10810 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2010–0072; 

4500030114] 

RIN 1018–AX17 

Endangered and Threatened Wildlife 

and Plants; Endangered Status and 

Designations of Critical Habitat for 

Spikedace and Loach Minnow 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), change the 

status of spikedace (Meda fulgida) and 

loach minnow (Tiaroga cobitis) from 

threatened to endangered under the 

Endangered Species Act of 1973, as 

amended (Act). With this rule we are 

also revising the designated critical 

habitats for both species. These changes 

fulfill our obligations under a settlement 

agreement. 

DATES: This rule becomes effective on 

March 26, 2012. 

ADDRESSES: This final rule and the 

associated final economic analysis and 

environmental assessment are available 

on the Internet at http:// 

www.regulations.gov. Comments and 

materials received, as well as supporting 

documentation used in preparing this 

final rule, are available for public 

inspection, by appointment, during 

normal business hours, at the U.S. Fish 

and Wildlife Service, Arizona Ecological 

Services Office, 2321 W. Royal Palm 

Road, Suite 103, Phoenix, AZ 85021; 

telephone 602–242–0210; facsimile 

602–242–2513. 

FOR FURTHER INFORMATION CONTACT: 

Steve Spangle, Field Supervisor, U.S. 

Fish and Wildlife Service, Arizona 

Ecological Services Office, 2321 W. 

Royal Palm Road, Suite 103, Phoenix, 

AZ 85021; telephone 602–242–0210; 

facsimile 602–242–2513. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

In this final rule, we are changing the 

status of spikedace and loach minnow 

from threatened to endangered under 

the Act. We also are revising our 

designations of critical habitat for both 

species. We are under undertaking these 

actions pursuant to a settlement 

agreement and publication of this action 

will fulfill our obligations under that 

agreement. With the change in status for 

the species, the special rules for each 

species will be removed from the Code 

of Federal Regulations. In total, 

approximately 1,013 kilometers (630 

miles) are designated as critical habitat 

for spikedace and 983 kilometers (610 

miles) are designated as critical habitat 

for loach minnow in Apache, Cochise, 

Gila, Graham, Greenlee, Pinal, and 

Yavapai Counties, Arizona, and Catron, 

Grant, and Hidalgo Counties in New 

Mexico. Of this area, approximately 853 

kilometers (529 miles) are designated for 

both species, with an additional 162 

kilometers (100 miles) for spikedace 

only and an additional 130 kilometers 

(81 miles) for loach minnow only. We 

have excluded from this designation of 

critical habitat: portions of the upper 

San Pedro River in Arizona based on 

potential impacts to national security at 

Fort Huachuca; Tribal lands of the 

White Mountain Apache Tribe, San 

Carlos Apache Tribe, and the YavapaiApache Nation in Arizona; and private 

lands owned by Freeport-McMoRan in 

Arizona and New Mexico. 

Background 

It is our intent to discuss in this final 

rule only those topics directly relevant 

to the development and designations of 

critical habitat for the spikedace and the 

loach minnow under the Act (16 U.S.C. 

1531 et seq.). For more information on 

the biology and ecology of the spikedace 

and the loach minnow, refer to the final 

listing rule published in the Federal 

Register on July 1, 1986, for spikedace 

(51 FR 23769), and October 28, 1986, for 

loach minnow (51 FR 39468); the 

previous critical habitat designations 

(72 FR 13356, March 21, 2007); and our 

1991 final recovery plans, which are 

available from the Arizona Ecological 

Services Office (see ADDRESSES section). 

For information on spikedace and loach 

minnow critical habitat, refer to the 

proposed rule to designate critical 

habitat for the two species published in 

the Federal Register on October 28, 

2010 (75 FR 66482). A notice of 

availability regarding changes to the 

proposed rule and information on the 

associated draft economic analysis and 

draft environmental assessment for the 

proposed rule to designate revised 

critical habitat was published in the 

Federal Register on October 4, 2011 (76 

FR 61330). 

Previous Federal Actions 

Previous Federal actions prior to 

October 28, 2010, are outlined in our 

proposed rule (75 FR 66482), which was 

published on that date. Publication of 

the proposed rule opened a 60-day 

comment period which closed on 

December 27, 2010. On October 4, 2011 

(76 FR 61330), we published a revised 

proposed rule, announced the 

availability of a draft economic analysis 

and environmental assessment of the 

proposed designations, and announced 

the scheduling of a public information 

session and public hearing. Our October 

4, 2011, notice also reopened the 

comment period on the revised 

proposed rule and uplisting for an 

additional 30 days, until November 3, 

2011. 

Spikedace 

The spikedace is a member of the 

minnow family Cyprinidae, and is the 

only species in the genus Meda. The 

spikedace was first collected from the 

San Pedro River in 1851. The spikedace 

is a small, slim fish less than 75 

millimeters (mm) (3 inches (in)) in 

length (Sublette et al. 1990, p. 136). 

Spikedace have olive-gray to brownish 

skin, with silvery sides and vertically 

elongated black specks. Spikedace have 

spines in the dorsal fin (Minckley 1973, 

pp. 82, 112, 115). 

Spikedace are found in moderate to 

large perennial streams, where they 

inhabit shallow riffles (those shallow 

portions of the stream with rougher, 

choppy water) with sand, gravel, and 

rubble substrates (Barber and Minckley 

1966, p. 31; Propst et al. 1986, p. 12; 

Rinne and Kroeger 1988, p. 1; Rinne 

1991, pp. 8–10). Specific habitat for this 

species consists of shear zones where 

rapid flow borders slower flow; areas of 

sheet flow at the upper ends of 

midchannel sand or gravel bars; and 

eddies at downstream riffle edges 

(Rinne 1991, p. 11; Rinne and Kroeger 

1988, pp. 1, 4). Recurrent flooding and 

a natural flow regime are very important 

in maintaining the habitat of spikedace 

and in helping maintain a competitive 

edge over invading nonnative aquatic 

species (Propst et al. 1986, pp. 76–81; 

Minckley and Meffe 1987, pp. 97, 103– 

104). 

The spikedace was once common 

throughout much of the Gila River 

basin, including the mainstem Gila 

River upstream of Phoenix, and the 

Verde, Agua Fria, Salt, San Pedro, and 

San Francisco subbasins. Habitat 

destruction and competition and 

predation by nonnative aquatic species 

reduced its range and abundance (Miller 

1961, pp. 365, 377, 397–398; Lachner et 

al. 1970, p. 22; Ono et al. 1983, p. 90; 

Moyle 1986, pp. 28–34; Moyle et al. 

1986, pp. 416–423; Propst et al. 1986, 

pp. 82–84). Spikedace are now 

restricted to portions of the upper Gila 

River (Grant, Catron, and Hidalgo 

Counties, New Mexico); Aravaipa Creek 

(Graham and Pinal Counties, Arizona); 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10811 

Eagle Creek (Graham and Greenlee 

Counties, Arizona); and the Verde River 

(Yavapai County, Arizona) (Marsh et al. 

1990, pp. 107–108, 111; Brouder, 2002, 

pers. comm.; Stefferud and Reinthal 

2005, pp. 16–21; Paroz et al. 2006, pp. 

62–67; Propst 2007, pp. 7–9, 11–14; 

Reinthal 2011, pp. 1–2). 

In 2007, spikedace were translocated 

into Hot Springs and Redfield Canyons, 

in Cochise County, Arizona, and these 

streams were subsequently augmented 

(Robinson 2008a, pp. 2, 6; Robinson, 

2008b, pers. comm.; Orabutt, 2009 pers. 

comm.; Robinson 2009a, pp. 2, 5–8). 

(We use the term ‘‘translocate’’ to 

describe stocking fish into an area 

where suitable habitat exists, but for 

which there are no documented 

collections.) Both Hot Springs and 

Redfield canyons are tributaries to the 

San Pedro River. Spikedace were also 

translocated into Fossil Creek, a 

tributary to the Verde River in Gila 

County, Arizona, in 2007, and were 

subsequently augmented in 2008 and 

2011 (Carter 2007b, p. 1; Carter 2008a, 

p. 1; Robinson 2009b, p. 9; Boyarski et 

al. 2010, p. 3, Robinson 2011a, p. 1). In 

2008, spikedace were translocated into 

Bonita Creek, a tributary to the Gila 

River in Graham County, Arizona 

(Blasius, 2008, pers. comm.; Orabutt, 

2009,, pers. comm.; Robinson et al. 

2009a, p. 209; Blasius and Conn 2011, 

p. 3), and were repatriated to the upper 

San Francisco River in Catron County, 

New Mexico (Propst, 2010, pers. 

comm.). (We use the term ‘‘repatriate’’ 

to describe stocking fish into an area 

where we have historical records of 

prior presence.) Augmentations with 

additional fish will occur for the next 

several years at all sites, if adequate 

numbers of fish are available. 

Monitoring at each of these sites is 

ongoing to determine if populations 

ultimately become self-sustaining. 

The species is now common only in 

Aravaipa Creek in Arizona (AGFD 1994; 

Arizona State University (ASU) 2002; 

Reinthal 2011, pp. 1–2) and one section 

of the Gila River south of Cliff, New 

Mexico (NMDGF 2008; Propst et al. 

2009, pp. 14–17). The Verde River is 

presumed occupied; however, the last 

captured fish from this river was from 

a 1999 survey (Brouder 2002, p. 1; 

AGFD 2004). Spikedace from the Eagle 

Creek population have not been seen for 

over a decade (Marsh 1996, p. 2), 

although they are still thought to exist 

in numbers too low for the sampling 

efforts to detect (Carter et al. 2007, p. 3; 

see Minckley and Marsh 2009). The 

Middle Fork Gila River population is 

thought to be very small and has not 

been seen since 1991 (Jakle 1992, p. 6), 

but sampling is localized and 

inadequate to detect a sparse 

population. 

Population estimates have not been 

developed as a result of the difficulty in 

detecting the species, the sporadic 

nature of most surveys, and the 

difference in surveying techniques that 

have been applied over time. Based on 

the available maps and survey 

information, we estimate the present 

range for spikedace to be approximately 

10 percent or less of its historical range, 

and the status of the species within 

occupied areas ranges from common to 

very rare. Data indicate that the 

population in New Mexico has declined 

in recent years (Paroz et al. 2006, p. 56). 

Historical and current records for 

spikedace are summarized in three 

databases (ASU 2002, AGFD 2004, 

NMDGF 2008), which are referenced 

throughout this document. 

Loach Minnow 

The loach minnow is a member of the 

minnow family Cyprinidae. The loach 

minnow was first collected in 1851 from 

the San Pedro River in Arizona and was 

described by those specimens in 1856 

by Girard (pp. 191–192). The loach 

minnow is a small, slender fish less 

than 80 mm (3 in) in length. It is olivecolored overall, with black mottling or 

splotches. Breeding males have vivid 

red to red-orange markings on the bases 

of fins and adjacent body, on the mouth 

and lower head, and often on the 

abdomen (Minckley 1973, p. 134; 

Sublette et al. 1990, p. 186). 

Loach minnow are found in small to 

large perennial streams and use shallow, 

turbulent riffles with primarily cobble 

substrate and swift currents (Minckley 

1973, p. 134; Propst et al. 1988, pp. 36– 

43; Rinne 1989, pp. 113–115; Propst and 

Bestgen 1991, pp. 29, 32–33). The loach 

minnow uses the spaces between, and 

in the lee (sheltered) side of, rocks for 

resting and spawning. It is rare or absent 

from habitats where fine sediments fill 

these interstitial spaces (Propst and 

Bestgen 1991, p. 34). 

Loach minnow are now restricted to: 

• Portions of the Gila River and its 

tributaries, the West, Middle, and East 

Fork Gila River (Grant, Catron, and 

Hidalgo Counties, New Mexico) (Paroz 

and Propst 2007, p. 16; Propst 2007, pp. 

