[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Proposed Rules]
[Pages 54548-54564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15689]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2022-0115; FF09E22000 FXES1113090FEDR 234]
RIN 1018-BG94


Endangered and Threatened Wildlife and Plants; Removing the 
Apache Trout From the List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to remove the Apache trout (Oncorhynchus apache), a fish native 
to Arizona, from the Federal List of Endangered and Threatened Wildlife 
due to recovery. Our review of the best available scientific and 
commercial data indicates that the threats to the species have been 
eliminated or reduced to the point that the species no longer meets the 
definition of a threatened species or an endangered species under the 
Endangered Species Act of 1973, as amended (Act). If we finalize this 
rule as proposed, the prohibitions and conservation measures provided 
by the Act, particularly through section 7 and our regulations would no 
longer apply to the Apache trout. We request information and comments 
from the public regarding this proposed rule for the Apache trout.

DATES: We will accept comments received or postmarked on or before 
October 10, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below), must be received by 11:59 
p.m. eastern time on the closing date. We

[[Page 54549]]

must receive requests for public hearings, in writing, at the address 
shown in FOR FURTHER INFORMATION CONTACT by September 25, 2023.

ADDRESSES: You may submit comments on this proposed rule 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-2022-0115, 
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-2022-0115, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: This proposed rule and 
supporting documents (including the species status assessment (SSA) 
report, references cited, and 5-year review) are available at https://www.regulations.gov under Docket No. FWS-R2-ES-2022-0115.

FOR FURTHER INFORMATION CONTACT:  For questions related to the SSA 
report and associated literature cited: Jess Newton, Project Leader, 
Arizona Fish and Wildlife Conservation Office, U.S. Fish and Wildlife 
Service, 2500 S Pine Knoll Drive, Flagstaff, AZ 86001; telephone 928-
556-2140.
    For questions related to this proposed rule and other supporting 
documents: Heather Whitlaw, Field Supervisor, Arizona Ecological 
Services Office, U.S. Fish and Wildlife Service, 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:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
delisting if it no longer meets the definition of an endangered species 
(in danger of extinction throughout all or a significant portion of its 
range) or a threatened species (likely to become endangered in the 
foreseeable future throughout all or a significant portion of its 
range). The Apache trout is listed as threatened, and we are proposing 
to delist it. We have determined the Apache trout does not meet the 
Act's definition of an endangered or threatened species. Delisting a 
species can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This action proposes to remove the Apache 
trout from the List of Endangered and Threatened Wildlife due to the 
species' recovery.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of 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. The determination to delist a species must be 
based on an analysis of the same factors.
    Under the Act, we must review the status of all listed species at 
least once every five years. We must delist a species if we determine, 
on the basis of the best available scientific and commercial data, that 
the species is neither a threatened species nor an endangered species. 
Our regulations at 50 CFR 424.11 identify three reasons why we might 
determine a species shall be delisted: (1) The species is extinct; (2) 
the species does not meet the definition of an endangered species or a 
threatened species; or (3) the listed entity does not meet the 
definition of a species. Here, we have determined that the Apache trout 
does not meet the definition of an endangered species or a threatened 
species and, therefore, we are proposing to delist it.

Information Requested

    We intend that any final action resulting from this proposal will 
be based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other governmental or State agencies, Native 
American Tribes, the scientific community, industry, or other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) Reasons why we should or should not remove the Apache trout 
from the List of Endangered and Threatened Wildlife (i.e., ``delist'' 
the species);
    (2) New biological or other relevant data concerning any threat (or 
lack thereof) to this fish (e.g., those associated with climate change 
or nonnative trout);
    (3) New information on any efforts by the State or other entities 
to protect or otherwise conserve the Apache trout or its habitat;
    (4) New information concerning the range, distribution, and 
population size or trends of this fish; and
    (5) New information on the current or planned activities in the 
habitat or range of the Apache trout that may adversely affect or 
benefit the fish.
    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.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. 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.
    You may submit your comments and materials concerning this proposed 
rule 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule,

[[Page 54550]]

will be available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determination may differ from this 
proposal. For example, based on the new information we receive (and any 
comments on that new information), we may conclude that the species 
should remain listed as threatened, or we may conclude that the species 
should be reclassified from threatened to endangered.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and location of 
the hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the Apache trout. The SSA team was composed of Service biologists, in 
consultation with other species experts from White Mountain Apache 
Tribe (WMAT), Arizona Game and Fish Department (AZGFD), U.S. Forest 
Service (USFS), and Trout Unlimited. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the SSA report. We sent the SSA 
report to three independent peer reviewers and received responses from 
all three peer reviewers. Results of this structured peer review 
process can be found at https://regulations.gov. In preparing this 
proposed rule, we incorporated the results of the peer reviews, as 
appropriate, into the final SSA report, which is the foundation for 
this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers on the draft SSA report. We reviewed all comments 
received from three peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our methods and conclusions and 
did not provide additional information for inclusion in the report. We 
considered one of these comments to be substantive, which we summarize 
below.
    Comment: A reviewer commented that: (1) only future scenario 3 (the 
status quo scenario) is likely to occur; and (2) further consideration 
should be given to Apache trout resiliency within future scenarios 
given the impacts of climate change.
    Our Response: We retained all five future conditions scenarios in 
the SSA report because we concluded that they cover the entire range of 
plausible outcomes for the Apache trout given the possible levels of 
conservation management. For our status determination in this proposed 
rule we evaluated the two scenarios that we consider to be plausible 
given the completion of the cooperative management plan (CMP) and 
current commitments to ongoing species management. We recognize the 
seriousness of impacts to Apache trout related to climate change and 
conducted thorough analyses on the possible effects on Apache trout 
resiliency from warmer stream temperatures, more frequent and severe 
droughts, increased risk of wildfire and post-fire debris flow, 
decrease in snowpack but increased rain on snow events, and more 
intense summer monsoon rains. These analyses are presented in the SSA 
report and we incorporated them into our future scenarios. Therefore, 
we conclude that the SSA report adequately addresses consideration of 
the potential effects of climate change in our analysis of resiliency 
within the future scenarios.

Previous Federal Actions

    The Apache trout was listed as endangered under the Endangered 
Species Preservation Act in 1967 (32 FR 4001; March 11, 1967) due to 
threats from overexploitation, habitat degradation (e.g., mining and 
agricultural development), hybridization with nonnative salmonids, and 
predation by species such as the brown trout (Salmo trutta). The 
species was subsequently downlisted to threatened under the Act in 1975 
(40 FR 29863; July 16, 1975) after successful culturing in captivity 
and discovery of additional populations. The 1975 downlisting rule 
included a 4(d) rule that allows AZGFD to establish and regulate sport 
fishing opportunities on non-Tribal lands. The WMAT regulates take and 
sport fishing for Apache trout on the Fort Apache Indian Reservation. 
There is no critical habitat designation for the Apache trout because 
listing and reclassification occurred before the 1978 and 1982 
amendments to the Act that provide for critical habitat designation. 
The first recovery plan for the Apache trout was finalized in 1979 
(USFWS 1979, entire), and a revised plan was finalized in 1983 (USFWS 
1983, entire). A second revision was completed in 2009 (USFWS 2009, 
entire).
    A 5-year review for Apache trout was completed in 2010 (USFWS 2010, 
entire). While recognizing that many of the threats identified in the 
recovery plan had been addressed, the persistence of certain threats 
(such as the invasion by nonnative trout into Apache trout habitat) 
resulted in a recommendation of ``No change'' in the species' status 
(USFWS 2010, p. 4). On May 5, 2021, we published a notice in the 
Federal Register (86 FR 23976) announcing the initiation of 5-year 
status reviews and information requests for 23 species, including the 
Apache trout. On August 29, 2022 (USFWS 2022a, entire), a 5-year review 
of the Apache trout status was completed. This latest 5-year review 
concludes that the status of the Apache trout has substantially 
improved since the time of the species' listing and recommends that the 
Apache trout be considered for delisting due to recovery.

Background

    A thorough review of the biological information on the Apache trout 
including taxonomy, life history, ecology, and conservation activities, 
as well as threats facing the species or its habitat is presented in 
our SSA report (USFWS 2022b, entire) and the revised Recovery Plan for 
Apache trout (USFWS 2009, entire), which are available at https://www.regulations.gov under Docket No. FWS-R2-ES-2022-0115. The following 
is a summary of the best available information on Apache trout.
    The Apache trout is a salmonid species endemic to the White 
Mountains region of east-central Arizona. The species is currently 
found in the White River, Black River, and the Little Colorado River 
drainages in the

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White Mountains of east-central Arizona, although the historical 
distribution is not known with certainty. Apache trout occupies 
headwater streams upstream of natural and conservation barriers, which 
likely reflects a truncated distribution from historical distributions 
due to nonnative trout, habitat alterations, and other factors (USFWS 
2009, pp. 1, 6-16). Distinguishing characteristics of Apache trout 
include a fusiform (spindle-shaped) body and large dorsal fin, with 
spots on the body pronounced and often uniformly spaced both above and 
below the lateral line. Spots are circular in outline, are medium-
sized, and appear slightly smaller than most interior subspecies of 
cutthroat trout (Oncorhynchus clarkii) but more like typical cutthroat 
trout than Gila trout (O. gilae) (Miller 1972, pp. 410-411). Yellow or 
yellow-olive colors predominate, with tints of purple and pink 
observable on live specimens. Two black spots are located horizontally 
on the eye before and aft of the pupil, creating the image of a black 
band through the eye. A red or pink lateral band is usually absent 
(Miller 1972, p. 414). Dorsal, pelvic, and anal fins have conspicuous 
cream or yellowish tips. Like most trout occupying small headwater 
streams, the Apache trout has been described as an opportunistic 
feeder, primarily feeding on various species of insects such as 
caddisflies (Trichoptera), mayflies (Ephemeroptera), stoneflies 
(Plecoptera), and beetles (Coleoptera) (Harper 1978, p. 108).

