24328 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF76

Endangered and Threatened Wildlife

and Plants; Final Designation of

Critical Habitat for the Spikedace and

the Loach Minnow

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat pursuant to the

Endangered Species Act of 1973, as

amended (Act), for the spikedace (Meda

fulgida) and the loach minnow (Tiaroga

(= Rhinichthys) cobitis).

We are designating occupied and

unoccupied habitat that is essential for

the recovery of these two species. We

are designating as critical habitat a total

of approximately 1,448 kilometers (km)

(898 miles (mi)) of rivers and creeks for

the two species. All of the total area is

designated as critical habitat for the

loach minnow, and approximately 1,302

km (807 mi) of that area is also

designated as critical habitat for the

spikedace. Critical habitat includes

portions of the Gila, San Francisco,

Blue, Black, Verde, and San Pedro

Rivers, and some of their tributaries, in

Apache, Cochise, Gila, Graham,

Greenlee, Pima, Pinal, and Yavapai

Counties in Arizona; and Catron, Grant,

and Hidalgo Counties in New Mexico.

Critical habitat includes the stream

channels within the identified stream

reaches and areas within these reaches

potentially inundated by high flow

events. These habitat areas provide for

the physiological, behavioral, and

ecological features (primary constituent

elements) essential for the conservation

of the spikedace and the loach minnow.

Federal agencies proposing, authorizing,

or funding actions that may affect the

areas designated as critical habitat must

consult with us on the effects of the

proposed actions, pursuant to section

7(a)(2) of the Act.

DATES: The effective date of this rule is

May 25, 2000.

ADDRESSES: You may inspect the

complete file for this rule at the Arizona

Ecological Services Office, U.S. Fish and

Wildlife Service, 2321 W. Royal Palm

Road, Suite 103, Phoenix, Arizona

85021, by appointment, during normal

business hours.

FOR FURTHER INFORMATION CONTACT: Paul

Barrett, Arizona Ecological Services

Office, at the above address; telephone

602/640–2720, facsimile 602/640–2730.

SUPPLEMENTARY INFORMATION:

Background

Spikedace

The spikedace is a small, slim fish

less than 80 millimeters (mm) (3 inches

(in)) long. It is characterized by very

silvery sides and by spines in the dorsal

and pelvic fins (Minckley 1973). This

species is found in moderate to large

perennial streams, where it inhabits

shallow riffles with sand, gravel, and

rubble substrates, and moderate to swift

currents and swift pools over sand or

gravel substrates (Barber et al. 1970;

Propst et al. 1986; Rinne 1991). Specific

habitat for this species consists of shear

zones where rapid flow borders slower

flow, areas of sheet flow at the upper

ends of mid-channel sand/gravel bars;

and eddies at downstream riffle edges

(Propst et al. 1986; Rinne and Kroeger

1988). Recurrent flooding and a natural

hydrograph (physical conditions,

boundaries, flow, and related

characteristics of waters) are very

important in maintaining the habitat of

spikedace and in helping the species

maintain a competitive edge over

invading nonnative aquatic species

(Propst et al. 1986; Minckley and Meffe

1987).

The spikedace was first collected in

1851 from the Rio San Pedro in Arizona

and was described from those

specimens in 1856 by Girard. It is the

only species in the genus Meda. The

spikedace was once common

throughout much of the Gila River

basin, including the mainstem Gila

River upstream of Phoenix, and the

Verde, Agua Fria, Salt, San Pedro, and

San Francisco subbasins. It occupies

suitable habitat in both the mainstream

reaches and moderate-gradient

perennial tributaries, up to about 2,000

meters (m) (6,500 feet(ft)) elevation

(Miller 1960; Chamberlain 1904; Gilbert

and Scofield 1898; Cope and Yarrow

1875).

Habitat destruction and competition

and predation by nonnative aquatic

species have severely reduced its range

and abundance. It is now restricted to

approximately 466 km (289 mi) of

stream in portions of the upper Gila

River (Grant, Catron, and Hidalgo

Counties, NM); middle Gila River (Pinal

County, AZ); lower San Pedro River

(Pinal County, AZ); Aravaipa Creek

(Graham and Pinal Counties, AZ); Eagle

Creek (Graham and Greenlee Counties,

AZ); and the Verde River (Yavapai

County, AZ) (Anderson 1978; Bestgen,

1985; Bettaso et al. 1995; Jakle 1992;

Marsh et al. 1990; Propst et al. 1985;

Propst et al. 1986; Stefferud and Rinne

1996; Sublette et al. 1990). Its present

range is only about 10–15 percent of the

historical range and the status of the

species within occupied areas ranges

from common to very rare. At present,

the species is common only in Aravaipa

Creek and some parts of the upper Gila

River in New Mexico.

Loach Minnow

The loach minnow is a small, slender,

elongated fish less than 80 mm (3 in)

long. It is olivaceous in color and

strongly blotched with darker pigment.

The mouth is oblique (slanting) and

terminal, and the eyes are markedly

directed upward (Minckley 1973). This

species is found in small to large

perennial streams, and uses shallow,

turbulent riffles with primarily cobble

substrate and swift currents (Minckley

1973; Propst and Bestgen 1991; Rinne

1989; Propst et al. 1988). The loach

minnow uses the spaces between, and

in the lee of (sheltered side), larger

substrate for resting and spawning. It is

rare or absent from habitats where fine

sediments fill the interstitial spaces

(small, narrow spaces between rocks or

other substrate) (Propst and Bestgen

1991). Recurrent flooding and a natural

hydrograph are very important in

maintaining the habitat of loach

minnow and in helping the species

maintain a competitive edge over

invading nonnative aquatic species

(Propst et al. 1986; Propst and Bestgen

1991).

The loach minnow was first collected

in 1851 from the Rio San Pedro in

Arizona and was described from those

specimens in 1865 by Girard. The loach

minnow was once locally common

throughout much of the Gila River

basin, including the mainstem Gila

River upstream of Phoenix, and the

Verde, Salt, San Pedro, and San

Francisco subbasins. It occupies suitable

habitat in both the mainstream reaches

and moderate-gradient perennial

tributaries, up to about 2,500 m (8,200

ft) elevation. Habitat destruction and

competition and predation by nonnative

aquatic species have severely reduced

its range and abundance. It is now

restricted to approximately 676 km (419

mi) of stream in portions of the upper

Gila River (Grant, Catron, and Hidalgo

Counties, NM); the San Francisco and

Tularosa Rivers and their tributaries

Negrito and Whitewater Creeks (Catron

County, NM); the Blue River and its

tributaries Dry Blue, Campbell Blue,

Little Blue, Pace, and Frieborn Creeks

(Greenlee County, AZ and Catron

County, NM); Aravaipa Creek and its

tributaries Turkey and Deer Creeks

(Graham and Pinal Counties, AZ); Eagle

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24329

Creek (Graham and Greenlee Counties,

AZ); the White River (Apache, Gila, and

Navajo Counties, AZ); and the Black

River (Apache and Greenlee Counties,

AZ) (Bagley et al. 1998; Bagley et al.

1996; Barber and Minckley 1966;

Bettaso et al. 1995; Britt 1982; Leon

1989; Marsh et al. 1990; Propst 1996;

Propst and Bestgen 1991; Propst et al.

1985; Springer 1995). The present range

is only 15–20 percent of its historical

range, and the status of the species

within occupied areas ranges from

common to very rare. At present, the

species is common only in Aravaipa

Creek, the Blue River, and limited

portions of the San Francisco, upper

Gila, and Tularosa Rivers in New

Mexico.

Previous Federal Actions

The spikedace was included as a

Category 1 candidate species in our

December 30, 1982, Vertebrate Notice of

Review (47 FR 58454). Category 1

included those taxa for which we had

substantial biological information to

support listing the species as

endangered or threatened. We were

petitioned on March 14, 1985, by the

American Fisheries Society (AFS) and

on March 18, 1985, by the Desert Fishes

Council (DFC) to list the spikedace as

threatened. Because the species was

already under active petition by AFS,

the DFC petition was considered a letter

of comment. Our evaluation of the AFS

petition revealed that the petitioned

action was warranted, and we published

a proposed rule to list this species as

threatened with critical habitat on June

18, 1985 (50 FR 25390). We published

the final rule listing the spikedace as a

threatened species on July 1, 1986 (51

FR 23769). We did not finalize the

proposed critical habitat designation at

the time of listing but postponed the

designation to allow us to gather and

analyze economic data, in compliance

with section 4(b)(2) of the Act.

We included the loach minnow as a

Category 1 candidate species in the

December 30, 1982, Vertebrate Notice of

Review (47 FR 58454). On June 18, 1985

(50 FR 25380) we published a proposed

rule to list this species as threatened

with critical habitat. We published the

final rule listing the loach minnow as a

threatened species on October 28, 1986

(51 FR 39468). We did not finalize the

proposed critical habitat designation at

the time of listing but postponed the

designation to allow us to gather and

analyze economic data.

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

that, to the maximum extent prudent

and determinable, the Secretary

designate critical habitat at the time a

species is determined to be endangered

or threatened. Our regulations (50 CFR

424.12(a)(2)) state that critical habitat is

not determinable if information

sufficient to perform required analyses

of the impacts of the designation is

lacking or if the biological needs of the

species are not sufficiently well known

to permit identification of an area as

critical habitat. At the time of listing of

the spikedace and loach minnow, we

found that critical habitat was not

determinable because we had

insufficient information to perform the

required analyses of the impacts of the

designation. As part of a settlement

order of January 18, 1994, in Greater

Gila Biodiversity Project v. U.S. Fish

and Wildlife Service, CIV 93–1913 PHX/

PGR, we finalized the critical habitat

designations for both the spikedace and

loach minnow on March 8, 1994 (59 FR

10906 and 10898 respectively).

Critical habitat for spikedace and

loach minnow was set aside by court

order in Catron County Board of

Commissioners, New Mexico v. U.S.

Fish and Wildlife Service, CIV No. 93–

730 HB (D.N.M., 1994), aff’d, 75 F3d,

1429 (10th Cir. 1996). The court cited

our failure to analyze the effects of

critical habitat designation under the

National Environmental Policy Act

(NEPA) as its basis for setting aside

critical habitat for the two species. The

United States District Court for the

District of Arizona recognized the effect

of the Catron County ruling as a matter

of comity (recognition given by the

courts of one state or jurisdiction of the

laws and judicial decisions of another)

in the Southwest Center for Biological

Diversity v. Rogers, CV 96–018–TUC–

JMR (D. Ariz., Order of December 28,

1996). As a result of these court rulings,

we removed the critical habitat

description for spikedace and loach

minnow from the Code of Federal

Regulations on March 25, 1998 (63 FR

14378).

On September 20, 1999, the United

States District Court for the District of

New Mexico, Southwest Center for

Biological Diversity v. Clark, CIV 98–

0769 M/JHG, ordered us to complete

designation of critical habitat for the

spikedace and loach minnow by

February 17, 2000. On October 6, 1999,

the court amended the September 20,

1999 order to require us to make a

critical habitat determination rather

than requiring actual designation. We

published our proposed rule to

designate critical habitat in the Federal

Register on December 10, 1999 (64 FR

69324).

On December 22, 1999, the court

extended the deadline to complete our

determination until April 21, 2000.

Information regarding public

notifications on the extension and

hearing are given in the Summary of

Comments and Recommendations

section later in this rule.

We completed final recovery plans for

spikedace and loach minnow in 1991

(Service 1991a, 1991b). We developed

those plans with the assistance of the

Desert Fishes Recovery Team and other

biologists familiar with the species. This

rule is based, in part, on

recommendations offered in those

recovery plans.

Critical Habitat

Critical habitat is defined in section

3(5)(A) of the Act as—(i) the specific

areas within the geographic area

occupied by a species, at the time it is

listed in accordance with the Act, on

which are found those physical or

biological features (I) essential to the

conservation of the species and (II) that

may require special management

considerations or protection and; (ii)

specific areas outside the geographic

area occupied by a species at the time

it is listed, upon a determination that

such areas are essential for the

conservation of the species. The term

‘‘conservation,’’ as defined in section

3(3) of the Act, means ‘‘to use and the

use of all methods and procedures

which are necessary to bring any

endangered species or threatened

species to the point at which the

measures provided pursuant to this Act

are no longer necessary’’ (i.e., the

species is recovered and removed from

the list of endangered and threatened

species).

Section 4(b)(2) of the Act requires that

we base critical habitat proposals upon

the best scientific and commercial data

available, taking into consideration the

economic impact, and any other

relevant impact, of specifying any

particular area as critical habitat. We

may exclude areas from critical habitat

designation if we determine that the

benefits of exclusion outweigh the

benefits of including the areas as critical

habitat, provided the exclusion will not

result in the extinction of the species. A

discussion of our analysis under 4(b)(2)

of the Act is provided in the Exclusion

for Economic and Other Relevant

Impacts section of this final rule.

Critical Habitat Designation

In designating critical habitat for

spikedace and loach minnow, we

reviewed the overall approach to the

conservation of the species since the

species’ listing in 1986. Additionally,

we solicited information from

knowledgeable biologists and

recommendations from the Desert

Fishes Recovery Team. We also

24330 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

reviewed the available information

pertaining to habitat requirements of the

two species, including public comments

and other material received during

critical habitat proposals and previous

designations.

We also considered the measures

identified as necessary for recovery, as

outlined in the species’ recovery plans.

Due to the need for additional

information on the two species, habitats,

threats, controllability of threats,

restoration potentials, and other factors,

no quantitative criteria for delisting

spikedace and loach minnow were set

forth in the recovery plans. However,

the recovery plans recommend

protection of existing populations,

enhancement and restoration of habitats

occupied by depleted populations, and

reestablishment of the two species into

selected streams within their historical

ranges.

Both recovery plans recommend

designation of critical habitat for all

stream reaches proposed as critical

habitat in 1985, plus consideration of

additional stream reaches. Except for

Eagle Creek, the recovery plans do not

identify the specific stream reaches to

be considered for critical habitat

designation due to the lack of

information available at that time to

support such identifications. The

recovery plans do identify potential

areas for reestablishment of spikedace

and loach minnow including the San

Pedro River and its tributaries, the San

Francisco River, Mescal Creek (a middle

Gila River tributary), and Bonita Creek.

The recovery plans also recommend

evaluation and selection of other

potential sites. Recovery Team

discussions since 1991 identified the

need for critical habitat designation in

Hot Springs and Redfield Canyons;

Aravaipa, Eagle, Bonita, Beaver, West

Clear, Campbell Blue, and Dry Blue

Creeks; and the Gila, Verde, San Pedro,

San Francisco, Blue, Tularosa, and

White Rivers.

The designated critical habitat

described below constitutes our best

assessment of areas needed for the

conservation of spikedace and loach

minnow and is based on the best

scientific and commercial information

available. The designated areas are

essential to the conservation of the

species because they either currently

support populations of spikedace and/or

loach minnow, or because they

currently have, or have the potential for

developing, the necessary requirements

for survival, growth, and reproduction

of the spikedace and/or loach minnow

(see description of primary constituent

elements, below). All of the designated

areas require special management

consideration and protection to ensure

their contribution to the species’

recovery.

Because of these species’ precarious

status, mere stabilization of spikedace

and loach minnow at their present

levels will not achieve conservation.

Recovery through protection and

enhancement of the existing

populations, plus reestablishment of

populations in suitable areas of

historical range, are necessary for their

survival. The recovery plans for both

species state, ‘‘One of the most critical

goals to be achieved toward recovery is

establishment of secure self-reproducing

populations in habitats from which the

species has been extirpated’’ (Service

1991a, 1991b). We, therefore, determine

that the unoccupied areas designated as

critical habitat are essential for the

conservation of the species.

Important factors we considered in

selecting areas designated in this rule

include specific geographic area or

complex of areas factors, such as size,

connectivity, and habitat diversity, as

well as rangewide recovery

considerations such as genetic diversity

and representation of all major portions

of the species’ historical ranges. We

designated critical habitat complexes of

sufficient size to provide habitat for

spikedace and/or loach minnow

populations large enough to be selfsustaining over time, despite

fluctuations in local conditions so that

recovery of these species is possible.

The ability of the fish to repopulate

areas where they are depleted or

extirpated is vital to recovery. Each

complex contains interconnected waters

so that spikedace and loach minnow can

move between areas, at least during

certain flows or seasons. Some

complexes include stream reaches that

do not have substantial spikedace- or

loach minnow-specific habitat, but

which provide migration corridors as

well as play a vital role in the overall

health of the aquatic ecosystem and,

therefore, the integrity of upstream and

downstream spikedace and loach

minnow habitats. Each complex

includes habitat with a moderate to high

degree of complexity, thus providing

suitable habitat for all life stages of

spikedace and loach minnow under a

wide range of habitat fluctuations.

The areas we selected for critical

habitat designation include populations

containing all known remaining genetic

diversity within the two species, with

the possible exception of the fish on

certain tribal lands, which we believe

are capable of persistence without

critical habitat designation (see

discussion under American Indian

Tribal Rights, Federal-Tribal Trust

Responsibilities, and the Endangered

Species Act later in this rule). Areas

selected for critical habitat designation

include a representation of each major

subbasin in the historical ranges of the

species.

The designation includes all currently

known populations of spikedace and

loach minnow, except those on tribal

lands. Uncertainty on upstream and

downstream distributional limits of

some populations may result in small

areas of occupied habitat being

excluded from the designation.

However, based on the best available

scientific information, we believe the

areas included in this designation will

be sufficient to conserve both species.

In order to provide for genetic

variability for the loach minnow, the

designation includes at least one

remnant population for each major

subbasin except the Verde subbasin,

from which it has been completely

extirpated. For spikedace, no remnant

populations exist in the Agua Fria, Salt,

and San Francisco/Blue subbasins. In

those subbasins where no populations

of spikedace or loach minnow currently

exist, designated critical habitat

includes currently unoccupied areas

that have the potential and are

important for restoration of the species,

with the exception of the Agua Fria

subbasin where no suitable areas are

known to remain.

The inclusion of both occupied and

currently unoccupied areas in the

designated critical habitat for spikedace

and loach minnow is in accordance

with section 3(5)(A)(i) of the Act, which

provides that areas outside the

geographical area currently occupied by

the species may meet the definition of

critical habitat upon a determination

that they are essential for the

conservation of the species. Both

spikedace and loach minnow are in

danger of extinction, and their status is

declining. In 1994, we determined that

reclassification of spikedace and loach

minnow from threatened to endangered

was warranted; however,

reclassification was precluded by other

higher priority listing actions (59 FR

35303–35304). Although additional

populations of loach minnow have been

found since that time, they are small

and their contribution to the status of

the species is offset by declines in other

populations. It is essential to protect all

designated occupied areas as well as

designated unoccupied areas that will

provide habitat for reestablishment of

the two species.

Both of the 1986 listing rules for

spikedace and loach minnow

conservatively estimated about 2,600

km (1,600 mi) of stream within the

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24331

species’ historical ranges. Using newer

techniques, a more current estimate is

approximately 3,000 km (1,800 mi).

This critical habitat designation

includes approximately half that

amount for loach minnow and less than

half for spikedace. Although this is less

than the historical ranges for both

species, we believe that maintenance of

viable spikedace and loach minnow

populations within the designated areas

can achieve recovery of these species.

For each stream reach designated, the

up-and downstream-boundaries are

described below. Critical habitat

includes the stream channels within the

identified stream reaches and areas

within these reaches potentially

inundated during high flow events.

Where delineated, this will be the 100-

year floodplain of the designated

waterways as defined by the U.S. Army

Corps of Engineers (COE). In areas

where the 100-year floodplain has not

been delineated or it is in dispute, the

presence of alluvial soils (soils

deposited by streams), obligate and

facultative riparian vegetation (requiring

and usually occurring in wetlands,

respectively), abandoned river channels,

or known high water marks can be used

to determine the extent of the

floodplain. This proposal takes into

account the naturally dynamic nature of

riverine systems and recognizes that

floodplains are an integral part of the

stream ecosystem. A relatively intact

floodplain, along with the periodic

flooding in a relatively natural pattern,

are important elements necessary for

long-term survival and recovery of

spikedace and loach minnow. Among

other things, the floodplain and its

riparian vegetation provide space for

natural flooding patterns and latitude

for necessary natural channel

adjustments to maintain appropriate

channel morphology and geometry,

provide nutrient input and buffering

from sediment and pollutants, store

water for slow release to maintain base

flows, and provide protected side

channels and other protected areas for

larval and juvenile spikedace and loach

minnow.

Within the delineated critical habitat

boundaries, only lands containing, or

which have the potential to develop,

those habitat components that are

essential for the primary biological

needs of the species are considered

critical habitat. Existing humanconstructed features and structures

within this area, such as buildings,

roads, railroads, and other features, do

not contain, and do not have the

potential to develop, those habitat

components and are not considered

critical habitat.

Unless otherwise indicated, the

following areas are designated as critical

habitat for both spikedace and loach

minnow (see the Regulation

Promulgation section of this rule for

exact descriptions of boundaries). The

designation includes portions of 24 and

36 streams for spikedace and loach

minnow, respectively; however,

individual streams are not isolated, but

are connected with others to form areas

or ‘‘complexes.’’ The complexes include

those that currently support populations

of the fishes, as well as some currently

unoccupied by the species, but which

are considered essential for

reestablishing populations to achieve

recovery. The distances and conversions

below are approximate; more precise

estimates are provided in the Regulation

Promulgation section of this rule.

1. Verde River complex, Yavapai

County, Arizona. The Verde River

complex is currently occupied by

spikedace. Its tributary streams are

believed to be currently unoccupied by

either species. The Verde River complex

is unusual in that a relatively stable

thermal and hydrologic regime is found

in the upper river and in Fossil Creek.

Also, spikedace in the Verde River are

genetically (Tibbets 1993) and

morphologically (Anderson and

Hendrickson 1994) distinct from all

other spikedace populations. The

continuing presence of spikedace and

the existence of suitable habitat create a

high potential for restoration of loach

minnow to the Verde system.

a. Verde River—171 km (106 mi) of

river extending from the confluence

with Fossil Creek upstream to Sullivan

Dam, but excluding lands belonging to

the Yavapai Apache Tribe. Sullivan

Dam is at the upstream limit of

perennial flow in the mainstem Verde

River. Perennial flow results from a

series of river-channel springs and from

Granite Creek. Below Fossil Creek, the

Verde River has a larger flow and was

thought at the time of the proposal to

offer little suitable habitat for spikedace

or loach minnow. However, this is

historical range for both species and

comments from the U.S. Forest Service

(USFS) indicate this stretch of the river

may offer substantial value for

spikedace and loach minnow recovery.

We will seek further information

regarding the role of this portion of the

Verde River for the species and may

consider its designation in future

potential revisions of the critical habitat.

b. Fossil Creek—8 km (5 mi) of creek

extending from the confluence with the

Verde River upstream to the confluence

with an unnamed tributary. The lower

portion of Fossil Creek contains all

elements of spikedace and loach

minnow habitat at present, except

sufficient discharge. Discharge is

currently diverted for hydropower

generation at the Childs/Irving

Hydropower site. However, operators of

the Childs/Irving Hydropower project

have agreed to provide enhanced flows

into lower Fossil Creek, although the

amount of that flow restoration is still

under negotiation.

c. West Clear Creek—12 km (7 mi) of

creek extending from the confluence

with the Verde River upstream to the

confluence with Black Mountain

Canyon. The lower portion of West

Clear Creek was historically known to

support the spikedace and contains

suitable, although degraded, habitat for

the fishes. Gradient and channel

morphology changes above Black

Mountain Canyon make the upstream

area unsuitable for either species.

d. Beaver/Wet Beaver Creek—33 km

(21 mi) of creek extending from the

confluence with the Verde River

upstream to the confluence with Casner

Canyon. Beaver Creek, and its upstream

extension in Wet Beaver Creek,

historically supported spikedace and

loach minnow and contains suitable,

although degraded, habitat. Above

Casner Canyon, gradient and channel

morphology changes make the stream

unsuitable for either species.

e. Oak Creek—54 km (34 mi) of creek

extending from the confluence with the

Verde River upstream to the confluence

with an unnamed tributary (near the

Yavapai/Coconino County boundary).