7–8, 10–11, 13–14); 

• The San Francisco and Tularosa 

rivers and their tributaries, Negrito and 

Whitewater Creeks (Catron County, New 

Mexico) (Propst et al. 1988, p. 15; ASU 

2002; Paroz and Propst 2007, p. 16; 

Propst 2007, pp. 4–5); 

• The Blue River and its tributaries, 

Dry Blue, Campbell Blue, Pace, and 

Frieborn Creeks (Greenlee County, 

Arizona, and Catron County, New 

Mexico) (Miller 1998, pp. 4–5; ASU 

2002; Carter 2005, pp. 1–5; Carter, 

2008b, pers. comm.; Clarkson et al. 

2008, pp. 3–4; Robinson 2009c, p. 3); 

• Aravaipa Creek and its tributaries, 

Turkey and Deer Creeks (Graham and 

Pinal Counties, Arizona) (Stefferud and 

Reinthal 2005, pp. 16–21); 

• Eagle Creek (Graham and Greenlee 

Counties, Arizona), (Knowles 1994, pp. 

1–2, 5; Bagley and Marsh 1997, pp. 1– 

2; Marsh et al. 2003, pp. 666–668; Carter 

et al. 2007, p. 3; Bahm and Robinson 

2009a, p. 1); 

• The North Fork East Fork Black 

River (Apache and Greenlee Counties, 

Arizona) (Leon 1989, pp. 1–2; Lopez, 

2000, pers. comm.; Gurtin, 2004, pers. 

comm.; Carter 2007b, p. 2; Robinson et 

al. 2009b, p. 4); and 

• Possibly the White River and its 

tributaries, the East and North Fork 

White River (Apache, Gila, and Navajo 

Counties, Arizona). 

As described for spikedace above, 

population estimates for loach minnow 

have not been developed as a result of 

the difficulty in detecting the species, 

the sporadic nature of most surveys, and 

the difference in surveying techniques 

that have been applied over time. 

However, based on the available maps 

and survey information, we estimate the 

present range for loach minnow to be 

approximately 15 to 20 percent or less 

of its historical range, and the status of 

the species within occupied areas 

ranges from common to very rare. Data 

indicate that the population in New 

Mexico has declined in recent years 

(Paroz et al. 2006, p. 56). Historical and 

current records for spikedace are 

summarized in three databases (ASU 

2002, AGFD 2004, NMDGF 2008), 

which are referenced throughout this 

document. 

Summary of Factors Affecting the 

Species 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is endangered or threatened 

throughout all or a significant portion of 

its range. Both spikedace and loach 

minnow currently exist in a small 

portion of their historical range (10 

percent, or less, for spikedace, and 15 to 

20 percent for loach minnow), and the 

threats continue throughout its range. 

Accordingly, our assessment and 

determination applies to each species 

throughout its entire range. Section 4 of 

the Act (16 U.S.C. 1533), and 

implementing regulations (50 CFR part 

424), set forth the procedures for adding 

species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. 

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10812 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

Under section 4(a)(1) of the Act, a 

species may be determined to be 

endangered or threatened based on any 

of the following five factors: (1) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) the inadequacy of existing 

regulatory mechanisms; or (5) other 

natural or manmade factors affecting its 

continued existence. In making this 

finding, information pertaining to 

spikedace and loach minnow, in 

relation to the five factors provided in 

section 4(a)(1) of the Act, is discussed 

below. 

In considering what factors might 

constitute threats to a species, we must 

look beyond the exposure of the species 

to a factor to evaluate whether the 

species may respond to the factor in a 

way that causes actual impacts to the 

species. If there is exposure to a factor 

and the species responds negatively, the 

factor may be a threat and we attempt 

to determine how significant a threat it 

is. The threat is significant if it drives, 

or contributes to, the risk of extinction 

of the species such that the species 

warrants listing as endangered or 

threatened as those terms are defined in 

the Act. 

Throughout the document, we discuss 

areas in which spikedace or loach 

minnow have been reintroduced, 

translocated, or augmented. For 

purposes of this document, we consider 

the species to have been reintroduced 

when they have been placed back into 

an area in which they were formerly 

present, but no longer are. We consider 

the fish to have been translocated when 

they are placed into a location for which 

we have no previous records of 

occurrence. Augmentation occurs when 

we add additional individuals to a 

former reintroduction or translocation 

project, in an attempt to establish a 

stable population. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Habitat or Range 

Water Withdrawals 

Water resources are limited in the 

Southwestern United States and 

diversions and withdrawals have led to 

the conversion of portions of habitat to 

intermittent streams or reservoirs 

unsuitable for spikedace or loach 

minnow. Growing water demands 

reduce southern Arizona perennial 

surface water and threaten aquatic 

species. Historically, water withdrawals 

led to the conversion of large portions 

of flowing streams into intermittent 

streams, large reservoirs, or dewatered 

channels, thus eliminating suitable 

spikedace and loach minnow habitat in 

impacted areas (Propst et al. 1986, p. 3; 

Tellman et al. 1997, pp. 37, 50, 63–64, 

66, 103). These habitat changes, together 

with the introduction of nonnative fish 

species (see factors C and E), have 

resulted in the extirpation of spikedace 

and loach minnow throughout an 

estimated 80 to 90 percent of their 

historical ranges. 

Spikedace and loach minnow are 

stream-dwelling fish, and are associated 

only with flowing water. Spikedace are 

found in moderate to large perennial 

streams, and occur where the stream has 

flowing, rougher, choppy water (Barber 

and Minckley 1966, p. 31; Propst et al. 

1986, p. 12; Rinne and Kroeger 1988, p. 

1; Rinne 1991, pp. 8–10). Loach minnow 

occur in shallow, turbulent riffles where 

there are swift currents (Minckley 1973, 

p. 134; Propst et al. 1988, pp. 36–43; 

Rinne 1989, pp. 113–115; Propst and 

Bestgen 1991, pp. 29, 32–33). Water 

withdrawals that either dewater 

channels or reduce flows to low levels 

or pools within an active channel 

therefore eliminate the habitat used by 

the two species. 

Many streams currently or formerly 

occupied by spikedace and loach 

minnow have been affected by water 

withdrawals. The Gila River 

downstream of the town of Cliff, New 

Mexico, flows through a broad valley 

where irrigated agriculture and livestock 

grazing are the predominant uses. 

Human settlement has increased since 

1988 (Propst et al. 2008 (pp. 1237– 

1238). Agricultural practices have led to 

dewatering of the river in the Cliff-Gila 

valley at times during the dry season 

(Soles 2003, p. 71). For those portions 

of the Gila River downstream of the 

Arizona-New Mexico border, 

agricultural diversions and groundwater 

pumping have caused declines in the 

water table, and surface flows in the 

central portion of the river basin are 

diverted for agriculture (Leopold 1997, 

pp. 63–64; Tellman et al. 1997, pp. 101– 

104; Arizona Department of Water 

Resources 2000, pp. 16–17). 

The San Francisco River has 

undergone sedimentation, riparian 

habitat degradation, and extensive water 

diversion and at present has an 

undependable water supply throughout 

portions of its length. The San Francisco 

River is seasonally dry in the Alma 

Valley, and two diversion structures 

fragment habitat in the upper Alma 

Valley and at Pleasanton (NMDGF 2006, 

p. 302). The San Francisco River in 

Arizona was classified as impaired due 

to excessive sediment from its 

headwaters downstream to the 

Arizona—New Mexico border (Arizona 

Department of Water Resources 2011a, 

p. 1). 

Additional withdrawals of water from 

the Gila and San Francisco rivers may 

occur in the future. Implementation of 

Title II of the Arizona Water Settlements 

Act (AWSA) (Pub. L. 108–451) would 

facilitate the exchange of Central 

Arizona Project water within and 

between southwestern river basins in 

Arizona and New Mexico, and may 

result in the construction of new water 

development projects. For example, 

Section 212 of the AWSA pertains to the 

New Mexico Unit of the Central Arizona 

Project. 

The AWSA provides for New Mexico 

water users to deplete 140,000 acre-feet 

of additional water from the Gila Basin 

in any ten-year period. The settlement 

also provides the ability to divert that 

water without complaint from 

downstream pre-1968 water rights in 

Arizona. New Mexico will receive $66 

million to $128 million in nonreimbursable federal funding. The 

Interstate Stream Commission (ISC) 

funds may be used to cover costs of an 

actual water supply project, planning, 

environmental mitigation, or restoration 

activities associated with or necessary 

for the project, and may be used on one 

or more of 21 alternative projects 

ranging from Gila National Forest San 

Francisco River Diversion/Ditch 

improvements to a regional water 

supply project (the Deming Diversion 

Project). At this time, it is not known 

how the funds will be spent, or which 

potential alternative(s) may be chosen. 

While multiple potential project 

proposals have been accepted by the 

New Mexico Office of the State Engineer 

(NMOSE) (NMOSE 2011a, p. 1), 

implementation of the AWSA is still in 

the planning stages on these streams. 

The AWSA mandates that the ISC make 

the final determination of contracts for 

water and allocation of funding and 

provide notice to the Secretary of the 

Interior by December 31, 2014. New 

Mexico ISC must make any final 

determination during an open, public 

meeting, and only after consultation 

with the Gila San Francisco Water 

Commission, the citizens of Southwest 

New Mexico, and other affected 

interests. Due to the timeline associated 

with this project, as well as the 

uncertainties in how funding will be 

spent, and which potential alternative 

or alternatives will be chosen, the 

Service is unable to determine the 

outcome of this process at this time. 

However, should water be diverted from 

the Gila or San Francisco rivers, flows 

would be diminished and direct and 

indirect losses and degradation of 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10813 

habitat for aquatic and riparian species 

would result. The San Francisco River 

is currently occupied by loach minnow, 

and is the site of a 2008 reintroduction 

for spikedace. The Gila River is a 

stronghold for both species, currently 

supporting the largest remaining 

populations of each. For these reasons, 

impacts to either river is of particular 

concern for the persistence of these 

species. 

Groundwater withdrawal in Eagle 

Creek, primarily for water supply for a 

large open-pit copper mine at Morenci, 

Arizona dries portions of the stream 

(Sublette et al. 1990, p. 19; Service 

2005; Propst et al. 1986, p. 7). Mining 

is the largest industrial water user in 

southeastern Arizona. The Morenci 

mine on Eagle Creek is North America’s 

largest producer of copper, covering 

approximately 24,281 hectares (ha) 

(60,000 acres (ac)). Water for the mine 

is imported from the Black River, 

diverted from Eagle Creek as surface 

flows, or withdrawn from the Upper 

Eagle Creek Well Field (Arizona 

Department of Water Resources 2009, 

p. 1). 

Aravaipa Creek is relatively protected 

from further instream habitat loss due to 

water withdrawals because it is partially 

within a Bureau of Land Management 

(BLM) Wilderness area and partially 

within a Nature Conservancy preserve. 

However, Aravaipa Creek is affected by 

upstream uses in the watershed, 

primarily groundwater pumping for 

irrigation. Irrigation can reduce creek 

flows, as crop irrigation uses large 

amounts of water, especially during the 

summer months when the creek flows 

are already at their lowest. Increased 

groundwater pumping from wells is 

known to be linked to reduced creek 

flows (JE Fuller 2000, pp. 4–8). 

On the mainstem Salt River, 

impoundments have permanently 

limited the flow regime and suitability 

for spikedace or loach minnow. 

Spikedace are extirpated from portions 

of the Salt and Gila Rivers that were 

once perennial and are now classified as 

regulated (ASU 2002, The Nature 

Conservancy 2006). 