Recovery Planning and Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the List.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all criteria being fully met. For 
example, one or more criteria may be exceeded while other criteria may 
not yet be met. In that instance, we may determine that the threats are 
minimized sufficiently, and that the species is robust enough that it 
no longer meets the definition of an endangered species or a threatened 
species. In other cases, we may discover new recovery opportunities 
after having finalized the recovery plan. Parties seeking to conserve 
the species may use these opportunities instead of methods identified 
in the recovery plan. Likewise, we may learn new information about the 
species after we finalize the recovery plan. The new information may 
change the extent to which existing criteria are appropriate for 
identifying recovery of the species. The recovery of a species is a 
dynamic process requiring adaptive management that may, or may not, 
follow all the guidance provided in a recovery plan.
    The Apache trout recovery plan identified two major areas of focus 
to achieve the long-term survival and viability of the species: 
protection of Apache trout habitat from various watershed alteration 
activities (e.g., forestry, livestock grazing, reservoir construction, 
agriculture, road construction, and mining) and protection from 
introduction of nonnative trout species that have resulted in 
hybridization, competition, and predation (USFWS 2009, p. v). In order 
to achieve recovery, the recovery plan identified criteria that will 
assist in determining whether the Apache trout has recovered to the 
point that the protections afforded by the Act are no longer needed. 
These criteria are:
    (1) Habitat sufficient to provide for all life functions at all 
life stages of 30 self-sustaining, discrete populations of pure Apache 
trout has been established and protected through plans and agreements 
with responsible land and resource management entities. These plans 
will address and serve to remedy current and future threats to Apache 
trout habitat.
    (2) Thirty discrete populations of genetically pure Apache trout 
have been established and determined to be self-sustaining. A 
population will be considered self-sustaining by the presence of 
multiple age classes and evidence of periodic natural reproduction. A 
population will be considered established when it is capable of 
persisting under the range of variation in habitat conditions that 
occur in the restoration stream.
    (3) Appropriate angling regulations are in place to protect Apache 
trout populations while complying with Federal, State, and Tribal 
regulatory processes.
    (4) Agreements are in place between the Service, AZGFD, and WMAT to 
monitor, prevent, and control disease and/or causative agents, 
parasites, and pathogens that may threaten Apache trout.

Recovery Plan Implementation

    The following discussion summarizes the recovery criteria and 
information on recovery actions that have been implemented under each 
delisting criterion.
    Delisting Criterion 1: Habitat sufficient to provide for all life 
functions at all life stages of 30 self-sustaining, discrete 
populations of pure Apache trout has been established and protected 
through plans and agreements with responsible land and resource 
management entities. This criterion has been met. Since the time of 
listing, the Service, in collaboration with WMAT, AZGFD, USFS, and 
Trout Unlimited, have worked to maintain and restore riparian habitats 
where the Apache trout occurs. Multiple age classes are represented 
across the populations, which are indicative of healthy recruitment and 
stable populations from year to year. Although the average abundance of 
adults is fewer than 500 within most populations, the diversity of age 
classes suggests healthy survival and recruitment rates. Furthermore, 
adult individuals make up a significant share of the overall 
population, which is indicative that many fry and juveniles are able to 
survive to adulthood without the need of restocking from adjacent 
populations or hatcheries.
    The habitat of Apache trout is managed, and land-use impacts on the 
species are reduced through environmental review of proposed projects. 
For example, the Apache-Sitgreaves National Forests (ASNF) Land 
Management Plan incorporates desired conditions for aquatic habitats to 
contribute to the recovery of federally listed species and to provide 
self-sustaining populations of native species (ASNF 2015, pp. 16-26). 
WMAT also has land management plans that help protect Apache trout 
populations. Alteration of logging practices, road

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closure and removal, and ungulate exclusion through fencing or retiring 
allotments have all been used to manage Apache trout habitat on the 
ANSFs and Fort Apache Indian Reservation (Robinson et al. 2004, p. 1; 
USFWS 2009, pp. 23-29).
    Delisting Criterion 2: Thirty discrete populations of genetically 
pure Apache trout have been established and determined to be self-
sustaining. This criterion has almost been met. Compared to the time of 
listing when we identified 14 genetically pure populations, currently, 
the Apache trout consists of 29 genetically pure populations and one 
population that is suspected to be genetically pure. These populations 
are comprised of both relict and replicate populations. A relict 
population of Apache trout is one that was originally discovered in a 
stream within the historical range of the species and is the species' 
original genetic stock. A replicate population of Apache trout is one 
that was established using individuals from a relict population or 
another replicate population that represents a relict genetic lineage. 
Replicate populations are usually established within the historical 
range of the species, including streams that were originally unoccupied 
by Apache trout and streams where Apache trout have been extirpated. 
The relict populations have remained pure and are self-sustaining 
without the need for restocking since their discovery (Leon 2022, pers. 
comm.).
    Following the initial introduction of 100-200 individuals, most of 
the replicate populations did not require additional introduction of 
individuals (USFWS 2022b, p. 58). However, periodic introductions of 
additional individuals from the same donor streams have been made in 
subsequent years in several populations to improve genetic diversity 
within replicated populations and to reduce impacts to donor streams 
from large, one-time transfers. Replicate populations were established 
as early as 1967 and as late as 2008.
    In order to ensure that genetically pure populations of Apache 
trout are protected, conservation barriers that prohibit nonnative 
trout species from accessing upstream portions of occupied Apache trout 
habitat have been and will continue to be constructed and maintained 
per the CMP. The prevents nonnative trout from hybridizing with, 
competing with, and preying on Apache trout.
    Delisting Criterion 3: Appropriate angling regulations are in place 
to protect Apache trout populations while complying with Federal, 
State, and Tribal regulatory processes. This criterion has been met. 
Apache trout streams are protected with fishing closures when 
populations are small and vulnerable, and with catch-and-release 
regulations in larger populations where harvest could negatively impact 
the population. AZGFD does provide put-and-take opportunities for 
Apache trout in Silver Creek, East Fork Black River, and West Fork 
Little Colorado River to generate public support for recovery of the 
species, as does WMAT in the North Fork White River, lower East Fork 
White River, Cibeque Creek, lower Paradise Creek, and lower Diamond 
Creek. Apache trout fisheries are also established in some lakes (e.g., 
Big Bear, Hurricane, Christmas Tree, Earl Park) to afford the public 
opportunities to harvest Apache trout, which also has the benefit of 
raising public awareness for the species.
    Delisting Criterion 4: Agreements are in place between the Service, 
AZGFD, and WMAT to monitor, prevent, and control disease and/or 
causative agents, parasites, and pathogens that may affect Apache 
trout. This criterion has been met. By December 2021, the Service, 
AZGFD, USFS, WMAT, and Trout Unlimited had all signed the cooperative 
management plan (CMP) for Apache trout. The goal of the CMP is to 
ensure the long-term persistence of the Apache trout by monitoring and 
maintaining existing populations, establishing new populations, 
restoring and maintaining existing habitats, and conducting disease, 
parasite, and pathogen prevention and monitoring activities. Although 
the CMP is a voluntary agreement among the cooperating agencies, it is 
reasonable to conclude the plan will be implemented into the future for 
multiple reasons. First, each of the cooperating agencies have 
established a long record of engagement in conservation actions for the 
Apache trout. Many of the management activities, such as the 
construction of conservation barriers, have been ongoing since at least 
the 1990s (USFWS 2022b, pp. 70-73). Second, implementation of the CMP 
is already underway. Conservation barriers are being constructed and 
maintained, invasive species are being removed, planning is underway 
for restocking Apache trout as needed, and habitats are being repaired 
and restored. Third, the conservation mission and authorities of these 
agencies authorize this work even if the species is delisted. Fourth, 
there is a practical reason to anticipate implementation of the CMP 
into the future: the plan's actions are technically not complicated to 
implement, and costs are relatively low. We also have confidence that 
the actions called for in the CMP will be effective in the future 
because they have already proven to be effective as evidenced by the 
information collected from recent habitat actions and associated 
monitoring (USFWS 2022b, entire). Lastly, if the CMP is not adhered to 
by the cooperating agencies or an evaluation by the Service suggests 
the habitat and population numbers are declining, the Service would 
evaluate the need to again add the species to the List (i.e., 
``relist'' the species) under the Act. Taken together, it is therefore 
reasonable to conclude that the CMP will be implemented as anticipated, 
and that the long-term recovery of Apache trout will be maintained and 
monitored adequately thus meeting the conditions of this criterion.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered 
species. In 2019, jointly with the National Marine Fisheries Service, 
the Service issued a final rule that revised the regulations in 50 CFR 
part 424 regarding how we add, remove, and reclassify endangered and 
threatened species and the criteria for designating listed species' 
critical habitat (84 FR 45020; August 27, 2019). On the same day the 
Service also issued final regulations that, for species listed as 
threatened species after September 26, 2019, eliminated the Service's 
general protective regulations automatically applying to threatened 
species the prohibitions that section 9 of the Act applies to 
endangered species (84 FR 44753; August 27, 2019). The Act defines an 
``endangered species'' as a species that is in danger of extinction 
throughout all or a significant portion of its range, and a 
``threatened species'' as a 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 any species is an endangered species or a threatened species 
because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;

[[Page 54553]]

    (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. The determination to delist a 
species must be based on an analysis of the same five factors.
    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 species' expected response 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 we 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 the 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.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for delisting. However, it 
does provide the scientific basis that informs our regulatory 
decisions, which involve the further application of standards within 
the Act and its implementing regulations and policies.
    To assess the viability of the Apache trout, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the species' life-history needs. 
The next stage involved an assessment of the historical and current 
condition of the species' demographics and habitat characteristics, 
including an explanation of how the species arrived at its current 
condition. The final stage of the SSA involved making predictions about 
the species' responses to positive and negative environmental and 
anthropogenic influences. Throughout all of these stages, we used the 
best available information to characterize viability as the ability of 
a species to sustain populations in the wild over time. We use this 
information to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2022-0115 on https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/3532.

Summary of Biological Status and Threats

    We reviewed the biological condition of the species and its 
resources, and the threats that influence the species' current and 
future condition, in order to assess the species' overall viability and 
the risks to that viability.
    The primary threats affecting the Apache trout are the invasion of 
Apache trout habitat by nonnative trout species and the effects of 
climate change, which are projected to result in more wildfire and 
debris runoff in streams. Introgression of nonnative trout species into 
Apache trout habitat has resulted in hybridization of certain 
populations. Additionally, nonnative trout species also compete with 
the Apache trout and certain species have been known to prey on the 
Apache trout. In addition to invasion by nonnative trout, wildfires in 
the region can result in ash and debris flow, creating unsuitable 
conditions for the Apache trout and possibly resulting in fatalities 
and extirpation of populations. To address these major threats, 
management actions, including construction of conservation barriers, as 
well as restocking and restoring habitats, have been implemented.