The lower portion of Oak Creek is part

of the historical range of the two species

and contains suitable, although

degraded, habitat. Above the unnamed

tributary, the creek becomes unsuitable

for either species due to urban and

suburban development and to

increasing gradient and substrate size.

f. Granite Creek—2.3 km (1.4 mi) of

creek extending from the confluence

with the Verde River upstream to a

spring. Below the spring, which

supplies much of the base flow of

Granite Creek, there is suitable habitat

for loach minnow. As a perennial

tributary of the upper Verde River,

Granite Creek is considered an

important expansion area for spikedace

recovery.

2. Black River complex, Apache and

Greenlee Counties, Arizona. In response

to comments received on the suitability

of this complex, we have not designated

any areas within the complex as critical

habitat for spikedace. The basis for this

deletion from the proposed rule is

biological, given that spikedace are not

known to historically occupy areas at

this elevation. However, the data on

maximum elevation for spikedace are

24332 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

not definitive and if information

becomes available that differs from that

currently available, the Black River

complex may be reevaluated for

spikedace critical habitat designation.

The Salt River subbasin is a significant

portion of spikedace historical range

and has no existing population of

spikedace. Large areas of the subbasin

are unsuitable, either because of

topography or because of reservoirs,

stream channel alteration by humans, or

overwhelming nonnative species

populations.

The Salt River subbasin is a

significant portion of loach minnow

historical range, but loach minnow have

been extirpated from all but a small

portion in the Black and White Rivers.

As the only remaining population of

loach minnow on public lands in the

Salt River basin, the Black River

complex is considered vital to survival

and recovery of the species.

a. East Fork Black River—Loach

minnow only: 8 km (5 mi) of river

extending from the confluence with the

West Fork Black River upstream to the

confluence with Deer Creek. This area is

occupied by loach minnow, although

the downstream extent of the

population is not well known. This

population was only discovered in

1996.

b. North Fork of the East Fork Black

River—Loach minnow only: 18 km (11

mi) of river extending from the

confluence with Deer Creek upstream to

the confluence with an unnamed

tributary. This area is occupied by loach

minnow, although the upstream portion

of the population is not well known.

Above the unnamed tributary, the river

has finer substrate and lacks riffle

habitat, making it unsuitable for loach

minnow.

c. Beyond Creek—Loach minnow

only: 2.3 km (1.4 mi) of creek extending

from the confluence with the East Fork

Black River upstream to the confluence

with an unnamed tributary. Although

no loach minnow have been found in

Boneyard Creek, they are probably

present based on the pattern of

occupation of lower portions of small

tributaries in other parts of the loach

minnow range.

d. Coyote Creek—Loach minnow

only: 3 km (2 mi) of creek extending

from the confluence with the East Fork

Black River upstream to the confluence

with an unnamed tributary. Loach

minnow are thought to use the lower

portion of this creek as part of the

population in the East Fork Black River.

e. West Fork Black River—Loach

minnow only: 10 km (6 mi) of river

extending from the confluence with the

East Fork Black River upstream to the

confluence with Hay Creek. Above Hay

Creek, the gradient and channel

morphology are unsuitable for loach

minnow. The West Fork Black River is

not known to be occupied by loach

minnow at present. However, it is

considered important for conservation

of the Black River remnant of the Salt

River subbasin population.

3. Tonto Creek complex, Gila County,

Arizona. Spikedace are known to have

occupied Tonto Creek, and loach

minnow are presumed to have done so

although no records exist. Suitable

habitat still exists, although degradation

has occurred due to watershed uses,

water diversion, agriculture, roads, and

nonnative species introduction. The

presence of substantial areas of USFS

lands make this one of the most

promising areas for reestablishment of

spikedace and loach minnow in the Salt

River subbasin.

a. Tonto Creek—

Spikedace: 47 km (29 mi) of creek

extending from the confluence with

Greenback Creek upstream to the

confluence with Houston Creek. The

influence of Roosevelt Lake below

Greenback Creek, and gradient and

substrate changes above Houston Creek,

make these reaches unsuitable for

spikedace.

Loach minnow: 70 km (44 mi) of

creek extending from the confluence

with Greenback Creek upstream to the

confluence with Haigler Creek. The

influence of Roosevelt Lake above

Greenback Creek and changes in

channel morphology above Haigler

Creek make those portions of the stream

unsuitable for loach minnow.

b. Greenback Creek—(8 mi) of creek

extending from the confluence with

Tonto Creek upstream to Lime Springs.

c. Rye Creek—2.1 km (1.3 mi) of creek

extending from the confluence with

Tonto Creek upstream to the confluence

with Brady Canyon. This area of Rye

Creek still supports a native fish

community indicating high potential for

spikedace and loach minnow

reestablishment.

4. Middle Gila/Lower San Pedro/

Aravaipa Creek complex, Pinal and

Graham Counties, Arizona. This

complex is occupied by spikedace with

its population status ranging from rare

to common. Aravaipa Creek supports

some of the best and most protected

spikedace and loach minnow

populations due to special use

designations on Bureau of Land

Management (BLM) land, substantial

ownership by The Nature Conservancy,

and planned construction of fish

barriers to prevent invasion of

nonnative fish species. Enhancement of

downstream habitats in the San Pedro

and Gila Rivers would contribute

substantially to recovery of these

species.

a. Gila River—63 km (39 mi) of river

extending from Ashurst-Hayden Dam

upstream to the confluence with the San

Pedro River. A small population of

spikedace currently occupies this area.

At Ashurst-Hayden Dam, all water is

diverted into a canal. Above the

confluence with the San Pedro River,

flow in the Gila River is highly

regulated by San Carlos Dam and

becomes marginally suitable for either

species. Below the confluence, the input

of the San Pedro provides a sufficiently

unregulated hydrograph which is a

primary constituent element of loach

minnow and spikedace critical habitat.

b. San Pedro River—21 km (13 mi) of

river extending from the confluence

with the Gila River upstream to the

confluence with Aravaipa Creek. This

area is currently occupied by spikedace.

It provides an important connection

between the existing population of

loach minnow in Aravaipa Creek and

the recovery habitat in the Gila River.

Existing flow in the river comes

primarily from surface and subsurface

contributions from Aravaipa Creek.

c. Aravaipa Creek—45 km (28 mi) of

creek extending from the confluence

with the San Pedro River upstream to

the confluence with Stowe Gulch.

Aravaipa Creek supports a substantial

population of spikedace and loach

minnow. Stowe Gulch is the upstream

limit of sufficient perennial flow for

either species.

d. Turkey Creek—Loach minnow

only: 4 km (3 mi) of creek extending

from the confluence with Aravaipa

Creek upstream to the confluence with

Oak Grove Canyon. This creek is

occupied by loach minnow. A

substantial portion of the flow in Turkey

Creek comes from the Oak Grove

Canyon tributary.

e. Deer Creek—Loach minnow only: 4

km (3 mi) of creek extending from the

confluence with Aravaipa Creek

upstream to the boundary of the

Aravaipa Wilderness. This stream is

occupied by loach minnow. Suitable

habitat extends to the Wilderness

boundary.

5. Middle-Upper San Pedro River

complex, Cochise, Graham, and Pima

Counties, Arizona. None of the habitat

in this complex is currently occupied by

spikedace or loach minnow. However,

the San Pedro River is the type locality

of spikedace (locality where an

individual of a new species is found

that is chosen to serve as the basis for

describing a new species or variety), and

this complex contains important

restoration areas.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24333

a. San Pedro River—74 km (46 mi) of

river extending from the confluence

with Alder Wash (near Redfield)

upstream to the confluence with Ash

Creek (near the Narrows). This middle

portion of the river is expected to have

increasing surface flow due to

restoration activities, including riparian

and channel restoration, watershed

improvements, and groundwater

pumping reductions.

b. Redfield Canyon—22 km (14 mi) of

creek extending from the confluence

with the San Pedro River upstream to

the confluence with Sycamore Canyon.

Above Sycamore Canyon, permanent

water becomes too scarce, and the

habitat becomes unsuitable.

c. Hot Springs Canyon—19 km (12 mi)

of creek extending from the confluence

with the San Pedro River upstream to

the confluence with Bass Canyon. Hot

Springs Canyon is currently unoccupied

but contains suitable habitat for

restoration of spikedace and loach

minnow.

d. Bass Canyon—5 km (3 mi) of creek

extending from the confluence with Hot

Springs Canyon upstream to the

confluence with Pine Canyon. Bass

Canyon is an extension of the Hot

Springs Canyon habitat.

e. San Pedro River—60 km (37 mi) of

river extending from the confluence

with the Babocomari River upstream to

the U.S./Mexico border. Although

currently unoccupied, this area is

identified in BLM (1993) planning

documents as a restoration area for

spikedace and loach minnow.

6. Gila Box/San Francisco River

complex, Graham and Greenlee

Counties, Arizona and Catron County,

New Mexico. The only spikedace

population remaining in the complex is

in Eagle Creek. Substantial restoration

potential for spikedace exists in the

remainder of the complex. This complex

has the largest area of habitat suitable

for spikedace restoration.

Most of this complex is occupied by

loach minnow, although the status

varies substantially from one portion to

another. Only Bonita Creek, Little Blue

Creek, and the Gila River are currently

unoccupied. The Blue River system and

adjacent portions of the San Francisco

River are the longest stretch of occupied

loach minnow habitat unbroken by large

areas of unsuitable habitat. Management

of Federal lands and resources in the

Gila Box, Bonita Creek, and the Blue

River are highly compatible with

recovery goals, giving restoration of

spikedace and loach minnow in this

complex a high likelihood of success.

a. Gila River—36 km (23 mi) of river

extending from the Brown Canal

diversion, at the head of the Safford

Valley, upstream to the confluence with

Owl Canyon, at the upper end of the

Gila Box. The Gila Box is not known to

currently support spikedace, but is

considered to have a high potential for

restoration of both species. Both above

and below the Gila Box, the Gila River

is highly modified by agriculture,

diversions, and urban development.

b. Bonita Creek—24 km (15 mi) of

creek extending from the confluence

with the Gila River upstream to the

confluence with Martinez Wash. Bonita

Creek has suitable habitat for spikedace

and loach minnow. Bonita Creek above

Martinez Wash lies on the San Carlos

Apache Reservation, which is excluded

from this designation.

c. Eagle Creek—73 km (45 mi) of creek

extending from the Phelps-Dodge

Diversion Dam upstream to the

confluence of Dry Prong and East Eagle

Creeks, but excluding lands of the San

Carlos Apache Reservation. Because the

creek repeatedly flows from private or

USFS lands into the San Carlos Apache

Reservation and back, it is difficult to

separately calculate stream mileages on

tribal lands. Therefore, the above

mileage covers the entire stream

segment and is not corrected for tribal

exclusions. Eagle Creek supports a small

population of spikedace. Below the

Phelps-Dodge Diversion Dam the creek

is often dry; however comments

received on the proposed rule suggest

the stretch of Eagle Creek below the dam

may offer sufficient connective value

and habitat value to justify its inclusion

in critical habitat. This area may be

considered for critical habitat in future

revisions of this designation.

d. San Francisco River—

Spikedace: 182 km (113 mi) of river

extending from the confluence with the

Gila River upstream to the confluence

with the Tularosa River. Habitat above

the Tularosa River does not appear

suitable for spikedace. The San

Francisco River was historically

occupied by spikedace and is important

habitat for restoration of the species.

Loach minnow: 203 km (126 mi) of

river extending from the confluence

with the Gila River upstream to the

mouth of The Box, a canyon above the

town of Reserve. Loach minnow in the

San Francisco River vary from common

to rare throughout the length of the

river.

e. Tularosa River—Loach minnow

only: 30 km (19 mi) of river extending

from the confluence with the San

Francisco River upstream to the town of

Cruzville. Above Cruzville, the habitat

becomes unsuitable due to the small

size of the stream and a predominance

of fine substrates.

f. Negrito Creek—Loach minnow only:

7 km (4 mi) of creek extending from the

confluence with the San Francisco River

upstream to the confluence with Cerco

Canyon. Above this area, gradient and

channel morphology make the creek

unsuitable for loach minnow.

g. Whitewater Creek—Loach minnow

only: 2 km (1 mi) of creek extending

from the confluence with the San

Francisco River upstream to the

confluence with Little Whitewater

Creek. Upstream gradient and channel

changes make the portion above Little

Whitewater Creek unsuitable for loach

minnow.

h. Blue River—82 km (51 mi) of river

extending from the confluence with the

San Francisco River upstream to the

confluence of Campbell Blue and Dry

Blue Creeks. The Blue River is currently

occupied by loach minnow but not

currently occupied by spikedace, but

planning among several State and

Federal agencies for restoration of native

fishes in the Blue River is under way.

i. Campbell Blue Creek—13 km (8 mi)

of creek extending from the confluence

of Dry Blue and Campbell Blue Creeks

upstream to the confluence with

Coleman Canyon. Above Coleman

Canyon, the creek changes and becomes

steeper and rockier, making it

unsuitable for spikedace or loach

minnow.

j. Dry Blue Creek—Loach minnow

only: 5 km (3 mi) of creek extending

from the confluence with Campbell Blue

Creek upstream to the confluence with

Pace Creek.

k. Pace Creek—Loach minnow only:

1.2 km (0.8 mi) of creek extending from

the confluence with Dry Blue Creek

upstream to a barrier falls.

l. Frieborn Creek—Loach minnow

only: 1.8 km (1.1 mi) of creek extending

from the confluence with Dry Blue

Creek upstream to an unnamed

tributary.

m. Little Blue Creek—5 km (3 mi) of

creek extending from the confluence

with the Blue River upstream to the

mouth of a box canyon. Little Blue

Creek is not currently occupied by

spikedace or loach minnow, but

contains suitable habitat and is

considered an important restoration area

for both species.

7. Upper Gila River complex, Grant,

Catron, and Hidalgo Counties, New

Mexico. This complex is occupied

throughout by spikedace and loach

minnow and contains the largest

remaining populations of both species.

It is considered to represent the ‘‘core’’

of what remains of the species. Because

of the remoteness of the area, there is a

relatively low degree of habitat threats.

24334 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

a. Gila River—164 km (102 mi) of

river extending from the confluence

with Moore Canyon (near the Arizona/

New Mexico border) upstream to the

confluence of the East and West Forks.

Spikedace and loach minnow are

known to occupy the river into the

Duncan-Virden Valley (Rinne 1999b).

b. East Fork Gila River—42 km (26 mi)

of river extending from the confluence

with the West Fork Gila River upstream

to the confluence of Beaver and Taylor

Creeks.

c. Middle Fork Gila River—

Spikedace: 12 km (8 mi) of river

extending from the confluence with the

West Fork Gila River upstream to the

confluence with Big Bear Canyon.

Loach minnow: 19 km (12 mi) of river

extending from the confluence with the

West Fork Gila River upstream to the

confluence with Brothers West Canyon

d. West Fork Gila River—12 km (8 mi)

of river extending from the confluence

with the East Fork Gila River upstream

to the confluence with EE Canyon. This

lower portion of the West Fork is

occupied by spikedace and loach

minnow, but the river becomes

unsuitable above EE Canyon due to

gradient and channel morphology.

Primary Constituent Elements

The habitat features (primary

constituent elements) that provide for

the physiological, behavioral, and

ecological requirements essential for the

conservation of a species are described

at 50 CFR 424.12 and include, but are

not limited to, the following:

—Space for individual and

population growth, and for normal

behavior;

—Food, water, or other nutritional or

physiological requirements;

—Cover or shelter;

—Sites for breeding, reproduction, or

rearing of offspring; and

—Habitats that are protected from

disturbance or are representative of the

historical geographical and ecological

distributions of a species.

Spikedace

We determined the primary

constituent elements for spikedace from

studies on their habitat requirements

and population biology including, but

not limited to, Barber et al. 1970;

Minckley 1973; Anderson 1978; Barber

and Minckley 1983; Turner and

Taffanelli 1983; Barrett et al. 1985;

Propst et al. 1986; Service 1989; Hardy

et al. 1990; Douglas et al. 1994;

Stefferud and Rinne 1996; Velasco 1997.

These primary constituent elements

include:

1. Permanent, flowing, unpolluted

water;

2. Living areas for adult spikedace

with slow to swift flow velocities in

shallow water with shear zones where

rapid flow borders slower flow, areas of

sheet flow at the upper ends of midchannel sand/gravel bars, and eddies at

downstream riffle edges;

3. Living areas for juvenile spikedace

with slow to moderate flow velocities in

shallow water with moderate amounts

of instream cover;

4. Living areas for larval spikedace

with slow to moderate flow velocities in

shallow water with abundant instream

cover;

5. Sand, gravel, and cobble substrates

with low to moderate amounts of fine

sediment and substrate embeddedness;

6. Pool, riffle, run, and backwater

components present in the aquatic

habitat;

7. Low stream gradient;

8. Water temperatures in the

approximate range of 1–30 °C (35–85

°F), with natural diurnal and seasonal

variation;

9. Abundant aquatic insect food base;

10. Periodic natural flooding;

11. A natural, unregulated hydrograph

or, if the flows are modified or

regulated, then a hydrograph that

demonstrates an ability to support a

native fish community; and

12. Habitat devoid of nonnative

aquatic species detrimental to

spikedace, or habitat in which

detrimental nonnative species are at

levels which allow persistence of

spikedace.

The areas we are designating as

critical habitat for spikedace provide the

above primary constituent elements or

will be capable, with restoration or

removal of detrimental nonnative

species, of providing them. All of the

designated areas require special

management considerations or

protection to ensure their contribution

to the species’ recovery.

Loach minnow

We determined the primary

constituent elements for loach minnow

from studies on their habitat

requirements and population biology

including, but not limited to, Barber and

Minckley 1966; Minckley 1973;

Schreiber 1978; Britt 1982; Turner and

Taffanelli 1983; Service 1988; Rinne

1989; Hardy et al. 1990; Vives and

Minckley 1990; Propst and Bestgen

1991; Douglas et al. 1994; Velasco 1997.

These primary constituent elements

include:

1. Permanent, flowing, unpolluted

water;

2. Living areas for adult loach

minnow with moderate to swift flow

velocities in shallow water with gravel,

cobble, and rubble substrates;

3. Living areas for juvenile loach

minnow with moderate to swift flow

velocities in shallow water with sand,

gravel, cobble, and rubble substrates;

4. Living areas for larval loach

minnow with slow to moderate

velocities in shallow water with sand,

gravel, and cobble substrates and

abundant instream cover;

5. Spawning areas for loach minnow

with slow to swift flow velocities in

shallow water with uncemented cobble

and rubble substrate;

6. Low amounts of fine sediment and

substrate embeddedness;

7. Riffle, run, and backwater

components present in the aquatic

habitat;

9. Low to moderate stream gradient;

10. Water temperatures in the

approximate range of 1–30°C (35–85°F),

with natural diurnal and seasonal

variation;

11. Abundant aquatic insect food

base;

12. Periodic natural flooding;

13. A natural unregulated hydrograph

or, if flows are modified or regulated,

then a hydrograph that demonstrates an

ability to support a native fish

community; and

14. Habitat devoid of nonnative

aquatic species detrimental to loach

minnow, or habitat in which

detrimental nonnative species are at

levels which allow persistence of loach

minnow.

The areas we are designating as

critical habitat for loach minnow

provide the above primary constituent

elements or will be capable, with

restoration or removal of detrimental

nonnative species, of providing them.

All of the designated areas require

special management considerations or

protection to ensure their contribution

to the species’ recovery.

Land Ownership

Table 1 shows land ownership for

areas of critical habitat that are currently

occupied by one or both species, and

Table 2 shows land ownership for

critical habitat that is unoccupied. A

general description of land ownership

in each complex follows.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24335

TABLE 1.—STREAM DISTANCES IN KILOMETERS (MILES) OF CRITICAL HABITAT OCCUPIED BY EITHER LOACH MINNOW OR

SPIKEDACE BY COUNTY AND OWNERSHIP

Private State Federal Other Gov. Total

Apache Co., AZ ......................................................... 0 0 11.3 (7.0) 0 11.3 (7.0)

Cochise Co., AZ ......................................................... 0 0 0 0 0

Gila Co., AZ ............................................................... 0 0 0 0 0

Graham Co., AZ ......................................................... 10.3 (6.4) 0 4.7 (2.9) 26.1 (16.2) 41.1 (25.5)

Greenlee Co., AZ ....................................................... 45.0 (27.9) 2.6 (1.6) 109.5 (67.9) 0 157.1 (97.4)

Pima Co., AZ ............................................................. 0 0 0 0 0

Pinal Co., AZ .............................................................. 58.5 (36.3) 6.8 (4.2) 48.2 (29.9) 1.0 (0.6) 114.5 (71.0)

Yavapai Co., AZ ......................................................... 56.5 (35.0) 5.8 (3.6) 52.2 (32.4) *1.6 (1.0) 116.1 (72)

AZ Total .............................................................. 170.0 (105.4) 15.2 (9.4) 225.9 (140.4) 28.7 (17.8) 440.1 (272.9)

Catron Co., NM .......................................................... 79.0 (49.0) 5.3 (3.3) 145.2 (90.0) 0.8 (0.5) 230.3 (142.8)

Grant Co., NM ............................................................ 53.2 (33.0) 2.1 (1.3) 72.9 (45.2) 0 128.2 (79.5)

Hidalgo Co., NM ........................................................ 10.6 (6.6) 0 7.3 (4.5) 0 17.9 (11.1)

NM Total ............................................................. 142.8 (88.6) 7.4 (4.6) 225.4 (139.7) 0.8 (0.5) 376.4 (233.4)

Total ............................................................. 312.8 (194.0) 22.6 (14.0) 451.3 (280.4) 29.5 (18.3) 816.5 (506.3)

*This area is included in the total critical habitat mileages, but is excluded by description.

TABLE 2.—STREAM DISTANCES IN KILOMETERS (MILES) OF CRITICAL HABITAT UNOCCUPIED BY EITHER LOACH MINNOW

OR SPIKEDACE BY COUNTY AND OWNERSHIP

Private State Federal Other Gov. Total

Apache Co., AZ ......................................................... 3.4 (2.1) 0 24.1 (15.0) 0 27.6 (17.1)

Cochise Co., AZ ......................................................... 17.3 (10.7) 5.6 (3.5) 61.2 (38.0) 0 84.1 (52.2)

Gila Co., AZ ............................................................... 12.0 (7.5) 0 81.6 (50.6) 0 93.6 (58.1)

Graham Co., AZ ......................................................... 21.1 (13.1) 13.9 (8.6) 50.1 (31.1) 5.5 (3.4) 90.6 (56.2)

Greenlee Co., AZ ....................................................... 30.6 (19.0) 3.9 (2.4) 18.9 (11.7) 0 53.4 (33.1)

Pima Co., AZ ............................................................. 70.6 (43.8) 3.2 (2.0) 0 0 73.9 (45.8)

Pinal Co., AZ .............................................................. 0 0 0 0 0

Yavapai Co., AZ ......................................................... 55.3 (34.3) 7.1 (4.4) *95.2 (59.0) 0 *157.6 (97.7)

AZ Total .............................................................. 210.3 (130.5) 33.7 (20.9) 331.1 (205.4) 5.5 (3.4) 580.8 (360.2)

Catron Co., NM .......................................................... 0 0 0 0 0

Grant Co., NM ............................................................ 4.0 (2.5) 0 47.9 (29.7) 0 51.9 (32.2)

Hidalgo Co., NM ........................................................ 0 0 0 0 0

NM Total ............................................................. 4.0 (2.5) 0 47.9 (29.7) 0 51.9 (32.2)

Total ............................................................. 214.3 (133.0) 33.7 (20.9) 379.0 (235.1) 5.5 (3.4) 632.7 (392.4)

*Yavapai and Gila Counties share a border at Fossil Creek, the mileage for which is included in Gila County and not here.