Water depletion is also a concern for 

the Verde River. In 2000, the Arizona 

Department of Water Resources (2000, 

p. 1–1) reported that the populations of 

major cities and towns within the Verde 

River watershed had more than doubled 

in the last 20 years, resulting in more 

than a 39 percent increase in municipal 

water usage. The Arizona Department of 

Water Resources (2000, p. 1–1) 

anticipated that human populations in 

the Verde River watershed are expected 

to double again before 2040, resulting in 

more than a 400 percent increase over 

the 2000 water usage. The middle and 

lower Verde River has limited or no 

flow during portions of the year due to 

agricultural diversion and upstream 

impoundments, and has several 

impoundments in its middle reaches, 

which could expand the area of 

impacted spikedace and loach minnow 

habitat. The Little Chino basin within 

the Verde River watershed has already 

experienced significant groundwater 

declines that have reduced flow in Del 

Rio Springs (Arizona Department of 

Water Resources 2000, pp. 1–1, 1–2). 

Blasch et al. (2006, p. 2) suggests that 

groundwater storage in the Verde River 

watershed has already declined due to 

groundwater pumping and reductions in 

natural channel recharge resulting from 

streamflow diversions. 

Also impacting water in the Verde 

River, the City of Prescott, Arizona, 

experienced a 22 percent increase in 

population between 2000 and 2005 

(U.S. Census Bureau 2010, p. 1), 

averaging around 4 percent growth per 

year (City of Prescott 2010, p. 1). In 

addition, the towns of Prescott Valley 

and Chino Valley experienced growth 

rates of 66 and 67 percent, respectively 

(Arizona Department of Commerce 

2009a, p. 1; 2009b, p. 1). This growth is 

facilitated by groundwater pumping in 

the Verde River basin. In 2004, the cities 

of Prescott and Prescott Valley 

purchased a ranch in the Big Chino 

basin in the headwaters of the Verde 

River, with the intent of drilling new 

wells to supply up to approximately 

4,933,927 cubic meters (4,000 acre-feet 

(AF)) of groundwater per year. If such 

drilling occurs, it could have serious 

adverse effects on the mainstem and 

tributaries of the Verde River. 

Scientific studies have shown a link 

between the Big Chino aquifer and 

spring flows that form the headwaters of 

the Verde River. It is estimated that 80 

to 86 percent of baseflow in the upper 

Verde River comes from the Big Chino 

aquifer (Wirt 2005, p. G8). However, 

while these withdrawals could 

potentially dewater the upper 42 km (26 

mi) of the Verde River (Wirt and 

Hjalmarson 2000, p. 4), it is uncertain 

that this project will occur given the 

legal and administrative challenges it 

faces; however, an agreement in 

principle was signed between various 

factions associated with water rights 

and interests on the Verde River 

(Citizens Water Advocacy Group 2010; 

Verde Independent 2010, p. 1). 

This upper portion of the Verde River 

is considered currently occupied by 

spikedace, and barrier construction and 

stream renovation plans are under way 

with the intention of using this 

historically occupied area for recovery 

of native fishes including loach 

minnow. Reductions of available water 

within this reach could preclude its use 

for recovery purposes. This area is 

currently considered occupied by 

spikedace that are considered 

genetically (Tibbets 1993, pp. 25–29) 

and morphologically (Anderson and 

Hendrickson 1994, pp. 148, 150–154) 

distinct from all other spikedace 

populations. 

Portions of the San Pedro River are 

now classified as formerly perennial, 

including areas from which spikedace 

and loach minnow are now extirpated 

(The Nature Conservancy 2006). Water 

withdrawals are also a concern for the 

San Pedro River. The Cananea Mine in 

Sonora, Mexico, owns the land 

surrounding the headwaters of the San 

Pedro. There is disagreement on the 

exact amount of water withdrawn by the 

mine, Mexicana de Cananea, which is 

one of the largest open-pit copper mines 

in the world. However, there is 

agreement that it is the largest water 

user in the basin (Harris et al. 2001; 

Varady et al. 2000, p. 232). 

Another primary groundwater user in 

the San Pedro watershed is Fort 

Huachuca. Fort Huachuca is a U.S. 

Army installation located near Sierra 

Vista, Arizona. Initially established in 

1877 as a camp for the military, the 

water rights of the Fort are predated 

only by those of local Indian tribes 

(Varady et al. 2000, p. 230). Fort 

Huachuca has pursued a rigorous water 

use reduction plan, working over the 

past decade to reduce groundwater 

consumption in the Sierra Vista 

Subwatershed. Their efforts have 

focused primarily on reductions in 

groundwater demand both on-post and 

off-post and increased artificial and 

enhanced recharge of the groundwater 

system. Annual pumping from Fort 

Huachuca production wells has 

decreased from a high of approximately 

3,200 AF in 1989 to a low of 

approximately 1,400 AF in 2005. In 

addition, Fort Huachuca and the City of 

Sierra Vista have increased the amount 

of water recharged to the regional 

aquifer through construction of effluent 

recharge facilities and detention basins 

that not only increase stormwater 

recharge but mitigate the negative 

effects of increased runoff from 

urbanization. The amount of effluent 

that was recharged by Fort Huachuca 

and the City of Sierra Vista in 2005 was 

426 AF and 1,868 AF, respectively. 

During this same year, enhanced 

stormwater recharge at detention basins 

was estimated to be 129 AF. The total 

net effect of all the combined efforts 

initiated by Fort Huachuca has been to 

reduce the net groundwater 

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consumption by approximately 2,272 

AF (71 percent) since 1989 (Service 

2007, pp. 41–42). 

In addition to impacts on water 

availability within streams, diversion 

structures can create barriers for fish 

movement. Larger dams may prevent 

movement of fish between populations 

and dramatically alter the flow regime 

of streams through the impoundment of 

water (Ligon et al. 1995, pp. 184–189). 

These diversions also require periodic 

maintenance and reconstruction, 

resulting in potential habitat damages 

and inputs of sediment into the active 

stream. 

In summary, water withdrawals have 

occurred historically, and continue to 

occur, throughout the ranges of 

spikedace and loach minnow. 

Groundwater pumping and surface 

diversions used for agricultural, 

industrial, and municipal purposes can 

lead to declines in the water table and 

dewatering of active stream channels. 

Ongoing water withdrawals are known 

to occur on the Gila, San Francisco, and 

Verde rivers, and are occurring at 

limited levels, with the potential for 

increased withdrawals on Aravaipa 

Creek. 

Stream Channel Alteration 

Sections of many Gila Basin rivers 

and streams have been, and continue to 

be, channelized for flood control, which 

disrupts natural channel dynamics 

(sediment scouring and deposition) and 

promotes the loss of riparian plant 

communities. Channelization changes 

the stream gradient above and below the 

channelization. Water velocity increases 

in the channelized section, which 

results in increased rates of erosion of 

the stream and its tributaries, 

accompanied by gradual deposits of 

sediment in downstream reaches that 

may increase the risk of flooding 

(Emerson 1971, p. 326; Simpson 1982, 

p. 122). Historical and ongoing 

channelization will continue to 

contribute to riparian and aquatic 

habitat decline most notably eliminating 

cover and reducing nutrient input. 

Stream channel alteration can affect 

spikedace and loach minnow habitat by 

reducing its complexity, eliminating 

cover, reducing nutrient input, 

improving habitat for nonnative species, 

changing sediment transport, altering 

substrate size, increasing flow 

velocities, and reducing the length of 

the stream (and therefore the amount of 

aquatic habitat available) (Gorman and 

Karr 1978, pp. 512–513; Simpson 1982, 

p. 122; Schmetterling et al. 2001, pp. 7– 

10). Loach minnow occupy interstitial 

spaces between cobble (Propst and 

Bestgen 1991, p. 34), and increases in 

sedimentation can fill these spaces in, 

removing shelter for loach minnow, and 

reducing available breeding habitat. 

Spikedace are typically found over 

sand, gravel, and rubble substrates 

(Barber and Minckley 1966, p. 31; 

Propst et al. 1986, p. 12; Rinne and 

Kroeger 1988, p. 1; Rinne 1991, pp. 8– 

10). Changes in sediment transport and 

alteration of substrate size can make an 

area unsuitable for spikedace. Both 

species occur in streams with specific 

water velocities, and increasing flow 

velocities as a result of channelization 

may also make an area unsuitable. 

Water Quality 

In the past, the threat from water 

pollution was due primarily to 

catastrophic pollution events (Rathbun 

1969, pp. 1–5; Eberhardt 1981, pp. 3–6, 

8–10) or chronic leakage from large 

mining operations (Eberhardt 1981, pp. 

2, 16). Although this is not as large a 

problem today as it was historically, 

some damage to spikedace and loach 

minnow populations still occurs from 

occasional spills or chronic inability to 

meet water quality standards (United 

States v. ASARCO, No. 98–0137 PHX– 

ROS (D. Ariz. June 2, 1998)). Mine 

tailings from a number of past and 

present facilities throughout the Gila 

Basin would threaten spikedace 

populations if catastrophic spills occur 

(Arizona Department of Health Services 

2010, p. 3). Spills or discharges have 

occurred in the Gila River and affected 

streams within the watersheds of 

spikedace and loach minnow, including 

the Gila River, San Francisco River, San 

Pedro River, and some of their 

tributaries (Environmental Protection 

Agency (EPA) 1997, pp. 24–67; Arizona 

Department of Environmental Quality 

2000, p. 6; Church et al. 2005, p. 40; 

Arizona Department of Environmental 

Quality 2007, p. 1). 

In January of 2006, the Arizona 

Department of Environmental Quality 

announced that it had been conducting 

a remedial investigation at the Klondyke 

tailings site on Aravaipa Creek, which 

currently supports one of the two 

remaining populations where spikedace 

and loach minnow are considered 

common. The Klondyke tailings site was 

a mill that processed ore to recover lead, 

zinc, copper, silver, and gold between 

the 1920s and the 1970s. There are eight 

contaminants in the tailings and soil at 

the Klondyke tailings site that are at 

levels above regulatory limits. These 

contaminants are: antimony; arsenic; 

beryllium; cadmium; copper; lead; 

manganese; and zinc. Samples of 

shallow groundwater collected at the 

site contained arsenic, beryllium, 

cadmium, chromium, lead, and nickel 

above regulatory limits (Arizona 

Department of Environmental Quality 

2006, p. 2; Arizona Department of Water 

Resources 2011b, p. 1). A preliminary 

study in Aravaipa Creek has found high 

levels of lead in two other native fish 

species, Sonora sucker (Catostomus 

insignis) and roundtail chub (Gila 

robusta), as well as in the sediment and 

in some of the invertebrates. These lead 

levels are high enough that they could 

negatively impact reproduction 

(Reinthal, 2010, pers. comm.). We do 

not know with certainty whether these 

levels of lead would affect spikedace or 

loach minnow, but we assume similar 

impacts would occur as they are 

collocated with Sonora sucker and 

roundtail chub in Aravaipa Creek. 

The Service completed contaminant 

studies on the San Francisco River and 

Gila River in the 1990s. Two sites on the 

San Francisco River exceeded the 

International Joint Commission (IJC) 

background level standards for arsenic, 

cadmium, copper, mercury, and zinc. 

Cadmium levels at site 2 were 

approximately 16.5 times the 

background level, while copper was 

nearly 25 times greater than the 

background level. The two San 

Francisco River sites did not exceed 

domestic water source water quality 

standards for trace element 

concentrations, where those standards 

are provided for Arizona. The study site 

closest to, but downstream of, the 

portion of the Gila River included in the 

designation exceeded IJC background 

level standards for trace element 

concentrations for arsenic, cadmium, 

and copper. DDE was recovered in all 

whole body and edible fish samples, as 

were aluminum, arsenic, barium, 

chromium, selenium, and strontium. 

Cadmium, mercury, and selenium 

concentrations were determined to 

potentially pose a threat to fish-eating 

birds in the Gila River basin (Baker and 

King 1994, pp. 6–14, 17, 19, 22). 

Organochlorine contaminants 

detected included heptachlor, 

chlordane, and DDE. The concentrations 

of these pesticides were below 

concentrations known to affect survival 

and reproduction of most fish species. 

The study recommended continued 

monitoring, due to the high cadmium 

and mercury concentrations that 

approach the critical reproductive effect 

threshold level in more than one-half of 

the samples. In addition, the study 

recommended monitoring for selenium 

as selenium levels exceeded dietary 

levels for protection of avian predators. 