Nonnative Species

    Nonnative species, especially nonnative salmonids, remain one of 
the

[[Page 54554]]

largest threats to the Apache trout (Rinne 1996, p. 152). Over 61 
million nonnative sport fishes have been stocked into lakes in the 
Little Colorado and Black River drainages since the 1930s (Rinne and 
Janisch 1995, p. 398). Over 8 million nonnative sport fishes were 
introduced directly into the Little Colorado and Black rivers and their 
tributaries since the 1930s, and many of these were nonnative salmonids 
(Rinne and Janisch 1995, p. 398). Recent stocking practices have been 
altered to reduce interactions with, and risks to, native species, such 
as using triploid (sterile) rainbow trout for stocking into open water 
systems (EcoPlan Associates 2011, p. 21). However, threats remain due 
to acclimated nonnative populations from historical stockings.
    As discussed below, hybridization with rainbow trout and cutthroat 
trout can lead to functional extirpation of populations. Competition 
with and predation by brown trout and brook trout are also of high 
concern. While no published studies have documented competition and 
predation impacts on Apache trout by nonnative salmonids such as brown 
trout and brook trout, it is generally accepted that the negative 
interaction has led to reduction or extirpation of some populations 
(Rinne 1996, p. 152). Appendix C of the SSA report analyzes the 
negative effect of nonnative trout presence on occupancy of juvenile 
(less than 125 mm total length (TL)) Apache trout at the site scale 
(approximately 100 m) in fish surveys (USFWS 2022b, p. 134-137).

Genetic Factors (Population)

    Discussed below are the three genetic factors that pose a risk to 
the viability of Apache trout populations: hybridization, inbreeding, 
and low genetic variability.
Hybridization
    Hybridization can introduce traits that are maladaptive, disrupt 
adaptive gene complexes, or result in outbreeding depression (Hedrick 
2000, entire). Hybridization can also lead to the loss of species-
specific alleles, and hybridization with Pacific trout species has long 
been recognized as a threat to the viability of native trout species 
(or subspecies) (Behnke 1992, p. 54). This has resulted in arguments 
that only genetically pure populations should be considered a part of 
the species or subspecies (Allendorf et al. 2004, p. 1212).
    A long history of nonnative trout stocking in Arizona has led to 
hybridization between Apache trout and rainbow trout, even to the 
extent of genetic extirpation, and it is one of the main reasons for 
the historical decline of Apache trout (Rinne and Minckley 1985, pp. 
285, 288-291; Carmichael et al. 1993, pp. 122, 128; Rinne 1996, pp. 
150-152). The major threat of hybridization is why the 2009 revised 
recovery plan lists as an objective the establishment and/or 
maintenance of 30 self-sustaining, discrete populations of genetically 
pure Apache trout within its historical range (USFWS 2009, pp. vi, vii, 
5, 22). That same objective has largely been in place since the first 
recovery plan was developed for the species in 1979 (USFWS 1979, p. 
15). A comprehensive assessment of the genetic purity of naturally 
reproducing Apache trout populations showed only 11 of 31 streams are 
deemed to be generically pure (Carmichael et al. 1993, p. 128). At the 
time the 2009 revised recovery plan was completed, 28 populations of 
genetically pure Apache trout were extant (USFWS 2009, p. 2). 
Currently, the Apache trout consists of 29 genetically pure populations 
and one population suspected to be genetically pure.

Inbreeding and Low Genetic Diversity

    As discussed earlier, small populations are more likely to exhibit 
inbreeding and low genetic diversity. Inbreeding often results in 
inbreeding depression and expression of recessive and deleterious 
alleles (Wang et al. 2002, p. 308). Cutthroat trout are an example of 
inland trout in North America where inbreeding has been documented for 
some small, isolated populations (Metcalf et al. 2008, p. 152; Carim et 
al. 2016, pp. 1368-1372). Low genetic diversity limits the ability of 
populations to adapt to changing and novel environments (Allendorf and 
Ryman 2002, pp. 62-63).
    The only study of genetic diversity in Apache trout showed strong 
distinction among three genetic lineages (Soldier, Ord, and East Fork 
White River lineages) represented by the nine populations studied, but 
genetic diversity was low within populations (Wares et al. 2004, pp. 
1896-1897). Low genetic diversity within populations suggests that they 
were founded with a small number of individuals. Replicate populations 
of Apache trout have often been established with only a few hundred 
individuals, with an unknown subset successfully reproducing. Although 
no studies have evaluated inbreeding in Apache trout populations, or 
how genetic management (e.g., genetic rescue) may benefit Apache trout 
populations, these topics remain of management interest given the 
relatively small size of many extant populations (Wang et al. 2002, pp. 
308, 313-315; Whiteley et al. 2015, pp. 42-48; Robinson et al. 2017, 
pp. 4418-4419, 4430).

Climate Change, Wildfire, Stream Conditions

    The climate has changed when compared to historical records, and it 
is projected to continue to change due to increases in atmospheric 
carbon dioxide and other greenhouse gasses (USGCRP 2017, pp. 10-11). 
The American Southwest has the hottest and driest climate in the United 
States. The U.S. Fourth National Climate Assessment suggests that 
warming temperatures will lead to decreasing snowpack, increasing 
frequency and severity of droughts, and increasing frequency and 
severity of wildfires, and these in turn will result in warmer water 
temperatures, reduced streamflows (especially baseflows), and increased 
risk of fire-related impacts to aquatic ecosystems (Gonzales et al. 
2018, pp. 1133-1136; Overpeck and Bonar 2021, p. 139). In fact, the 
current drought in the western United States is one of the worst in the 
last 1,200 years and is exacerbated by climate warming (Williams et al. 
2020, p. 317). Climate warming will make droughts longer, more severe, 
and more widespread in the future.
    An eight-fold increase in the amount of land burned at high 
severity during recent wildfires, including in the southwestern United 
States, has been observed and it is likely that warmer and drier fire 
seasons in the future will continue to contribute to high-severity 
wildfires where fuels remain abundant (Parks and Abatzoglou 2021, p. 
6). Wildfires have increased in frequency and severity in Arizona and 
New Mexico primarily due to changes in climate but also because of 
increased fuel loads (Mueller et al. 2020, p. 1; Parks and Abatzoglou 
2021, pp. 5-7), including within the historical range of the Apache 
trout (Dauwalter et al. 2017b, entire). Larger, more frequent, and more 
severe wildfires accompanying a changing climate together may drive 
conversions in vegetation type from forest to shrub or grassland 
because of higher tree mortality, limited seed dispersal in larger burn 
patches, soil damage that reduces seedling establishment, and a 
changing climate that reduces seedling survival--all of which combine 
to inhibit forest regeneration (Keeley et al. 2019, p. 775; Coop et al. 
2020, p. 670). Wildfires can result in ash flows that create unsuitable 
water quality conditions for salmonids, and high-intensity fires in 
steep watersheds are likely to result in channel-reorganizing debris 
flows (Gresswell 1999, pp. 210-

[[Page 54555]]

211; Cannon et al. 2010, p. 128). Approximately 30 percent of forests 
in the Southwest are projected to have an elevated risk of conversion 
to shrubland and grassland because of increased fire severity due to 
climate change (Parks et al. 2019, p. 9). Conifer reduction in the 
White Mountains could reduce stream shading important for maintaining 
suitable stream temperatures for Apache trout (Baker and Bonar 2019, 
pp. 862-864).
    In the absence of existing peer-reviewed science on the effects of 
climate change on the Apache trout itself, we applied the vulnerability 
assessment approach that was used to evaluate wildfire and temperature 
warming vulnerability in Gila trout streams and applied it to Apache 
trout populations (USFWS 2022b, pp. 121-130). The analysis suggests 
that streams such as West Fork Little Colorado River have a high risk 
of crown fire (wildfire spreading at the canopy level) and subsequent 
debris flows. Other streams in the Wallow Fire perimeter have a lower 
risk of future wildfires due to reduced fuel loads. To evaluate stream 
temperature risk due to climate warming, we first evaluated Apache 
trout occupancy across all habitat patches and found that 95% of all 
occupied patches occurred in reaches at or below 16.5 [deg]C (61.7 
[deg]F) mean July water temperatures. Then all streams were modeled to 
contain reaches where mean July water temperatures were less than or 
equal to 16.5 [deg]C (61.7 [deg]F), a conservative temperature 
threshold, based on temperature projections for the 2080s from an 
ensemble global climate model for the A1B emissions scenario (i.e., 
middle-of-the-road scenario). Big Bonito Creek, Fish Creek, and Boggy/
Lofer Creeks contained the largest amount of habitat with mean July 
temperatures less than 16.5 [deg]C (61.7 [deg]F) in the 2080s. The East 
Fork Little Colorado River, Snake Creek, Rock Creek, Rudd Creek, and 
South Fork Little Colorado River had the lowest percent of habitat with 
mean July temperatures less than or equal to 16.5 [deg]C (61.7 [deg]F) 
in the 2080s, highlighting their vulnerability to future climates.

Cumulative Impacts

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future conditions of the species. To assess the current and 
future conditions of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Conservation Management and Actions