1. Verde River complex—There are

large blocks of USFS lands in the upper

and lower reaches, with significant

areas of private ownership in the Verde

Valley and along the lower portions of

Oak, Beaver, and West Clear Creeks.

There are also lands belonging to the

National Park Service (NPS), Arizona

State Parks, and the Arizona Game and

Fish Department (AGFD).

2. Black River complex—The

ownership is predominantly USFS, with

a few small areas of private land.

3. Tonto Creek complex—Land here is

mostly USFS on the upper end, but

significant areas of private ownership

occur in the lower reaches.

4. Middle Gila/Lower San Pedro/

Aravaipa Creek complex—This area

includes extensive BLM land as well as

extensive private land, some State of

Arizona lands, and a small area of

allotted land used by the San Carlos

Apache Tribe.

5. Middle-Upper San Pedro

complex—The BLM is the largest

landowner, and there are large areas of

private ownership and smaller areas of

State of Arizona lands.

6. Gila Box/San Francisco River

complex—This complex contains

extensive USFS land, some BLM land,

and scattered private, State of Arizona,

and New Mexico Department of Game

and Fish (NMDGF) lands. A significant

portion of Bonita Creek runs through the

City of Safford.

7. Upper Gila River complex—The

largest areas are on USFS land, with

small private inholdings. There are large

areas of private lands in the Cliff-Gila

Valley, and the BLM administers

significant stretches upstream of the

Arizona/New Mexico border. There are

also small areas of NMDGF, NPS, and

State of New Mexico lands.

Significant private owners, with lands

scattered among several of the

designated critical habitat complexes,

include Phelps-Dodge Corporation and

The Nature Conservancy. A large

number of other private landowners

hold lands within the designated areas.

Private lands are primarily used for

grazing and agriculture, but also include

towns, small-lot residences, and

industrial areas.

Effect of Critical Habitat Designation

The Act requires Federal agencies to

ensure that actions they fund, authorize,

or carry out do not destroy or adversely

modify critical habitat to the extent that

the action appreciably diminishes the

value of the critical habitat for the

survival and recovery of the species.

24336 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Individuals, organizations, States, local

and Tribal governments, and other nonFederal entities are only affected by the

designation of critical habitat if their

actions occur on Federal lands, require

a Federal permit, license, or other

authorization, or involve Federal

funding.

Section 7(a) of the Act requires

Federal agencies to evaluate their

actions with respect to any species that

is proposed or listed as endangered or

threatened and with respect to its

proposed or designated critical habitat.

Regulations implementing this

interagency cooperation provision of the

Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act and

regulations at 50 CFR 402.10 require

Federal agencies to confer with us on

any action that is likely to jeopardize

the continued existence of a proposed

species or to result in destruction or

adverse modification of proposed

critical habitat. If a species is

subsequently listed or critical habitat is

designated, then section 7(a)(2) requires

Federal agencies to ensure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or destroy or

adversely modify its critical habitat. To

that end, if a Federal action may affect

a listed species or its critical habitat, the

responsible Federal agency must enter

into consultation with us. Regulations at

50 CFR 402.16 also require Federal

agencies to reinitiate consultation in

instances where we have already

reviewed an action for its effects on a

listed species if critical habitat is

subsequently designated.

Section 4(b)(8) of the Act requires us,

to the extent practicable, to include in

any proposed or final regulation that

designates critical habitat a description

and evaluation of those activities

involving a Federal action that may

adversely modify such habitat or that

may be affected by such designation.

Activities that may destroy or adversely

modify critical habitat include those

that alter the primary constituent

elements (defined above) to an extent

that the value of critical habitat for both

the survival and recovery of the

spikedace or loach minnow is

appreciably reduced.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat.

According to regulations at 50 CFR

402.02, actions likely to ‘‘jeopardize the

continued existence’’ of a species are

those that would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species. In those cases, it is highly

unlikely that additional modifications to

the action would be required as a result

of designating critical habitat. However,

critical habitat may provide benefits

towards recovery when designated in

areas currently unoccupied by the

species.

Actions on Federal lands that we

reviewed in past consultations on

spikedace and loach minnow include

land management plans; land

acquisition and disposal; road and

bridge construction, maintenance, and

repair; water diversion and

development; reservoir construction;

off-road vehicle use; livestock grazing

and management; fencing; prescribed

burning; powerline construction and

repair; recovery actions for spikedace

and loach minnow; game fish stocking;

timber harvest; access easements; flood

repair and control; groundwater

development; channelization; and canal

and other water transport facility

construction and operation. Federal

agencies involved with these activities

include the USFS, BLM, Service, and

Bureau of Reclamation.

Federal actions taken on private,

State, or tribal lands on which we

consulted in the past for spikedace and

loach minnow include irrigation

diversion construction and

maintenance; flood repair and control;

game fish stocking; timber harvest;

water diversion and development;

reservoir construction; water quality

standards; and riparian habitat

restoration. Federal agencies involved

with these activities include the Natural

Resources Conservation Service, Bureau

of Reclamation, Environmental

Protection Agency, Bureau of Indian

Affairs, Indian Health Services, Federal

Emergency Management Agency, and

the Service.

Federal actions involving issuance of

permits to private parties on which we

consulted in the past for spikedace and

loach minnow include issuance of

National Pollution Discharge

Elimination System permits by the

Environmental Protection Agency and

issuance of permits under section 404 of

the Clean Water Act for dredging and

filling in waterways by the COE. Private

actions for which 404 permits were

sought include road and bridge

construction, repair and maintenance;

flood control and repair; and water

diversion construction and repair.

Since the original listing of spikedace

and loach minnow in 1986, only three

consultations ended in a finding that the

proposed action would likely jeopardize

the continued existence of spikedace

and/or loach minnow. An additional

four proposed actions received draft

findings of jeopardy, but for three of

those, the requests for consultation were

withdrawn and the fourth is still in

progress. For the three jeopardy

findings, we developed reasonable and

prudent alternatives that included

changes to projects, and recommended

or required measures to reduce or

eliminate impacts to spikedace and

loach minnow and to minimize the take

of individuals. These alternatives

removed the likelihood of jeopardy to

the species.

As stated above, designation of

critical habitat in areas occupied by

spikedace or loach minnow is not

expected to result in regulatory burden

above that already in place due to the

presence of the listed species. However,

areas designated as critical habitat that

are not currently occupied by the

species may require protections similar

to those provided to occupied areas

under past consultations.

Any Federal activity that would

significantly and detrimentally alter the

minimum flow or the natural flow

regime of any of the stream segments

listed above could destroy or adversely

modify the critical habitat of either or

both species. Such activities include,

but are not limited to, groundwater

pumping, impoundment, water

diversion, and hydropower generation.

Any Federal activity that would

significantly and detrimentally alter

watershed characteristics of any of the

41 stream segments listed above could

destroy or adversely modify the critical

habitat of either or both species. Such

activities include, but are not limited to,

vegetation manipulation, timber harvest,

road construction and maintenance,

human-ignited prescribed fire, livestock

grazing, mining, and urban and

suburban development.

Any Federal activity that would

significantly and detrimentally alter the

channel morphology of any of the 41

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24337

stream segments listed above could

destroy or adversely modify the critical

habitat of either or both species. Such

activities include, but are not limited to,

channelization, impoundment, road and

bridge construction, deprivation of

substrate source, destruction and

alteration of riparian vegetation,

reduction of available floodplain,

removal of gravel or floodplain terrace

materials, and excessive sedimentation

from mining, livestock grazing, road

construction, timber harvest, off-road

vehicle use, and other watershed and

floodplain disturbances.

Any Federal activity that would

significantly and detrimentally alter the

water chemistry in any of the 41 stream

segments listed above could destroy or

adversely modify the critical habitat of

either or both species. Such activities

include, but are not limited to, release

of chemical or biological pollutants into

the surface water or connected

groundwater at a point source or by

dispersed release (non-point).

Any Federal activity that would

introduce, spread, or augment nonnative

aquatic species could destroy or

adversely modify the critical habitat of

either or both species. Such activities

include, but are not limited to, stocking

for sport, aesthetics, biological control,

or other purposes; construction and

operation of canals; and interbasin

water transfers.

In some cases designation of critical

habitat may assist in focusing

conservation activities by identifying

areas that contain essential habitat

features (primary constituent elements),

regardless of whether they are currently

occupied by the listed species. This

identification alerts the public and land

management agencies to the importance

of an area in the conservation of that

species. Critical habitat also identifies

areas that may require special

management considerations or

protection.

If you have questions regarding

whether specific activities are likely to

constitute destruction or adverse

modification of critical habitat, contact

the Field Supervisor, Arizona Ecological

Services Office (see ADDRESSES section).

Requests for copies of the regulations on

listed wildlife and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Division of Endangered

Species, P.O. Box 1306, Albuquerque,

New Mexico 87103 (telephone 505–

248–6920; facsimile 505–248–6788).

Economic Analysis

Section 4(b)(2) of the Act requires that

we designate critical habitat on the basis

of the best scientific and commercial

information available and consider the

economic and other relevant impacts of

designating a particular area as critical

habitat. We based this designation on

the best available scientific information,

including the recommendations in the

species’ recovery plans. We utilized the

economic analysis, and took into

consideration comments and

information submitted during the public

hearing and comment period, to make

this final critical habitat designation.

We may exclude areas from critical

habitat upon a determination that the

benefits of such exclusions outweigh the

benefits of specifying such areas as

critical habitat. We cannot exclude such

areas from critical habitat when such

exclusion will result in the extinction of

the species. We completed an economic

analysis, which is available for public

review. Send your requests for copies of

the economic analysis to the Arizona

Ecological Services Office (see

ADDRESSES section) or visit our website

at http://ifw2es.fws.gov/arizona.

Exclusion for Economic and Other

Relevant Impacts

Based on comments provided by the

BLM, our Economic Analysis identified

Bonita Creek as an area with potential

for high economic impacts associated

with the designation of critical habitat

for the spikedace and loach minnow.

The analysis concluded that ‘‘Immediate

action is required in case of flood

control damage to [the City of Safford’s]

water supply in order to minimize the

cost of repair. The cost of a stable,

alternative water supply is prohibitive.

There is a high probability of substantial

cost to the City of Safford from the

inability to repair storm damage to their

water supply in a timely manner due to

the requirement of a section 7

consultation if the Creek is designated

critical habitat.’’

Bonita Creek is an area that is

necessary for the recovery of the

probable unique spikedace gene pool

presently occupying Eagle Creek.

Furthermore, 50 CFR section 402.05 of

our regulations provides for expedited

consultation pursuant to section 7 of the

Act during emergencies. Finally, Bonita

Creek is occupied by the razorback

sucker (Xyrauchen texanus), a species

listed as endangered pursuant to the

Act. Thus, consultation on water supply

repair has and will occur regardless of

the designation of critical habitat for the

spikedace and loach minnow. In fact, in

1994, the Federal Emergency

Management Agency consulted with us

pursuant to section 7 of the Act

regarding repairs to the City of Safford’s

water supply system in Bonita Creek.

We concluded that repairs to the water

system were not likely to jeopardize the

continued existence of the razorback

sucker. Impacts to the razorback sucker

would be very similar to the impacts to

the spikedace and thus, including

Bonita Creek as critical habitat is not

likely to change our section 7

consultation conclusions. For these

reasons we conclude the benefits of

designating Bonita Creek outweigh the

benefits of excluding it from critical

habitat designation.

Based on comments provided by

Arizona Game and Fish Department

(AGFD), our Economic Analysis

identified the possible discontinuation

of trout stocking programs as a potential

for high economic loss to affected

county economies. We are presently

consulting on the stocking program, but

because trout are not known to conflict

with the recovery of either spikedace or

loach minnow, we do not expect any

impacts to the trout stocking program or

county economies. Therefore, we

conclude the benefits of designating

critical habitat for the spikedace and

loach minnow outweigh the benefits of

excluding all areas where trout stocking

occurs.

No tribal reservation lands are

included in this designation, as

discussed in more detail below. Nor are

we including the Black River as critical

habitat for spikedace in this final

determination because information

received during the comment period

leads us to conclude that it is not

suitable for spikedace recovery. The

Black River is, however, designated as

critical habitat for the loach minnow.

After gathering economic data and

conducting an analysis of the lands

proposed for critical habitat designation,

we determined that no other areas

should be excluded from this

designation for economic or other

relevant considerations.

American Indian Tribal Rights,

Federal-Tribal Trust Responsibilities,

and the Endangered Species Act

In accordance with the Presidential

Memorandum of April 29, 1994, we

believe that, to the maximum extent

possible, fish, wildlife, and other

natural resources on tribal lands are

better managed under tribal authorities,

policies, and programs than through

Federal regulation wherever possible

and practicable. Based on this

philosophy, we believe that, in most

cases, designation of tribal lands as

critical habitat provides very little

benefit to threatened and endangered

species. This is especially true where

the habitat is occupied by the species

and is therefore already subject to

protection under the Act. Conversely,

24338 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

such designation is often viewed by

tribes as unwarranted and unwanted

intrusion into tribal self governance,

thus compromising the government-togovernment relationship essential to

achieving our mutual goals of managing

for healthy ecosystems upon which the

viability of threatened and endangered

species populations depend.

As stated previously, section 4(b)(2) of

the Act requires us to consider the

economic and other relevant impacts of

critical habitat designation, and

authorizes us to exclude areas from

designation upon finding that the

benefits of exclusion outweigh the

benefits of including the areas as critical

habitat, so long as excluding those areas

will not result in the extinction of the

species concerned. In the proposed rule

for this critical habitat designation we

solicited information from interested

parties on the anticipated economic and

other relevant impacts of designation.

We identified stream reaches on the

Fort Apache Indian Reservation (home

of the White Mountain Apache Tribe),

the San Carlos Apache Reservation, and

the Yavapai Apache Reservation as

possibly appropriate biologically for the

designation of critical habitat, i.e., they

contain the primary constituent

elements of the species’ critical habitat.

The San Carlos, Tonto, White Mountain,

and Yavapai Apache tribes all addressed

this issue in their comments on the

proposed rule. Below we evaluate the

benefits of excluding these tribal lands

from critical habitat and the benefits of

including these areas. In addition, we

assess the anticipated effects that

designation of non-tribal lands can be

expected to have on tribal trust

resources, such as water deliveries.

1. Designation of Critical Habitat on

Indian Reservations

The White Mountain Apache Tribe,

which has currently occupied loach

minnow habitat and potential loach

minnow and potential spikedace habitat

within its reservation boundaries,

produced a Native Fishes Management

Plan. After reviewing this plan, we

determined that the tribe’s management

of the species will provide substantial

protection for the relevant habitat areas,

and that designation of critical habitat

will provide little or no additional

benefit to the species, particularly since

the areas are occupied by the loach

minnow.

Conversely, designation of critical

habitat would be expected to adversely

impact our working relationship with

the Tribe, the maintenance of which has

been extremely beneficial in

implementing natural resource

programs of mutual interest. In 1994 the

Fish and Wildlife Service and White

Mountain Apache Tribe signed a

Statement of Relationship which

formalized our commitment to work

cooperatively with the tribe in

promoting healthy ecosystems. Since

that agreement we have worked

cooperatively with the tribe to the

significant benefit of threatened and

endangered species. In addition to

managing the habitats of the spikedace

and loach minnow, these programs

include management of the threatened

Mexican spotted owl, management of

healthy populations of threatened

Apache trout, and other natural resource

programs. After weighing the benefits of

critical habitat designation on the Fort

Apache Indian Reservation against the

adverse impact on our cooperative

natural resource programs, we find that

the benefits of excluding Fort Apache

Indian Reservation lands, in terms of the

spikedace and loach minnow, as well as

ecosystems in general, outweigh the

benefits of including those areas as

critical habitat.

In the case of the San Carlos Indian

Reservation, we again believe that the

principle of tribal self-governance is the

overriding consideration and believe

that Federal regulation through critical

habitat designation will be viewed as an

unwarranted and unwanted intrusion

into tribal natural resource programs.

This, in turn, will likely hamper our

ability to continue important programs

upon which endangered and threatened

species depend. For example, we are

currently cooperating with the San

Carlos Apache Tribe on a very

important spring restoration program for

the benefit of the severely imperiled

Gila topminnow. We also are

cooperating on programs to benefit the

endangered southwestern willow

flycatcher, the Gila chub (a candidate

for listing under the Act), and the

Mexican spotted owl, among others.

Given our belief that they are the entity

best able to manage habitat for the

spikedace and loach minnow, the fact

that the areas considered for designation

are already occupied by listed species

and therefore receive protection under

the Act, and the anticipated adverse

impacts to our cooperative relationship

that may result from critical habitat

designation, we believe that the benefits

of excluding areas of the San Carlos

Apache Reservation from critical habitat

outweigh the negligible benefits of

designating those areas.

The Yavapai Apache Tribe holds

approximately one river-mile of

potential critical habitat on the Verde

River, other parts of which are

designated as critical habitat. We

believe that current management is

adequate as evidenced by the fact that

the spikedace still occurs there, and that

little benefit would accrue from critical

habitat designation since the species is

already protected under the Act. We

further believe that tribal management

of this reservation land would

ultimately be of greater benefit to

spikedace and loach minnow than

would the designation of this small

segment, since we hope to maintain a

cooperative working relationship with

the Yavapai Apache.

After carefully balancing the

considerations involved in determining

whether lands should be included or

excluded from the designation of critical

habitat, we determined that the benefits

of promoting self-determination,

allowing the tribes to develop

conservation management on their

lands, and the continued cooperative

relationship in managing threatened and

endangered species and their habitats,

outweigh the benefits to be obtained

from designating critical habitat for

these two species. Exclusion of these

lands from the designation will not

result in extinction of either species.

These decisions were made in

compliance with Public Law 106–113,

which prohibits us from using any of

our appropriated funds to implement

two provisions of Secretarial Order 3206

(Secretarial Order)—(1) Principle

3(C)(ii), which prohibits the imposition

of conservation restrictions involving

incidental take if the conservation

purposes of the restriction can be

achieved by reasonable regulation of

non-Indian activities, and (2) Appendix

section 3(B)(4), which concerns the

designation of critical habitat and

includes the requirement that we

consult with affected tribes. The

Presidential Memorandum of April 29,

1994 also requires that we consult with

tribes when contemplating regulations

that may affect them, and the Act

requires that we consider the relative

benefits versus potential adverse

consequences of critical habitat

designations on all lands. Thus, our

consultation with the tribes and our

assessment of the ability to achieve

conservation of spikedace and loach

minnow without regulation of tribal

lands were undertaken independently of

the provisions of Secretarial 3206.

2. Possible Effects on Tribal Trust

Resources From Critical Habitat

Designation on Non-tribal Lands

We recognized that the Salt River

Reservation, Fort McDowell

Reservation, and Gila River Indian

Reservation are all located downstream

from designated critical habitat and

depend on water deliveries from

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24339

upstream sources. We do not anticipate

that designation of critical habitat on

non-tribal lands will result in any

impact on tribal trust resources or the

exercise of tribal rights. Many of the

tribal lands either have major

impoundments on their reservations or

lie below major impoundments, and the

release of water from the impoundments

is regulated by court decree or other

actions which may be nondiscretionary. Since non-discretionary

actions are not subject to consultation

under the Act, designation of critical

habitat is unlikely to have any effect on

water deliveries to the reservations.

However, in complying with our

responsibility to communicate with all

tribes potentially affected by the

designation, we solicited information

during the comment period on potential

effects to tribes or tribal resources that

might result from this critical habitat

designation. The comments are

discussed below; none pointed out

specific effects not considered in

developing this rule.

Summary of Comments and

Recommendations

In the December 10, 1999, proposed

rule, all interested parties were

requested to submit comments or

information that might bear on the

designation of critical habitat for the

spikedace and loach minnow (64 FR

69324). The comment period was

initially scheduled to close on January

14, 2000. Subsequently, the courts

allowed us additional time in which to

prepare and publish this final

designation of critical habitat. Therefore

on January 12, 2000, we announced in

the Federal Register (65 FR 1845)

extension of the comment period to

February 14, 2000, and scheduling of an

additional public hearing. In addition,

we notified 525 interested parties of the

comment period extension and

additional public hearing by letter.

We contacted all appropriate State

and Federal agencies, Tribes, county

governments, scientific organizations,

and other interested parties by mail and

invited them to comment on the

proposed rule as well as the draft

economic analysis and Environmental

Assessment. In addition, newspaper

notices inviting public comment were

published in the following newspapers

in Arizona and New Mexico: The

Arizona Republic, Tucson Citizen,

Arizona Daily Star (Tucson),

Albuquerque Tribune, Albuquerque

Journal, Sierra Vista Herald, Eastern

Arizona Courier, Santa Fe New

Mexican, Silver City Daily Press, White

Mountain Independent, The Verde

Independent, Sedona Red Rock News,

Cottonwood Journal Extra, and Camp

Verde Journal. The inclusive dates of

these publications were December 4–15,

1999, for the initial comment period and

announcement of the first three public

hearings.

We posted copies of the proposed

rule, draft environmental assessment,

and draft economic analysis on our

Internet site and distributed them for

display and inspection at public

libraries in Prescott, Chino Valley,

Camp Verde, City Of Cottonwood,

Sedona, Sierra Vista, Huachuca City,

Safford City and Graham County,

Clifton-Greenlee County, Kearny,

Tucson, Alpine, Greer, Mammoth, and

San Manuel in Arizona; and Silver City

and Reserve Village Hall in New

Mexico.

We held hearings in Silver City, New

Mexico, and Thatcher, Arizona, on

December 15, 1999, and Camp Verde,

Arizona, on December 16, 1999. Notices

appeared in the previously named

newspapers between January 13 and 19,

2000 to announce the extension of the

public comment period until February

14, 2000, and the scheduling of an

additional public hearing in Sierra

Vista, Arizona on January 31, 2000. The

December 10, 1999 (64 CFR 69324), and

January 12, 2000 (65 CFR 1845), notices

also announced the time and location of

the four public hearings. A total of 495

people registered at the public hearings

including 32 in Silver City, 111 in

Thatcher, 24 in Camp Verde, and 328 in

Sierra Vista. Transcripts of these

hearings are available for inspection (see

ADDRESSES section).

We requested four ichthyologists

familiar with the species to peer review

the proposed critical habitat

designation. However, only two

responded by the close of the comment

period. One responded that as a member

of the Desert Fishes Recovery Team he

has provided data, advice, and general

counsel and supports the proposal on

biological grounds. The second also

generally supported the proposed

critical habitat, but cited a few areas he

suggested be added to the proposal as

well as some technical corrections to the

document.

We received a total of 126 oral and

315 written comments during the

comment period. Of those oral

comments, 15 supported critical habitat

designation and 111 were opposed to

designation. Of the written comments,

35 supported designation, 263 were

opposed to it, and 17 provided

additional information only, or were

nonsubstantive or not relevant to the

proposed designation. Oral and written

comments were received from the

government of Mexico, one

Congressional representative, two state

legislators, two Federal agencies, three

State agencies, nine local governments,

five Tribal governments, and 297 private

organizations, companies, or

individuals.

All comments received were reviewed

for substantive issues and new data

regarding critical habitat and the biology

and status of spikedace and loach

minnow. Comments of similar nature

are grouped into 7 issues relating

specifically to critical habitat. These are

addressed in the following summary.

Issue 1: Procedural and LegalCompliance

The following comments and

responses involve issues related to

public involvement in the designation

process and compliance with the Act

and other laws, regulations, and

policies. These comments do not

include those addressing economic

issues nor compliance with the NEPA,

which are addressed under Issues 3 and

5, respectively.

Comment 1a: The comment period

was unreasonably short for the public to

fully evaluate the proposed rule and

associated documents; more public

hearings were needed.