Such monitoring has not occurred. 

The Arizona Department of Water 

Resources notes that 67 sites on the San 

Pedro River have parameter 

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concentrations that have equaled or 

exceeded their drinking water 

standards. The most frequently equaled 

or exceeded parameters included 

arsenic and fluoride, but other 

parameters equaled or exceeded in the 

sites measured in the San Pedro Basin 

were cadmium, lead, nitrates, beryllium, 

mercury, and total dissolved solids 

(Arizona Department of Water 

Resources 2011c, p. 1). The Verde River 

has three different reaches that exceed 

standards for turbidity, totaling 37.5 

miles between Oak Creek and West 

Clear Creek. Additionally, Oak Creek 

exceeds the standards for E. coli 

(Arizona Department of Water 

Resources 2011d, p. 1). 

There are few studies, with the 

exception of the study at Aravaipa 

Creek, which discuss contaminants on 

spikedace and loach minnow. 

Generally, contaminants can have both 

sublethal and lethal effects. Sublethal 

effects are those, such as the lead 

contamination at Aravaipa Creek, which 

may reduce a species’ ability to 

reproduce. Lethal are those effects that 

result in death for the species. Large fish 

kills are more rare now than in the past. 

Pollution is increasingly more 

widespread and more often from 

nonpoint sources. Urban and suburban 

development is one source of nonpointsource pollution. Increasing the amount 

of runoff from roads, golf courses, and 

other sources of petroleum products, 

pesticides, and other toxic materials can 

cause changes in fish communities 

(Wang et al. 1997, pp. 6, 9, 11). Nutrient 

and sediment loads are increasing in 

urban areas (King et al. 1997, pp. 7–24, 

38, 39) and, combined with depleted 

stream flows, can be serious threats to 

aquatic ecosystems during some periods 

of the year. Sewage effluent can contain 

lead, especially where the treatment 

plant receives industrial discharges or 

highway runoff (Hoffman et al. 1995, p. 

361). The number of bridges and roads 

increases with expanding rural and 

urban populations in Arizona (Arizona 

Department of Transportation 2000, pp. 

1–3), and pose significant risks to the 

fish from increases in toxic materials 

along roadways (Trombulak and Frissell 

2000, pp. 22–24). Some metals, like lead 

and cadmium, are associated with fuel 

combustion. Lead can be found in 

vehicle emissions (Hoffman et al. 1995, 

pp. 369, 405). 

As noted previously, human 

populations within the ranges of 

spikedace and loach minnow are 

expected to increase over the next 20 

years. Therefore, we expect a 

corresponding increase in nonpointsource pollution. 

Exposure to pesticides can result in a 

variety of behaviors. Sublethal 

behaviors are those that do not result in 

death. Sublethal responses of fish to 

pesticide exposure can include central 

nervous system disorders, increased 

ventilation rates, loss of equilibrium, 

rapid, jerky movements, dark 

discoloration or hemorrhaging in 

muscles and beneath the dorsal fin, 

erratic, uncoordinated swimming 

movements with spasms and 

convulsions, and spinal abnormalities 

(Meyer and Barclay 1990, p. 21). 

Exposure to metals at toxic levels can 

have varying effects. Low levels of some 

metals, such as selenium, are essential 

for good health. However, excess levels 

of selenium can be toxic, and selenium 

is considered one of the most toxic 

elements to fish (Sorensen 1991, pp. 17– 

22). For other metals such as lead, all 

known effects on biological systems are 

negative (Hoffman et al. 1995, p. 356). 

Exposure to metals causes a variety of 

impacts, including disruption to feeding 

behaviors, altered respiratory rates, 

growth inhibition, and delayed sexual 

maturation; damage to body structure 

including skin, nervous system, and 

musculature, gills, fins, and spines; 

damage to organs including the liver, 

kidneys, intestines, heart, and 

chemoreceptors (used in migration); 

alterations to blood and blood 

chemistry, including red blood cells, 

hemoglobin levels, protein 

concentrations, glucose concentrations, 

and antibody titers; and damage to the 

nervous system leading to muscle 

spasms, paralysis, hyperactivity, and a 

loss of equilibrium (Sorensen 1991, pp. 

17–22, 34–48 (selenium), 74–78 

(arsenic); 104–107 (lead); 153–164 

(zinc); 199–219 (cadmium); 253–275 

(copper); and 312–323 (mercury)). 

The impacts of a toxin in a system 

vary by species, as well as by age level 

of the organism. For some metals, such 

as copper or mercury, fish are more 

severely affected at the embryonic and 

reproductive stages of the life cycle 

(Sorensen 1991, p. 269; Hoffman et al. 

1995, p. 398). It is also important to note 

that, for some metals, such as cadmium, 

copper, lead, and mercury, increased 

temperatures or changes in water 

chemistry, such as pH or organic matter, 

can affect the toxicity of the metal 

(Sorensen 1991, p. 184; Hoffman et al. 

1995, pp. 395–396). Therefore, there can 

be an increased threat from exposure to 

toxins in streams that have also 

undergone alterations such as vegetation 

removal due to fire or construction and 

maintenance activities, or improper 

livestock grazing. 

An additional, increasing source of 

contamination for streams is caused by 

wildfires and their suppression. Based 

on historical records and long term treering records, wildfires have increased in 

the ponderosa pine forests of the 

Southwest, including the range of the 

spikedace and loach minnow (Swetnam 

and Betancourt 1990, pp. 1017, 1019; 

Swetnam and Betancourt 1998, pp. 

3131–3135). This is due to a 

combination of decades of fire 

suppression, increases in biomass due 

to increased precipitation after 1976, 

and warming temperatures coupled 

with recent drought conditions 

(University of Arizona 2006, pp. 1, 3). 

As wildfires increase, so does the use of 

fire-retardant chemical applications. 

Some fire-retardant chemicals are 

ammonia-based, which is toxic to 

aquatic wildlife; however, many 

formulations also contain yellow 

prussiate of soda (sodium ferrocyanide), 

which is added as an anticorrosive 

agent. Such formulations are toxic for 

fish, aquatic invertebrates, and algae 

(Angeler et al. 2006, pp. 171–172; Calfee 

and Little 2003, pp. 1527–1530; Little 

and Calfee 2002, p. 5; Buhl and 

Hamilton 1998, p. 1598; Hamilton et al. 

1998, p. 3; Gaikwokski et al. 1996, pp. 

1372–1373). Toxicity of these 

formulations is enhanced by sunlight 

(Calfee and Little 2003, pp. 1529–1533). 

In a 2008 biological opinion issued by 

the Service to the U.S. Forest Service 

(USFS) on the nationwide use of fire 

retardants, the Service concluded that 

the use of fire retardants can cause 

mortality to fish by exposing them to 

ammonia. We concluded in the opinion 

that the proposed action, which 

included the application of fire 

retardants throughout the range of the 

species, was likely to jeopardize the 

continued existence of the spikedace 

and loach minnow (Service 2008a). This 

consultation was recently reinitiated 

and completed in October 2011. The 

revised biological opinion included 

additional buffers and protective 

measures and concluded that the 

revised protocol for fire retardant use 

was not likely to jeopardize the 

continued existence of either spikedace 

or loach minnow (Service 2011). 

Severe wildfires capable of extirpating 

or decimating fish populations are a 

relatively recent phenomenon, and 

result from the cumulative effects of 

historical or ongoing grazing and fire 

suppression (Madany and West 1983, 

pp. 665–667; Savage and Swetnam 

1990, p. 2374; Swetnam 1990, p. 12; 

Touchan et al. 1995, pp. 268–271; 

Swetnam and Baisan 1996, p. 29; Belsky 

and Blumenthal 1997, pp. 315–316, 

324–325; Gresswell 1999, pp. 193–194, 

213). Historical wildfires were primarily 

cool-burning understory fires with 

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10816 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

return intervals of 4 to 8 years in 

ponderosa pine (Swetnam and Dieterich 

1985, pp. 390, 395). Cooper (1960, p. 

137) concluded that, prior to the 1950s, 

crown fires were extremely rare or 

nonexistent in the region. However, 

since 1989, high-severity wildfires, and 

subsequent floods and ash flows, have 

caused the extirpation of several 

populations of Gila trout in the Gila 

National Forest, New Mexico (Propst et 

al. 1992, pp. 119–120, 123; Brown et al. 

2001, pp. 140–141). It is not known if 

spikedace or loach minnow have 

suffered local extirpations; however, 

native fishes, including spikedace and 

loach minnow, in the West Fork Gila 

River, showed 60 to 80 percent 

decreases in population following the 

Cub Fire in 2002, due to flooding events 

after the fire (Rinne and Carter 2008, pp. 

171). Increased fines (sediments) and 

ash may be continuing to affect the 

populations on the West Fork Gila, near 

the Gila Cliff Dwellings (Propst et al. 

2008, p. 1247). 

Since the proposed rule was 

published in October of 2011, the 

Wallow Fire burned portions of the 

critical habitat designations for 

spikedace and loach minnow, 

specifically the Black River Complex in 

Unit 2 (loach minnow only), and the 

Blue River Complex in Unit 7 (both 

species). The Wallow Fire encompassed 

just over 217,721 ha (538,000 ac) total 

in Arizona and New Mexico (InciWeb 

2011), and was the largest wildfire in 

Arizona’s history. 

Portions of Units 2 and 7 of the 

critical habitat designation fall within 

the Wallow Fire perimeter. Within Unit 

2, the North Fork East Fork Black River 

falls within an unburned area inside the 

perimeter of the fire, as does most of 

Boneyard Creek. The majority of East 

Fork Black River falls within an area 

that experienced low burn severity, but 

does cross a few areas that were either 

unburned or burned at moderate burn 

severity. Coyote Creek is in an area 

almost entirely burned at low severity. 

Within Unit 7, the majority of Campbell 

Blue Creek is within unburned or low 

burn severity areas; however, 

approximately 2.4 km (1.5 mi) of the 

upper end of Campbell Blue Creek is 

within moderate and high burn severity. 

The Wallow Fire stopped just west of 

the Blue River, but came within 

approximately 0.3 km (0.2 mi) of the 

River. However, the rainfall during the 

summer monsoon, which began before 

the fire was extinguished, contributed 

ash and sediment to both streams. In the 

Blue River, ash and sediment travelled 

as far downstream as the San Francisco 

River, resulting in fish kills (Blasius, 

2011, pers. comm.). Fish surveys 

completed in the fall of 2011 indicated 

reduced numbers of loach minnow 

(Adelsberger et al. 2011, p. 1). 

Effects of fire may be direct and 

immediate or indirect and sustained 

over time. Because spikedace and loach 

minnow are found primarily in the 

lower elevation, higher-order streams, 

they are most likely affected by the 

indirect effects of fire (e.g., ash flows, 

increased water temperatures), not 

direct effects (e.g., drastic changes in 

pH, ammonium concentrations). 

Indirect effects of fire include ash and 

debris flows, increases in water 

temperature, increased nutrient inputs, 

and sedimentation, some of which can 

last for several years to more than a 

decade after the fire (Amaranthus et al. 

1989, pp. 75–77; Propst et al. 1992, pp. 

119–120; Gresswell 1999, pp. 194–211; 

Burton 2005, pp. 145–146; Dunham et 

al. 2007, pp. 335, 340–342; Rinne and 

Carter 2008, pp. 169–171; Mahlum et al. 

2011, pp. 243–246). Of these, ash flows 

probably have the greatest effect on 

spikedace and loach minnow. Ash and 

debris flows may occur months after 

fires, when barren soils are eroded 

during monsoonal rain storms (Bozek 

and Young 1994, pp. 92–94). Ash and 

fine particulate matter created by fire 

can fill the interstitial spaces between 

gravel particles, eliminating spawning 

habitat or, depending on the timing, 

suffocating eggs that are in the gravel. 

Ash and debris flows can also decimate 

aquatic invertebrate populations that the 

fish depend on for food (Molles 1985, p. 