    Several conservation actions are routinely undertaken to protect, 
restore, and re-establish Apache trout populations across the species' 
historical range and, in one case, outside of the historical range. 
Discussed below are the major efforts which include removal of 
nonnative trout species, reintroduction of Apache trout, habitat 
maintenance and restoration, hatchery propagation, and angling 
regulations. These activities are managed under the CMP. The CMP will 
remain in force until terminated by mutual agreement. Any involved 
party may withdraw from this plan on 30 days' written notice to the 
other signatories. Amendments to the CMP may be proposed by any 
involved party and will become effective upon written approval by all 
partners.
Nonnative Trout Removal
    Removal of nonnative salmonids often occurs after conservation 
barriers are constructed and before Apache trout are reintroduced, or 
removals are done when nonnative salmonids have invaded an extant 
Apache trout population. As noted above, conservation barriers are 
artificial barriers built to separate upstream populations of Apache 
trout from downstream populations where other trout species and hybrids 
are found. These downstream populations are managed to provide 
sportfishing opportunities. Removal is commonly done using piscicides 
(chemicals that are poisonous to fish) or electrofishing. A few studies 
have documented the higher effectiveness of piscicides on removing 
nonnative salmonids from Apache trout streams, although more than one 
treatment may be required (Rinne et al. 1981, p. 78; Kitcheyan 1999, 
pp. 16-17).
    Electrofishing (often referred to as mechanical removal) is also 
used to remove nonnative fishes where piscicides have not been approved 
for use, or where populations of Apache trout are sympatric with 
nonnative trout, and it is not desirable to eliminate Apache trout 
simultaneously with nonnative trout. For example, electrofishing was 
used from 2018 to 2021, to remove over 14,670 brook trout and 3,932 
brown trout from nine Apache trout streams, with successful eradication 
suspected in some streams that will be later confirmed with future 
electrofishing or environmental DNA (eDNA) surveys (Manuell and Graves 
2022, p. 8). Piscicides are typically more effective at ensuring all 
fish are removed, which is important because nonnative populations can 
become reestablished if only a few individuals survive (Thompson and 
Rahel 1996, pp. 336-338; Finlayson et al. 2005, p. 13; Meyer et al. 
2006, p. 858). Electrofishing removal is most effective in small stream 
systems with simple habitat (Meyer et al. 2006, p. 858). Environmental 
DNA surveys are conducted to confirm presence or absence of target 
organisms; this technique is often used in native trout conservation 
projects to help locate any remaining nonnative fish and target them 
for removal using either electrofishing or secondary applications of 
piscicides (Carim et al. 2020, pp. 488-490).
Reintroduction
    Apache trout are typically reintroduced after the habitat is 
protected by a conservation barrier and nonnative salmonids have been 
removed. Apache trout populations are usually established using fish 
from another population, although hatchery stocks have been used to 
establish populations as well. The donor stream is selected, in part, 
based on the number of fish in that population so that removing some 
does not jeopardize donor population viability, but donor stream 
selection is also based on the need to replicate relict populations to 
enhance redundancy of those lineages. Planning efforts are underway to 
establish additional populations where feasible, for example in Fish 
Creek, Hayground Creek, Home Creek, and the lower West Fork-Black 
River. Historically, 100-200 fish have been used to establish 
populations, but there is evidence that this low number of founding 
individuals has resulted in the low genetic diversity observed in some 
populations (Wares et al. 2004, pp. 1896-1897). Future populations will 
be established using larger total numbers over several years to 
maximize genetic diversity while minimizing impacts to donor 
populations (USFWS et al. 2021, p. 13).

[[Page 54556]]

Habitat Management and Restoration
    Past habitat surveys and anecdotal observations have identified 
stream segments in poor condition and in need of protection and 
restoration (Carmichael et al. 1995, p. 116; Robinson et al. 2004, pp. 
1-3, 14-17). The subbasins where Apache trout are found are managed by 
multiple agencies at the Federal, State, and Tribal level. The 
management of the individual subbasins are as follows: Black River 
(WMAT, USFS/AZGFD), Bonito Creek (WMAT), East Fork White River (WMAT), 
North Fork White River (WMAT), Diamond Creek (WMAT), Little Colorado 
River (USFS/AZGFD), and Colorado River (AZGFD). Of the 29 known 
genetically pure populations and 1 suspected pure population, 16 relict 
and 6 replicated populations occur only on WMAT lands, 1 relict and 1 
replicated population occur on both WMAT and USFS/AZGFD managed lands 
(Soldier Creek and upper West Fork Black River, respectively), 5 
replicated populations occur only on USFS/AZGFD managed lands, and 1 
replicated population occurs on both San Carlos Apache Tribe and USFS/
AZGFD managed lands (Bear Wallow Creek).
    The habitat of Apache trout is managed to ameliorate land-use 
impacts through environmental review of proposed projects. For example, 
WMAT has land management plans that help protect Apache trout 
populations and has implemented habitat restoration projects. Projects 
occurring on or adjacent to Apache trout habitat include alteration of 
logging practices, road closure and removal, and ungulate exclusion 
through fencing or retiring allotments, and all have been reviewed for 
potential impacts to Apache trout habitat on the ASNF and Fort Apache 
Indian Reservation (Robinson et al. 2004, entire 1; USFWS 2009, p. 23).
    While these actions have reduced land-use impacts, further emphasis 
should be given to restoration of riparian and aquatic habitats (ASNF 
2018, pp. 19-20). The Southwest Region of the U.S. Forest Service has 
the Riparian and Aquatic Ecosystem Strategy (Strategy; USFS 2019, 
entire), and restoration of aquatic habitat is identified through site-
specific land management actions, such as the currently ongoing Black 
River Restoration Project (BRRP). Working with partners on such actions 
is outlined in the Strategy (USFS 2019, pp. 17-18).
Hatcheries
    Hatcheries have been used for Apache trout conservation and to 
establish sportfishing opportunities in lakes and streams. Apache trout 
from Williams Creek National Fish Hatchery have been used to establish 
populations including those in the West Fork Little Colorado and West 
Fork Black rivers, but they have been most often used to provide 
sportfishing opportunities in lakes and streams on the Fort Apache 
Indian Reservation. Progeny from the Apache trout broodstock at 
Williams Creek National Fish Hatchery are also transferred annually, at 
the direction of WMAT, to be reared at Arizona's Silver Creek and Tonto 
Creek hatcheries and stocked to support sportfishing on State-managed 
lands. This broodstock is expected to be used to establish additional 
recovery populations in the future due to improvements in genetic 
fitness and representation following implementation of a genetics 
management plan.
Angling and Harvest Regulations
    Apache trout streams are largely protected with fishing closures 
when populations are small and vulnerable, or by catch-and-release 
regulations in larger populations where harvest could negatively impact 
the population. WMAT does not allow any fishing to occur in areas 
occupied by Apache trout recovery populations. However, both WMAT and 
AZGFD provide put-and-take opportunities for Apache trout in multiple 
lakes and streams to afford the public opportunities to harvest Apache 
trout and generate public awareness and support for recovery of the 
species.
Emergency Contingency Plan
    Wildfire, drought, nonnative trout invasions (e.g., barrier 
failure), and disease can threaten the viability and genetic integrity 
of Apache trout populations. We and our partners will track these 
threats during the monitoring described in the CMP or through other 
monitoring and reporting systems. If needed, we and our partners in the 
CMP will transport individuals to other streams or hatcheries with 
suitable isolation facilities until they can be repatriated into their 
original or an alternate site (USFWS et al. 2021, p. 13).

Current Condition

Resiliency--Demographic and Habitat Factors

    Resiliency references the ability of a species or population to 
bounce back from disturbances or catastrophic events, and is often 
associated with population size, population growth rate, and habitat 
quantity (patch size) and quality (USFWS 2016, p. 6).
    Three demographic and six habitat factors were used to describe the 
current condition (status) and overall resiliency of Apache trout 
populations. These factors are commonly used to describe the health and 
integrity of native trout populations in the western United States 
(Williams et al. 2007, pp. 478-481; USFWS 2009, pp. 17-22; Dauwalter et 
al. 2017a, pp. 1-2). The three demographic factors are genetic purity, 
adult population size, and recruitment variability. The six habitat 
factors are stream length occupied, July temperature, percent of 
intermittency, habitat quality, nonnative trout presence, and barrier 
effectiveness.
    Hybridization can introduce traits that are maladaptive or result 
in outbreeding depression. Thus, often only genetically pure 
populations are considered to be part of a species for conservation 
purposes. Apache trout populations were classified using the results of 
the most recent genetic testing for the presence of nonnative trout 
alleles (rainbow trout and cutthroat trout) when available (Carmichael 
et al. 1993, p. 127; Carlson and Culver 2009, pp. 5-9; Weathers and 
Mussmann 2020, pp. 4-7; Weathers and Mussmann 2021, pp. 4-7). Genetic 
material (e.g., fin clips) is often collected during population 
monitoring, or it is collected during surveys targeting fish for 
genetic testing if there is evidence that barriers are compromised or 
other evidence suggest that hybridizing species (rainbow trout and 
cutthroat trout) or hybrid individuals may be present (e.g., from 
visual assessment). In the absence of genetic testing, the presence of 
hybridizing species, presence of hybrid phenotypes, or professional 
judgment based on putative barrier effectiveness were used to classify 
populations as being genetically pure or hybridized.
    Adult population size is the estimated number of adult Apache trout 
(greater than or equal to 130-mm TL) in a population in the most recent 
year of population monitoring. Before 2016, estimates of streamwide 
adult abundance were made from monitoring data collected under the 
Basinwide Visual Estimation Technique (BVET) protocol (Dolloff et al. 
1993, pp. v-17), and in a few cases, from information collected during 
general aquatic wildlife surveys (e.g., Robinson et al. 2004, pp. 3-13) 
or from electrofishing data (catch per single electrofishing pass) when 
collecting tissues for genetic analysis (such as was used in Carlson 
and Culver 2009). Since 2016, estimates of adult abundance have been 
based on an

[[Page 54557]]