Our Response: The initial public

comment period was shorter than the 60

days required under our regulations (50

CFR 424.16(c)(2)). However, the initial

schedule we developed to complete this

designation was the result of a courtordered deadline. The court originally

ordered us to publish this final

designation by February 17, 2000. To

meet this deadline and allow time for

analysis of public comments and

preparation of the final rule, we needed

to close the public comment period on

January 14, 2000, resulting in an initial

comment period of 36 days. Fortunately,

both the plaintiffs and the court agreed

to a 60-day extension of the deadline.

As a result, we announced in the

Federal Register (65 FR 1845) on

January 12, 2000, as well as local

newspapers, that we were extending the

comment period until February 14,

2000, resulting in a total comment

period of 65 days, thus exceeding the

60-day regulatory requirement.

The Act requires that at least one

public hearing be held if requested. We

held four hearings; thus we exceeded

the statutory requirements.

Comment 1b: The Service should

prepare additional drafts of various

documents and provide them to the

public for review.

Our Response: Drafts of both the

economic analysis and Environmental

Assessment associated with this

designation were made available to the

24340 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

public for review and comment. The

final versions of those documents are

available to the public (see ADDRESSES).

Comment 1c: The public should have

the opportunity to review comments

provided by selected experts during the

peer review process.

Our Response: All comments

submitted are part of the administrative

record and, as such, are open to public

review. It is also important to note that

oral testimony at the public hearings,

written comments from the general

public, and comments received during

the peer review process are considered

equally in making our final

determination.

Comment 1d: Designation of portions

of the rivers unoccupied by either of

these fish species is outside the

Service’s authority and contrary to the

requirements of the Act.

Our Response: The definition of

critical habitat in section 3(5)(A) of the

Act includes ‘‘’’specific areas outside

the geographical area occupied by a

species at the time it is listed, upon a

determination that such areas are

essential for the conservation of the

species.’’ The term ‘‘conservation’’, as

defined in section 3(3) of the Act, means

‘‘to use and the use of all methods and

procedures which are necessary to bring

any endangered species or threatened

species to the point at which the

measures provided pursuant to this Act

are no longer necessary’’ (i.e., the

species is recovered and removed from

the list of endangered and threatened

species).

After weighing the best available

information, including the species’

recovery plans (U.S. Fish and Wildlife

Service 1991a, 1991b), we conclude that

the areas designated by this final rule

that lie outside the geographical area

occupied by the species at the time they

were listed are essential for the recovery

of the species and subsequent removal

from the list of endangered and

threatened species. We also note that

the total area designated only represents

approximately 45 and 50 percent of the

areas believed historically occupied by

the spikedace and loach minnow,

respectively.

Comment 1e: The Act states that areas

outside the area occupied at the time of

listing can be designated only if those

areas are determined essential to the

conservation of the species. The Service

instead considered whether areas were

occupied at the time of critical habitat

designation. Therefore, some areas

currently occupied, but that were not

occupied at the time of listing, were not

subject to the higher standard required

of for unoccupied habitat (i.e., that those

areas are essential for the conservation

of the species).

Our Response: The issue is moot since

we determined that all areas designated

as critical habitat are essential for

conservation of these two species.

Comment 1f: The critical habitat

proposal represents virtually all suitable

or potentially suitable habitat within the

species’ historical ranges. The Act

prohibits such broad designation.

Our Response: Section 3(5)(C) of the

Act states that, except in those

circumstances determined by the

Secretary, critical habitat shall not

include the entire geographical area

which can be occupied by an

endangered or threatened species. In

this case critical habitat is designated in

an estimated 45 and 50 percent of

spikedace and loach minnow historical

ranges, respectively. With proper

restoration and management, much of

the historical range would be suitable.

The Secretary of the Interior has

determined that the areas designated are

essential to conserve these species.

Comment 1g: Private lands should be

excluded from critical habitat

designation.

Our Response: Section 4(b)(2) of the

Act states ‘‘The Secretary shall

designate critical habitat, and make

revisions thereto, under subsection

(a)(3) on the basis of the best scientific

data available and after taking into

consideration the economic impact, and

any other relevant impact, of specifying

any particular area as critical habitat.’’

The Act does not require nor suggest

that private lands should be excluded

from designation, unless we find that

the economic or other relevant impacts

outweigh the benefit of critical habitat

designation. For further information

please see our discussion under Issue 3:

Economic Comments. Designation of

critical habitat on private lands would

only have an effect in cases where

Federal funding or a Federal permit is

required for a project. For further

information please see our discussion

under Issue 7: Effects of Designation.

Comment 1h: The critical habitat

designation is based on insufficient

data.

Our Response: Section 4(b)(2) of the

Act states ‘‘The Secretary shall

designate critical habitat, and make

revisions thereto, under subsection

(a)(3) on the basis of the best scientific

data available . . .’’ Our

recommendation is based on a

considerable body of information on the

biology and status of the species, as well

as the effects of land-use practices on

their continued existence. We agree that

much remains to be learned about these

species, and should credible, new

information become available which

contradicts the basis for this

designation, we will reevaluate our

analysis and, if appropriate, propose to

modify this critical habitat designation.

We have considered the best scientific

information available at this time, as

required by the Act. Please see more

specific information in our response to

comment 4i.

Comment 1i: We should not designate

critical habitat until specific recovery

goals are set.

Our Response: The Act does not allow

the indefinite suspension of the

determination of critical habitat. Thus,

in general, we cannot delay the

determination of critical habitat until

final recovery plans are produced.

However, in the cases of the spikedace

and loach minnow, recovery plans were

finalized in 1991. These plans

recommend that critical habitat be

designated for these species. The plans

also recommend maintenance of

occupied habitat and establishment of

new populations within the species’

historical ranges. In addition, we have

continued working with the Desert

Fishes Recovery Team since the plans

were finalized, and believe this critical

habitat designation is consistent with

the recommendations of those scientists.

We have thus met the requirement that

the designation be based on the best

scientific information available.

Comment 1j: In relying on the Desert

Fishes Recovery Team to identify which

streams and rivers should be designated

as critical habitat, the Service violated

both the ESA and the Federal Advisory

Committee Act (FACA). The ESA

exempts Recovery Teams from FACA

only for the purpose of developing and

implementing recovery plans, not

advising on critical habitat designation.

Alabama-Tombigbee Rivers Coalition v.

Department of Interior, 26 F.3d 1103

(11th Cir. 1994).

Our Response: Section 4(f)(2) of the

Endangered Species Act provides the

Fish and Wildlife Service the authority

to appoint recovery teams, which may

consist of non-Federal personnel, for the

purpose of assisting in the development

and implementation of recovery plans.

That section also exempts recovery

teams from the provisions of FACA.

In the case of the spikedace and loach

minnow, the Desert Fishes Recovery

Team (Recovery Team) oversaw

development of recovery plans for the

two species, and suggested mechanisms

to facilitate plan implementation in

order to achieve the plans’ conservation

goals. Both recovery plans recommend

designating critical habitat for the two

species as a mechanism for recovery,

and the Recovery Team has provided

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24341

suggestions on which areas should be

included in such designation. The

Recovery Team was acting appropriately

within its role in advising on recovery

plan implementation, and our

consideration of Recovery Team

recommendations is consistent with the

Act’s requirement that critical habitat

determination be based on the best

scientific information available.

This commenter cited AlabamaTombigbee Rivers Coalition v.

Department of Interior, 26 F.3d 1103

(11th Cir. 1994), as authority for its

assertion that the Recovery Team’s

FACA exemption was limited. However,

Alabama-Tombigbee did not involve a

Recovery Team; it involved an

‘‘Advisory Team’’ assembled to advise

the Service on whether listing of a

species was warranted. The ‘‘Advisory

Team’’ was never referred to as a

Recovery Team nor was there any

indication in the opinion that anyone

asserted that the Advisory Team was

exempt from FACA under the Act.

Comment 1k: Contrary to statements

in the proposed rule, the Service was

not ordered to designate critical habitat.

Rather, the amended court order of

October 6, 1999, stated that the Service

was to publish a final determination

with respect to whether and to what

extent critical habitat shall be

designated. Thus, the Service should

reconsider whether and to what extent

critical habitat should be designated.

Our Response: The commenter is

correct that we cited the original court

order of September 20, 1999, which

ordered us to designate critical habitat,

and that a subsequent court order

amended the original order to require us

to make a critical habitat determination

rather than requiring actual designation.

In complying with the amended court

order, we made the determination that

critical habitat designation is prudent

for these two species, and that the areas

proposed are essential for the species’

conservation and thus the appropriate

extent of critical habitat. The language

in this final rule clarifies the distinction

mentioned by the commenter, although

such a correction has no material effect

on the designation.

Comment 1l: We failed to comply

with the Farm Land Protection Act of

1981.

Our Response: The stated purpose of

the Farmland Protection Act of 1981,

Public Law 97–98, 95 Stat. 1343, 7 USC

4201 et seq., was ‘‘to minimize the

extent to which Federal programs

contribute to the unnecessary and

irreversible conversion of farmland to

nonagricultural uses * * * ’’; however,

the Farmland Protection Act recognized

that there might be instances where

other national interests could override

this provision. While Federal statutes

may frequently appear to have

conflicting provisions, it is the

presumed intent of Congress that, to the

extent possible, all laws be read in a

way which allows them to be applied

together. We do not read the Farmland

Protection Act and the Endangered

Species Act to be incompatible since

this designation will not result in

conversion of farmland to

nonagricultural uses and nor any

significant restrictions on agricultural

uses.

Issue 2: Biological Concerns

The following comments and

responses involve issues related to the

biological basis for the designation.

Comment 2a. The proposed critical

habitat designation is substantially

greater than critical habitat designated

in 1994 and is thus excessive.

Our Response: The 1994 designations

of critical habitat were based on

proposals published in 1985. Since 1985

there have been substantial additions to

the information on spikedace and loach

minnow, their habitat needs, and the

existing condition and potential of most

of the streams in the Gila River basin.

In addition, in 1985 the concept of

critical habitat was less developed than

it is now, 15 years later. Evolution of

thinking, along with a number of court

decisions regarding the definition and

uses of critical habitat, have led to the

recognition that critical habitat may

provide the most benefits to listed

species when it is applied to

unoccupied areas essential for recovery.

Of the areas included in this critical

habitat designation for spikedace that

were not included in the 1994

designation, 20 percent are based on

new information about the species, its

distribution, abundance, and habitat; 10

percent are to include sparsely occupied

areas omitted from the 1985 proposal;

69 percent are currently unoccupied

recovery areas and connecting corridors;

and, 1 percent is an adjustment due to

the increased accuracy of mileage

calculations using Geographic

Information System (GIS) capability. Of

the areas included in this critical habitat

designation for loach minnow that were

not included in the 1994 designation, 15

percent are based on new information;

18 percent are sparsely occupied areas

omitted from the 1985 proposal; 65

percent are currently unoccupied

recovery areas and connecting corridors;

and, 2 percent are an adjustment for GIS

figures.

Comment 2b: Neither spikedace nor

loach minnow require the protection of

the Act. The discovery of new

populations since their listing should

cause both species to be delisted or at

least negate the need for critical habitat

designation.

Our Response: Both spikedace and

loach minnow are listed as threatened.

Recovery plans were finalized for both

species in 1991. In 1994, we reevaluated

the threats to the species and

determined the status of the species was

even more precarious than we had

previously concluded, even with the

discovery of new populations, and that

they warranted listing as endangered.

However, higher listing priorities, e.g.,

reviewing and listing imperiled species

that are afforded no protection under

the Act, have precluded us from

reclassifying the spikedace and loach

minnow as endangered. The status of

both spikedace and loach minnow are

declining.

Comment 2c: The Service should

limit critical habitat to aquatic and

riparian zones.

Our Response: In this final rule we

have further clarified the areas within

designated reaches as the stream

channels and areas potentially

inundated by high flow events. Where

delineated, this is the 100-year

floodplain of the designated waterways.

This constitutes the present and

reasonable future aquatic and riparian

zones of the designated rivers and

streams. Furthermore, within the

delineated critical habitat boundaries,

only lands containing, or which are

likely to develop, those habitat

components that are essential for the

primary biological needs of the species

are considered critical habitat. Existing

human-constructed features and

structures within this area, such as

buildings, roads, railroads, and other

features, do not contain, and do not

have the potential to develop, those

habitat components and are not

considered critical habitat.

Comment 2e: One commenter

questioned the validity of designating

sufficient critical habitat to protect all

known remaining genetic diversity

within the two species with the

exception of fish on certain tribal lands.

Our Response: The exclusion of tribal

lands is discussed in the section titled

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the

Endangered Species Act, and in section

6 of these responses to comments.

The range, numbers, and presumably

genetic diversity of the species have

already been much reduced. The

remaining populations exhibit distinct

genetic differences (Tibbets 1992,

Tibbets 1993, A. Tibbets, pers. com.,

March 2000). Noss and Cooperrider

(1994) identified reduced genetic

24342 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

diversity as one of the factors which

predispose small populations to

extinction. Therefore, to conserve and

recover the fishes to the point where

they no longer require the protection of

the Act and may be delisted, it is

important to maintain and protect all

remaining genetically diverse

populations of these two species.

Comment 2f: The Service did not

provide sufficient information on the

criteria used for including or omitting

certain reaches in the critical habitat

designation.

Our Response: Please see the ‘‘Critical

Habitat Designation’’ section of this

Final Rule. As described in the section

titled ‘‘B. Primary Constituent

Elements’’, we identified the habitat

features (primary constituent elements)

that provide for the physiological,

behavioral, and ecological requirements

essential for the conservation of each

species. Within the historical range of

the species, we identified areas which

either provide the primary constituent

elements or will be capable, with

restoration, of providing them and

which met the criteria discussed under

Critical Habitat Designation in this rule.

Then, based in part on

recommendations from species experts

including those on the Desert Fishes

Recovery Team, we selected qualifying

reaches within these areas necessary for

the conservation of the fishes.

Comment 2g: The definition of the

lateral extent of critical habitat is

undefined. The vague description of

lateral extent, along with the discussion

of what activities might adversely affect

critical habitat, could be interpreted as

including the entire watershed of the

streams designated as critical habitat. In

addition, there are areas within what

appears to be the designation that do not

contain the constituent elements, such

as buildings or parking lots, that should

not be included in the critical habitat.

Our Response: We have clarified the

lateral extent of the critical habitat in

this rule. Although activities within the

watershed may affect the critical habitat,

it is not our intent to designate areas

outside of the floodplain as critical

habitat. We have also clarified that

existing human-constructed features

that do not meet the constituent

elements are excluded by definition

from the critical habitat designation.

Issue 3: Economic Analysis.

There were numerous comments that

addressed economic issues.

Issue 3a: Will critical habitat

designation result in more consultations

than would have occurred without the

critical habitat designation?

Our Response: We expect that the

designation of critical habitat will result

in more consultations, especially for

activities which may affect unoccupied

habitat. If these consultations result in

any increased costs to the applicant,

these costs will be attributable to critical

habitat designation. However,

consultations are only required of

Federal agencies for those projects with

a Federal nexus.

Issue 3b: Are private lands affected by

critical habitat designation if there is no

Federal nexus?

Our Response: Under Section 7 of the

Endangered Species Act, private lands

are not impacted by the designation of

critical habitat unless there is a Federal

nexus.

Issue 3c: If permit requirements from

a Federal agency change, is that a

critical habitat impact?

Our Response: There are many

reasons why a permit requirement may

change. Each Federal agency has

enabling legislation that determines its

mission and, consequently, what

activities can occur on the land it

manages, or for what activities the

agency can otherwise issue permits. As

more information becomes available

about the environment, public activities

on Federal land, or activities for which

Federal agencies otherwise issue

permits, may require changes to permit

requirements. These may be due to the

Federal agency’s own legislation. In

those cases, we have attributed any

impact to the legislation requiring the

change and not the Endangered Species

Act. If permit requirements change on

unoccupied habitat as a result of a

consultation with us, then the impact

would be attributable to critical habitat

designation.

Issue 3d: Critical habitat designation

will drive away current and future

businesses.

Our Response: There is a common

misconception that critical habitat

designation will reduce business

activity. Without a Federal nexus, there

is no direct impact of critical habitat

designation on private activities or

businesses. In addition, restrictions

resulting from the listing of the species

are not attributable to critical habitat

designation. In areas currently occupied

by the species, little or no economic

impact is expected to result from critical

habitat designation. In unoccupied

areas, some economic impacts may

result. Our economic analysis considers

those anticipated impacts, including

effects on businesses. However, we

believe that the benefits of designating

critical habitat outweigh the benefits of

excluding areas from designation.

Issue 3e: Impacts on land uses next to

the river were not evaluated in the

economic analysis.

Our Response: At the time of releasing

the economic analysis of critical habitat

designation, very little information was

available to us on land uses next to the

rivers. Subsequently, some Federal and

State agencies have provided us with

their management activities and

expected changes relative to critical

habitat. This new information is

reflected in the final economic analysis.

Issue 3f: The draft economic analysis

only addresses 5 of the streams when

the proposal includes many more

streams.

Our Response: The table with the

analysis of 5 streams comes from study

of the previous critical habitat

designation. It was included in the draft

economic analysis to illustrate the kinds

of economic impacts for which we were

seeking additional information. All

streams in the final designation have

been evaluated in the final economic

analysis.

Issue 3g: The Service must prepare an

economic analysis that considers the

total effect of listing and critical habitat.

Our Response: Congress has stated

that the listing of a species be based

solely on biological considerations. As a

result, an economic analysis of the

listing of a species is not undertaken as

part of the listing process. The current

rule being considered is the designation

of critical habitat and thus only

economic and other relevant impacts of

specifying any particular area as critical

habitat are considered. A recent court

decision on designation of critical

habitat for the southwestern willow

flycatcher (Empidonax extimus trailli)

New Mexico Cattle Growers et al. v.

USFWS et al., CIV 98–0275 LH/DJs—

ACE (D. Ariz. 1999) (on appeal) affirmed

our approach of considering only the

economic and other relevant impacts of

critical habitat designation above and

beyond those associated with listing the

species.

Issue 3h: The Regulatory Flexibility

Act and the Small Business Regulatory

Enforcement Fairness Act analyses were

inadequate.

Our Response: There were substantial

data gaps that precluded a full analysis

of the impact on small entities. A more

complete analysis is in the

administrative record for this

designation, and is available for public

review (see ADDRESSES).

Issue 3i: There needs to be a takings

implication assessment completed.

Our Response: A taking implications

assessment is in the administrative

record for this designation, and is

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24343

available for public review (see

ADDRESSES).

Issue 3j: The economic analysis lacks

dollar amounts for the impact on

Agriculture, Recreation, Roads, Water

Supply, and Private Development on

page 26.

Our Response: The table on page 26

of the draft economic analysis was

reproduced from an earlier study and

the blank entries were in the original

document. We provide a more complete

accounting of the impacts in the final

economic analysis.

Issue 3k: No economic analysis was

done for the State of New Mexico.

Our Response: The revised economic

analysis includes information about

Grant County, the only county in the

State of New Mexico that contains

critical habitat unoccupied by either the

spikedace or the loach minnow.

Issue 3l: An incorrect baseline was

used for the economic analysis.

Our Response: The baseline we used

considered the Federal actions expected

to occur in the absence of critical

habitat. Thus, all Section 7

consultations with Federal agencies and

other restrictions resulting from the

listing of the species are considered part

of the baseline and are not attributable

to critical habitat designation. The only

economic impacts attributable to critical

habitat designation would be those

resulting from Federal activities in

unoccupied designated critical habitat

and only those activities likely to

destroy or adversely modify critical

habitat.

Issue 3m: The use of IMPLAN is not

appropriate below the State level.

Our Response: IMPLAN was not used

in the draft economic analysis.

However, the data sets that come with

IMPLAN describe the economic activity

at the county level, which provide a

useful summary of the industries in the

affected counties.

Issue 4: Site-Specific Issues.

The following comments and

responses involve issues related to the

inclusion or exclusion of specific

streams reaches or our methods for

selecting appropriate areas for

designation as critical habitat.

Comment 4a: Several commenters

pointed out errors in mileages,

locations, or descriptions in the

proposed rule.

Our Response: Corrections have been

made in the final rule to reflect these

comments, where appropriate.

Comment 4b: Commenters believed

that the areas listed in table 3 (below)

were unsuitable for designation or they

recommended some areas for exclusion

from designation.

TABLE 3.—EXCLUSION OF REMOVAL RECOMMENDATIONS IN COMMENTS

Stream reach Not suitable

for species

Not

occupied by

species

Conflict with

economic,

social, or

other uses

Insufficient

information

Nonnative

species

conflict

Not

essential or

no benefit to

species

Special

mgmt.

consideration not

needed

Detrimental

to species

mgmt.

Complex 1

Verde River above Valley X X X X

Verde River in Valley ....... X X X X X

Verde River below Valley X X X X

Granite Creek ................... X X

Oak Creek ........................ XXXXXX

Beaver Creek ................... X X X X X

West Clear Creek ............ XXXXXX

Fossil Creek ..................... X X X

Complex 2

West Fork Black River ..... X X X X

East Fork Black River ...... X X X

Coyote Creek ................... X XXXX

Boneyard Creek ............... X XXXX

Complex 3

Tonto Creek ..................... X X X X X X

Rye Creek ........................ XXXXXXXX

Greenback Creek ............. X X X X X X

Complex 4

Middle Gila River ............. X X X X X

Lower San Pedro River ... X X X X

Aravaipa Creek ................ X X

Turkey Creek ................... X X X

Deer Creek ....................... X X X

Complex 5

Middle San Pedro River ... XXXXXXXX

Redfield Canyon .............. X X X

Hot Springs & Bass Canyons .............................. X X X X

Upper San Pedro River ... XXXXXXXX

24344 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

TABLE 3.—EXCLUSION OF REMOVAL RECOMMENDATIONS IN COMMENTS—Continued

Stream reach Not suitable

for species

Not

occupied by

species

Conflict with

economic,

social, or

other uses

Insufficient

information

Nonnative

species

conflict

Not

essential or

no benefit to

species

Special

mgmt.

consideration not

needed

Detrimental

to species

mgmt.

Complex 6

Gila River at Box .............. X X X X

Bonita Creek .................... XXXXXXXX

Eagle Creek ..................... XXXXXXXX

Blue River ........................ X X X X X

Little Blue Creek .............. X X

Campbell Blue Creek ....... X X

Dry Blue, Frieborn, &

Pace Creeks ................. X X

San Francisco River in AZ X X X X X X

San Francisco River in

NM ................................ X X

Tularosa River .................. X X

Negrito and Whitewater

Creeks .......................... X

Complex 7

Upper Gila River below

Mogollon Creek ............ X X1 X XXXX

Upper Gila River above

Mogollon Creek ............ X X1 XXXX

West Fork Gila River ....... X XXXX

East Fork Gila River ........ X XXXX

Middle Fork Gila River ..... X X XXXX

1 In part.

Our Response: We carefully

considered the information provided in

the comments regarding requested

exclusions and removals. Two streams

were removed from the spikedace

designation, as described previously.

Areas suggested for exclusion that were

retained, and our rationales, are

provided in responses 4b1 through

4b19.

Comment 4b1: There are no records of

occurrence of spikedace and loach

minnow in the Little Blue River,

Redfield, Bass, and Hot Springs

Canyons; Granite, Boneyard, Coyote,

Greenback, Rye, Oak, and Bonita Creeks:

the East, West, and Main Forks of the

Black River; and the Gila Box.

Therefore, these areas are not part of the

historical range.

Our Response: Because early

collections of fishes from the Gila Basin

were rare and occurred mostly along

primary exploration and settlement

travel routes, the complete distribution

of most of our native fishes cannot be

documented with specific museum

specimens and records. By the time

sampling of native fish became common

in the 1960’s and 1970’s many of the

streams had been modified or subjected

to temporary adverse circumstances

(such as total diversion of water or mine

spills resulting in water-quality

problems) to the point that many of the

native fishes had already been

extirpated. Thus, we can never know

precisely what we have lost. Therefore,

we must use the best available

information to reconstruct the most

probable composition of the historical

ranges of spikedace and loach minnow.