281). 

Recreation 

The impacts to spikedace and loach 

minnow from recreation can include 

movement of people or livestock, such 

as horses or mules, along streambanks, 

trampling, loss of vegetation, and 

increased danger of fire (Northern 

Arizona University 2005, p. 136; Monz 

et al. 2010, pp. 553–554). In the arid 

Gila River Basin, recreational impacts 

are disproportionately distributed along 

streams as a primary focus for recreation 

(Briggs 1996, p. 36). Within the range of 

spikedace and loach minnow, the 

majority of the occupied areas occur on 

Federal lands, which are managed for 

recreation and other purposes. 

Spikedace and loach minnow are 

experiencing increasing habitat impacts 

from such use in some areas. For 

example, Fossil Creek experienced an 

increase in trail use at one site, with an 

estimated 8,606 hikers using the trail in 

1998, and an estimated 19,650 hikers 

using the trail in 2003. Dispersed 

camping also occurs in the area. The 

greatest impacts from camping were 

vegetation loss and litter (Northern 

Arizona University 2005, pp. 134–136). 

Similar impacts have been observed at 

Aravaipa Creek. We do not have 

information on the impacts of litter on 

spikedace and loach minnow; however, 

impacts from vegetation loss can 

include soil compaction, which when 

combined with vegetation loss, can 

result in increased runoff and 

sedimentation in waterways (Monz et 

al. 2010, pp. 551–553; Andereck 1993, 

p. 2). 

Recreation overuse can result in 

decreased riparian vegetation (USFS 

2008, pp. 7–17) and subsequent 

increases in stream temperatures. 

Recreation is cited as one of the causes 

of impairment due to water temperature 

on the West Fork Gila River (EPA 2010, 

p. 1). We discuss temperature tolerances 

below in the microhabitat discussions 

for each species. Spikedace and loach 

minnow are known to have a range of 

temperatures in which they occur, and 

recent research by the University of 

Arizona has determined upper 

temperature tolerances for the two 

species. Spikedace did not survive 

exposure of 30 days at 34 or 36 °C (93.2 

or 96.8 °F), and 50 percent mortality 

occurred after 30 days at 32.1 °C (89.8 

°F). In addition, growth rate was slowed 

at 32 °C (89.6 °F), as well as at the lower 

test temperatures of 10 and 4 °C (50 and 

39.2 °F). Multiple behavioral and 

physiological changes were observed, 

indicating the fish became stressed at 

30, 32, and 33 °C (86, 89.6 and 91.4 °F) 

treatments. Similarly, the study 

determined that no loach minnow 

survived for 30 days at 32 °C (89.6 °F), 

and that 50 percent mortality occurred 

after 30 days at 30.6 °C (87.1 °F). For 

loach minnow, growth rate slowed at 28 

and 30 °C (82.4 and 86.0 °F) compared 

to growth at 25 °C (77 °F), indicating 

that loach minnow were stressed at 

sublethal temperatures. The study 

concludes that temperature tolerance in 

the wild may be even lower due to the 

influence of additional stressors, 

including disease, predation, 

competition, or poor water quality. 

Roads and Bridges 

Roads impact Gila River Basin 

streams (Dobyns 1981, pp. 120–129, 

167, 198–201), including spikedace, 

loach minnow, and their habitats (Jones 

et al. 2000, pp. 82–83). The need for 

bridges and roads increases with 

increasing rural and urban populations 

in Arizona (Arizona Department of 

Transportation 2000, pp. 1–3). In 

addition, existing roads and bridges 

have ongoing maintenance requirements 

that result in alterations of stream 

channels within spikedace and loach 

minnow habitats (Service 1994a, pp. 8– 

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12; Service 1995a, pp. 10–12; Service 

1995b, pp. 5–7; Service 1997a, pp. 10– 

15; Service 1997b, pp. 54–77). Bridge 

construction or repair causes channel 

alteration and, if not carefully executed, 

can result in long-term channel 

adjustments, altering habitats upstream 

and downstream. In some areas, lowwater crossings exist within occupied 

spikedace and loach minnow habitats 

and cause channel modification and 

habitat disruption. Low-water crossings 

on general-use roads exist in a number 

of areas that may support spikedace and 

loach minnow. These crossings 

frequently require maintenance 

following minor flooding. 

Generally, there are fewer new bridge 

construction projects within critical 

habitat; however, one proposed bridge 

will occur near the designation for 

spikedace in Unit 2 over Tonto Creek. 

Road and bridge maintenance and 

repairs occur frequently on the Blue 

River. There have been repeated road 

repairs near the Gila Cliff Dwellings on 

the West Fork Gila River because the 

bridge span is too short to accommodate 

peak flows. This is a common problem 

on bridges that cross the Gila River, and 

on other rivers occupied by spikedace 

and loach minnow in the Southwest. In 

an attempt to protect bridges, large 

amounts of fill (such as boulders, rip 

rap, and dirt) are used to confine and 

redirect the river. Typically, this habitat 

alteration is detrimental to spikedace 

and loach minnow because it changes 

the channel gradient and substrate 

composition, and reduces habitat 

availability. Eventually, peak flows 

remove the fill material, roads and 

bridges are damaged, and the resulting 

repairs and reconstruction lead to 

additional habitat disturbance (Service 

1998, 2002a, 2005, 2008b, 2008c, 2009, 

2010a). 

The impacts of bridge and road 

construction, usage, and repairs can 

include increased sedimentation, either 

due to driving across low-water 

crossings in active stream channels, or 

due to excavation associated with 

maintenance and repair activities. 

Vehicles using low-water crossings as 

well as heavy equipment in active 

channels during construction or repairs 

can both harm eggs of spikedace and 

loach minnow, and compress substrates 

so that the interstitial spaces used by 

adult loach minnow are removed. 

Maintenance and construction work on 

banks around bridges and roads may 

also lead to increased sedimentation 

due to sediment disturbance or the 

removal of vegetation. 

Livestock Grazing 

Livestock grazing has been one of the 

most widespread and long-term causes 

of adverse impacts to native fishes and 

their habitat (Miller 1961, pp. 394–395, 

399), but is one of the few threats where 

adverse effects to species such as 

spikedace and loach minnow are 

decreasing, due to improved 

management on Federal lands (Service 

1997c, pp. 121–129, 137–141; Service 

2001, pp. 50–67). This improvement 

occurred primarily by discontinuing 

grazing in the riparian and stream 

corridors. However, although adverse 

effects are less than in the past, 

livestock grazing within watersheds 

where spikedace and loach minnow and 

their habitats are located continues to 

cause adverse effects. These adverse 

effects occur through watershed 

alteration and subsequent changes in 

the natural flow regime, sediment 

production, and stream channel 

morphology (Platts 1990, pp. I–9—I–11; 

Belsky et al. 1999, pp. 1–3, 8–10; 

Service 2001, pp. 50–67). 

Livestock grazing can destabilize 

stream channels and disturb riparian 

ecosystem functions (Platts 1990, pp. I– 

9—I–11; Armour et al. 1991, pp. 7–10; 

Tellman et al. 1997, pp. 20–21, 33, 47, 

101–102; Wyman et al. 2006, pp. 5–7). 

Medina et al. (2005, p. 99) note that the 

impacts of grazing vary within and 

among ecoregions, and that some 

riparian areas can sustain little to no 

ungulate grazing, while others can 

sustain very high use. They further note 

that threatened and endangered fish 

populations and their associated 

riparian habitat ‘‘* * * may require 

some form of protection from grazing of 

all ungulates (e.g., elk, deer, cattle) 

* * *’’. Improper livestock grazing can 

negatively affect spikedace and loach 

minnow through removal of riparian 

vegetation (Propst et al. 1986, p. 3; Clary 

and Webster 1989, p. 1; Clary and 

Medin 1990, p. 1; Schulz and Leininger 

1990, p. 295; Fleishner 1994, pp. 631– 

633, 635–636), that can result in 

reduced bank stability and higher water 

temperatures (Kauffman and Krueger 

1984, pp. 432–434; Platts and Nelson 

1989, pp. 453, 455; Fleishner 1994, pp. 

635–636; Belsky et al. 1999, pp. 2–5, 9– 

10). Livestock grazing can also cause 

increased sediment in the stream 

channel, due to streambank trampling 

and riparian vegetation loss (Weltz and 

Wood 1986, pp. 364–368; Pearce et al. 

1998, pp. 302, 307; Belsky et al. 1999, 

p. 10). Livestock can physically alter the 

streambank through trampling and 

shearing, leading to bank erosion 

(Trimble and Mendel 1995, pp. 243– 

244; Belsky et al. 1999, p. 1). In 

combination, loss of riparian vegetation 

and bank erosion can alter channel 

morphology, including increased 

erosion and deposition, increased 

sediment loads, downcutting, and an 

increased width-to-depth ratio, all of 

which lead to a loss of spikedace and 

loach minnow habitat components. 

Livestock grazing management also 

continues to include construction and 

maintenance of open stock tanks, which 

are often stocked with nonnative aquatic 

species harmful to spikedace and loach 

minnow (Service 1997b, pp. 54–77) if 

they escape or are transported to waters 

where these native fish occur. 

An indirect effect of grazing can 

include the development of water tanks 

for livestock. In some cases, stocktanks 

are used to stock nonnative fish for 

sportfishing, or they may support other 

nonnative aquatic species such as 

bullfrogs or crayfish. In cases where 

stocktanks are in close proximity to live 

streams, they may occasionally be 

breached or flooded, with nonnative 

fish escaping from the stocktank and 

entering stream habitats (Hedwall and 

Sponholtz 2005, pp. 1–2; Stone et al. 

2007, p. 133). 

Climate Conditions 

Climate conditions have contributed 

to the status of the spikedace and loach 

minnow now and will likely continue 

into the future. While floods may 

benefit the species, habitat drying 

affects the occurrence of natural events, 

such as fire, drought, and forest die-off, 

and increases the chances of disease and 

infection. 

Consideration of climate change is a 

component of our analyses under the 

Endangered Species Act. In general 

terms, ‘‘climate change’’ refers to a 

change in the state of the climate 

(whether due to natural variability, 

human activity, or both) that can be 

identified by changes in the mean or 

variability of its properties, and that 

persists for an extended period— 

typically decades or longer 

(Intergovernmental Panel on Climate 

Change (IPCC) 2007a, p. 78). 

Changes in climate are occurring. 

Examples include warming of the global 

climate system over recent decades, and 

substantial increases in precipitation in 

some regions of the world and decreases 

in other regions (for these and other 

examples see IPCC 2007a, p. 30; 

Solomon et al. 2007, pp. 35–54, 82–85). 

Most of the observed increase in 

global average temperature since the 

mid-20th century cannot be explained 

by natural variability in climate, and is 

very likely due to the observed increase 

in greenhouse gas concentrations in the 

atmosphere as a result of human 

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activities, particularly emissions of 

carbon dioxide from fossil fuel use 

(IPCC 2007a, p. 5 and Figure SPM.3; 

Solomon et al. 2007, pp. 21–35). 

Therefore, to project future changes in 

temperature and other climate 

conditions, scientists use a variety of 

climate models (which include 

consideration of natural processes and 

variability) in conjunction with various 

scenarios of potential levels and timing 

of greenhouse gas emissions (e.g., Meehl 

et al. 2007 entire; Ganguly et al. 2009, 

pp. 11555, 15558; Prinn et al. 2011, pp. 

527, 529). 

The projected magnitude of average 

global warming for this century is very 

similar under all combinations of 

models and emissions scenarios until 

about 2030. Thereafter, the projections 

show greater divergence across 

scenarios. Despite these differences in 

projected magnitude, however, the 

overall trajectory is one of increased 

warming throughout this century under 

all scenarios, including those which 

assume a reduction of greenhouse gas 

emissions (Meehl et al. 2007, pp. 760– 

764; Ganguly et al. 2009, pp. 15555– 

15558; Prinn et al. 2011, pp. 527, 529). 