updated systematic sampling design (Dauwalter et al. 2017a, entire).
    Recruitment variability seeks to quantify the number of size 
classes present. The presence of individuals in more size (and 
therefore age) classes is indicative of more stable recruitment from 
year to year, which indicates that populations are more able to 
withstand year-to-year environmental variability (stochasticity; 
Maceina and Pereira 2007, pp. 121-123). Length frequency data from 
monitoring surveys were used to determine the number of size classes 
present. Before 2016, these data were collected under the BVET (Dolloff 
et al. 1993, pp. v-17) protocol, during general aquatic wildlife 
surveys (e.g., Robinson et al. 2004, pp. 3-13), or from electrofishing 
data when collecting tissues for genetic analysis (such as was used in 
Carlson and Culver 2009). Since 2016, these data have been based on the 
updated systematic sampling design (Dauwalter et al. 2017a, entire).
    The length of an occupied stream, often referred to as patch size, 
was measured in kilometers using the National Hydrography Dataset 
(1:24,000 scale), and upstream and downstream extents were typically 
defined by experts as the extent of occupancy from fish survey data, 
suitable habitat, or barriers to fish passage (conservation barriers). 
Extent of occupied habitat has been shown to be positively associated 
with the probability of population persistence (e.g., viability, 
extinction probability) for western native trout (Harig et al. 2000, 
pp. 997-1000; Hilderbrand and Kershner 2000, pp. 515-518; Finlayson et 
al. 2005, p. 13), and it has been used as an indicator of persistence 
in indices of population health and as an indicator of translocation 
success (Harig and Fausch 2002, pp. 546-548; Williams et al. 2007, pp. 
479-480; Cook et al. 2010, pp. 1505-1508).
    We selected July temperature as a measurement of habitat quality 
because the Apache trout, like other salmonids, is a cold-water 
stenotherm (a species that can survive only within a narrow range of 
temperature). Under Climate Change, Wildfire, Stream Conditions, above, 
we highlight the thermal tolerance and habitat suitability values 
derived from several laboratory and field studies of Apache trout. The 
maximum mean July temperature in habitat extent occupied by each Apache 
trout population is based on modeled average July temperatures 
predicted for each 1-km stream segment in Arizona from the NorWeST 
dataset (Isaak et al. 2017, pp. 7-13). The NorWeST dataset predicts 
mean August temperatures (average of mean daily temperatures for the 
month of August) for each 1-km stream segment in the National 
Hydrography Dataset (1:100,000 scale). These predictions were adjusted 
based on an empirical relationship between mean August and mean July 
(monthly mean of mean daily temperatures) temperatures in Apache trout 
streams from data collected by USFS on ASNF.
    Intermittency percentage is the percent of occupied habitat extent 
estimated to become intermittent during severe drought years. The 
percent of stream length occupied that becomes intermittent (dry) 
during severe drought years due to low natural flows, decreasing flow 
trends in recent years, anthropogenic impacts to flow, or other 
factors. The percentage was based on professional judgment and 
knowledge of the habitat. The southwestern United States is a naturally 
warm and dry environment with reduced surface water resources that may 
subside due to low annual precipitation (snowpack and rainfall) and 
interactions with local geology (Long et al. 2006, pp. 90-94). The 
region is currently in a megadrought that has large consequences for 
streamflows (Williams et al. 2020, p. 314), and other researchers 
highlighted the time period from 2000 to 2003 as a severe drought 
period (Hoerling and Eischeid 2007, p. 2).
    Habitat quality is the condition of riparian and instream habitat 
throughout the occupied habitat extent. Stream habitat quality was 
classified based on professional judgment at the whole stream scale or 
by segment and then computed as a weighted average (weighted by 
length).
    The presence of rainbow trout, brown trout, brook trout, or 
cutthroat trout within the habitat accessible to the Apache trout 
population (or defined habitat extent) is either confirmed or not 
present. Rainbow trout and cutthroat trout have been documented to 
hybridize with Apache trout (Carmichael et al. 1993, p. 128), and brown 
trout and brook trout compete with and prey on Apache trout, thus 
reducing the carrying capacity of habitat to support Apache trout 
(Carmichael et al. 1995, p. 114). Presence of each species is 
attributed based on survey data, angler reports, anecdotal information, 
and, in some cases, barrier effectiveness and proximity of nonnative 
species and likelihood of invasion upstream of ineffective barriers.
    Barriers were classified as functional or nonfunctional, and 
functionality was classified as known or suspected. Functionality was 
classified based on documented presence of nonnative trout above a 
barrier, documented movement of marked fish from below to above a 
barrier, known streamflow paths around or through barriers, poor 
structural integrity, or other factors influencing perceived 
functionality based on professional judgment. On some streams, more 
than one conservation barrier has been constructed to provide 
functional redundancy and security due to possible failure, as well as 
to allow management flexibility for controlling nonnative trout 
invasions or conducting nonnative trout removals (mechanical or 
chemical).

Resiliency

    Demographic and habitat factor data show that relict and hybridized 
Apache trout populations occur in two major river basins (the Black 
River and White River basins), replicate populations occur in all major 
basins (including one replicate population outside the species' 
historical range in the Colorado River), and unoccupied recovery 
streams occur in the Little Colorado River and Black River basins. 
Relict populations occur in five of six subbasins to which they are 
native. Hybridized populations occur in the Black River and Diamond 
Creek subbasins. As mentioned previously, of the 38 extant populations 
of Apache trout, 29 populations of Apache trout are known to be pure, 
with one population suspected to be genetically pure (81.1 percent). 
One of eight (12.5 percent) populations has been confirmed as 
hybridized through genetic testing, whereas seven have been assumed to 
be hybridized because of known barrier failures and invasion of rainbow 
trout.
    A summary of demographic factors showed a majority of Apache trout 
populations to have adult (greater than 130-mm TL) population sizes 
that are fewer than 500 individuals (see table 11 in USFWS 2022b, p. 
86); one population, East Fork White River, was estimated to have more 
than 2,200 adults (see table 11 in USFWS 2022b, p. 86). Despite low 
abundances, most populations showed consistent recruitment, with four 
or five size classes (and presumably year classes) present, which 
suggests they are stable and self-sustaining populations (see figure 
18C in USFWS 2022b, p. 83).
    Habitat factors for Apache trout populations showed a wide range of 
current conditions. The extent of stream occupied by Apache trout 
populations ranged from 0.4 (0.25 mi) to 30.1 km (18.7 mi); most were 
less than 14 km (8.7 mi). Maximum mean July temperatures in occupied 
habitat were less than or equal to 15.5 [deg]C for relict and replicate 
populations, whereas

[[Page 54558]]

unoccupied streams and hybrid populations had warmer maximum mean July 
temperatures up to 17.5 [deg]C. Most populations or unoccupied streams 
exhibited little intermittency during severe drought, but two 
hybridized populations and one unoccupied stream were estimated to be 
more than 50 percent intermittent (up to 95 percent). Unoccupied 
streams and streams occupied by hybrid populations had the lowest 
habitat quality (in part due to 2011 Wallow Fire), while a majority of 
relict and replicate populations inhabited high-quality habitat. 
Nineteen Apache trout populations were sympatric with brown trout, 7 
with rainbow trout, and 2 with brook trout. Thirty-six populations or 
unoccupied recovery streams currently have conservation barriers to 
isolate them from nonnative fishes downstream, but only 31 populations 
are protected by barriers that are known or suspected to be functional; 
10 populations have a second barrier downstream for added protection 
across all population types (relict, replicate, hybrid, unoccupied).
    Overall, the current condition of the 38 Apache trout populations 
(excluding the 6 unoccupied recovery streams) rated an average of 2.60 
(B- average) on a 4.0 grading scale (USFWS 2022b, p. 7, 88). The 30 
genetically pure populations that would count towards recovery averaged 
2.89 (B average). Based on the demographic and habitat factor grade 
point equivalents for each population, Apache trout populations were 
more often limited by demographic factors than habitat factors. Adult 
(greater than 130-mm TL) population size was most frequently the 
limiting demographic factor, as most populations were fewer than 500 
adults and received lower grades. Unoccupied streams (e.g., Home Creek) 
had demographic GPAs (grade point averages) equaling 0.0. East Fork 
White River had the highest demographic GPA (4.00). Likewise, presence 
of nonnative trout was frequently a limiting habitat factor. Centerfire 
and Stinky creeks on the Apache-Sitgreaves National Forests (ASNF) had 
the lowest habitat factor (GPA of 1.33); Deep Creek (WMAT) had the 
highest habitat factor (GPA of 3.50).

Redundancy and Representation

    Representation and redundancy for Apache trout were evaluated by 
quantifying the presence of relict populations, and their replication 
on the landscape, as putative genetic lineages at the subbasin level. 
Representation was based on presence of genetically pure relict 
populations from each subbasin. Redundancy was measured as the 
replication of relict lineages into new streams by subbasin. 
Replication of relict populations, and thus redundancy of purported 
relict subbasin lineages, was measured both within and outside of the 
native subbasin for each subbasin genetic lineage. The number of 
populations that meet certain persistence, abundance, and recruitment 
criteria can also be used to quantify population redundancy by subbasin 
or a larger basin unit (e.g., geographic management unit). Tracking the 
representation and redundancy of relict populations by subbasin, as 
subbasin lineages, is a surrogate for the assumed unique genetic 
diversity, and presumed unique adaptation potential, that is often 
found to be structured around the hierarchical nature of drainage 
basins (Vrijenhoek et al. 1985, pp. 400-402; Wares et al. 2004, pp. 
1890-1891, 1897). While such genetic structuring is evident in Apache 
trout for the 9 populations (and three genetic lineages) that have been 
studied (Wares et al. 2004, pp. 1895-1896), no comprehensive rangewide 
study of genetic diversity has been conducted across all genetically 
pure populations. Accounting for relict Apache trout populations in 
this way presumably reflects the representation and redundancy of 
genetic diversity, and thus adaptive potential, of the species in each 
subbasin in which it is native.
    When quantified in this way, extant relict populations exist in 5 
of 6 subbasins within the historical range of the Apache trout; only 
the Little Colorado River subbasin is no longer represented within an 
extant relict lineage. The East Fork White River subbasin has the 
highest level of redundancy and representation; it contains six relict 
populations still extant within the subbasin and four replicated 
populations in other subbasins that were founded with individuals from 
relict populations native to the East Fork White River subbasin. Of the 
subbasins containing relict populations, the Black River and Diamond 
Creek subbasins contain the lowest level of redundancy and 
representation, with three populations each occurring on the landscape 
(Black River: one relict and two replicates; Diamond Creek: two relicts 
and one replicate).

Future Condition

    The primary threats affecting Apache trout viability include 
invasion by nonnative trout and climate change, which encompasses 
warmer stream temperatures, more frequent and severe droughts, 
increased wildfire frequency and post-fire debris flow, reduced 
snowpack and increased rain on snow events, and more intense summer 
monsoon precipitation. A 30-year future (which equates to approximately 
six generations of Apache trout) was chosen for our future condition 
projections because within this timeframe it is likely that these 
primary threats will continue to impact the species, and also because 
it is biologically reasonable to assess the species' response to these 
threats within this timeframe. Additionally, this timeframe allows us 
to reasonably forecast upcoming management activities as they will be 
implemented through the CMP.
    The threats that can be actively managed through implementation of 
the CMP include introduction of nonnative trout, and wildfire and post-
fire debris flow. Nonnative trout impact the Apache trout in multiple 
ways including hybridization, predation, and competition. Wildfires 
primarily produce debris flows that render habitat unsuitable for the 
species. To mitigate these two threats, conservation actions that have 
been and will continue to be undertaken are most important to the 
future viability of the Apache trout. These actions include the 
construction and maintenance of conservation barriers, removal (by 
physical or chemical means) of nonnative trout species, restocking of 
Apache trout via hatchery and/or existing relict populations, 
restoration of Apache trout habitats and reduction of fuel loads to 
reduce the risk of wildfires, and fish salvages following wildfires per 
the CMP. Continued construction and maintenance of conservation 
barriers will be needed to prevent hybridization of the Apache trout 
with other trout species, as well as to prevent competition with and 
predation by other fish species. Continued conservation actions, 
implemented through the CMP as well as by other mechanisms, will 
therefore play a critical role in determining the overall viability of 
the Apache trout into the future.
    Climate change threats that are more uncertain and difficult to 
mitigate include warming stream temperatures, more frequent and severe 
droughts, reduced snowpack with increased rain on snow events, and more 
intense summer monsoon precipitation. The future scenarios that were 
developed for Apache trout incorporate these factors in order to 
evaluate how climate variability might influence future condition for 
the species.
    While the SSA report contains a total of five scenarios, in 
determining the future condition and status of the species for this 
rulemaking we