If a stream is (1) within the Gila basin;

and (2) contains suitable or potential

habitat for the species, or historical

records indicate it once sustained such

habitat, and there are records of those

species from nearby areas, and there is

no other reason to believe that the two

species could not have occurred there

(i.e. an impassable natural barrier); then

those areas are considered to be part of

the historical range of the species.

Comment 4b2: Deer, Turkey, Wet

Beaver/Beaver, and West Clear Creeks

have no records of spikedace and/or

loach minnow.

Our Response: Deer and Turkey

Creeks, tributaries of Aravaipa Creek,

have recent records of loach minnow

(USBLM 1995, University of Arizona

museum specimens No. ASU 13517).

The Beaver Creek complex has

historical records of both spikedace and

loach minnow from 1938 (Minckley

1993). West Clear Creek has historical

records of spikedace from 1937

(Minckley 1993).

Comment 4b3: Spikedace are

extirpated from the middle Gila River

and any spikedace found there were

displaced by flooding from Aravaipa

Creek.

Our Response: Spikedace were

recorded from the middle Gila River

historically (Minckley 1973) and as

recently as 1991 (Jakle 1992) and are not

considered extirpated. Some

commenters believe the 1991 record of

one spikedace in the middle Gila River

near Florence represents a fish

displaced during some unspecified

flood event from Aravaipa Creek, 50

miles upstream, and does not represent

a population in the Gila River. However,

in the year preceding the October

sampling, there was only one marginally

significant flood, which occurred in

March (USGS discharge records). It is

unlikely that such a relatively minor

flood would displace spikedace 50

miles downstream and that the

displaced fish would be surviving 6

months later in what the commenters

assume is habitat unsuitable to support

a resident population of spikedace. In

addition, it is even more unlikely that,

at the precise time of the only sampling

conducted that year, the displaced fish

would be present at one of the 7 sites

sampled, totaling less than 1 mile of the

50 mile reach. Given the sparse

sampling in the middle Gila, it is far

more likely that the 1991 spikedace

represents a small population of

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24345

spikedace either permanently resident

in that area or which occupy the area in

a periodically fluctuating pattern

dependent upon conditions.

Documentation of such small

populations is very difficult and often

results in false declarations of

extirpation (Mayden and Kuhajda 1996).

Comment 4b4: Spikedace are

extirpated from the Middle Fork Gila

River.

Our Response: Spikedace have not

been recorded at a long-term study site

on the middle Fork Gila River since

1995 (Propst and Stefferud, unpub.

data). No surveys of the rest of the

stream have been conducted recently

and the present status of the spikedace

in the Middle Fork is uncertain. Failure

to record spikedace for four years at a

fixed sampling station may indicate a

low population level but does not

support a declaration of extirpation

from the entire stream.

Comment 4b5: Spikedace are

extirpated from the Verde River.

Our Response: Spikedace continue to

be recorded from the Verde River,

although since 1996 they have been very

rare, with none found in 1997 and 1998

(Rinne et al. 1999a) and only two found

in 1999. This dramatic fluctuation is

similar to earlier fluctuations, although

better documented.

Comment 4b6: Loach minnow are

extirpated from Eagle Creek; loach

minnow found there since 1995 were

stocked from elsewhere by organizations

known to have programs for planting

endangered species, and the 1994

records of loach minnow in Eagle Creek

are not valid because they have not yet

been published in a peer-reviewed

journal.

Our Response: Loach minnow were

first recorded from Eagle Creek in 1950

(Univ. of Michigan museum specimens

No. UMMZ 162744). Despite frequent

sampling (Marsh et al.1990), they were

not again recorded until 1994 (Knowles

1994, Knowles 1995). This illustrates

the need for caution in concluding that

a population has been extirpated. Fish,

particularly small species with

relatively cryptic habits, are often very

difficult to locate when population

levels are very low.

Loach minnow had been presumed,

incorrectly, to be extirpated from Eagle

Creek. Loach minnow were not stocked

into Eagle Creek by any agency or

governmental entity. We are not aware

of, nor have we permitted, any

nongovernmental groups to plant listed

fish in Arizona. Genetic testing has

shown the loach minnow in Eagle Creek

to be a probable unique lineage differing

from all other loach minnow. We have

no evidence that these fish could have

been planted from any other population

(A. Tibbets, pers. comm. March, 2000).

Sampling records from 1994 are

considered valid records. Much of the

monitoring of populations of

endangered and threatened species is

conducted by agencies and is placed

into agency reports, such as the one in

which these records are found. The

1995 Eagle Creek loach minnow records

have also been vouchered with

specimens in the Arizona State

University Collection of Fishes (No.

ASU165).

Comment 4b7: Both spikedace and

loach minnow have been extirpated

from the upper Gila River below the

Middle Box (below Redrock, New

Mexico) and any spikedace or loach

minnow found in that area were

displaced by flooding from the Cliff-Gila

Valley.

Our Response: Spikedace and loach

minnow continue to be found in the

Gila River below the Middle Box, and

depending upon conditions may be

found from the mouth of the Box

downstream to about the Arizona/New

Mexico boundary. They were recorded

near the Middle Box mouth and in the

Lower Box at Fisherman’s Point in 1998

(Propst and Stefferud unpub. data,

Propst 1998) and at the Virden diversion

in 1999 (Rinne et al. 1999b).

Comment 4b8: The San Francisco

River is not occupied by spikedace and

is occupied by loach minnow only

above the confluence with the Blue

River.

Our Response: The San Francisco

River is currently occupied by loach

minnow downstream from the mouth of

the Blue River (Anderson and Turner

1977, J.M. Montgomery Consulting

Engineers 1985, Bagley et al. 1995). The

downstream extent of this population is

not known precisely and likely

fluctuates over time depending upon

water and sediment levels, flooding, and

other factors. However, it is known to

extend at least 10–15 miles downstream

from the confluence with the Blue

River. Historical records of spikedace

downstream (Minckley 1973) and

upstream (Minckley 1973, Anderson

1978) from the lower San Francisco

River, and the presence of apparently

suitable habitat in that area, support the

presumption of historical presence of

spikedace. Past pollution events from

the mines in the Clifton area, along with

other human-caused alterations, caused

the lower San Francsico River to be

barren of fish at one time (Chamberlain

1904), have resulted in fish kills since

that time (Rathbun 1969 as cited in

Minckley and Sommerfeld 1979), and

likely were a significant factor in the

loss of spikedace and loach minnow

from the lower San Francisco River and

adjacent Gila River. The amelioration of

these pollution events through modern

management and regulation has

eliminated them as a limiting factor to

restoration of spikedace and other

native species in the lower San

Francisco River.

Comment 4b9: The San Pedro River is

not now and has never been occupied

by either spikedace or loach minnow.

Our Response: The San Pedro River is

the type locality for spikedace and loach

minnow. They were first collected there

in 1840 and again in 1846 (Miller 1961),

and were described from specimens

taken there in 1851 (Girard 1856). They

were taken periodically over the years;

loach minnow were last recorded from

the San Pedro in 1961 (University of

Arizona museum No. UAZ95–190), and

spikedace were last recorded there in

1966 (Arizona State University museum

No. ASU 2282). See also responses to

comments 4b16(c) and 4b16(j).

Comment 4b10: It was suggested that

areas which are occupied by spikedace

or loach minnow only under certain

conditions or which are colonized

during periods when streamflows are

higher than average should not be

considered essential to the species and

should be omitted from the critical

habitat.

Our Response: Spikedace and loach

minnow, like many southwestern fishes,

have a life history pattern of expansion

and retraction of occupied areas in

response to flow and other habitat

conditions. To ensure the survival and

recovery of species with this type of

pattern it is essential to conserve not

only the core habitat into which the

species shrinks in times of poor

conditions, but also the habitat into

which it expands during times of good

conditions (Moyle and Sato 1991, Meffe

and Carroll 1994). The absence of

spikedace and/or loach minnow from an

area during certain periods or under

certain conditions does not mean it is in

unoccupied habitat.

Comment 4b11: Several commenters

suggested that, since several of the

proposed streams have portions that dry

either seasonally, during drought

conditions, or for other periodic

reasons, therefore those streams do not

meet the proposed constituent elements

description of permanent flowing water

and so do not qualify as critical habitat

for spikedace and loach minnow.

Our Response: Spikedace and loach

minnow, along with most of the native

fishes of the southwest, evolved in

stream systems that had portions which

periodically lost flow. The species are

adapted to this phenomenon and persist

in flowing areas that remain and

24346 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

recolonize the dewatered areas once

flow resumes. Over the past 150 years,

the extent of areas in the Gila basin that

periodically lose flow has increased due

to human alterations of the watersheds

and stream channels and diversion of

the streamflows.

Hydrology-based definitions of

streams as ‘‘perennial,’’ ‘‘intermittent’’

(both spatially and temporally), or

‘‘ephemeral’’ are confusing, often

misused, and may not relate to fish

needs. Although a stream may be

characterized by some as ‘‘intermittent,’’

it may still have substantial areas where

flow is permanent, although those areas

may not always be in precisely the same

location. If sufficient areas of flow

persist, and if all other habitat needs are

met, then the stream is suitable for the

two fish species whether or not there is

flow throughout all areas at all times.

Aravaipa Creek, one of the best

remaining habitats for these two species,

is an ‘‘intermittent’’ stream, which

seldom flows in the upper half of its

course, and often does not flow for

several miles above its confluence with

the San Pedro River (Minckley 1981).

However, approximately 20–25 mi of

stream presently flow at all times and

support healthy populations of

spikedace and loach minnow (Bettaso et

al. 1995).

The critical habitat designation also

specifically includes many areas that

lose flow periodically, and some which

may be dry during most times.

Maintenance of those areas in a natural,

or only slightly modified, state is

essential to spikedace and loach

minnow. During high flows they serve

as connecting corridors for movement

between the areas of permanent flow

and because they are important in

maintenance of natural channel

geomorphology. Criteria for what might

constitute adverse modification of

critical habitat may be different for these

stream reaches than for occupied or

perennial flow areas; however, their

maintenance is essential to the longterm survival and recovery of spikedace

and loach minnow.

There are many areas in the critical

habitat where flows are artificially

altered by human diversion and uses,

up to and including complete loss of

flow. In some of these areas, changes in

management may potentially increase

duration of flows and the length of

stream channel with permanent water,

thus making them valuable for recovery

and survival of spikedace and loach

minnow. A good example of this is

Fossil Creek, where the proposed

relicensing of the Childs-Irving

hydropower plant would involve

restoration of some level of flow to the

lower stream channel.

Comment 4b12: All streams proposed

for designation of critical habitat

contain some nonnative aquatic species,

raising comments from many parties

that none of the streams proposed meet

the proposed constituent elements

description of few or no predatory or

competitive nonnative species present,

and therefore do not qualify for

designation as critical habitat. Several

commenters went further to state that no

stream that contains nonnative fish

could be considered essential to the

conservation of spikedace and/or loach

minnow.

Our Response: The constituent

elements have been rewritten to clarify

the role of nonnative aquatic species in

the suitability of habitat for designation

as critical for spikedace and loach

minnow. The level of nonnative species

that may be present in habitat

considered to be suitable varies

depending upon the circumstances.

Some nonnative species, such as

rainbow trout, appear to have little

effect on spikedace or loach minnow

(see response to comment 7b, below).

Others, such as flathead catfish

(Pylodictis olivaris) have serious adverse

effects. In some streams, the habitat

complexity and distribution may allow

spikedace and loach minnow to coexist

with nonnative aquatic species when,

under other circumstances, that

nonnative may eliminate the two

natives. Some unoccupied streams

designated for critical habitat may have

nonnative species present that will be

controlled or removed before

reestablishment of the two native fishes.

Although the fewer nonnative aquatic

species that are present, the better the

situation for spikedace and loach

minnow, the presence of nonnative

aquatic species does not eliminate an

area from consideration as critical

habitat.

Comment 4b13: The upper end of Oak

Creek and the Gila River in the DuncanVirden and Safford valleys were not

included in the proposed critical

habitat, in part because of urban

development. Therefore, the San

Francisco River in and below Clifton,

the Gila Box, and portions of the San

Pedro and Verde Rivers do not qualify

as critical habitat because of urban and

other human uses of those areas.

Our Response: Urban and suburban

development alone do not necessarily

cause a stream to become unsuitable for

spikedace or loach minnow. For the

upper end of Oak Creek, the substantial

urban development is not the only a

factor considered in the omission of that

area from the proposed designation.

Habitat in the portions of upper Oak

Creek omitted from the proposed

designation rapidly becomes

increasingly unsuitable due to stream

gradient, substrate, and other inherent

ecological factors. Because the adjacent

designated habitat is unoccupied, and

since upper Oak Creek has no value as

a movement corridor to other suitable or

occupied habitat, there are no

overriding reasons for extending the

critical habitat designation to include

the small additional area that is in the

urban zone.

The Duncan-Virden Valley is

substantially altered by agricultural,

and, to a small extent, urban

development, but still supports

spikedace and loach minnow in its

upper portion (Rinne et al. 1996b).

Information received during the

comment period indicates that more of

this reach of the Gila River may have

been appropriate for consideration as

critical habitat, and its inclusion will be

re-evaluated during future revision of

the critical habitat for spikedace and

loach minnow.

The Safford Valley was historically

suitable habitat for spikedace and loach

minnow, but is now highly altered,

primarily by agricultural practices, and

provides only partially suitable habitat

with potential for improvement with

management. Since it is adjacent to

unoccupied habitat and provides no

movement corridor between more

suitable areas, the added value of

including the valley portion of the

stream was considered low.

The lower San Francisco River, on the

other hand, may be occupied and is

adjacent to documented occupied

habitat. Although altered, it still

contains substantial areas of suitable

habitat, and it provides a connection

between the occupied area and the

unoccupied recovery area in the Gila

Box. The small amount of urbanization

and the alterations due to flood control

and mining are not significant enough to

negate the value of the stretch for

spikedace and loach minnow survival

and recovery. The Gila Box is in a

National Riparian Conservation Area

and does not have urban or suburban

development. There are no heavily

urbanized areas along the San Pedro

River within the area proposed for

critical habitat. The Cottonwood-toCamp Verde stretch of the Verde Valley

is heavily urbanized but still contains

substantial suitable, occupied habitat

which, if appropriate diversion

management takes place, could be

significantly improved. The area is also

a connecting corridor between occupied

upstream areas and important

unoccupied downstream recovery areas.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24347

Comment 4b14: The habitat in Oak

Creek is not suitable for spikedace or

loach minnow due to heavy recreation

use.

Our Response: We agree that heavy

recreation use in Oak Creek may be

adversely impacting the stream and its

fish habitat. However, we believe that

suitable habitat still exists for spikedace

and loach minnow and, with proper

management, recreation and recovery of

these two fishes can be compatible.

Comment 4b15: Some comments

contend that the San Francisco River

below its confluence with the Blue

River and the Gila River in the Gila Box

are too large to be suitable for either

spikedace or loach minnow because

they are larger than the Verde River

below Fossil Creek, which was not

included in the designation. In addition,

concern was expressed that the Gila Box

contains too much sediment to support

spikedace and loach minnow.

Our Response: The San Francisco

River below its confluence with the

Blue River and the Gila River below its

confluence with the San Francisco are

well within the historical range of both

species and contain suitable habitat.

Median flows (discharge) at the gauging

station near Clifton on the San

Francisco River are similar to those for

the Verde River near Clarkdale, within

occupied spikedace habitat (Pope et al.

1998). Median flows at the gauging

station at the head of the Safford Valley

are about 25 percent less than those in

the Verde River below Fossil Creek

(Pope et al. 1998). In addition, the Verde

River below Fossil Creek is well within

the historical range of spikedace and

loach minnow and, as some commenters

have pointed out, has sufficient suitable

habitat to meet critical habitat criteria.

Comment 4b16: Many commenters

contend the San Pedro River does not

have suitable habitat for spikedace and

loach minnow based on a number of

factors. These include—(a) The river

was changed dramatically by a late

1800’s earthquake and no longer has

permanent flowing water; (b) toxic mine

waste spills from Mexico occur

periodically and are not within our

control; (c) the extirpation of spikedace

and loach minnow from the San Pedro

30 years ago is conclusive evidence that

the habitat is not suitable; (d) the

gradient in the river is too high or too

low; (e) the substrate is not the

appropriate size; (f) the San Pedro River

does not have a snowmelt hydrograph;

(g) recent reestablishment of beaver

precludes spikedace and loach minnow

occupation; (h) there is too much water

depletion by humans; (i) riparian

vegetation is destroying the aquatic

habitat and increasing nonnative fish;

and (j) the statement that this is the

‘‘type’’ locality is inappropriate because

it is not the right type of habitat.

Our Response: (a) The fish of the

upper San Pedro River are sampled

twice yearly, once by the BLM and once

by the Bureau of Reclamation (Stefferud

and Stefferud 1989, 1990, 1998,

Girmendonk et al. 1997, Clarkson 1998,

Marsh 1999). The Middle San Pedro is

sampled annually by the Bureau of

Reclamation. Other, irregular samplings

occur. This work has confirmed that

there is permanent water in the river,

that flow supports three native and

several nonnative fish species, and that

there is suitable or potentially suitable

habitat for spikedace and loach minnow

in both the upper and middle San Pedro

River. Whatever the effects of the 1887

earthquake on the habitat and flow of

the San Pedro River, spikedace and

loach minnow were present prior to the

earthquake and for almost 100 years

after the earthquake. Therefore, it is

unlikely that the earthquake was a

definitive factor in the presence or

absence of habitat for spikedace and

loach minnow.

(b) Toxic flow events in the past from

mines near Cananea, Sonora, Mexico,

have had highly adverse effects to the

fauna of the San Pedro River (Eberhardt

1981). In fact, it is likely that such

events in the late 1960’s and early

1970’s were responsible for extirpating

spikedace and loach minnow from the

San Pedro River. Other human activities

in the upper San Pedro River in Mexico

can potentially adversely affect the use

of the U.S. portion by spikedace and

loach minnow. However, we intend to

work with the governments of Mexico

and Sonora to minimize adverse effects.

(c) The overall gradient of a river

doesn’t change over 100 years, barring

serious geologic events. Although there

was a substantial earthquake in

southeastern Arizona in 1887, there is

no evidence that it altered the overall

gradient of the river (DuBois and Smith

1980, Hereford 1993). The San Pedro

River is the type locality of both

spikedace and loach minnow and

supported both species when first

sampled in 1840 and for 120 years after

that, demonstrating its suitability for the

two species. Please also see our

response to comment 4b9.

(d) Although fine substrate is

predominant in most reaches of the San

Pedro River, the upper river in the

Riparian National Conservation area has

significant areas of riffle habitat with

gravel and cobble substrates that are

capable of supporting spikedace and

loach minnow (Stefferud and Stefferud

1989, Velasco 1993). The middle San

Pedro River, at present, has little

substrate of suitable size for spikedace

and loach minnow. However, substrate

size is a function of many other river

variables, such as velocity, flow volume,

bank structure, and sediment source.

Personal observations by our biologists,

along with discussion with biologists

from The Nature Conservancy, AGFD,

BLM, and the Desert Fishes Recovery

Team support a conclusion that this

portion of the San Pedro River has a

strong potential for enhancement to the

point where it may once again support

healthy populations of spikedace and

loach minnow. One commenter

compared average substrate particle

sizes in the San Pedro River with those

in Aravaipa Creek and concluded that

since the latter were larger, the San

Pedro River does not have suitable

substrate for spikedace and loach

minnow. However, fish use

microhabitats within the overall stream

and those microhabitats may have

substrates, or other constituents, that

differ from the ‘‘average.’’ For example,

a mile of stream may be primarily a

shallow, sandy run, but it may also

contain deep pools at rock bends and

root wad overhangs. A fish which

requires pools could not survive in the

average shallow depth and sandy

substrate, but may still be present

because it uses the ‘‘nonaverage’’ habitat

of pools.

(f) The role of snowmelt in the

hydrograph of the San Pedro River has

not changed over the past 160 years, and

spikedace and loach minnow occupied

the San Pedro River during at least 120

of those years. This information

supports a conclusion that a snowmelt

hydrograph is not a determining factor

in suitability of a stream system for

spikedace and loach minnow.

(g) The BLM and the AGFD have

assured us that the reestablishment of

beaver can be controlled and managed

to prevent severe loss of potential

recovery for the two fishes. Beaver were

native to the San Pedro River and

historically coexisted with spikedace

and loach minnow, both here and

elsewhere. Given careful management,

we believe that beaver, spikedace, and

loach minnow reestablishments can all

succeed in the San Pedro River.

(h) We are working closely with a

number of Federal, State, and local

entities to ensure that flows in the San

Pedro River continue.

(i) Although riparian vegetation does

remove a certain portion of the surface

and subsurface flow of a river through

evapotranspiration, (the movement

through, use of, and evaporation from

the surface of water by plants) it also

provides many irreplaceable benefits to

the aquatic ecosystem (Auble et al.

24348 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

1994, Bagley et al. 1998, Osborne and

Kovacic 1997, USBLM 1990). Without

healthy riparian vegetation a stream is

subject to, among other things,

increased erosion, increased water

temperatures, and a decrease in

instream community diversity formed

by streambanks and large woody debris.

Under some circumstances increased

riparian vegetation may increase

nonnative fish species by increasing the

types of habitats favored by those

species. However, a healthy riparian

system will provide a higher diversity of

aquatic community types, thus allowing

a greater degree of coexistence between

native and nonnative fishes.

(j) The San Pedro River is the ‘‘type

locality’’ for spikedace and loach

minnow. The type locality of a species

is simply the area from which the ‘‘type

specimens’’ were taken. Type specimens

are those preserved specimens that were

used to first describe the species. Please

also see our response to comment 4b9.

Comment 4b17: There were many

comments which contended that Eagle

Creek does not have suitable habitat for

spikedace and loach minnow based on

a number of factors. These included—(a)

it is an artificial system with flows

coming from a transbasin diversion and

groundwater pumping; (b) there are

several distinct topographic stretches

and spikedace and loach minnow could

not occupy all of those different

topographic areas; (c) the historical

presence of beaver in Eagle Creek make

the system unsuitable to have ever

supported spikedace and loach minnow

and the continued presence of beaver

make the habitat presently unsuitable

for the two fish species; and (d) neither

spikedace nor loach minnow were ever

present above Sheep Wash due to

unsuitable habitat historically and any

suitable habitat there now will become

unsuitable as Eagle Creek in that area

reverts to a more natural system.

Our Response: (a) Spikedace and

loach minnow are both known to have

historically occurred in Eagle Creek.

Although the stream has been modified

by human augmentation of the flows,

that modification has not been sufficient

to eliminate either species. The

continued survival of both species in

the artificially modified stream supports

the position that the habitat is suitable.

Modification of the stream does not

automatically disqualify an area from

designation as critical habitat and

consideration as essential to the

conservation of the species. The

artificial augmentation of Eagle Creek

flows may help mitigate other habitat

alterations that have decreased natural

flows in the system, thus resulting in a

system that is more ‘‘natural’’ than it

would be without the artificial

augmentation.

(b) It is true that Eagle Creek has

distinct topographic areas, including

canyon reaches and valley reaches.

However, all of the topographic areas

within the proposed section of Eagle

Creek contain riffle habitats suitable for

spikedace and loach minnow, although

in varying proportions. As stated in this

rule, it is important to protect areas of

large enough size and connectivity to

allow for fluctuations in habitat over

time and movement of fish between

areas.

(c) Spikedace and loach minnow

historically coexisted with beaver in

most, if not all, of their historical range.

There is no evidence to indicate that the

presence of beaver preclude spikedace

and loach minnow presence.

