnative species, 
modification to the hydrological regime, and conservation management. 
Climate change is also expected to affect the Lower Colorado River 
basin roundtail chub DPS, mainly by altering the hydrological regime, 
which will influence the amount of habitat and periodicity of 
beneficial floods. In the species status assessment report, we modeled 
these effects to project trends in roundtail chub occupancy into the 
future (Service 2022, pp. 37-51).
    While there may be some reduction in occupancy, we concluded that 
most sites that are currently occupied will likely continue to be so in 
the 50-year foreseeable future. Even under scenarios that incorporated 
climate change effects, most populations were predicted to remain 
extant, and these extant populations will be widely distributed across 
the species' range. All scenarios we examined contain a positive effect 
of management actions on Lower Colorado River roundtail chub DPS 
population

[[Page 19660]]

resiliency, and we anticipate these efforts will continue to benefit 
the species into the future. Overall, these results suggest that 
populations of this DPS will continue to be adequately resilient and 
retain sufficient intraspecific diversity to cope with changing 
environments in the future.
    These findings were true for the Lower Colorado River roundtail 
chub DPS throughout its range as well as in our analysis of any 
potentially significant portions of its range. In evaluating any 
potentially significant portions of the species' range, we considered 
whether the threats are geographically concentrated in any portion of 
the DPS's range at a biologically meaningful scale. Based on the best 
available information, we found no concentration of threats in any 
portion of the DPS's range at a biologically meaningful scale. 
Therefore, no portion of the Lower Colorado River roundtail chub DPS's 
range provided a basis for determining that the species is in danger of 
extinction now or likely to become in danger of extinction within the 
foreseeable future in a significant portion of its range.
    Accordingly, our review of the best available scientific and 
commercial information regarding the past, present, and future threats 
to the species indicates that the Lower Colorado River roundtail chub 
DPS is not in danger of extinction now nor likely to become endangered 
within the foreseeable future throughout all or a significant portion 
of its range and does not meet the definition of an endangered species 
or a threatened species in accordance with section 3(6) and section 
3(20) of the Act. Therefore, we find that listing the Lower Colorado 
River roundtail chub DPS as an endangered or threatened species under 
the Act is not warranted at this time. A detailed discussion of the 
basis for this finding, including a summary of the changes in 
information that informed this finding relative to the 2015 proposed 
rule, can be found in the species assessment form, the revised species 
status assessment report (Service 2022, entire), and other supporting 
documents (see ADDRESSES, above).

New Information

    We request that you submit any new information concerning the 
taxonomy of, biology of, ecology of, status of, or stressors to the 
Lower Colorado River roundtail chub DPS to the person listed above 
under FOR FURTHER INFORMATION CONTACT, whenever it becomes available. 
New information will help us monitor this species and make appropriate 
decisions about its conservation and status. We encourage local 
agencies and stakeholders to continue cooperative monitoring and 
conservation efforts.

Advance Notice of Proposed Rulemaking

    As mentioned previously, the Gila chub (Gila intermedia) remains 
listed as endangered and was unaffected by the 2017 withdrawal of the 
2015 proposed rule to list the headwater chub and the Lower Colorado 
River roundtail chub DPS as threatened species under the Act (82 FR 
16981, April 7, 2017), despite the taxonomic revision concluding 
species-level status is not warranted for the Gila chub. Therefore, we 
hereby announce that we are considering issuing a proposed rule to 
remove Gila chub (Gila intermedia) from the List of Endangered and 
Threatened Wildlife at 50 CFR 17.11(h). This document seeks relevant 
comments from the public on the status of the species, its taxonomy, or 
its habitats that could serve to inform a new rulemaking action. While 
we are requesting information on our consideration of issuing a 
proposed rule to remove Gila chub from the List of Endangered and 
Threatened Wildlife here, if we determine issuing such a proposed rule 
is supported by the best information available, formal rulemaking will 
follow with the opportunity for additional review and comment.
    As section 4(b)(1)(A) of the Act directs that determinations as to 
whether any species is an endangered or a threatened species must be 
made ``solely on the basis of the best scientific and commercial data 
available,'' please include sufficient information with your submission 
(such as scientific journal articles or other publications) to allow us 
to verify any scientific or commercial information you include.
    You may submit your comments and materials concerning this advance 
notice of proposed rulemaking for the Gila chub by one of the methods 
listed in ADDRESSES. We request that you send comments only by the 
methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.

References Cited

    A list of the references cited in this document is available on the 
internet at https://www.regulations.gov under Docket No. FWS-R2-ES-
2022-0001 in the species assessment form, or upon request from the 
person listed above under FOR FURTHER INFORMATION CONTACT.

Authors

    The primary authors of this document are the staff members of the 
Fish and Wildlife Service's Species Assessment Team, Ecological 
Services Program.

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-07165 Filed 4-4-22; 8:45 am]
BILLING CODE 4333-15-P