[[Page 54559]]

determined that only two of the five scenarios are plausible. Scenarios 
1 and 2 in the SSA assumed that no multi-agency CMP would be in place 
after the species is delisted; however, since the SSA report and the 
scenarios were developed the CMP has been signed and is currently being 
implemented, making these scenarios not plausible. Our assessment of 
scenarios indicated that scenario 5 is also not plausible given the 
constraints involved with securing funding and commitment from partners 
for ``greatly increased'' management of the species to occur (USFWS 
2022b, p. 121). Given these factors, we did not consider scenarios 1, 
2, and 5 and relied on scenarios 3 and 4 to inform our status 
determination.
    As noted above, a 30-year timeframe was chosen because it 
encompasses six generations of Apache trout and is, therefore, a 
biologically reasonable timeframe for assessing the likelihood of 
threats as well as the species' response to those threats. 
Additionally, this timeframe allows us to reasonably forecast upcoming 
management activities that will be implemented through the CMP. The two 
scenarios used for our status determination in this proposed rule 
reflect both exogenous factors such as watershed condition and climatic 
changes, as well as management action feasibility and volume given 
funding and other programmatic constraints (funding and other 
resources) and policy. The scenarios incorporate a status quo level of 
management through the CMP, as well as potentially increased levels of 
management through future conservation actions that could take place 
throughout the future. Each scenario was based on a 30-year timeframe 
and each includes climate change impacts and other factors impacting 
the Apache trout, implementation of the CMP, and scientific and 
technological advancement. The two scenarios from the SSA report that 
we evaluated are:
    Scenario 3 (Sustained Management, i.e., status quo): Recovery and 
conservation efforts continue at sustained levels, which during the 
years 2000-2020 were proven to be beneficial to Apache trout recovery. 
This level of management will be maintained into the future as 
prescribed by and implemented through the CMP. Thus, actions continue 
and are effective at reducing some threats. This includes legally 
required actions and those voluntarily agreed to in the CMP. Barrier 
construction, population expansion, and nonnative trout removals occur 
at levels required to meet recovery criteria (30 pure populations, or 
similar) and are maintained thereafter. USFWS assistance to the White 
Mountain Apache Tribe continues. Some funding sources disappear (e.g., 
National Fish and Wildlife Foundation Apache Trout Keystone 
Initiative), but other funding sources emerge (e.g., National Fish 
Habitat Act; Recovering America's Wildlife Act). This scenario 
represented the status quo scenario with approximately the same level 
of resources and management action as a 2000-2020 baseline.
     Barrier installation and maintenance continues at 2000-
2020 levels. The number of viable Apache Trout populations and 
metapopulations increases to meeting recovery goals and is maintained 
after delisting.
     Effectiveness of land management policies for stream 
ecosystem and threatened species is initially maintained through de-
listing due to the CMP agreement in place. Across the Apache Trout 
range, watershed functional conditions are maintained or improved, 
riparian and instream habitat are maintained or improved in quality, 
and stream temperatures are maintained or improved to support Apache 
Trout due to protections during land management planning and 
implementation.
     Because of climate change, stream temperatures become 
warmer, droughts continue to become more frequent and severe, risk of 
wildfire and post-fire debris flow increases, snowpack decreases but 
increased rain on snow events occur, and summer monsoon rains become 
more intense.
    Scenario 4 (Increased Management): Recovery and conservation 
efforts continue but at levels increased slightly from 2000-2020 
baseline levels that are beneficial to the species. Management actions 
continue and some become effective at reducing some threats. After 
barrier construction, population expansion, and nonnative trout 
removals initially occur at levels required to meet recovery criteria 
(30 pure populations, or similar) and Apache trout are delisted, the 
level of actions is maintained due to the CMP in place, but also 
increases due to emergence of new research and technology. USFWS 
assistance to the White Mountain Apache Tribe continues. Legislation 
emerges resulting in new funding sources for fish habitat projects 
(e.g., National Fish Habitat Act; Recovering America's Wildlife Act), 
and there is broad implementation of the Four Forest Restoration 
Initiative, Black River Restoration Environmental Assessment (EA), and 
FAIR Forest Management Plan (fuels management) that are beneficial to 
watershed functional conditions and reduced wildfire risk.
     Barrier installation and maintenance increases slightly 
from 2000-2020 levels due to new technology that increases 
effectiveness and reduces cost and maintenance. The number of viable 
Apache trout populations increases, and one large metapopulation is 
realized (e.g., WFBR), to meet and exceed recovery goals.
     Effectiveness of land management policies for stream 
ecosystem and threatened species is initially maintained through de-
listing due to the CMP in place. Across the Apache trout range, 
watershed functional conditions are improved, riparian and instream 
habitat are improved in quality, and stream temperatures are improved 
(riparian restoration and recovery) to support Apache Trout due to 
protections during land management planning and implementation.
     Because of climate change, stream temperatures become 
warmer, droughts continue to become more frequent and severe, risk of 
wildfire and post-fire debris flow increases, snowpack decreases but 
more rain on snow events occur, and summer monsoon rains become more 
intense.
    For each scenario provided in the SSA report, Apache trout core 
team members indicated in an online survey the overall impact of each 
scenario on populations across the species' range, or subsets of the 
range with which they are familiar, using their best professional 
judgment. Each core team expert responded to survey questions in terms 
of what the condition--described as a GPA--of each Apache trout 
population (or currently unoccupied stream) would be, based on the 
grading scale used to describe current conditions above, under each of 
the five future condition scenarios after a 30-year timeframe. GPAs 
were summarized across populations to assess the influence of each 
scenario on the rangewide status of Apache trout.
    When survey responses of future condition were summarized 
(averaged) across populations for scenarios 3 and 4 to infer a future 
rangewide condition of the Apache trout under each scenario, the future 
condition of the species under scenario 4 (increased management) was 
expected to improve compared to scenario 3 (sustained management), 
similar to that of individual populations.
    Under scenario 3, which maintains the same level of conservation 
management and actions as are currently being implemented through the 
CMP, the condition of the species

[[Page 54560]]

was estimated at a GPA score of 2.53. This average score, however, 
includes variation in populations. Under scenario 3, we project the 
future condition of the majority of the relict populations would 
modestly decline, resulting in slightly lower resiliency. These 
declines are attributed to potential impacts from climate change and 
its effect on forest fires that are not expected to be offset by other 
management actions (e.g., nonnative trout eradication) which are 
generally not currently needed in relict populations. On the other 
hand, we project that some replicate populations would have slightly 
better condition in the future compared to current conditions due to 
completion of ongoing nonnative trout eradication efforts (e.g., West 
Fork Black River [lower]) and planned replacement of nonfunctional 
conservation barriers (e.g., West Fork Little Colorado River). Overall, 
relative to current condition, the species' overall resiliency under 
scenario 3 may modestly decline. Therefore, even though redundancy 
would remain the same, representation may be slightly reduced due to 
the projected decline of the Apache trout relict populations under 
scenario 3.
    Under scenario 4, which evaluates an increased level of 
conservation management versus what is currently being implemented 
through the CMP, the future condition of the Apache trout would be 
essentially unchanged with a GPA score of 2.86. This represents a 
nominal decrease when compared to the current condition GPA score of 
2.89. Under scenario 4, we project slight improvement in future 
conditions across some populations with other populations remaining 
essentially unchanged or experiencing slight declines.
    Some natural processes (e.g., purging of nonnative alleles) and 
planned management actions not represented in scenarios 3 and 4 (e.g., 
new population establishment, metapopulation creation) are expected to 
occur that will further improve specific and range-wide GPA scores. 
Further, average grant funding to support field crews and conservation 
projects obtained during 2020-2022 also far exceeds the average annual 
funding obtained for similar work during the 2000-2020 baseline period. 
Thus, future condition scores for scenarios 3 and 4 likely 
underestimate actual future conditions for the species as additional 
populations are created and maintained, nonnative trout populations are 
eradicated, and populations with low levels of introgression purge 
nonnative alleles over time.
    Under both scenarios, the CMP plays an important role in 
determining the species' future condition for threats that can be 
managed. The CMP was drafted and signed to ensure that current 
conservation efforts will continue in perpetuity. The signing of the 
CMP has a demonstrable effect on the species' overall status with 
current management level resulting in only a slight and modest decline 
under scenario 3 (the status quo scenario). Scenario 4, in which 
funding for conservation efforts would increase, results in maintaining 
the species' overall future condition. Overall, the result of our 
future scenarios analysis demonstrates the importance of continued 
implementation of the CMP to ensure both the maintenance of current 
populations and habitat, the restoration of degraded habitat, and the 
establishment of new populations.
    For climate-related threats to Apache trout that are not able to be 
actively managed, we relied on a model developed to inform the 
magnitude of effects that these factors might have through the 
foreseeable future. For increased stream temperatures, our model 
suggested that most streams currently occupied by Apache trout, or 
unoccupied but designated as recovery streams, are not temperature 
limited, and that suitability improved when 2080s projections of 
temperature alone were considered because some headwater reaches 
appeared to be currently too cold for occupancy. Most habitat patches 
were not limited by warm stream temperatures because the habitat 
designated for species recovery is upstream of protective fish passage 
barriers (Avenetti et al. 2006, p. 213; USFWS 2009, p. 19; USFWS 2022b, 
pp. 118-127) that are far enough upstream to not be temperature 
limiting now or into the 2080s. In fact, the effect of temperature on 
juvenile Apache trout occupancy suggested that streams can be too cold, 
and model projections of stream temperature in the 2080s increased the 
amount of suitable habitat in some streams because of the unimodal 
response to temperature. This suggests cold temperatures can be 
limiting Apache trout populations in some streams, and any warming may 
benefit them in headwater reaches--at least up until the 2080s.
    It was only when future changes in precipitation were considered in 
tandem with stream temperature that habitat suitability decreased into 
the 2080s. Many habitat patches that are currently occupied by the 
species are projected to remain suitable into the 2080s, which suggests 
their resiliency is only limited by the size of the patch they 
currently occupy (Peterson et al. 2014, pp. 564-268; Isaak et al. 2015, 
pp. 2548-2551; USFWS 2022b, pp. 135-140). However, when projections of 
reduced precipitation were also considered, habitat suitability 
decreased in Apache trout streams. This is not surprising given that 
stream intermittency and drought have impacted some populations in the 
past (Robinson et al. 2004, pp. 15-17; Williams et al. 2020, entire), 
and less precipitation, and thus streamflow, would exacerbate these 
impacts, especially since the Southwest is anticipated to experience 
novel and mega-drought conditions in future climates (Crausbay et al. 
2020, pp.337-348; Williams et al. 2020, entire).
    Precipitation in the White Mountains primarily falls as winter snow 
and summer monsoon rain (Mock 1996, pp. 1113-1124). However, decreases 
in precipitation due to climate change are expected to occur in winter 
in the form of snow (Easterling et al. 2017, p.207), and decreases in 
snowpack are likely to negatively impact stream baseflows and, thus, 
summer temperatures. Hydrologic models linked to climate models show 
future precipitation increasingly falling as rain, higher frequency of 
rain-on-snow, and increased snowmelt rates, all of which lead to 
increased overland runoff to streams and less infiltration to 
groundwater. Less groundwater storage leads to less groundwater 
discharge to streams in late summer and early autumn (Huntington and 
Niswonger 2012, pp. 16-18). The summer monsoon season can add 
precipitation, but at much warmer temperatures regardless of whether it 
occurs as overland flow or through shallow groundwater discharge 
pathways.
    While snow melt can result in overland flow during spring runoff, 
it also infiltrates into groundwater and does so at near freezing 
temperatures (at or just above 0 [deg]C (32 [deg]F); Potter 1991, pp. 
847, 850). Thus, any groundwater contributions to streams that 
originate from snowmelt are likely to have a stronger cooling effect on 
stream temperatures released over longer time periods than overland 
flow from either snowmelt or monsoon rains. If snowpack is reduced in 
the future it is likely that groundwater return flows may occur earlier 
and be less overall, thus providing less of a cooling effect into late 
summer, especially prior to monsoon rains (Overpeck and Bonar 2021, pp. 
139-141).