(d) In 1950, Miller recorded loach

minnow from near Sheep Wash (Marsh

et al. 1990). In 1994 and again in 1995,

Arizona State University personnel

recorded loach minnow near

Honeymoon Campground, about 15

miles upstream from Sheep Wash

(Knowles 1994, 1995). Spikedace were

first collected in 1985 (Bestgen 1985) in

lower Eagle Creek. They were collected

near Sheep Wash through 1987, and

have not been collected since that time.

There is presently suitable habitat for

both species throughout the upper area

of Eagle Creek above Sheep Wash.

Although upper Eagle Creek has been

substantially modified by human

activities, the topography, geology, and

stream geomorphology indicate that it is

likely the stream in that area historically

supported suitable habitat for spikedace

and loach minnow and that ‘‘reversion’’

to a more natural state will not prevent

the presence of those two species.

Comment 4b18: We received

comments that no suitable habitat exists

on Fossil Creek for spikedace and loach

minnow. This was based on a 1998

USFS NEPA compliance review on an

adjacent livestock grazing allotment.

Commenters also felt the hydropower

diversion of Fossil Creek is favorable to

spikedace and loach minnow because it

prevents upstream migration of

nonnative fish, and believe it is

premature to assume flows in Fossil

Creek will be enhanced as a result of

hydropower relicensing.

Our Response: The information on

which the USFS finding was based was

not provided or available, therefore we

cannot assess why it differs from

information in our files and that we

have received from other sources,

including USFS documents regarding

the Childs/Irving hydropower

relicensing.

The diversion of almost all flow from

lower Fossil Creek for hydropower does

inhibit upstream migration of nonnative

fish. However, we believe there are

more effective ways to prevent

nonnative incursion than flow

diversion. The application of the

hydropower licensee to the Federal

Energy Regulatory Commission includes

a proposal to return some flow to lower

Fossil Creek. In addition, negotiations

are ongoing that may result in even

larger flows in lower Fossil Creek.

Either way, the stream is expected to

recover suitability for spikedace and

loach minnow.

Comment 4b19: One commenter felt

that Rye Creek did not provide suitable

habitat for spikedace and loach minnow

and that the statement in the rule

regarding the presence of a native fish

community was in error.

Our Response: Rye Creek is poorly

sampled, but Abarca and Weedman

(1993) reported a fish community

dominated by two native fishes—longfin

dace (Agosia chrysogaster) and desert

sucker (Pantosteus clarki), and Bancroft

et al. (1980) also reported Sonora sucker

(Catostomus insignis), speckled dace

(Rhinichthys osculus), and Gila chub

(Gila intermedia). In 1995, a sampling

recorded all five of those native species

(Weedman et al. 1996), which is a large

number of native species remaining

compared to most streams in the Gila

Basin. Of the seventeen native fishes of

the Gila River basin, only one stream

(Eagle Creek) has eight species

remaining, three others have seven

(upper Gila River in New Mexico, upper

Verde River, and Aravaipa Creek), and

the San Francisco and Blue Rivers each

have six species remaining. Two

nonnative species were also reported in

Rye Creek in 1980, three in 1993, and

three again in 1995, which composed

less than 10 percent of the fish present.

The presence of this native fish

community, plus the presence of what

is reported by biologists with expertise

in spikedace and loach minnow to be

suitable habitat (J. Stefferud, USFS,

pers. com. February 2000) is sufficient

evidence to include Rye Creek in the

designation. Suitable areas to recover

spikedace and loach minnow in the Salt

River Basin are very limited and we

believe it is important that the Tonto

Creek complex include more than just

the mainstem. Information on other

suitable tributaries was provided by

USFS comments on the proposed rule.

These tributaries may also provide

recovery habitat that may be considered

for possible designation in a future

revision of the critical habitat for

spikedace and loach minnow.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24349

Comment 4c: Several commenters

recommended additional areas be

included in the designation of critical

habitat. Those areas are listed in Table

4.

Our Response: Because of the

requirement for all proposed

designation to undergo public review

and comments, areas normally are not

added to the designation without an

additional proposal. We will consider

all information provided on additional

areas in future revision of the critical

habitat for spikedace and loach

minnow. Based on the best available

science at this time, we determine that

the areas designated by this rule are

sufficient to conserve the species. Our

responses on individual areas suggested

for addition are given in Table 4.

TABLE 4.—REQUESTS FOR ADDITIONS TO CRITICAL HABITAT AND RESPONSE

Complex number Stream reach Reason for recommended addition Fish and Wildlife Service response

1 ......................... Sycamore Creek (upper Verde basin) ... Why other Verde tributaries but not

Sycamore Creek?

Except at mouth, gradient too high and

habitat not suitable.

1 ......................... Verde River from Fossil Ck to Sheep

Bridge.

Believe is suitable for recovery of

spikedace and loach minnow.

Will seek additional information.

1 ......................... Lower East Verde River ......................... Believe is suitable for recovery of

spikedace and loach minnow.

Believe unsuitable—will seek additional

information.

1 ......................... Red Creek .............................................. Believe it suitable for recovery of

spikedace and loach minnow.

Will seek additional information.

1 ......................... Lower Tangle and Sycamore Creeks

(middle Verde basin).

Believe is suitable for recovery of

spikedace and loach minnow.

Will seek additional information.

3 ......................... Slate and Gun Creek ............................. May meet criteria for critical habitat ...... No information on these creeks—will

seek information.

4 ......................... Mescal Creek ......................................... In spikedace recovery plan as possible

reintroduction site.

Could contribute to diversity and complexity in complex.

5 ......................... Babocomari River .................................. May meet criteria for critical habitat ...... Lower and upper ends not suitable

habitat, no information on middle portion—will seek further information.

6 ......................... Bonita Creek above Martinez Wash ...... Has suitable habitat ............................... Information from San Carlos Dept. of

Nat. Resources is that no suitable

habitat exists.

6 ......................... Eagle Creek below Phelps Dodge dam Omission is inconsistent with emphasis

on continuity in critical habitat.

Would contribute to connectivity, but

has little habitat due to water diversion.

7 ......................... Mangas Creek ........................................ Believed to have spikedace population Channel is highly eroded and no significant surface flow during most times—

will seek information.

None .................. Salome Creek ........................................ May meet criteria for critical habitat ....... Will seek additional information.

None .................. Cherry Creek .......................................... May meet criteria for critical habitat ....... Believe too little low to moderate gradient areas are present—will seek additional information.

None .................. White River ............................................ Occupied and considered biologically

important.

See section on Tribal issues.

None .................. Gila River ‘‘as it flows through Phoenix’’ Has similar potential to areas proposed Assuming commenter meant Gila River

south of Phoenix, river is diverted and

dry most of time, channel highly degraded, not suitable for these fish.

Comment 4d: Several commenters

identified areas they believe have no

need for critical habitat designation.

Comment 4d1: Designation of critical

habitat on Federal and State lands is not

needed, according to a number of

commenters, because it is already

protected by a number of laws,

regulations, policies, and plans.

Designation of critical habitat on private

lands is also not needed because they

are privately owned and critical habitat

designation does not provide any

protection.

Our Response: Although there is

management ongoing on most Federal

lands, and to a limited extent on State

and private lands, there continue to be

many threats to these two fishes. Critical

habitat may enhance management on

Federal lands, and may help prevent

adverse impacts on private lands due to

Federal actions.

Comment 4f2: Some comments

suggested that critical habitat

designation is not necessary because the

threats to the species are from native

and nonnative fish rather than habitat

alteration or loss. In support of this a

report by Propst et al. (1986) was cited

as reporting that a nonnative fish, red

shiner (Cyprinella lutrensis), and two

native fish, longfin dace, and speckled

dace, are competitive species known or

observed to displace spikedace and

loach minnow. One comment also

contends that three other native fish,

Gila chub, Sonora sucker, and desert

sucker are predatory, with the

implication they consume spikedace

and loach minnow to the detriment of

those species.

Our Response: Both habitat alteration

and loss and nonnative competition,

predation, and other effects have

contributed substantially to the

threatened status of spikedace and loach

minnow. Furthermore, these factors are

inextricably intertwined. Habitat

alteration has been a significant

contributor to nonnative fish invasion,

spread, and adverse effect. In turn,

nonnative species have been a

significant contribution to the inability

of native fish to thrive in altered

habitats. There is no information to

indicate that either longfin dace or

speckled dace adversely affect

spikedace or loach minnow and the

1986 report does not make those claims

(D. Propst, New Mexico Dept. of Game

and Fish; pers. com. March, 2000). All

four species are native to the Gila River

basin and longfin dace and speckled

24350 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

dace were part of the community of

species in which spikedace and loach

minnow evolved. Differences in their

habitat requirements enable the four

species to coexist in the same stretch of

stream. Their relative abundance may

change due to habitat changes, but is not

known to change due to interspecific

interactions.

Gila chub, although partly predatory,

feeds mostly on organic debris and

invertebrates and occupies habitat quite

different from that of spikedace and

loach minnow, thus making direct

predation of Gila chub on either

spikedace, loach minnow, or any fish,

an unlikely occurrence (Weedman et al.

1996). Gila chub distribution has

declined substantially in the past 100

years and it shares few stream reaches

with either spikedace or loach minnow.

Neither Sonora sucker nor desert sucker

are known to be predatory; they

consume organic debris from the

substrate (Minckley 1973).

Comment 4d3: Some of the areas

proposed are already included in

designated critical habitat for other

species, such as the southwestern

willow flycatcher, razorback sucker

(Xyrauchen texanus), Huachuca water

umbel (Lilaeopsis schaffneriana var.

recurva), and cactus ferruginous pygmyowl (Glaucidium brasilianum

cactorum). Therefore, some commenters

felt the additional protection for

spikedace and loach minnow is

unnecessary and might lead to adverse

effects on the species for which the area

was already designated as critical

habitat.

Our Response: The habitat needs of

spikedace and loach minnow are not

identical to those of the other four

species whose designated critical

habitat overlaps that designated for the

two fish. Therefore, protection of the

habitat of those species will not

necessarily suffice for spikedace and

loach minnow, although we expect that

protection of the habitat of one species

will often result in at least partial or

total protection for the other species in

the same area. Also, the critical habitat

designation for other species would be

removed upon the delisting of those

species. Thus, the protection provided

from the one species’ designation does

not assure the long-term protection for

others.

We do not anticipate protection of one

of the species for which the area is

designated as critical habitat as being

adverse to any of the others. However,

during section 7 consultation, we would

consider the interaction and possible

conflict of requirements for different

listed species. The purpose of the Act is

protection of ecosystems and we

encourage management of areas with

listed species on ecosystem principles

which will ensure benefits to all the

species in the area.

Comment 4e: Some comments

compared the critical habitat to the

recovery plans for spikedace and loach

minnow. In particular, a concern was

raised that some areas proposed for

critical habitat were not specifically

identified in the recovery plans as

recovery areas.

Our Response: Although the recovery

plans for the two fishes identify some

areas specifically as having a strong

recovery potential, they also call for

identification of other reaches with

recovery potential. That process has

been ongoing in the nine years since the

recovery plans were prepared and

discussions among experts on the

species have assisted us in identifying

the areas in the designated critical

habitat.

Comment 4f: A number of comments

were received that expressed concern

that designation of critical habitat

would have adverse effects on spikedace

and loach minnow.

Comment 4f1: The Blue River was not

occupied by loach minnow in 1904 but

they became common by 1995 as a

result of livestock grazing management.

Critical habitat designation will change

grazing management with adverse

impacts to loach minnow.

Our Response: There are no known

records of native fish from the Blue

River prior to 1904. In 1904,

Chamberlain conducted a brief survey of

fishes of the Blue River from its mouth

to the confluence with K.P. Creek

(Chamberlain 1904, Minckley 1999). He

did not find loach minnow; he found

only one native fish, the longfin dace.

The reason for the scarcity of all other

native fish is unknown, but probably

relates to the human alterations of the

stream channel and watershed that led

Aldo Leopold to call the Blue River

‘‘ruined’’ (Leopold 1921, Leopold 1946).

Although Chamberlain’s survey

indicated that loach minnow were

clearly not common in that portion of

the Blue River in 1904, it does not

provide evidence regarding historical

occupation of spikedace and loach

minnow in the Blue River, nor does it

alone support a conclusion that either

species was extirpated from the river.

The next records of a native fish survey

in the Blue River are from 1977, when

Anderson and Turner found five species

of native fish, including loach minnow.

In the mid-1990’s, loach minnow were

relatively common in the Blue River,

although they were the rarest of the five

remaining native species (AGFD 1994,

Bagley et al. 1995).

We have no data to indicate that

grazing management is responsible for

introducing or enhancing loach minnow

in the Blue River. Caution must be used

in interpreting data from a point-in-time

sample such as Chamberlain’s. Both

spikedace and loach minnow exhibit the

strong fluctuations in population levels

typical of small, short-lived species, and

1904 may have been a low-point in their

population cycles for many reasons

related or unrelated to livestock grazing

or other human influences.

Comment 4f2: A number of

commenters alleged that designation of

critical habitat will be detrimental to

spikedace and loach minnow by

removing human-caused disturbance

(particularly livestock grazing) of the

aquatic ecosystem which will cause the

habitat to change into an unsuitable

condition for spikedace and loach

minnow. They believe the altered

habitat will be highly suitable for

nonnative fish, thus allowing them to

expand and severely reduce or eliminate

spikedace and loach minnow. They cite

the recent Verde River work of John

Rinne, of the USFS Rocky Mountain

Research Station, which they believe

was overlooked in the proposed rule.

Our Response: It is correct that

spikedace and loach minnow, along

with all of the native fish community of

the Gila River basin, require a certain

level and type of disturbance in their

habitat. The primary factor in its natural

disturbance regime is periodic flooding,

although other natural processes such as

fire and erosion also contribute to the

natural disturbances influencing aquatic

systems. These processes are a

characteristic of healthy dynamic river

systems and natural flooding and

hydrographs are part of the constituent

elements described above.

It is also true that under certain

circumstances human-caused

disturbance may provide benefits to the

species, such as rejuvenation of

spawning gravels or removal of

nonnative species. However, there is no

information that indicates humancaused disturbance can mimic the

complex natural disturbance processes,

with the possible exception of

prescribed burning.

We are aware of Dr. Rinne’s work in

the Verde River and did not overlook

the papers discussing his work (see our

response to comment 4(g)) Dr. Rinne’s

work provides speculation on the

potential connection between the low

population levels of spikedace in the

Verde River that have occurred

concurrently with the removal of

livestock from the riparian corridor

(Rinne 1999a, 1999b). Disturbance

created by livestock grazing or

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24351

bulldozing the stream channel are far

different from that caused by flooding.

Comment 4f3: Designation of critical

habitat on private lands will result in

loss of access to those lands and

therefore such designation cannot be

essential to the conservation (recovery)

of the spikedace and loach minnow.

Our Response: We will continue to

work with any private landowners

whose lands support habitat occupied

by, or presently or potentially suitable

for, spikedace and loach minnow, and

who would like to voluntarily cooperate

in conservation activities. This would

be the case with or without critical

habitat designation.

Comment 4f4: One commenter

believes that exclusion of San Carlos

Tribal lands will preclude management

of native fish in the middle Gila River

below the confluence with the San

Pedro River due to incompatible goals of

the San Carlos Apache Tribe.

Our Response: We are not aware of

any provision of the critical habitat that

would preclude management of native

fish in the middle Gila River.

Furthermore, we do not believe selfmanagement of San Carlos Apache

Tribal lands will negate the

conservation of native fishes in the

middle Gila River.

Comment 4f5: Some commenters

contend that the designation of critical

habitat for spikedace and loach minnow

will prevent flood control and human

management of riparian vegetation,

floodplain, and streambank structure.

This will prevent or complicate use of

best management practices and result in

a loss of natural river functioning and

an increase in flooding and flood

damage. Other commenters assert that

designation of critical habitat will

hinder proper management of native

fishes and will prevent or inhibit

removal or control of undesirable

nonnative species.

Our Response: We do not believe that

natural river function precludes flood

control and human management of

riparian vegetation, floodplain, and

streambank structure. Designation of

critical habitat will not prevent such

human alterations of the ecosystem, but

may result in modifications of those

human actions to ameliorate or avoid

the most serious of the adverse

consequences of those actions to

spikedace and loach minnow.

Designation of critical habitat will not

increase flooding, although it is hoped

that through section 7 consultation we

can ensure watershed management

practices that will alter flood patterns

toward a more natural regime. A more

natural regime will have lower flood

peaks and higher low flows. Increased

upland, riparian, and stream channel

conditions should lead to greater

infiltration and bank storage, thus

lowering flood peaks and increasing

base flows.

Critical habitat is not expected to

hinder management of native fishes.

Such a result would be contrary to the

purpose of the designation. Since

recovery of spikedace and loach

minnow depends upon some control

and removal of undesirable nonnative

species, we anticipate that critical

habitat designation will assist that effort

by identifying areas in need of such

management and inhibiting actions that

increase nonnative introduction and

distribution.

Comment 4f6: Many commenters

were concerned about the role of

nonnative aquatic species, particularly

fish, in the recovery of spikedace and

loach minnow. They believe that rivers

within the Gila basin cannot be restored

for recovery of spikedace and loach

minnow due to the presence of

nonnative species which some suggest

cannot be removed or controlled. They

believe removal of adverse impacts or

improvement of habitat conditions will

always favor nonnative species.

‘‘Restoration’’ will always result in

increases in pools and loss of riffles,

runs and glides. Therefore, no areas of

stream needing restoration or habitat

enhancement should be included in the

critical habitat.

Our Response: While restoration may

provide enhanced opportunities for

nonnative species as well as for native

species, this problem must be dealt with

on a site-specific basis. Restoration or

enhancement plans must consider this

issue and provide for mechanisms to

prevent unacceptable adverse impacts

from nonnative species. Nonnative

species in many cases can be completely

removed using a variety of techniques.

In other cases, control measures can

reduce nonnative populations to

acceptable levels.

Comment 4g: Several commenters felt

that designation of critical habitat

should be delayed because they believe

more information or studies are needed

for a valid decision. Others felt that the

best available scientific and commercial

information was either not used or was

not sufficient and that the designation

was based on faulty information and

‘‘bad science.’’ The most commonly

cited evidence of this was what the

commenters felt was failure to consider

a body of literature by Dr. John Rinne,

of the U.S. Forest Service Rocky

Mountain Research Station. According

to the commenters, Dr. Rinne has

information indicating that the accepted

knowledge on spikedace and loach

minnow and their habitat is incorrect,

that there is not clear understanding of

what spikedace and loach minnow

habitat management requires, that

spikedace have been extirpated from the

Verde River due to removal of livestock

grazing, that human disturbance is

necessary to the survival of these two

fish, and that aquatic vegetation is

harmful to spikedace.

Our Response: The Act requires

designation of critical habitat using the

best available information. Delaying

designation to obtain more information

is not legally justified. If significant new

information arises that calls this

designation into question, we can revise

it through a new proposal and final rule.

Dr. Rinne is the author of a number

of papers, in peer reviewed journals and

other outlets, on spikedace, loach

minnow, and other Gila basin native

fishes. All of Dr. Rinne’s work was

considered in our analysis leading to the

proposed designation (see also comment

response 4f2). Dr. Rinne is a consultant

on the Desert Fishes Recovery Team and

has participated exensively in our work

on conservation of spikedace and loach

minnow. We are not aware of any

statement in print by Dr. Rinne that

spikedace are extirpated from the Verde

River, although he has stated that

spikedace is ‘‘absent’’ from the Verde

(Rinne et al. 1999b) and that they are

‘‘rare’’ there (Rinne et al. 1999a).

Spikedace were collected from the

Verde River in spring 1999 by AGFD

(AGFD unpub. data) and there is no

information to support a finding of

extirpation.

Dr. Rinne’s work does not contain any

significant new information on

distribution, biology, ecology, or other

aspects of spikedace and loach minnow

that contradicts what has been found in

earlier work by him and other

researchers. Dr. Rinne’s conclusions

regarding the role of disturbance in

spikedace habitat and the balance

between nonnative and native fishes has

been primarily oriented toward natural

flooding and low flows (Stefferud and

Rinne 1996, Rinne and Stefferud 1997,

Neary and Rinne 1998). We do not find

any conclusion regarding the necessity

for human-caused disturbance in

spikedace or loach minnow habitat in

any of Dr. Rinne’s work. He has

speculated on the role of livestock

grazing in stream habitat conditions and

noted the downturn in spikedace

population that coincided with removal

of livestock grazing from the riparian

corridor (Rinne 1999a). He has stated

that he believes we do not know enough

about livestock grazing impacts on fish

and their habitat to make valid

management decisions (Rinne 1999). Dr.

24352 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Rinne’s views on some of these subjects

do not necessarily reflect all views in

the scientific community working on

desert fishes (Brooks et al. 2000).

Comment 4h: Some commenters

objected to use of any information not

in the peer-reviewed literature. Some

also objected to use of survey or study

information that was not directly

obtained by us. They believe it is

inappropriate for us to rely on the work

of other entities.

Our Response: Much of the

information regarding native fish

distribution and management is in

agency documents and other non-peer

reviewed literature. This forms part of

the best available information on the

species and it would be biologically

unsupportable to make decisions which

ignore that information. Most of the

surveys and studies on native fish are

conducted by entities other than us. We

rely heavily on information about these

species and their habitats from agencies

such as the state game and fish agencies

and universities.

Comment 4i: One commenter believes

the Service overlooked important

information that spikedace can bury

underground and survive extensive

periods without water. This person

states that spikedace have been found

by local residents in rainwater puddles

in upland areas, such as the parking lot

at the Duncan, Arizona, high school.

Our Response: There is no

information in the scientific literature or

within the expertise of biologists

working on spikedace to indicate that

spikedace can either bury underground

or survive without water. Available

evidence indicates that spikedace die

only minutes after being removed from

water. They can, however, survive in

only small amounts of water. In a

streambed, there may be small pockets

of water between rocks and under

overhanging banks or rocks that fish can

use to survive short periods of no flow.

There have been no valid reports of

which we are aware of spikedace

appearing in rainwater puddles in

upland areas.

Comment 4j: Some comments

addressed the issues of continuity and

fragmentation. Because certain stretches

of the San Pedro were not included in

the critical habitat designation, thus

violating the principles of habitat

continuity expressed in the draft rule,

one commenter felt that no portion of

the San Pedro River should be included

in the critical habitat designation. Other

commenters believe that the designated

critical habitat should be broken up into

small, isolated segments without

connecting corridors to help prevent

nonnative species from invading the

critical habitat. They believe

designation of connecting areas as

critical habitat will increase nonnative

fish movement and adverse effects to

spikedace and loach minnow.

Our Response: Although we

attempted to designate critical habitat

areas that were large and diverse enough

to provide for connections between

habitat areas, we omitted certain areas

of the San Pedro River. The upper San

Pedro River in the Riparian National

Conservation Area is to some extent

hydrologically disjunct from the middle

San Pedro River (see USGS hydrologic

data). This, plus the signficant areas of

no flow and no permanent water and

the level of channel alteration and

ongoing disturbance, led us to omit that

area. The exclusion of those areas in the

critical habitat designation will not, per

se, prevent nonnative species from

using those corridors and inclusion will

not provide any opportunities for

nonnative movement that do not exit

without the designation. The middle

San Pedro River and its tributaries of

Redfield and Hot Springs canyons form

a complex that we think is of sufficient

size and complexity to justify a unit.

The lower San Pedro receives most of its

flow from Aravaipa Creek and forms a

unit more closely aligned to Aravaipa

Creek and the middle Gila River than to

the middle San Pedro River, at least

under present conditions. If additional

information becomes available that

indicates the omitted areas in the San

Pedro River should be included in the

critical habitat, it may be considered in

any later revisions of the designation.

The designation of connecting areas

in the critical habitat is, in part, to

provide the opportunity for spikedace

and loach minnow to move between

stream sections, thus maintaining

natural fluctuation patterns and

providing for recolonization of areas

which have become depopulated due to

temporary conditions. The designation

will also help keep those areas in a

condition where natural hydrographs

and channel geomorphology are

maintained relatively intact.