(For examples of other global climate 

projections, see IPCC 2007b, p. 8.) 

Various types of changes in climate 

can have direct or indirect effects on 

species and these may be positive or 

negative depending on the species and 

other relevant considerations, including 

interacting effects with existing habitat 

fragmentation or other nonclimate 

variables. There are three main 

components of vulnerability to climate 

change: Exposure to changes in climate, 

sensitivity to such changes, and 

adaptive capacity (IPCC 2007a, p. 89; 

Glick et al. 2011, pp. 19–22). Because 

aspects of these components can vary by 

species and situation, as can 

interactions among climate and 

nonclimate conditions, there is no 

single way to conduct our analyses. We 

use the best scientific and commercial 

data available to identify potential 

impacts and responses by species that 

may arise in association with different 

components of climate change, 

including interactions with nonclimate 

conditions. 

As is the case with all potential 

threats, if a species is currently affected 

or is expected to be affected in a 

negative way by one or more climaterelated impacts, this does not 

necessarily mean the species meets the 

definition of a threatened or endangered 

species as defined under the Act. The 

impacts of climate change and other 

conditions would need to be to the level 

that the species is in danger of 

extinction, or likely to become so, 

throughout all or a significant portion of 

its range. If a species is listed as 

threatened or endangered, knowledge 

regarding the species’ vulnerability to, 

and impacts from, climate-associated 

changes in environmental conditions 

can be used to help devise appropriate 

strategies for its recovery. 

Climate simulations of Palmer 

Drought Severity Index (PSDI) (a 

calculation of the cumulative effects of 

precipitation and temperature on 

surface moisture balance) for the 

Southwest for the periods of 2006–2030 

and 2035–2060 predict an increase in 

drought severity with surface warming. 

Additionally, drought still increases 

during wetter simulations because the 

effect of heat-related moisture loss 

(Hoerling and Eicheid 2007, p. 19). 

Annual mean precipitation is likely to 

decrease in the Southwest as well as the 

length of snow season and snow depth 

(IPCC 2007b, p. 887). Most models 

project a widespread decrease in snow 

depth in the Rocky Mountains and 

earlier snowmelt (IPCC 2007b, p. 891). 

Exactly how climate change will affect 

precipitation is less certain, because 

precipitation predictions are based on 

continental-scale general circulation 

models that do not yet account for land 

use and land cover change effects on 

climate or regional phenomena. 

Consistent with recent observations in 

changes from climate, the outlook 

presented for the Southwest predicts 

warmer, drier, drought-like conditions 

(Seager et al. 2007, p. 1181; Hoerling 

and Eischeid 2007, p. 19). A decline in 

water resources with or without climate 

change will be a significant factor in the 

compromised watersheds of the desert 

southwest. 

On August 16, 2011, the U.S. 

Department of Agriculture granted a 

request from the Governor of Arizona to 

assign Apache, Cochise, Graham, 

Greenlee, and Santa Cruz counties as 

primary natural disaster areas due to 

losses caused by drought, wildfires, and 

high winds. The purpose of such a 

designation is to make farm operators in 

both primary and contiguous disaster 

areas eligible to be considered for 

assistance from the Farm Service 

Agency (FSA) (Vilsack 2011). However, 

this designation is a recognition of 

drought in counties inhabited by 

spikedace and loach minnow, including 

Apache, Graham, and Greenlee 

counties. For New Mexico, the NMOSE 

reported that, for the first 5 months of 

2011, statewide precipitation was only 

35 percent of normal in New Mexico 

(NMOSE 2011b). They include 

spikedace and loach minnow on a list 

of species likely to be affected by 

drought due to loss of habitat (NMOSE 

2011c). Habitat losses occur when 

surface waters decrease, resulting in 

insufficient flows which may continue 

to fill low areas as pool habitat, but 

which do not continue to have sufficient 

depth or velocity to create the habitat 

types preferred by spikedace and loach 

minnow. 

Summary of Factor A 

Spikedace and loach minnow face a 

variety of threats throughout their range 

in Arizona and New Mexico, including 

groundwater pumping, surface water 

diversions, impoundments, dams, 

channelization, improperly managed 

livestock grazing, wildfire, agriculture, 

mining, road building, residential 

development, and recreation. These 

activities, alone and in combination, 

contribute to riparian habitat loss and 

degradation of aquatic resources in 

Arizona and New Mexico. 

Changes in flow regimes are expected 

to continue into the foreseeable future. 

Groundwater pumping, surface water 

diversions, and drought are reducing 

available surface flow in streams 

occupied by spikedace and loach 

minnow. These conditions are ongoing, 

but drought conditions are worsening 

and there are at least two large diversion 

projects in the planning stages which 

may result in further water withdrawals 

on the Verde and Gila rivers. For 

spikedace and loach minnow, reduced 

surface flow in streams can decrease the 

amount of available habitat by 

eliminating flowing portions of the 

stream used by the two species. In 

addition, stream channel alterations, 

such as diversion structures and 

channelization of streams, affect the 

flow regimes, substrate, and 

sedimentation levels that are needed for 

suitable spikedace and loach minnow 

habitat. 

Impacts associated with roads and 

bridges, changes in water quality, 

improper livestock grazing, and 

recreation have altered or destroyed 

many of the rivers, streams, and 

watershed functions in the ranges of the 

spikedace and loach minnow. While 

fish kills are less common now than in 

the past, water quality issues exist in 

several streams, and can include 

contamination by cadmium, lead, 

nitrates, beryllium, mercury, and total 

dissolved solids. These contaminants 

can have adverse effects on the prey 

base of the species and can be either 

sublethal, affecting their overall health 

or ability to reproduce, or can be lethal. 

Construction and maintenance at 

bridges, improper livestock grazing, 

wildfire, and recreation may also 

remove or reduce vegetation, which can 

impact water temperatures. With 

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increased temperatures, spikedace and 

loach minnow may experience multiple 

behavioral and physiological changes at 

elevated temperatures, and extreme 

temperatures can result in death. 

Decreases in precipitation and increases 

in temperatures due to climate change 

and drought are likely to further limit 

the areas where spikedace or loach 

minnow can persist by causing further 

decreases in surface flows and 

potentially increases in temperature. 

The combined impacts of decreased 

flows, increased sedimentation, 

increased temperatures, and impaired 

water quality diminish the amount of 

habitat available and the suitability of 

that habitat in some areas. These 

impacts are further exacerbated by 

predation by and competition with 

nonnative species and other factors, as 

outlined below. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

Currently, collection of spikedace and 

loach minnow in Arizona is prohibited 

by Arizona Game and Fish Commission 

Order 40, except where such collection 

is authorized by special permit (Arizona 

Game and Fish Department (AGFD) 

2009, p. 5). The collection of these 

species is prohibited in the State of New 

Mexico except by special scientific 

permit (New Mexico Department of 

Game and Fish (NMDGF) 2010, p. 4). 

Because spikedace and loach minnow 

do not grow larger than 80 mm (3 in), 

we conclude that angling for this 

species is not a threat. No known 

commercial uses exist for spikedace or 

loach minnow. A limited amount of 

scientific collection occurs, but does not 

pose a threat to these species because it 

is regulated by the States. Therefore, we 

have determined that overutilization for 

commercial, recreational, scientific, or 

educational purposes is not a threat to 

spikedace or loach minnow at this time. 

C. Disease or Predation 

The introduction and spread of 

nonnative species has been identified as 

one of the primary factors in the 

continuing decline of native fishes 

throughout North America and 

particularly in the Southwest (Miller 

1961, pp. 365, 397–398; Lachner et al. 

1970, p. 21; Ono et al. 1983, pp. 90–91; 

Carlson and Muth 1989, pp. 222, 234; 

Fuller et al. 1999, p. 1; Propst et al. 

2008, pp. 1246–1251; Pilger et al. 2010, 

pp. 300, 311–312). Miller et al. (1989, 

pp. 22, 34, 36) concluded that 

introduced nonnative species were a 

causal factor in 68 percent of fish 

extinctions in North America in the last 

100 years. For the 70 percent of fish 

species that are still extant, but are 

considered to be endangered or 

threatened, introduced nonnative 

species are a primary cause of the 

decline (Lassuy 1995, pp. 391–394). 

Release or dispersal of new nonnative 

aquatic organisms is a continuing 

phenomenon in the species’ range 

(Rosen et al. 1995, p. 254). Currently, 

the majority of native fishes in Arizona 

and 80 percent of native fishes in the 

Southwest are on either State or Federal 

protection lists. 

Nonnative fish introductions in the 

southwestern United States began before 

1900, and have steadily increased in 

frequency (Rinne and Stefferud 1996, p. 

29). New species are continually being 

introduced through various 

mechanisms, including aquaculture, 

aquarium trade, sport fish stocking, live 

bait use, interbasin water transfers, and 

general ‘‘bait bucket transport,’’ where 

people move fish from one area to 

another without authorization and for a 

variety of purposes (Service 1994b, pp. 

12–16; Service 1999, pp. 24–59). Nearly 

100 kinds of nonnative fishes have been 

stocked or introduced into streams in 

the Southwest (Minckley and Marsh 

2009, p. 51). Nonnative fishes known to 

occur within the historical range of the 

spikedace include channel catfish 

(Ictalurus punctatus), flathead catfish 

(Pylodictis olivaris), red shiner 

(Cyprinella lutrensis), fathead minnow 

(Pimephales promelas), green sunfish 

(Lepomis cyanellus), largemouth bass 

(Micropterus salmoides), smallmouth 

bass (Micropterus dolomieui), rainbow 

trout (Oncorhynchus mykiss), brown 

trout (Salmo trutta), mosquitofish 

(Gambusia affinis), carp (Cyprinus 

carpio), bluegill (Lepomis macrochiris), 

yellow bullhead (Ameiurus natalis), 

black bullhead (Ameiurus melas), and 

goldfish (Carassius auratus) (ASU 

2002). 

In the Gila River basin, introduction 

of nonnative species is considered a 

primary factor in the decline of native 

fish species (Minckley 1985, pp. 1, 68; 

Williams et al. 1985, pp. 1–2; Minckley 

and Deacon 1991, pp. 15–17; Douglas et 

al. 1994, pp. 9–11; Clarkson et al. 2005 

p. 20; Olden and Poff 2005, pp. 79–87). 

Aquatic and semiaquatic mammals, 

reptiles, amphibians, crustaceans, 

mollusks (snails and clams), parasites, 

disease organisms, and aquatic and 

riparian vascular plants outside of their 

historical range, have all been 

documented to adversely affect aquatic 

ecosystems (Cohen and Carlton 1995, 

pp. i–iv). The effects of nonnative fish 

competition on spikedace and loach 

minnow can be classified as either 

interference or exploitive. Interference 

competition occurs when individuals 

directly affect others, such as by 

fighting, producing toxins, or preying 

upon them (Schoener 1983, p. 257). 

Exploitive competition occurs when 

individuals affect others indirectly, such 

as through use of common resources 

(Douglas et al. 1994, p. 14). Interference 

competition in the form of predation is 

discussed here, while a discussion of 

the history of nonnative species 

introductions and resulting interference 

competition for resources is under 

Factor E below. 

Altered Flow Regimes and Nonnative 

Predators 

Alterations of stream channels 

through channelization, surface and 

groundwater withdrawals are discussed 

above under Factor A. Propst et al. 

(2008, p. 1236) completed a study on 

the interaction of physical modification 

of stream channels coupled with the 

widespread introduction and 

establishment of nonnative aquatic 

species. Following evaluation of six 

study sites in the upper Gila River 

drainage, they determined that the 

negative association between nonnatives 

and native fishes indicated a complex 

relationship between naturally variable 

flows and nonnative species, and varied 

at the study sites (Propst et al. 2008, p. 