Determination of Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species

[[Page 54561]]

or a threatened species. The Act defines an ``endangered species'' as a 
species that is in danger of extinction throughout all or a significant 
portion of its range, and a ``threatened species'' as a 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 a species meets the definition of an 
endangered species or a threatened species because of any of the 
following 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.

Status Throughout All of Its Range

    The Apache trout is a species endemic to multiple river basins in 
eastern Arizona. Due to conservation efforts undertaken within these 
past decades, the Apache trout now encompasses the 29 genetically pure 
populations and one suspected genetically pure population across three 
basins and six subbasins. While these populations will continue to be 
impacted by potential invasion of nonnative trout and debris runoff 
from wildfire and climate change, construction and maintenance of 
conservation barriers and restocking efforts have contributed to 
restoration of habitats and populations. Currently, these 30 Apache 
trout populations are assessed to possess good conditions (2.89 on a 
4.0 grading scale). Within these 30 populations, relict populations 
have an average GPA of 2.93, and replicate populations have an average 
GPA of 2.85. These results demonstrate that both types of populations 
contain moderate to good condition with the relict populations rated 
slightly better.
    Apache trout representation is best demonstrated within the 17 
relict populations across five subbasins. While further studies would 
need to be conducted to ascertain the genetic uniqueness of each relict 
population, these populations are not derived from known populations, 
suggesting that some of these populations could represent unique 
genetic lineages for the species. To further preserve the genetic 
diversity of the species, the Service and our partners have established 
replicate populations within and alongside other subbasins, resulting 
in the total of 30 populations across six subbasins. As noted above in 
our resiliency discussion, through continuous monitoring, restoration 
of habitat, and, if needed, restocking, these populations are rated as 
being in fair or good condition. The genetic uniqueness of these 
populations helps maintain the diverse gene pool of the species, giving 
the species greater adaptive capacity to respond to environmental 
changes.
    The presence of multiple relict and replicate populations across 
different subbasins demonstrates a high level of redundancy. Redundancy 
is further enhanced through the creation of new replicate populations 
from relict populations. These populations are created in adjacent 
subbasins, providing greater protection for the species against 
catastrophic events that may impact individual subbasins. Overall, the 
presence of 30 populations across seven subbasins, with all being rated 
as fair to good condition, provide the Apache trout with sufficient 
redundancy to withstand catastrophic events that may impact the 
species.
    Lastly, as noted earlier, we have nearly met all criteria that the 
recovery plan recommended for delisting. While we have not met the 
criterion of 30 genetically pure populations within the historical 
range of the species, 29 genetically pure populations exist within the 
historical range, and one suspected genetically pure population exists 
outside of the historical range. This represents a significant recovery 
of the species and comes close to achieving all criteria spelled out in 
the recovery plan. Recovery plan criteria are meant to function as 
guidance for recovery rather than hard metrics that must be met. 
Instead, we will use the best available information to determine the 
status of the species. Overall, the Apache trout now consists of 
multiple, sufficiently resilient populations across subbasins 
encompassing a large percentage of the species' historical range. 
Furthermore, while long-term threats such as nonnative trout species 
will continue to persist, continued management of conservation barriers 
will ensure that the threats do not negatively impact the species. 
Accordingly, we conclude that the species is not currently in danger of 
extinction, and thus does not meet the definition of an endangered 
species, throughout its range.
    In considering whether the species meets the definition of a 
threatened species (likely to become an endangered species within the 
foreseeable future) throughout its range, we identified the foreseeable 
future of Apache trout to be 30 years based on our ability to reliably 
predict the likelihood of future threats as well as the species' 
response to future threats. Our analysis of future condition emphasized 
the importance of continued management of the conservation barriers and 
removal of nonnative trout. Species viability modestly declined in 
scenario 3, and increased in scenario 4, due to increases in management 
efforts. Scenarios 3 and 4 are both scenarios in which the CMP is being 
implemented. In our assessment, we found that the CMP, while voluntary 
in nature, plays a vital role in continuing to improve the status of 
the Apache trout into the future. For example, WMAT, AZGFD, and the 
Service are working together to mechanically remove brook trout from 
the upper West Fork Black River population, including Thompson Creek, 
in case chemical renovation of this system is not ultimately approved.
    This effort represents just one of the ongoing efforts to improve 
the species' overall condition, as well as the willingness of Federal, 
State, Tribal, and private partners to continue these efforts into the 
future. Other collaborative conservation efforts include brook and 
brown trout removal projects, fish passage improvements, riparian 
habitat restoration projects, and conservation barrier replacements or 
old barrier removal projects on Tribal, State, and Federal lands. WMAT 
and the Service are currently working to eradicate brown trout from 
Aspen, Big Bonito, Coyote, Little Bonito, and Little Diamond creeks. 
All partners are working on fish passage improvements including 
removing four conservation barriers on Hayground, Home, and Stinky 
creeks and replacing six culverts on Paradise and Thompson creeks to 
improve fish passage, increase occupied extents, and allow for 
metapopulation dynamics among connected populations. Riparian habitat 
restoration projects are underway on Boggy and Lofer creeks and being 
planned for Flash Creek, South Fork Little Colorado River, and West 
Fork Black River. Finally, conservation barrier replacements are 
underway (engineering design development or construction contracting 
phases) that will protect the populations in Aspen, Boggy/Lofer, 
Coyote, Crooked, Flash, Little Bonito, Little Diamond, Ord, Paradise, 
and Wohlenberg creeks.
    While there is a need to manage Apache trout habitat in ways that 
facilitate habitat connectivity and metapopulation dynamics (Williams 
and Carter 2009, pp. 27-28), conservation barrier management will 
remain important to the conservation of the species. Because the intent 
of barriers is to isolate populations of Apache trout from nonnative 
trout,

[[Page 54562]]

many populations will have to persist in place rather than shift in 
space to adapt to future changes in climate (Thurman et al. 2020, 
entire). This may restrict the ability of some populations to adapt in 
place to climate change effects. Adaptation potential should be 
considered in concert with the reality that many populations reside in 
small habitat patches. This can constrain long-term viability and is 
one of the trade-offs that comes with isolation management (Fausch et 
al. 2009, entire); however, our identification of climate resilient 
habitats in our climate analysis did incorporate patch size as a driver 
of long-term persistence.
    Apache trout populations with high resiliency will continue to be 
the focus of active habitat management, such as riparian vegetation 
management and habitat restoration, to improve or ensure their climate 
resiliency into the 2080s and potentially beyond. Finally, most habitat 
patches are not currently limited by warm stream temperatures. Habitat 
designated for Apache trout recovery largely occurs in colder, upstream 
areas above conservation barriers (Avenetti et al. 2006, p. 213; USFWS 
2009, p. 19), and even with increasing stream temperatures through the 
foreseeable future many of these areas will not be limited by warmer 
temperatures into the 2080s. As described previously, the effect of 
temperature on juvenile Apache trout occupancy suggests that many 
streams can in fact be too cold, and projections of stream temperature 
into the 2080s in some cases increased the amount of suitable habitat 
in some streams because of the unimodal response to temperature.
    Overall, the signing of the CMP in 2021 which, while subject to 
review and termination by the signing parties, ensures that 
conservation for the Apache trout will remain in perpetuity. With the 
CMP in place, and considering future effects from climate change and 
the response of Apache trout to these effects, we conclude that the 
Apache trout will exhibit sufficient resiliency, redundancy, and 
representation to maintain viability for the foreseeable future. 
Accordingly, we conclude that the species is not likely to become in 
danger of extinction in the foreseeable future throughout all of its 
range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Having determined that Apache trout is not in danger of 
extinction or likely to become so in the foreseeable future throughout 
all of its range, we now consider whether it may be in danger of 
extinction (i.e., endangered) or likely to become so in the foreseeable 
future (i.e., threatened) in a significant portion of its range--that 
is, whether there is any portion of the species' range for which both 
(1) the portion is significant; and, (2) the species is in danger of 
extinction or likely to become so in the foreseeable future in that 
portion. Depending on the case, it might be more efficient for us to 
address the ``significance'' question or the ``status'' question first. 
We can choose to address either question first. Regardless of which 
question we address first, if we reach a negative answer with respect 
to the first question that we address, we do not need to evaluate the 
other question for that portion of the species' range.
    In undertaking this analysis for Apache trout, we choose to address 
the status question first. We began by identifying portions of the 
range where the biological status of the species may be different from 
its biological status elsewhere in its range. For this purpose, we 
considered information pertaining to the geographic distribution of (a) 
individuals of the species, (b) the threats that the species faces, and 
(c) the resiliency condition of populations.
    We evaluated the range of the Apache trout to determine if the 
species is in danger of extinction now or likely to become so in the 
foreseeable future in any portion of its range. Because the range of a 
species can theoretically be divided into portions in an infinite 
number of ways, we focused our analysis on portions of the species' 
range that may meet the definition of an endangered species or a 
threatened species. Although we assessed current and future conditions 
at a population scale in the SSA report, interactions between 
populations within a subbasin can be complex (i.e., in some subbasins, 
there are genetic exchanges between populations while in others, 
populations are separated by barriers). Thus, to assess these portions 
equally, we focus our analysis here at the subbasin scale. That said, 
the current and future conditions of the populations will be used to 
discuss the conditions of the subbasins.
    Within these portions, we examined the following threats: invasive 
trout, habitat loss due to wildfire, and the effects from climate 
change, including synergistic and cumulative effects. As discussed in 
our rangewide analyses, nonnative trout and wildfire are the main 
drivers of the species' status.
    Looking across the different subbasins, all but one have the mean 
GPA of 2.83 or above under its current condition (meaning good 
conditions under our conditions metric). When examining future 
conditions, even under the worst case scenario where with reduced 
management and no CMP, all but one subbasin have a future condition 
status of fair. While there are differences in scoring within each 
subbasin, at the subbasin scales, these subbasins possess sufficient 
resiliency such that we do not consider them to be in danger of 
extinction or likely to become so within the foreseeable future. For 
these subbasins, we assessed them to possess the same status as our 
rangewide analysis.
    Out of all the subbasins of the Apache trout, the Diamond subbasin 
has the lowest mean GPA of 2.33 under its current condition. However, 
under future condition, we project the species will slightly decline 
from its current condition under scenario 3. Under both scenarios 3 and 
4, the subbasin would be on the lower end of the fair rating.
    The major driver of a subbasin's status is its habitat condition 
score. Although future condition scoring does not separate demographic 
GPA from habitat GPA, we know from the current condition score that the 
limiting factor for Apache trout within the Diamond subbasin is habitat 
condition. Three of the four populations within the Diamond subbasin 
have high demographic GPA with high abundance and multiple age classes. 
However, the scores for habitat quality are 2.33, 2.00, 1.83, and 1.83, 
due primarily to shorter occupied stream lengths compared to other 
populations. Additionally, the streams within the Diamond subbasin 
experience a higher percentage of intermittency, meaning that larger 
portions of the stream tend to go dry during periods of drought. Given 
the continuing effects of climate change, it is likely that these 
streams will experience periods with intermittent streamflow in some 
reaches into the future.
    Although populations of the Apache trout in the Diamond subbasin 
are currently rated as being in fair condition, the low habitat quality 
(primarily due to occupied stream length being less than 11.25 km, 
estimations of intermittent stream proportions, the presence of brown 
trout, and current barrier conditions) and the potential for decline 
due to climate change could lead to elevated risk to populations in the 
foreseeable future in this portion of the range. Work to eradicate (and 
prevent reinvasion of) brown trout from two streams in this