Comment 4k: Commenters mentioned

a number of pieces of information

which they felt were omitted from the

proposed rule that should be provided

before any final decision on critical

habitat. These included the

qualifications of Charles Girard to

identify the type specimens of

spikedace and loach minnow from the

San Pedro River in 1851; the special

management considerations or

protections which would be needed for

each stream segment; the restoration

measures that would be taken to make

each segment capable of providing the

constituent elements; streamflow data

on all streams proposed for designation

and analyses of those data and their

relationship to the habitat needs of

spikedace and loach minnow; an

explanation of the science supporting

the importance of the floodplain in

stream ecology; the recent science on

‘‘river pooling’’; a discussion of fisherylivestock grazing dynamics; and

detailed genetic data to support the

differentiation between populations of

spikedace and loach minnow.

Our Response: The proposed rule is a

summary of the information used to

formulate the proposal for critical

habitat designation, as required by the

Act. Detailed information can be

obtained from the literature cited in the

proposed and final rules, the recovery

plans for these two species, as well as

in many other literature sources. We can

provide assistance in obtaining

literature on any of the above subjects

(see ADDRESSES section).

Comment 4l: A few commenters

suggested that, rather than trying to

restore spikedace and loach minnow in

the unoccupied areas proposed for

critical habitat, recovery for the species

should be accomplished by raising the

two fish in captivity and selling them

commercially for aquarium fish and in

private ponds.

Our Response: The purpose of the Act

is to conserve listed species and the

ecosystems on which they depend.

Relegating a species to captivity does

not conserve the ecosystem on which

they depend. In addition, spikedace and

loach minnow require flowing streams,

so are not easily raised in captivity and

do not survive well in aquaria or ponds.

Comment 4m: Some commenters

pointed out that spikedace and loach

minnow were unsuccessfully

introduced in Sonoita Creek and Seven

Springs Wash. They believe this proves

they cannot be successfully established

in any areas other than where they

currently exist and therefore no

unoccupied areas should be included in

the critical habitat designation as there

is no probability they can be used for

recovery.

Our Response: The 1968 stocking of

spikedace and loach minnow into

Sonoita Creek and 1970 stocking of both

into Seven-Springs Wash failed

(Minckley and Brooks 1985). The

reasons for these failures are unknown;

however, repatriation techniques and

information on these two species and

their habitat needs has increased

substantially since 1970. Neither

Sonoita Creek nor Seven-Springs Wash

have been proposed for critical habitat

for the two fish. We do not believe the

failure of these stockings discourages

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24353

future attempts to reestablish the

species in areas where they have been

extirpated.

Issue 5: NEPA Compliance

Several commenters questioned the

adequacy of our Environmental

Assessment (EA) and other aspects of

our compliance with NEPA.

Comment 5a: The Fish and Wildlife

Service should prepare an

Environmental Impact Statement (EIS)

on this action.

Our Response: An EIS is required

only in instances where a proposed

Federal action is expected to have a

significant impact on the human

environment. In order to determine

whether designation of critical habitat

would have such an effect, we prepared

an EA of the effects of the proposed

designation. The draft EA was made

available for public comment on the day

the proposed critical habitat rule was

published in the Federal Register.

Following consideration of public

comments, we prepared a final EA and

determined that critical habitat

designation does not constitute a major

Federal action having a significant

impact on the human environment. That

determination is documented in our

Finding of No Significant Impact

(FONSI). Both the final EA and FONSI

are available for public review (see

ADDRESSES).

Comment 5b: Several counties

requested Joint Lead Agency or

Cooperating Agency status in

preparation of an EIS for this critical

habitat designation. Why were those

requests denied?

Our Response: Catron and Hidalgo

Counties, New Mexico, each requested

Joint Lead Agency status to assist us in

preparation of an EIS on the critical

habitat designation. In addition, Cochise

County, Arizona, requested either Joint

Lead Agency or Cooperating Agency

status. When preparing an EIS, a Joint

Lead Agency may be a Federal, State, or

local agency; however, a cooperating

agency may only be another Federal

agency (40 CFR 1501.5 and 1501.6). In

December, 1999, we responded to those

requests, stating that we were preparing

an EA on the proposed action and that,

should the EA result in a determination

that an EIS was necessary, we would

consider the counties’ requests.

However, since the EA resulted in a

FONSI (see response to comment 5a,

above), the issue of Joint Lead Agency

or Cooperating Agency status on

preparation of an EIS became moot.

Comment 5c: The Service’s range of

alternatives considered in the draft EA

was inadequate.

Our Response: We reassessed and

modified our analysis and believe we

considered sufficient alternatives in the

Final Environmental Assessment.

Issue 6: Tribal Issues

The following comments and

responses involve issues related to our

treatment of Native American lands and

properties during the designation

process.

Comment 6a: The exclusion of tribal

lands places an unfair burden on nontribal lands designated as critical

habitat.

Our Response: We do not agree with

this commenter’s assessment that the

exclusion of tribal lands places an

unfair burden on non-tribal lands

within the designation. We are

committed to working cooperatively

with all willing parties—private land

owners as well as Federal and State land

managing agencies and Native American

Indian Tribes in developing

conservation agreements, partnerships,

and habitat conservation plans which

can make further Federal management

of those lands unnecessary.

In this case we concluded that the

benefits of excluding Tribal land from

the designation outweighed the benefits

of including the land. Additionally, the

White Mountain Apache Indian Tribe’s

native fishes management plan will

provide conservation for the species and

further Federal management under the

critical habitat designation is not

needed for the species on the

reservation. Furthermore, tribal

management of these native fish

resources will also benefit native fish

management of adjacent non-tribal

lands. Although neither the San Carlos

Apache nor Yavapai Apache tribes have

developed conservation plans for these

species at this time, we believe that the

benefits from encouraging conservation

through tribal self-governance

outweighs the benefits of inclusion in

the critical habitat designation. See the

section titled ‘‘American Indian Tribal

Rights, Federal-Tribal Trust

Responsibilities, and the Endangered

Species Act’’ for additional discussion

concerning the Service’s decision

regarding tribal lands.

Comment 6b: When referring to

excluding tribal lands from critical

habitat designation, does this apply to

lands owned by the Tribe, or only to

lands identified as being within the

reservation boundary?

Our Response: All tribal lands

containing potential critical habitat for

the spikedace or loach minnow that

were ultimately excluded from the

designation are within reservation

boundaries.

Issue 7: Effects of Designation

The following comments and

responses involve issues related to the

effects of critical habitat designation on

land management or other activities.

Comment 7a: The Service should

clarify how critical habitat designation

will affect specific land uses or

management practices.

Our Response: We intended that the

portion of this final rule titled ‘‘Effect of

Critical Habitat Designation’’ serve as a

general guide to clarify activities that

may affect or destroy or adversely

modify critical habitat. However,

specific Federal actions will still need to

be reviewed by the action agency. If the

agency determines the activity may

affect critical habitat, they will consult

with us under section 7 of the Act. If it

is determined that the activity is likely

to adversely modify critical habitat, we

will work with the agency to modify the

activity to minimize negative impacts to

critical habitat. We will work with the

agencies and affected public early in the

consultation process to avoid or

minimize potential conflicts and,

whenever possible, find a solution

which protects listed species and their

habitat while allowing the action to go

forward in a manner consistent with its

intended purpose.

Comment 7b: The Service should

clarify how critical habitat will affect

management of nonnative fish. Will

stocking of trout and other nonnative

fish species be affected by the

designation of critical habitat on several

creeks and streams in Arizona?

Our Response: We previously

consulted on the winter rainbow trout

fishery in the middle Verde River and

on trout stocking in the upper Gila

River. Trout stocking in those areas has

proceeded. While each situation must

be evaluated on a case by case basis, we

anticipate that trout stocking may be

compatible with recovery of the

spikedace and loach minnow in most

situations because trout are not as

predacious as are many other nonnative

fish, they only persist in the upper

reaches of these streams, and they do

not survive the summer if they move

downstream into warmer waters. The

stocking of nonnative fish species other

than trout, particularly in areas near, or

connected to, habitat for these listed

species, regardless of critical habitat

designation, may require additional

consultation when a Federal nexus

exists and a combination of techniques

may be necessary to reduce the impacts.

Comment 7c: The designation of

critical habitat will impose section 9

restrictions against taking of individuals

24354 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

of these two species in areas that do not

currently have those restrictions.

Our Response: Section 9 of the

Endangered Species Act prohibits the

harm or harassment of individuals of

listed species. Prohibitions against take

would be present regardless of whether

or not critical habitat has been

designated. If areas designated as

critical habitat do not have individuals

of the listed species present, no take in

the form of harm or harassment would

occur from activities on these areas and

no section 9 prohibitions would be in

force. However, effects from activities in

unoccupied habitat that extend

downstream to areas occupied by a

listed species could result in take,

regardless of whether or not critical

habitat has been designated.

Summary of Changes From the

Proposed Rule

There have been a number of minor

changes from the text of the proposed

rule. We corrected errors in mileages

and locations and made other minor

technical changes, additions, and

deletions. We incorporated information

from comments into the text and have

made clarifications in response to

comments.

In response to several comments, we

clarified the lateral extent of critical

habitat designation. Where delineated,

this will be the 100-year floodplain of

the designated waterways as defined by

the U.S. Army Corps of Engineers. In

areas where the 100-year floodplain has

not been delineated or it is in dispute,

the presence of alluvial soils (soils

deposited by streams), obligate and

facultative riparian vegetation (requiring

and usually occurring in wetlands,

respectively), abandoned river channels,

or known high water marks can be used

to determine the extent of the

floodplain. We have also clarified that

existing human-constructed features

and structures within the critical habitat

boundaries are not considered part of

the critical habitat.

In response to a comment, we

incorporated references to the October

6, 1999 amendment to the September

20, 1999 court order into this Final

Rule.

We added a section titled ‘‘Exclusion

for Economic and Other Relevant

Impacts’’ to this Final Rule. We

excluded the Fort Apache, San Carlos

Apache, and Yavapai Apache Indian

Reservation lands under the provisions

of section 4(b)(2) of the Act.

We removed all stream reaches in

complex 2, the Black River forks, from

the critical habitat designation for

spikedace for biological reasons.

Comments received pointed out that the

area is too high in elevation to have

sufficient recovery potential for

spikedace.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order

12866, this document is a significant

rule and has been reviewed by the

Office of Management and Budget

(OMB), under Executive Order 12866.

We prepared an economic analysis of

the proposed action to determine the

economic consequences of designating

the specific areas as critical habitat.

Table 5 summarizes the expected

impacts of designating critical habitat

for spikedace and loach minnow. The

draft economic analysis was available

for public review and comment during

the comment period on the proposed

rule. The final economic analysis is

available for public review (see

ADDRESSES section of this rule). We

determined that this rule will not

significantly impact entitlements,

grants, user fees, loan programs, or the

rights and obligations of their recipients

(see Exclusion for Economic and Other

Relevant Impacts section of this final

rule). This rule will not raise novel legal

or policy issues.

TABLE 5.—IMPACTS OF DESIGNATING CRITICAL HABITAT FOR SPIKEDACE AND LOACH MINNOW

Categories of activities

Activities potentially affected by

the designation of critical habitat

in areas occupied by the species

(above those from listing the species)

Activities potentially affected by the designation of critical habitat in

unoccupied areas

Federal Activities Potentially Affected 1.None .............................................. Activities such as those affecting waters of the United States by the

Army Corps of Engineers under section 404 of the Clean Water

Act; road construction and maintenance, right-of-way designation,

and regulation of agricultural activities; construction of roads and

fences along the international border with Mexico and associated

immigration enforcement activities by the Immigration and Naturalization Service; construction of communication sites licensed by

the Federal Communications Commission; and activities funded by

any Federal agency.

Private or other non-Federal Activities Potentially Affected 2.None .............................................. Activities that require a Federal action (permit, authorization, or funding) and that involve such activities as removing or destroying

spikedace or loach minnow habitat (as defined in the primary constituent elements discussion) whether by mechanical, chemical, or

other means (e.g., water diversions, grading, etc.); and that appreciably decrease habitat value or quality through indirect effects

(e.g., edge effects, invasion of exotic plants or animals, or fragmentation).

1Activities initiated by a Federal agency.

2Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601

et seq.)

In the economic analysis (under

section 4 of the Act), we determined

that designation of critical habitat will

not have a significant effect on a

substantial number of small entities (see

also our discussion in the Exclusion for

Economic and Other Relevant Impacts

section of this final rule). We

determined that the designation of

critical habitat will not have any

additional effects on these activities in

areas of critical habitat occupied by the

species. We also determined that there

would be some, but not a significant,

additional effect for the unoccupied area

of critical habitat.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24355

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In our economic analysis, we

determined that designation of critical

habitat will not cause (a) Any effect on

the economy of $100 million or more,

(b) any increases in costs or prices for

consumers; individual industries;

Federal, State, or local government

agencies; or geographic regions, or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S.-based enterprises to compete

with foreign-based enterprises.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

As outlined in our economic analysis,

this rule does not impose an unfunded

mandate on State, local or tribal

governments or the private sector of

more than $100 million or greater in any

year. The designation does not have a

significant or unique effect on State,

local, or tribal governments, or the

private sector. It is not necessary to

provide a statement of the information

required by the Unfunded Mandates

Reform Act (2 U.S.C. 1531 et seq.).

Small governments will be affected only

to the extent that any programs having

Federal funds, permits or other

authorized activities must ensure that

their actions will not destroy or

adversely modify the critical habitat.

However, as discussed above, these

actions are currently subject to

equivalent restrictions through the

listing protections of the species, and no

further restrictions are anticipated in

areas of occupied proposed critical

habitat. We expect little additional

effect for the unoccupied areas of

critical habitat, since unoccupied

habitat that occurs on State or other

governmental land (other than Federal)

is only 40 km (24 mi) of stream, or only

6 percent of the unoccupied habitat we

designated. There is no effect on Tribal

land since we are not designating any

Tribal land as critical habitat.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications, and a

takings implication assessment is not

required. This designation will not

‘‘take’’ private property. Critical habitat

designation is only applicable to Federal

lands and to private lands if a Federal

nexus exists. We do not designate lands

as critical habitat unless the areas are

essential to the conservation of a

species. The rule will not increase or

decrease the current restrictions on

private property concerning take of

spikedace or loach minnow. Due to

current public knowledge of the species

protection, the prohibition against take

of these species both within and outside

of the designated areas, and the fact that

critical habitat provides no incremental

restrictions in areas of occupied critical

habitat, we do not anticipate that

property values will be affected by the

critical habitat designation. We expect

little additional effect for the

unoccupied area of critical habitat since

the land on which we might expect

some additional effect due to critical

habitat designation, should a Federal

nexus exist (unoccupied nonFederal

land), is only approximately 17 percent

of the total area designated.

Additionally, critical habitat

designation does not preclude

development of habitat conservation

plans and issuance of incidental take

permits. Landowners in areas that are

included in the designated critical

habitat will continue to have

opportunity to utilize their property in

ways consistent with the survival of the

spikedace and loach minnow.

Federalism

In accordance with Executive Order

13132, this designation will not affect

the structure or role of States, and will

not have direct, substantial, or

significant effects on States. A

Federalism assessment is not required.

As previously stated, critical habitat is

applicable to Federal lands and to nonFederal lands only when a Federal

nexus exists. In keeping with

Department of the Interior policy, we

requested information from and

coordinated development of this critical

habitat designation with appropriate

State resource agencies in Arizona and

New Mexico. In addition, both States

have representatives on our recovery

team for these species. We will continue

to coordinate any future designation of

critical habitat for spikedace and loach

minnow with the appropriate State

agencies. The designation of critical

habitat in areas currently occupied by

the spikedace and loach minnow

imposes no additional restrictions to

those currently in place and, therefore,

has little incremental impact on State

and local governments and their

activities. The designation of critical

habitat in areas unoccupied by the

spikedace and loach minnow may have

some incremental impact on State and

local governments and their activities

that have Federal funding, permits, or

authorization. The incremental impact

would come from the need to consult

with us under section 7 of the Act to

ensure that these actions will not

destroy or adversely modify the critical

habitat. The designation may have some

benefit to these governments in that the

areas essential to the conservation of the

species are more clearly defined, and

the primary constituent elements of the

habitat necessary to the survival of the

species are specifically identified. While

making this definition and

identification does not alter where and

what federally sponsored activities may

occur, it may assist these local

governments in long-range planning

(rather than waiting for case-by-case

section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Department of the Interior’s

Office of the Solicitor determined that

this rule does not unduly burden the

judicial system and meets the

requirements of sections 3(a) and 3(b)(2)

of the Order. We designate critical

habitat in accordance with the

provisions of the Act. We have made

every effort to ensure that this final

determination contains no drafting

errors, provides clear standards,

simplifies procedures, reduces burden,

and is clearly written such that

litigation risk is minimized.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which Office of Management and

Budget approval under the Paperwork

Reduction Act is required.

National Environmental Policy Act

It is our position that, outside the

Tenth Circuit, we do not need to

prepare environmental analyses as

defined by NEPA in connection with

designating critical habitat under the

Endangered Species Act of 1973, as

amended. We published a notice

outlining our reasons for this

determination in the Federal Register

on October 25, 1983 (48 FR 49244). This

assertion was upheld by the Ninth

Circuit (Douglas County v. Babbitt, 48

F.3d 1495 (9th Cir. Ore. 1995), cert.

denied 116 S. Ct. 698 (1996)). However,

when the ranges of the species include

States within the Tenth Circuit, such as

those of the spikedace and loach

minnow, pursuant to the Tenth Circuit

ruling in Catron County Board of

Commissioners v. U.S. Fish and Wildlife

Service, 75 F.3d 1429 (10th Cir. 1996),

we must undertake a NEPA analysis for

critical habitat designation. We have

prepared a final Environmental

Assessment on this action as required

by NEPA. As a result of that analysis,

we found that the designation of critical

habitat for the spikedace and loach

24356 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

minnow does not constitute a major

Federal action significantly affecting the

quality of the human environment

under the meaning of section 102(2)(c)

of NEPA. As such, an environmental

impact statement is not required. Send

your requests for copies of the final EA

and FONSI for this designation to the

Arizona Ecological Services Office (see

ADDRESSES section).

References Cited

A complete list of all references cited

in this final rule is available upon

request from the Arizona Ecological

Services Office (see ADDRESSES section).

Authors. The primary authors of this

final rule are Paul J. Barrett and Sally E.

Stefferud (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. Amend § 17.11(h), by revising the

entry for ‘‘minnow, loach’’ and

‘‘spikedace’’ under ‘‘FISHES’’ to read as

follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historical range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

FISHES

*******

Minnow, loach .......... Tiaroga

(=Rhinichthys)

cobitis.

U.S.A. (AZ, NM)

Mexico.

entire ....................... T 247 § 17.95(e) NA

*******

Spikedace ................. Meda fulgida ........... U.S.A. (AZ, NM),

Mexico.

entire ....................... T 236 § 17.95(e) NA

*******

3. Amend section 17.95(e) by adding

critical habitat for the spikedace (Meda

fulgida) in the same alphabetical order

as this species occurs in 17.11(h).

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(e) Fishes.

* * * * *

Spikedace (Meda fulgida)

1. Critical habitat units are depicted for

Cochise, Gila, Graham, Greenlee, Pima, Pinal,

and Yavapai Counties, Arizona; and Catron,

Grant, and Hidalgo Counties, New Mexico,

on the maps and as described below.

2. Critical habitat includes the stream

channels within the identified stream reaches

described below and areas within these

reaches potentially inundated by high flow

events. Where delineated, this is the 100-year

floodplain of the designated waterways as

defined by the U.S. Army Corps of Engineers.

In areas where the 100-year floodplain has

not been delineated or it is in dispute, the

presence of alluvial soils (soils deposited by

streams), obligate and facultative riparian

vegetation (requiring and usually occurring

in wetlands respectively), abandoned river

channels, or known high water marks can be

used to determine the extent of the

floodplain. Within these areas, only lands

which provide the primary constituent

elements or which will be capable, with

restoration, of providing them, are

considered critical habitat. Existing humanconstructed features and structures such as

buildings, roads, etc., are not considered

critical habitat.

3. Within these areas, the primary

constituent elements include, but are not

limited to, those habitat components that are

essential for the primary biological needs of

foraging, sheltering, dispersal, and

reproduction. These elements include the

following: (1) Permanent, flowing,

unpolluted water; (2) living areas for adult

spikedace with slow to swift flow velocities

in shallow water with shear zones where

rapid flow borders slower flow, areas of sheet

flow at the upper ends of mid-channel sand/

gravel bars, and eddies at downstream riffle

edges; (3) living areas for juveniles with slow

to moderate water velocities in shallow water

with moderate amounts of instream cover; (4)

living areas for the larval stage with slow to

moderate flow velocities in shallow water

with abundant instream cover; (5) sand,

gravel, and cobble substrates with low to

moderate amounts of fine sediment and

substrate embeddedness; (6) pool, riffle, run,

and backwater components of the streams; (7)

low stream gradient; (8) water temperatures

in the approximate range of 1–30° C (35–85°

F) with natural diurnal and seasonal

variation; (9) abundant aquatic insect food

base; (10) periodic natural flooding; (11) a

natural, unregulated hydrograph, or if flows

are modified or regulated, then a hydrograph

that demonstrates an ability to support a

native fish community; and (12) habitat

devoid of nonnative aquatic species

detrimental to spikedace, or habitat in which

detrimental nonnative species are at levels

which allow persistence of spikedace.

4. Arizona (Gila and Salt River Meridian

(GSRM) and New Mexico (New Mexico

Principal Meridian (NMPM)): Areas of land

and water as follows (physical features were

identified using USGS 7.5′ quadrangle maps;

river reach distances were derived from

digital data obtained from Arizona Land

Resources Information System (ALRIS) and

New Mexico Resource Geographic

Information System (RGIS)):

BILLING CODE 4310–55–P

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24357

Spikedace (Meda fulgida)

24358 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 1. Yavapai and Gila Counties,

Arizona

a. Verde River for approximately 171.3 km

(106.5 mi), extending from the confluence

with Fossil Creek in GSRM, T.11N., R.6E.,

NE1⁄4 Sec. 25 upstream to Sullivan Dam in

GSRM, T.17N., R.2W., NW1⁄4 Sec. 15.

b. Fossil Creek for approximately 7.6 km

(4.7 mi), extending from the confluence with

the Verde River in GSRM, T.11.N., R.6E.,

NE1⁄4 Sec. 25 upstream to the confluence

with an unnamed tributary from the

northwest in GSRM, T.11 1⁄2N., R.7E., center

Sec. 29.

c. West Clear Creek for approximately 11.6

km (7.2 mi), extending from the confluence

with the Verde River in GSRM, T.13N., R.5E.,

center Sec. 21, upstream to the confluence

with Black Mountain Canyon in GSRM,

T.13N., R.6E., SE1⁄4 Sec. 17.

d. Beaver Creek/Wet Beaver Creek for

approximately 33.4 km (20.8mi), extending

from the confluence with the Verde River in

GSRM, T.14N., R.5E., SE1⁄4 Sec. 30 upstream

to the confluence with Casner Canyon in

GSRM, T.15N., R.6E., NW1⁄4 Sec. 23.

e. Oak Creek for approximately 54.4 km

(33.8 mi), extending from the confluence

with the Verde River in GSRM, T.15N., R.4E.,

SE1⁄4 Sec. 20 upstream to the confluence with

an unnamed tributary from the south in

GSRM, T.17N., R.5E., SE1⁄4, NE1⁄4 Sec. 24.

f. Granite Creek for approximately 2.3 km

(1.4 mi), extending from the confluence with

the Verde River in GSRM, T.17N., R.2W.,

NE1⁄4 Sec. 14 upstream to a spring in GSRM,

T.17N., R.2W., SW1⁄4, SW1⁄4, Sec. 13.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24359

Complex 3. Gila County, Arizona

a. Tonto Creek for approximately 47.0 km

(29.2 mi), extending from the confluence

with Greenback Creek in GSRM, T.5N.,

R.11E., NW1⁄4 Sec. 8 upstream to the

confluence with Houston Creek in GSRM,

T.9N., R.11E., NE1⁄4, Sec. 18.

b. Greenback Creek for approximately 13.5

km (8.4 mi), extending from the confluence

with Tonto Creek in GSRM, T.5N., R.11E.,

NW1⁄4 Sec. 8 upstream to Lime Springs in

GSRM, T.6N., R.12E., SW1⁄4 Sec. 20.

c. Rye Creek for approximately 2.1 km (1.3

mi), extending from the confluence with

Tonto Creek in GSRM, T.8N., R.10E., SW1⁄4

Sec. 13 upstream to the confluence with

Brady Canyon in GSRM, T.8N., R.10E., NE1⁄4

Sec. 14.