1236). For the West, Middle, and East 

Forks of the Gila River, they determined 

that natural flow alone would be 

insufficient to conserve native fish 

assemblages. The Tularosa and San 

Francisco River study sites were 

affected by human use (albeit at low 

levels), and neither site supported more 

than a few nonnative fishes, with none 

in most years. Declines of loach minnow 

in this area may be due to the natural 

variability of the system; however, the 

research concluded that resilience of 

native fish assemblages may be 

compromised by the presence of the 

nonnative species. 

The Gila River study site, just 

downstream of the town of Cliff, was the 

most affected by human activity, and 

was exposed to the greatest number of 

nonnative fishes; however, over the 

course of the study, the native fish 

assemblage at the site did not change. 

Although not entirely explained, the 

researchers indicate that the lack of 

optimal (i.e., pool) habitat for nonnative 

predators and the comparative 

abundance of habitats (e.g., cobble 

riffles and shallow gravel runs) favored 

by native fishes partially explains the 

persistence of the native fish 

assemblage. They speculate that other 

factors, including thermal regime or 

turbidity, might also have buffered the 

interactions between native and 

nonnative fishes (Propst et al. 2008, pp. 

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10820 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

1246–1249). The study concludes that, 

while native fish assemblages may 

persist through drought, their resistance 

and resilience are compromised if 

nonnative predators are present. They 

also conclude that, while retention of 

natural hydrologic regimes is crucial for 

the persistence of native fish 

assemblages in arid-land streams, 

removal and preclusion of nonnative 

predators and competitors are equally 

important (Propst et al. 2008, p. 1251). 

Predation 

Nonnative channel catfish, flathead 

catfish, and smallmouth bass all prey on 

spikedace and loach minnow, as 

indicated by prey remains of native 

fishes in the stomachs of these species 

(Propst et al. 1986, p. 82; Propst et al. 

1988, p. 64; Bonar et al. 2004, pp. 13, 

16–21). Channel catfish move into riffles 

to feed, preying on the same animals 

most important to loach minnows, 

while juvenile flathead catfish prey on 

loach minnows (Service 1991a, p. 5). 

Smallmouth bass are known to co-occur 

with spikedace and are documented 

predators of the species (Service 1991b, 

p. 6; Paroz et al. 2009, pp. 12, 18). When 

smallmouth bass densities increased on 

the East Fork Gila River, densities of 

native fishes decreased (Stefferud et al. 

2011, pp. 11–12). Green sunfish are also 

thought to be a predator, likely 

responsible for replacement of native 

species like spikedace and loach 

minnow. While no direct studies have 

been completed on predation by green 

sunfish on spikedace or loach minnow, 

they are a known predator of fish that 

size, and they occur within areas 

occupied by these species. 

Declines of native fish species appear 

linked to increases in nonnative fish 

species. In 1949, for example, 52 

spikedace were collected at Red Rock on 

the Gila River, while channel catfish 

composed only 1.65 percent of the 607 

fish collected. However, in 1977, only 6 

spikedace were located at the same site, 

and the percentage of channel catfish 

had risen to 14.5 percent of 169 fish 

collected. The decline of spikedace and 

the increase of channel catfish is likely 

related (Anderson 1978, pp. 2, 13, 50– 

51). Similarly, interactions between 

native and nonnative fishes were 

observed in the upper reaches of the 

East Fork of the Gila River. Prior to the 

1983 and 1984 floods in the Gila River 

system, native fish were limited, with 

spikedace being rare or absent, while 

nonnative channel catfish and 

smallmouth bass were moderately 

common. After the 1983 flooding, adult 

nonnative predators were generally 

absent, and spikedace were collected in 

moderate numbers in 1985 (Propst et al. 

1986, p. 83). 

The majority of areas considered 

occupied by spikedace and loach 

minnow have seen a shift from a 

predominance of native fishes to a 

predominance of nonnative fishes. For 

spikedace, this is best demonstrated on 

the upper Verde River, where native 

species dominated the total fish 

community at greater than 80 percent 

from 1994 to 1996, before dropping to 

approximately 20 percent in 1997 and 

19 percent in 2001. At the same time, 

three nonnative species increased in 

abundance between 1994 and 2000 

(Rinne et al. 2004, pp. 1–2). Similar 

changes in the dominance of nonnative 

fishes have occurred on the Middle Fork 

Gila River, with a 65 percent decline of 

native fishes between 1988 and 2001 

(Propst 2002, pp. 21–25). 

In other areas, nonnative fishes may 

not dominate the system, but their 

abundance has increased, while 

spikedace and loach minnow 

abundance has declined. This is the 

case for the Cliff-Gila Valley area of the 

Gila River, where nonnative fishes 

increased from 1.1 percent to 8.5 

percent, while native fishes declined 

steadily over a 40-year period (Propst et 

al. 1986, pp. 27–32). At the Redrock and 

Virden valleys on the Gila River, the 

relative abundance in nonnative fishes 

in the same time period increased from 

2.4 percent to 17.9 percent (Propst et al. 

1986, pp. 32–34). Four years later, the 

relative abundance of nonnative fishes 

increased to 54.7 percent at these sites 

(Propst et al. 1986, pp. 32–36). The 

percentage of nonnative fishes increased 

by almost 12 percent on the Tularosa 

River between 1988 and 2003, while on 

the East Fork Gila River, nonnative 

fishes increased to 80.5 percent relative 

abundance in 2003 (Propst 2005, pp. 6– 

7, 23–24). Nonnative fishes are also 

considered a management issue in other 

areas including Eagle Creek, the San 

Pedro River, West Fork Gila River, and 

to a lesser extent on the Blue River and 

Aravaipa Creek. 

Generally, when the species 

composition of a community shifts in 

favor of nonnative fishes, a decline in 

spikedace or loach minnow abundance 

occurs (Olden and Poff 2005, pp. 79– 

86). Propst et al. (1986, p. 38) noted this 

during studies of the Gila River between 

1960 and 1980. While native species, 

including spikedace, dominated the 

study area initially, red shiner, fathead 

minnow, and channel catfish were more 

prevalent following 1980. Propst et al. 

(1986, pp. 83–86) noted that drought 

and diversions for irrigation first 

brought a decline in habitat quality, 

followed by the establishment of 

nonnative fishes in remaining suitable 

areas, thus reducing the availability and 

utility of these areas for native species. 

It should be noted that the effects of 

nonnative fishes often occur with, or are 

exacerbated by, changes in flow regimes 

or declines in habitat conditions (see 

Factor A above) and should be 

considered against the backdrop of 

historical habitat degradation that has 

occurred over time (Minckley and Meffe 

1987, pp. 94, 103; Rinne 1991, p. 12). 

Nonnative channel catfish, flathead 

catfish, and smallmouth bass are present 

in most spikedace habitats, including 

the Verde River (Minckley 1993, pp. 7– 

13; Jahrke and Clark 1999, pp. 2–7; 

Rinne 2004, pp. 1–2; Bahm and 

Robinson 2009b, pp. 1–4; Robinson and 

Crowder 2009, pp. 3–5); the Gila River 

(Propst et al. 1986, pp. 14–31; Springer 

1995, pp. 6–10; Jakle 1995, pp. 5–7; 

Propst et al. 2009, pp. 14–17); the San 

Pedro River (Jakle 1992, pp. 3–5; 

Minckley 1987, pp. 2, 16); the San 

Francisco River (Papoulias et al. 1989, 

pp. 77–80; Propst et al. 2009, pp. 5–6); 

the Blue River (ASU 1994, multiple 

reports; ASU 1995, multiple reports; 

Clarkson et al. 2008, pp. 3–4); the 

Tularosa River, East Fork Gila River, 

West Fork Gila River, and Middle Fork 

Gila River (Paroz et al. 2009, p. 12; 

Propst et al. 2009, pp. 7–13) and Eagle 

Creek (Marsh et al. 2003, p. 667; ASU 

2008, multiple reports; Bahm and 

Robinson 2009a, pp. 2–6). 

Pilger et al. (2010, pp. 311–312) 

studied the food webs in six reaches of 

the Gila River. Their study attempted to 

quantify resource overlap among native 

and nonnative fishes. Their study 

determined that nonnative fishes 

consumed a greater diversity of 

invertebrates and more fish than native 

species, and that nonnative fishes 

consumed predacious invertebrates and 

terrestrial invertebrates more frequently 

than native fishes. They found that, on 

average, the diets of adult nonnative 

fishes were composed of 25 percent fish, 

but that there was high variability 

among species. Only 6 percent of the 

diet of channel catfish was fish, while 

fish made up 84 percent of the diet of 

flathead catfish. They found that both 

juvenile and adult nonnative species 

could pose a predation threat to native 

fishes. 

As noted below under Factor E, 

nonnative fishes also compete for 

resources with native fishes. While 

nonnative fishes are preying on native 

fishes, small-bodied nonnative fishes 

are also potentially affecting native 

fishes through competition (discussed 

further under Factor E), so that native 

fishes are impacted by both competition 

and predation. Pilger et al. (2010, p. 

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312) note that removal and preclusion of 

nonnative predators and competitors 

may be necessary for conservation of 

native fishes in the upper Gila River in 

order to mitigate the effects they have 

on native species. Rinne and Miller 

(2006, pp. 91, 95) note that, in the upper 

Verde River, native fishes have declined 

precipitously since the mid-1990s. They 

conclude that there are declining trends 

of native fish abundances in the upper 

Gila River, and that the coexistence of 

native and nonnative fishes there may 

indicate that the threshold has not been 

reached, but may be imminent. 

Disease 

Various parasites may affect 

spikedace and loach minnow. Asian 

tapeworm (Bothriocephalus 

acheilognathi) was introduced into the 

United States with imported grass carp 

(Ctenopharyngodon idella) in the early 

1970s. It has since become well 

established in areas throughout the 

southwestern United States. The 

definitive host in the life cycle of Asian 

tapeworm is a cyprinid fish (carp or 

minnow), and therefore it is a potential 

threat to spikedace and loach minnow, 

as well as other native cyprinids in 

Arizona. The Asian tapeworm adversely 

affects fish health by impeding the 

digestion of food as it passes through 

the digestive track. Emaciation and 

starvation of the host can occur when 

large enough numbers of worms feed off 

the fish directly. An indirect effect is 

that weakened fish are more susceptible 

to infection by other pathogens. Asian 

tapeworm invaded the Gila River basin 

and was found during the Central 

Arizona Project’s fall 1998 monitoring 

in the Gila River at Ashurst-Hayden 

Dam. It has also been confirmed from 

Bonita Creek in 2010 and from Fossil 

Creek in 2004 and 2010 (U.S. Fish and 

Wildlife Service National Wild Fish 

Health Survey 2004, 2010). This parasite 

can infect many species of fish and is 

carried into new areas along with 

nonnative fishes or native fishes from 

contaminated areas. 

The parasite (Ichthyophthirius 

multifiliis) (Ich) usually occurs in deep 

waters with low flow and is a potential 

threat to spikedace and loach minnow. 

Ich has occurred in some Arizona 

streams, probably encouraged by high 

temperatures and crowding as a result of 

drought. Ich is known to be present in 

Aravaipa Creek (Mpoame 1982, pp. 45– 

47), which is currently occupied by both 

spikedace and loach minnow. This 

parasite was observed being transmitted 

on the Sonora sucker (Catostomus 

insignis), although it does not appear to 

be host-specific and could be 

transmitted by other species (Mpoame 

1982, p. 46). It has been found on desert 

and Sonoran suckers, as well as 

roundtail chub (Robinson et al. 1998, p. 

603). This parasite becomes embedded 

under the skin and within the gill 

tissues of infected fish. When Ich 

matures, it leaves the fish, causing fluid 

loss, physiological stress, and sites that 

are susceptible to infection by other 

pathogens. If Ich is present in large 

enough numbers, it can also impact 

respiration because of damaged gill 

tissue. There are recorded spikedace 

mortalities in captivity due to Ich. 

Anchor worm (Lernaea cyprinacea), 

an external parasite, is unusual in that 

it has little host specificity, infecting a 

wide range of fishes and amphibians. 