[[Page 54563]]

subbasin is underway, which, if successful, would result in higher 
habitat scores once completed (with all other scores remaining 
unchanged, the subbasin's average habitat GPA would rise to 2.58 once 
the work is completed) and would reduce the risk of population declines 
in this portion of the range (USFWS 2022b, p. 101). However, these 
actions have not yet significantly improved the status of this 
subbasin, and we assessed this subbasin to be at elevated risk of 
extinction to a degree that it may be in danger of extinction within 
the foreseeable future.
    Given that the Diamond subbasin may be in danger of extinction 
within the foreseeable future, we next evaluated if this portion of the 
range was significant. Although every subbasin provides some 
contribution to the species' resiliency, representation, and 
redundancy, as noted above, the Diamond subbasin populations occupy a 
short stream length (30.2 km (18.8 mi)) that comprises a small portion 
of the Apache trout's overall range (10.7 percent of the Apache trout's 
overall range of 281.5 km (174.9 mi)). Ecologically, the habitats where 
these populations are found are not dissimilar to habitats found in the 
other subbasins. As in the other subbasins, Apache trout in the Diamond 
subbasin are found in headwater streams with shallow depth, relatively 
slow-moving water, and coarse, clean gravel streambeds.
    The Diamond subbasin is comprised of a mixture of replicate and 
relict populations. Although this subbasin contains relict populations, 
these and the replicate populations are associated with populations in 
the neighboring subbasins of North Fork White River and East Fork White 
River. Specifically, relict populations in the adjacent subbasin were 
used as founder stocks for the replicate populations in the Diamond 
subbasin, and the relict population in the Diamond subbasin was used to 
create a replicate population in an adjacent subbasin. Thus, through 
the process of replication of populations, the genetic contribution of 
the Diamond subbasin is dispersed across other subbasins.
    Overall, the Diamond subbasin's short stream length relative to the 
species' overall range, lack of ecological uniqueness, close proximity 
to other subbasins, and existence of replicate populations lead us to 
conclude that this portion of the Apache trout's range is not 
significant in terms of its overall contribution to the species' 
resiliency, redundancy, and representation. Therefore, because we could 
not answer the significance question in the affirmative, we conclude 
that the Diamond subbasin does not warrant further consideration as a 
significant portion of the range. Therefore, we find that the species 
is not in danger of extinction now or likely to become so in the 
foreseeable future in any significant portion of its range. This does 
not conflict with the courts' holdings in Desert Survivors v. 
Department of the Interior, 336 F. Supp. 3d 1131 (N.D. Cal. 2018), and 
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d. 946, 959 
(D. Ariz. 2017) because, in reaching this conclusion, we did not apply 
the aspects of the Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR 
37578; July 1, 2014), including the definition of ``significant'' that 
those court decisions held to be invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Apache trout does not meet the 
definition of an endangered species or a threatened species in 
accordance with sections 3(6) and 3(20) of the Act. In accordance with 
our regulations at 50 CFR 424.11(e)(2) currently in effect, the Apache 
trout does not meet the definition of an endangered or a threatened 
species. Therefore, we propose to remove the Apache trout from the 
Federal List of Endangered and Threatened Wildlife.

Effects of This Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) by 
removing the Apache trout from the Federal List of Endangered and 
Threatened Wildlife. Accordingly, we would also remove the Apache trout 
from the rule issued under section 4(d) of the Act (``4(d) rule'') at 
50 CFR 17.44(a). The prohibitions and conservation measures provided by 
the Act, particularly through sections 7 and 9, would no longer apply 
to this species. Federal agencies would no longer be required to 
consult with the Service under section 7 of the Act in the event that 
activities they authorize, fund, or carry out may affect the Apache 
trout. No critical habitat has been designated for Apache trout, so 
there would be no effect to 50 CFR 17.95. State laws related to the 
Apache trout would remain in place, be enforced, and continue to 
provide protection for this species.

Editorial Corrections

    In this proposed rule, we incorporate editorial corrections to the 
4(d) rule set forth at 50 CFR 17.44(a) to provide the correct 
scientific names for Lahontan cutthroat trout and Paiute cutthroat 
trout. Those scientific names were updated on the List of Endangered 
and Threatened Wildlife at 50 CFR 17.11(h) with the 1990 issue of the 
Code of Federal Regulations, but the scientific names provided in the 
4(d) rule were not updated at that time. This action would correct that 
oversight.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been delisted due to recovery. Post-delisting 
monitoring (PDM) refers to activities undertaken to verify that a 
species delisted remains secure from the risk of extinction after the 
protections of the Act no longer apply. The primary goal of a PDM 
program is to monitor the species to ensure that its status does not 
deteriorate, and if a decline is detected, to take measures to halt the 
decline so that proposing it as an endangered or threatened species is 
not again needed. If at any time during the monitoring period data 
indicate that protective status under the Act should be reinstated, we 
can initiate listing procedures, including, if appropriate, emergency 
listing.
    The PDM program for Apache trout would monitor populations 
following the same sampling protocol used by cooperators prior to 
delisting. Monitoring would consist of tracking Apache trout 
distribution and abundance and potential adverse changes to Apache 
trout habitat due to environmental or anthropogenic factors. Post-
delisting monitoring would occur for a 10-year period, beginning after 
the final delisting rule was published, and would include the 
implementation of (1) Apache Trout Monitoring Plan (``Monitoring 
Plan,'' Dauwalter et al. 2017a, entire) and (2) Apache Trout 
Cooperative Management Plan (CMP, Apache Trout CMP Workgroup 2021, 
entire) for the duration of the PDM period. Both plans are currently 
being implemented and will continue to be implemented into the future. 
The Monitoring Plan describes population and habitat survey methods, 
data evaluation methods, and monitoring frequency for each population. 
The CMP describes roles, responsibilities, and evaluation and reporting 
procedures by the cooperators. Together these plans would guide 
collection and evaluation of pertinent information over the PDM period 
and would be implemented jointly by the Service, WMAT, AZGFD, USFS, and 
Trout Unlimited. Both documents will be available upon the

[[Page 54564]]

publication of this proposed rule at https://www.regulations.gov, under 
the Docket No. FWS-R2-ES-2022-0115.
    During the PDM period, if declines in the Apache trout's protected 
habitat, distribution, or persistence were detected, the Service, 
together with other PDM partners, would investigate causes of the 
declines, including considerations of habitat changes, human impacts, 
stochastic events, or any other significant evidence. The outcome of 
the investigation would be to determine whether the Apache trout 
warranted expanded monitoring, additional research, additional habitat 
protection, or relisting as an endangered or threatened species under 
the Act. If relisting the Apache trout were warranted, emergency 
procedures to relist the species may be followed, if necessary, in 
accordance with section 4(b)(7) of the Act.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the names of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), Executive Order 13175, and the Department of 
the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretary's 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.
    The Apache trout occurs on area managed by the White Mountain 
Apache Tribe (WMAT). As noted above, we have coordinated with WMAT in 
conserving and protecting the Apache trout's habitat and populations. 
Furthermore, WMAT was an invited participant in the development of the 
SSA. Going forward, we anticipate our partnership with WMAT to continue 
into the future regardless of any potential changes in the Apache 
trout's status under the Act.

References Cited

    A complete list of all references cited in this proposed rule is 
available on the internet at https://www.regulations.gov or upon 
request from the person listed under FOR FURTHER INFORMATION CONTACT.

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Species Assessment Team and the Arizona Fish and Wildlife 
Conservation Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


Sec.  17.11  [Amended]

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by removing the entry for ``Trout, Apache'' under 
FISHES.
0
3. In Sec.  17.44, amend the introductory text of paragraph (a) to read 
as follows:


Sec.  17.44  Special rules--fishes.

    (a) Lahontan cutthroat trout and Paiute cutthroat trout 
(Oncorhynchus clarkii henshawi and Oncorhynchus clarkii seleniris).
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-15689 Filed 8-10-23; 8:45 am]
BILLING CODE 4333-15-P