24360 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 4. Graham, and Pinal Counties,

Arizona

a. Gila River for approximately 62.8 km

(39.0 mi), extending from Ashurst-Hayden

Dam in GSRM, T.4S., R.11E., NW1⁄4 Sec. 8

upstream to the confluence with the San

Pedro River in GSRM, T.5S., R.15E., center

Sec. 23.

b. San Pedro River for approximately 21.4

km (13.3 mi), extending from the confluence

with the Gila River in GSRM, T.5S., R.15E.,

center Sec. 23 upstream to the confluence

with Aravaipa Creek in GSRM, T.7S., R.16E.,

center Sec. 9.

c. Aravaipa Creek for approximately 45.3

km (28.1 mi), extending from the confluence

with the San Pedro River in GSRM, T.7S.,

R.16E., center Sec. 9 upstream to the

confluence with Stowe Gulch in GSRM,

T.6S., R.19E., SE1⁄4 of the NE1⁄4 Sec. 35.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24361

Complex 5. Cochise, Graham, and Pima

Counties, Arizona

a. San Pedro River for approximately 73.6

km (45.8 mi), extending from the confluence

with Alder Wash in GSRM, T.10S., R.18E.,

SW1⁄4 Sec.22 upstream to the confluence

with Ash Creek in GSRM, T.16S., R.20E.,

SE1⁄4 Sec. 6.

b. Redfield Canyon for approximately 22.3

km (13.9 mi), extending from the confluence

with the San Pedro River in GSRM, T.11S.,

R.18E., SW1⁄4 Sec. 34 upstream to the

confluence with Sycamore Canyon in GSRM,

T.11S., R.20E., NW1⁄4 Sec. 28.

c. Hot Springs Canyon for approximately

19.1 km (11.8 mi), extending from the

confluence with the San Pedro River in

GSRM, T.13S., R.19E., west center Sec.23

upstream to the confluence with Bass Canyon

in GSRM, T.12S., R.20E., NE1⁄4 Sec. 36.

d. Bass Canyon for approximately 5.1 km

(3.2 mi), extending from the confluence with

Hot Springs Canyon in GSRM, T.12S., R.20E.,

NE1⁄4 Sec. 36 upstream to the confluence

with Pine Canyon in GSRM, T.12S., R.21E.,

center Sec. 20.

e. San Pedro River for approximately 60.0

km (37.2 mi), extending from the confluence

with the Babocomari River in the San Juan

de las Boquillas y Nogales land grant

upstream to the U.S. border with Mexico in

GSRM, T.24S., R.22E., Sec. 19.

24362 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 6. Graham and Greenlee Counties,

Arizona and Catron County, New Mexico

a. Gila River for approximately 36.3 km

(22.6 mi), extending from the Brown Canal

diversion at the head of the Safford Valley in

GSRM, T.6S., R.28E., SE1⁄4 Sec. 30 upstream

to the confluence with Owl Canyon in

GSRM, T.5S., R.30E., SW1⁄4 Sec. 30.

b. Bonita Creek for approximately 23.5 km

(14.6 mi), extending from the confluence

with the Gila River in GSRM, T.6S., R.28E.,

SE1⁄4 Sec. 21 upstream to the confluence with

Martinez Wash in GSRM, T.4S., R.27E., SE1⁄4

Sec.27.

c. Eagle Creek for approximately 72.8 km

(45.2 mi), extending from the Phelps-Dodge

diversion dam in GSRM, T.4S., R.28E., NW1⁄4

Sec. 23 upstream to the confluence of Dry

Prong and East Eagle Creeks in GSRM, T.2N.,

R.28E., SW1⁄4 Sec. 20, excluding lands on the

San Carlos Apache Indian Reservation.

d. San Francisco River for approximately

181.5 km (113.2 mi), extending from the

confluence with the Gila River in GSRM,

T.5S., R.29E., SE1⁄4 Sec. 21 upstream to the

confluence with the Tularosa River in the

NMPM, T.7S., R.19W., SW1⁄4 Sec. 23.

e. Blue River for approximately 81.9 km

(51.0 mi), extending from the confluence

with the San Francisco River in GSRM, T.2S.,

R.31E., SE1⁄4 Sec. 31 upstream to the

confluence of Campbell and Dry Blue Creeks

in NMPM, T.7S., R.21W., SE1⁄4 Sec. 6.

f. Campbell Blue Creek for approximately

13.1 km (8.2 mi), extending from the

confluence with Dry Blue Creek in NMPM,

T.7S., R.21W., SE1⁄4 Sec. 6 upstream to the

confluence with Coleman Creek in GSRM,

T.4 1⁄2 N., R.31E., SW1⁄4 of the NE1⁄4 Sec. 32.

g. Little Blue Creek for approximately 4.5

km (2.8 mi), extending from the confluence

with the Blue River in GSRM, T.1S., R.31E.,

center Sec. 5 upstream to the mouth of a box

canyon in GSRM, T.1N., R.31E., NE1⁄4 SE1⁄4

Sec. 29.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24363

Complex 7. Grant and Catron Counties, New

Mexico

a. Gila River for approximately 164.4 km

(102.2 mi), extending from the confluence

with Moore Canyon in NMPM, T.18S.,

R.21W., SE1⁄4 SW1⁄4 Sec. 31 upstream to the

confluence of the East and West Forks of the

Gila River in NMPM, T.13S., R.13W., center

Sec. 8.

b. East Fork Gila River for approximately

42.1 km (26.1 mi), extending from the

confluence with the West Fork Gila River in

NMPM, T.13S., R.13W., center Sec. 8

upstream to the confluence of Beaver and

Taylor Creeks in NMPM, T.11S., R.12W.,

NE1⁄4 Sec. 17.

c. Middle Fork Gila River for

approximately 12.3 km (7.7 mi), extending

from the confluence with the West Fork Gila

River in NMPM, T.12S., R.14W., SW1⁄4 Sec.

25 upstream to the confluence with Big Bear

Canyon in NMPM, T.12S., R.14W., NW1⁄4

Sec. 2.

d. West Fork Gila River for approximately

12.4 km (7.7 mi), extending from the

confluence with the East Fork Gila River in

NMPM, T.13S., R.13W., center Sec. 8

upstream to the confluence with EE Canyon

in NMPM, T.12S., R.14W., east boundary of

Sec. 21.

* * * * *

4. Amend section 17.95(e) by adding

critical habitat for the loach minnow

(Tiaroga (= Rhinichthys) cobitis) in the

same alphabetical order as this species

occurs in 17.11(h):

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(e) Fishes.

* * * * *

LOACH MINNOW (Tiaroga (=Rhinichthys)

cobitis)

1. Critical habitat units are depicted for

Apache, Cochise, Gila, Graham, Greenlee,

Pima, Pinal, and Yavapai Counties, Arizona;

and Catron and Grant Counties, New Mexico

on the maps and as described below.

2. Critical habitat includes the stream

channels within the identified stream reaches

described below and areas within these

reaches potentially inundated by high flow

events. Where delineated, this is the 100-year

floodplain of the designated waterways as

defined by the U.S. Army Corps of Engineers.

In areas where the 100-year floodplain has

not been delineated or it is in dispute, the

presence of alluvial soils (soils deposited by

streams), obligate and facultative riparian

vegetation (requiring and usually occurring

in wetlands respectively), abandoned river

channels, or known high water marks can be

used to determine the extent of the

floodplain. Within these areas, only lands

which provide the primary constituent

elements or which will be capable, with

restoration, of providing them, are

considered critical habitat. Existing humanconstructed features and structures such as

buildings, roads, etc., are not considered

critical habitat.

3. Within these areas, the primary

constituent elements include, but are not

limited to, those habitat components that are

essential for the primary biological needs of

foraging, sheltering, dispersal, and

reproduction. These elements include the

following: (1) Permanent flowing, unpolluted

water; (2) living areas for adult loach minnow

with moderate to swift flow velocities in

shallow water with gravel, cobble, and rubble

substrates; (3) living areas for juvenile loach

minnow with moderate to swift flow

velocities in shallow water with sand, gravel,

cobble, and rubble substrates; (4) living areas

for larval loach minnow with slow to

moderate velocities in shallow water with

sand, gravel, and cobble substrates and

abundant instream cover; (5) spawning areas

with slow to swift flow velocities in shallow

water with uncemented cobble and rubble

substrate; (6) low amounts of fine sediment

and substrate embeddedness; (7) riffle, run,

and backwater components present in the

aquatic habitat; (8) low to moderate stream

gradient; (9) water temperatures in the

approximate range of 1–30 °C (35–85 °F) with

natural diurnal and seasonal variation; (10)

abundant aquatic insect food base; (11)

periodic natural flooding; (12) a natural,

unregulated hydrograph, or if flows are

modified or regulated, then a hydrograph that

demonstrates a retained ability to support a

native fish community; and (13) habitat

devoid of nonnative aquatic species

detrimental to loach minnow, or habitat in

which detrimental nonnative species are at

levels which allow persistence of loach

minnow.

4. Arizona (Gila and Salt River Meridian

(GSRM)) and New Mexico (New Mexico

Principal Meridian (NMPM)): Areas of land

and water as follows (physical features were

identified using USGS 7.5′ quadrangle maps;

river reach distances were derived from

digital data obtained from Arizona Land

Resources Information System (ALRIS) and

24364 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

New Mexico Resource Geographic

Information System (RGIS)):

LOACH MINNOW (Tiaroga (=Rhinichthys)

cobitis)

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24365

Complex 1. Yavapai, and Gila Counties,

Arizona

a. Verde River for approximately 171.3 km

(106.5 mi), extending from the confluence

with Fossil Creek in GSRM, T.11N., R.6E.,

NE1⁄4 Sec. 25 upstream to Sullivan Dam in

GSRM, T.17N., R.2W., NW1⁄4 Sec. 15,

excluding lands on the Yavapai Apache

Indian Reservation.

b. Fossil Creek for approximately 7.6 km

(4.7 mi), extending from the confluence with

the Verde River in GSRM, T.11N., R.6E.,

NE1⁄4 Sec. 25 upstream to the confluence

with an unnamed tributary from the

northwest in GSRM, T.11 1⁄2N., R.7E., center

Sec. 29.

c. West Clear Creek for approximately 11.6

km (7.2 mi), extending from the confluence

with the Verde River in GSRM, T.13N., R.5E.,

center Sec. 21, upstream to the confluence

with Black Mountain Canyon in GSRM,

T.13N., R.6E., SE1⁄4 Sec. 17.

d. Beaver Creek/Wet Beaver Creek for

approximately 33.4 km (20.8mi), extending

from the confluence with the Verde River in

GSRM, T.14N., R.5E., SE1⁄4 Sec. 30 upstream

to the confluence with Casner Canyon in

GSRM, T.15N., R.6E., NW1⁄4 Sec. 23.

e. Oak Creek for approximately 54.4 km

(33.8 mi), extending from the confluence

with the Verde River in GSRM, T.15N., R.4E.,

SE1⁄4 Sec. 20 upstream to the confluence with

an unnamed tributary from the south in

GSRM, T.17N., R.5E., SE1⁄4, NE1⁄4 Sec. 24.

f. Granite Creek for approximately 2.3 km

(1.4 mi), extending from the confluence with

the Verde River in GSRM, T.17N., R.2W.,

NE1⁄4 Sec. 14 upstream to a spring in GSRM,

T.17N., R.2W., SW1⁄4, SW1⁄4, Sec. 13.

24366 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 2. Apache and Greenlee Counties,

Arizona

a. East Fork Black River for approximately

8.2 km (5.1 mi), extending from the

confluence with the West Fork Black River in

GSRM, T.4N., R.28E., SE1⁄4 Sec. 11 upstream

to the confluence with Deer Creek in GSRM,

T.5N., R.29E., NW1⁄4 Sec. 30.

b. North Fork of the East Fork Black River

for approximately 18.0 km (11.2 mi),

extending from the confluence of the East

Fork Black River and Deer Creek in GSRM,

T.5N., R.29E., NW1⁄4 Sec. 30 upstream to the

confluence with an unnamed tributary

flowing from the east in GSRM, T.6N.,

R.29E., center Sec. 30.

c. Boneyard Creek for approximately 2.3

km (1.4 mi), extending from the confluence

with the North Fork of the East Fork Black

River in GSRM, T.5N, R.29E., SW1⁄4 Sec. 5

upstream to the confluence with an unnamed

tributary flowing from the east near Clabber

City in GSRM, T.6N., R.29E., SE1⁄4 SE1⁄4 Sec.

32.

d. Coyote Creek for approximately 3.1 km

(2.0 mi), extending from the confluence with

the North Fork of the East Fork Black River

in GSRM, T.5N., R.29E., NE1⁄4 Sec. 8

upstream to the confluence with an unnamed

tributary flowing from the south in GSRM,

T.5N., R.19E., NW1⁄4 Sec. 10.

e. West Fork Black River for approximately

10.3 km (6.4 mi), extending from the

confluence with the East Fork Black River in

GSRM, T.4N, R.28E., SE1⁄4 Sec. 11 upstream

to the confluence with Hay Creek in GSRM,

T.5N., R.28E., SE1⁄4, Sec. 19.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24367

Complex 3. Gila County, Arizona

a. Tonto Creek for approximately 70.3 km

(43.7 mi), extending from the confluence

with Greenback Creek in GSRM, T.5N.,

R.11E., NW1⁄4 Sec. 8 upstream to the

confluence with Haigler Creek in GSRM,

T.10N., R.12E., NW1⁄4, Sec. 14.

b. Greenback Creek for approximately 13.5

km (8.4 mi), extending from the confluence

with Tonto Creek in GSRM, T.5N., R.11E.,

NW1⁄4 Sec. 8 upstream to Lime Springs in

GSRM, T.6N., R.12E., SW1⁄4 Sec. 20.

c. Rye Creek for approximately 2.1 km (1.3

mi), extending from the confluence with

Tonto Creek in GSRM, T.8N., R.10E., SW1⁄4

Sec. 13 upstream to the confluence with

Brady Canyon in GSRM, T.8N., R.10E., NE1⁄4

Sec. 14.

24368 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 4. Graham and Pinal Counties,

Arizona

a. Gila River for approximately 62.8 km

(39.0 mi), extending from Ashurst-Hayden

Dam in GSRM, T.4S., R.11E., NW1⁄4 Sec. 8

upstream to the confluence with the San

Pedro River in GSRM, T.5S., R.15E., center

Sec. 23.

b. San Pedro River for approximately 21.4

km (13.3 mi), extending from the confluence

with the Gila River in GSRM, T.5S., R.15E.,

center Sec. 23 upstream to the confluence

with Aravaipa Creek in GSRM, T.7S., R.16E.,

center Sec. 9.

c. Aravaipa Creek for approximately 45.3

km (28.1 mi), extending from the confluence

with the San Pedro River in GSRM, T.7S.,

R.16E., center Sec. 9 upstream to the

confluence with Stowe Gulch in GSRM,

T.6S., R.19E., SE1⁄4 of the NE1⁄4 Sec. 35.

d. Turkey Creek for approximately 4.3 km

(2.7 mi), extending from the confluence with

Aravaipa Creek in GSRM, T.6S., R.19E.,

center Sec. 19 upstream to the confluence

with Oak Grove Canyon in GSRM, T.6S.,

R.19E., SW1⁄4 Sec. 32.

f. Deer Creek for approximately 3.6 km (2.3

mi), extending from the confluence with

Aravaipa Creek in GSRM, T.6S., R.18E., SE1⁄4

of the SE1⁄4 Sec. 14 upstream to the boundary

of the Aravaipa Wilderness at GSRM, T.6S.,

R.18E., east boundary Sec. 13.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24369

Complex 5. Cochise, Graham, and Pima

Counties, Arizona

a. San Pedro River for approximately 73.6

km (45.8 mi), extending from the confluence

with Alder Wash in GSRM, T.10S., R.18E.,

SW1⁄4 Sec. 22 upstream to the confluence

with Ash Creek in GSRM, T.16S., R.20E.,

SE1⁄4 Sec. 6.

b. Redfield Canyon for approximately 22.3

km (13.9 mi), extending from the confluence

with the San Pedro River in GSRM, T.11S.,

R.18E., SW1⁄4 Sec. 34 upstream to the

confluence with Sycamore Canyon in GSRM,

T.11S., R.20E., NW1⁄4 Sec. 28.

c. Hot Springs Canyon for approximately

19.1 km (11.8 mi), extending from the

confluence with the San Pedro River in

GSRM, T.13S., R.19E., west center Sec. 23

upstream to the confluence with Bass Canyon

in GSRM, T.12S., R.20E., NE1⁄4 Sec. 36.

d. Bass Canyon for approximately 5.1 km

(3.2 mi), extending from the confluence with

Hot Springs Canyon in GSRM, T.12S., R.20E.,

NE1⁄4 Sec. 36 upstream to the confluence

with Pine Canyon in GSRM, T.12S., R.21E.,

center Sec. 20.

e. San Pedro River for approximately 60.0

km (37.2 mi), extending from the confluence

with the Babocomari River in the San Juan

de las Boquillas y Nogales land grant

upstream to the U.S. border with Mexico in

GSRM, T.24S., R.22E., Sec. 19.

24370 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 6. Graham and Greenlee Counties,

Arizona and Catron County, New Mexico

a. Gila River for approximately 36.3 km

(22.6 mi), extending from the Brown Canal

diversion at the head of the Safford Valley in

GSRM, T.6S., R.28E., SE1⁄4 Sec. 30 upstream

to the confluence with Owl Canyon in

GSRM, T.5S., R.30E., SW1⁄4 Sec. 30.

b. Bonita Creek for approximately 23.5 km

(14.6 mi), extending from the confluence

with the Gila River in GSRM, T.6S., R.28E.,

SE1⁄4 Sec. 21 upstream to the confluence with

Martinez Wash in GSRM, T.4S., R.27E., SE1⁄4

Sec. 27.

c. Eagle Creek for approximately 72.8 km

(45.2 mi), extending from the Phelps-Dodge

diversion dam in GSRM, T.4S., R.28E., NW1⁄4

Sec. 23 upstream to the confluence of Dry

Prong and East Eagle Creeks in GSRM, T.2N.,

R.28E., SW1⁄4 Sec. 20, excluding lands on the

San Carlos Apache Indian Reservation.

d. San Francisco River for approximately

203.3 km (126.3 mi), extending from the

confluence with the Gila River in GSRM,

T.5S., R.29E., SE1⁄4 Sec. 21 upstream to the

mouth of The Box canyon in NMPM, T.6S.,

R.19W., SW1⁄4 of the NW1⁄4 Sec. 2.

e. Tularosa River for approximately 30.0

km (18.6 mi), extending from the confluence

with the San Francisco River in NMPM,

T.7S., R.19W., SW1⁄4 Sec. 23 upstream to

NMPM, T.6S., R.18W, south boundary Sec. 1.

f. Negrito Creek for approximately 6.8 km

(4.2 mi), extending from the confluence with

the Tularosa River in NMPM, T.7S., R.18W.,

SW1⁄4 of the NW1⁄4 Sec. 19 upstream to the

confluence with Cerco Canyon in NMPM,

T.7S., R.18W., west boundary Sec. 22.

g. Whitewater Creek for approximately 1.8

km (1.2 mi), extending from the confluence

with the San Francisco River in NMPM,

T.11S., R.20W., SE1⁄4 Sec. 27 upstream to the

confluence with Little Whitewater Creek in

NMPM, T.11S., R.20W., SE1⁄4 Sec. 23.

h. Blue River for approximately 81.9 km

(51.0 mi), extending from the confluence

with the San Francisco River in GSRM, T.2S.,

R.31E., SE1⁄4 Sec. 31 upstream to the

confluence of Campbell and Dry Blue Creeks

in NMPM, T.7S., R.21W., SE1⁄4 Sec. 6.

i. Campbell Blue Creek for approximately

13.1 km (8.2 mi), extending from the

confluence with Dry Blue Creek in NMPM,

T.7S., R.21W., SE1⁄4 Sec. 6 upstream to the

confluence with Coleman Creek in GSRM,

T.4 1⁄2 N., R.31E., SW1⁄4 of the NE1⁄4 Sec. 32.

j. Dry Blue Creek for approximately 4.7 km

(3.0 mi), extending from the confluence with

Campbell Blue Creek in NMPM, T.7S.,

R.21W., SE1⁄4 Sec. 6 upstream to the

confluence with Pace Creek in NMPM, T.6S.,

R.21W., SW1⁄4 Sec. 28.

k. Pace Creek for approximately 1.2 km (0.8

mi), extending from the confluence with Dry

Blue Creek in NMPM, T.6S., R.21W., SW1⁄4

Sec. 28 upstream to the barrier falls in

NMPM, T.6S., R.21W., SW1⁄4 Sec. 28.

l. Frieborn Creek for approximately 1.8 km

(1.2 mi), extending from the confluence with

Dry Blue Creek in NMPM, T.7S., R.21W.,

SW1⁄4 NW1⁄4 Sec. 5 upstream to the

confluence with an unnamed tributary

flowing from the south in NMPM, T.7S.,

R.21W., NE1⁄4 SW1⁄4 Sec. 8.

m. Little Blue Creek for approximately 4.5

km (2.8 mi), extending from the confluence

with the Blue River in GSRM, T.1S., R.31E.,

center Sec. 5 upstream to the mouth of a box

canyon in GSRM, T.1N., R.31E., NE1⁄4 SE1⁄4

Sec. 29.

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24371

24372 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Complex 7. Grant and Catron Counties, New

Mexico.

a. Gila River for approximately 164.4 km

(102.2 mi), extending from the confluence

with Moore Canyon in NMPM, T.18S.,

R.21W., SE1⁄4 SW1⁄4 Sec. 31 upstream to the

confluence of the East and West Forks of the

Gila River in NMPM, T.13S., R.13W., center

Sec. 8.

b. East Fork Gila River for approximately

42.1 km (26.1 mi), extending from the

confluence with the West Fork Gila River in

NMPM, T.13S., R.13W., center Sec. 8

upstream to the confluence of Beaver and

Taylor Creeks in NMPM, T.11S., R.12W.,

NE1⁄4 Sec. 17.

c. Middle Fork Gila River for

approximately 19.1 km (11.8 mi), extending

from the confluence with the West Fork Gila

River in NMPM, T.12S., R.14W., SW1⁄4 Sec.

25 upstream to the confluence with Brothers

West Canyon in NMPM, T.11S., R.14W.,

NE1⁄4 Sec. 33.

d. West Fork Gila River for approximately

12.4 km (7.7 mi), extending from the

confluence with the East Fork Gila River in

NMPM, T.13S., R.13W., center Sec. 8

upstream to the confluence with EE Canyon

in NMPM, T.12S., R.14W., east boundary of

Sec. 21.

Dated: April 18, 2000.

Stephen C. Saunders,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 00–10202 Filed 4–21–00; 8:45 am]

BILLING CODE 4310–55–P