Infection by this parasite has been 

known to kill large numbers of fish due 

to tissue damage and secondary 

infection of the attachment site 

(Hoffnagle and Cole 1999, p. 24). 

Presence of this parasite in the Gila 

River basin is a threat to spikedace, 

loach minnow, and other native fishes. 

In July 1992, the BLM found anchor 

worms in Bonita Creek. They have also 

been documented in Aravaipa Creek 

and the Verde River (Robinson et al. 

1998, pp. 599, 603–605). Both spikedace 

and loach minnow occur in Bonita and 

Aravaipa Creeks. 

Yellow grub (Clinostomum 

marginatum) is a parasitic, larval 

flatworm that appears as yellow spots 

on the body and fins of a fish. These 

spots contain larvae of worms which are 

typically introduced by fish-eating birds 

who ingest fish infected with the 

parasite. Once ingested, the parasites 

mature and produce eggs in the 

intestines of the bird host. The eggs are 

then deposited into water bodies in the 

bird waste, where they infect the livers 

of aquatic snails. The snail hosts in turn 

allow the parasites to develop into a 

second and third larval form, which 

then migrates into a fish host. Because 

the intermediate host is a bird, and 

therefore highly mobile, yellow grub are 

easily spread. When yellow grub infect 

a fish they penetrate the skin and 

migrate into its tissues, causing damage 

and potentially hemorrhaging. Damage 

from one yellow grub may be minimal, 

but in greater numbers, yellow grub can 

kill fish (Maine Department of Inland 

Fisheries and Wildlife 2002a, p. 1). 

Yellow grub occur in many areas in 

Arizona and New Mexico, including 

Aravaipa Creek (Amin 1969, p. 436; U.S. 

Geological Survey (USGS) 2004, p. 71; 

Widmer et al. 2006, p. 756), Oak Creek 

(Mpoame and Rinne 1983, pp. 400–401), 

the Salt River (Amin 1969, p. 436; Bryan 

and Robinson 2000, p. 19), the Verde 

River (Bryan and Robinson 2000, p. 19), 

and Bonita Creek (Robinson, 2011b, 

pers. comm.). 

Black grub, also called black spot, 

(Neascus spp.) is a parasitic larval fluke 

that appears as black spots on the skin, 

tail base, fins, and musculature of a fish. 

As with yellow grub, adult black grub 

trematodes live in a bird’s mouth and 

produce eggs, which are swallowed 

unharmed and released into the water in 

the bird’s feces. Each stage of their life 

cycle is named. Eggs mature in the 

water releasing miracidia, which infect 

mollusks as a first intermediate host, 

and continue to grow, becoming redia. 

They then migrate into the tissues of a 

second intermediate host, which is 

typically a fish. At this stage, they are 

termed ‘‘cercaria.’’ When the cercaria 

penetrates and migrates into the tissues 

of a fish, it causes damage and possibly 

hemorrhaging. It then becomes 

encapsulated by host tissue, and 

melanophores, or pigmented cells, 

surround the outer layers, resulting in 

the darker color, which appears as a 

black spot. The damage caused by one 

cercaria is negligible, but in greater 

numbers they may kill a fish (Lane and 

Morris 2000, pp. 2–3; Maine Department 

of Inland Fisheries and Wildlife 2002b, 

p. 1). Black grub are present in the 

Verde River (Robinson et al. 1998, p. 

603; Bryan and Robinson 2000, p. 21), 

Silver Creek, Redfield Canyon, and 

Fossil Creek (Robinson, 2011b, pers. 

comm.), and are prevalent in the San 

Francisco River in New Mexico (Paroz, 

2011 pers. comm.). 

Summary of Factor C 

Both spikedace and loach minnow 

have been severely impacted by the 

predation of nonnative predators. 

Aquatic nonnative species have been 

introduced or spread into new areas 

through a variety of mechanisms, 

including intentional and accidental 

releases, sport stocking, aquaculture, 

aquarium releases, and bait-bucket 

release. Channel catfish, flathead 

catfish, and smallmouth bass appear to 

be the most prominent predators, 

although other species contribute to the 

decline of spikedace and loach minnow. 

Spikedace and loach minnow have been 

replaced by nonnative fishes in several 

Arizona streams. In addition to threats 

from predation, we also conclude that 

both spikedace and loach minnow are 

reasonably certain to become impacted 

by parasites that have been documented 

in the Gila River basin and that are 

known to adversely affect or kill fish 

hosts. For these reasons, we find that 

disease and predation are significant 

threats to the spikedace and loach 

minnow. 

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D. The Inadequacy of Existing 

Regulatory Mechanisms 

Because of the complex, indirect, and 

cumulative nature of many of the threats 

to spikedace and loach minnow, 

existing regulatory mechanisms are 

inadequate to address or ameliorate the 

threats. Causes of the declining status of 

these species are a mix of many human 

activities and natural events, which 

makes them difficult to control through 

regulation. 

State Regulations 

Spikedace is listed by New Mexico as 

an endangered species, while loach 

minnow is listed as threatened (BisonM 2010). These designations provide the 

protection of the New Mexico Wildlife 

Conservation Act. However, the primary 

focus of the New Mexico Wildlife 

Conservation Act and other State 

legislation is to prevent actual 

destruction or harm to individuals of 

the species. Since most of the threats to 

these species come from actions that do 

not directly kill individuals, but 

indirectly result in their death from the 

lack of some habitat requirement or an 

inability to reproduce, the State 

protection is only partially effective for 

this species. Similarly, spikedace and 

loach minnow are listed as species of 

concern by the State of Arizona. The 

listing under the State of Arizona law 

does not provide protection to the 

species or their habitats; however, 

AGFD regulations prohibit possession of 

these species (AGFD 2006, Appendix 

10, p. 4). 

As discussed above under Factor C, 

the introduction and spread of 

nonnative aquatic species is a major 

threat to spikedace and loach minnow. 

Neither the States of New Mexico and 

Arizona nor the Federal Government 

has adequate regulatory mechanisms to 

address this issue. Programs to 

introduce, augment, spread, or permit 

such actions for nonnative sport, bait, 

aquarium, and aquaculture species 

continue. Regulation of these activities 

does not adequately address the spread 

of nonnative species, as many 

introductions are conducted through 

incidental or unregulated actions. 

New Mexico water law does not 

include provisions for instream water 

rights to protect fish and wildlife and 

their habitat. Arizona water law does 

recognize such provisions; however, 

because this change is relatively recent, 

instream water rights have low priority 

and are often overcome by more senior 

diversion rights. Indirectly, Arizona 

State law also allows surface water 

depletion by groundwater pumping. 

A limited amount of scientific 

collection occurs under State 

permitting, as authorized by the special 

rule for the two species, but does not 

pose a threat to these species because it 

is regulated by the States. 

Federal Regulations 

Many Federal statutes potentially 

afford protection to spikedace and loach 

minnow. A few of these are section 404 

of the Clean Water Act (33 U.S.C. 1251 

et seq.), Federal Land Policy and 

Management Act (43 U.S.C. 1701–1782), 

National Forest Management Act (16 

U.S.C. 1600 et seq.), National 

Environmental Policy Act (NEPA), and 

the Act. However, in practice these 

statutes have not been able to provide 

sufficient protection to prevent the 

downward trend in the populations and 

habitat of spikedace and loach minnow 

and the upward trend in threats. Section 

404 of the Clean Water Act regulates 

placement of fill into waters of the 

United States, including most of 

spikedace and loach minnow habitat. 

However, many actions highly 

detrimental to spikedace and loach 

minnow and their habitats, such as 

gravel mining and irrigation diversion 

structure construction and maintenance, 

are often exempted from the Clean 

Water Act. Other detrimental actions, 

such as bank stabilization and road 

crossings, are covered under nationwide 

permits that receive little or no Service 

review. A lack of thorough, site-specific 

analyses for projects can allow 

substantial adverse effects to spikedace, 

loach minnow, and their habitat. 

The Federal Land Policy and 

Management Act and National Forest 

Management Act provide mechanisms 

for protection and enhancement of 

spikedace, loach minnow, and their 

habitat on Federal lands. The USFS and 

the BLM have made significant progress 

on some stream enhancements (Fossil 

Creek, Blue River, Hot Springs Canyon, 

and Bonita Creek). However, despite the 

protection and enhancement 

mechanisms in these laws, competing 

multiple uses, limited funding and 

staffing have resulted in few 

measureable on-the-ground successes, 

and the status of these species has 

continued to decline. 

Spikedace and loach minnow are 

currently listed as threatened under the 

Act and therefore are afforded the 

protections of the Act. Special rules 

were promulgated for spikedace and 

loach minnow in 1986, which prohibit 

taking of the species, except under 

certain circumstances in accordance 

with applicable State fish and wildlife 

conservation laws and regulations. 

Violations of the special rules are 

considered violations of the Act (50 CFR 

17.44(p) for spikedace and 50 CFR 

17.44(q) for loach minnow). As a result 

of the special rules for spikedace and 

loach minnow, the AGFD is issuing 

scientific collecting permits. This 

authority was granted at 50 CFR 

17.44(p) for spikedace and 50 CFR 

17.44(q) for loach minnow. This is 

confirmed through Arizona Commission 

Order 40 and New Mexico special 

permit (19 New Mexico Administrative 

Code 33.6.2). 

Under section 7 of the Act, Federal 

agencies must insure that any action 

they authorize, fund, or carry out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

adverse modification or destruction of 

designated critical habitat. The Service 

promulgated regulations extending take 

prohibitions under section 9 for 

endangered species to threatened 

species. Prohibited actions under 

section 9 include, but are not limited to, 

take (i.e., harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or 

collect, or attempt to engage in such 

activity). Critical habitat designation 

alerts the public that the areas 

designated as critical habitat are 

important for the future recovery of the 

species, as well as invoking the review 

of these areas under section 7 of the Act 

with regard to any possible Federal 

actions in that area. 

Section 10 of the Act allows for the 

permitting of take in the course of 

otherwise lawful activities by private 

entities, and may involve habitat 

conservation plans which can 

ultimately benefit spikedace or loach 

minnow. The habitat conservation plan 

(HCP) prepared by Salt River Project 

(SRP) is expected to benefit spikedace 

and loach minnow in the Verde River. 

Spikedace and loach minnow have 

been protected under the Act since their 

listing in 1986. While the Act provides 

prohibitions against take, and allows for 

the development of HCPs, the species 

have continued to decline. To date, 

section 7 consultation has not been an 

effective tool in addressing this decline. 

This is due in part to the fact that some 

causes of the decline, such as 

competition and predation with 

nonnative aquatic species, decreases in 

surface flows due to drought, and 

habitat losses caused by wildfires are 

not covered by the Act. In addition, 

water diversions are often 

‘‘grandfathered’’ into existing law and 

are therefore not subject to section 7. 

Summary of Factor D 

Despite the prohibitions against take, 

which have been in place since the 

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species were listed in 1986, spikedace 

and loach minnow have continued to 

decline. While section 7 consultation 

may be effective in addressing impacts 

from Federal actions such as a road 

construction project or implementation 

of an allotment management plan, they 

are not effective at minimizing losses to 

the species from competition and 

predation with nonnative species, the 

impacts of drought or climate change, or 

the effects of wildfires. Review under 

the CWA is lacking, and the Federal 

Land Policy and Management Act and 

National Forest Management Act are not 

currently having a positive effect on the 

species. In summary, existing regulatory 

mechanisms that prohibit taking of the 

two species have been in place for 

decades, however, these regulations are 

not adequate to address the significant 

habitat effects, particularly water 

diversion and the distribution and 

abundance of nonnative fishes, affecting 

spikedace and loach minnow. Because 

existing regulatory mechanisms do not 

provide adequate protection for these 

species or their habitats throughout 

their ranges, we conclude the 

inadequacy of existing regulatory 

mechanisms is a significant threat to the 

spikedace and loach minnow. 

E. Other Natural or Manmade Factors 

Affecting the Species’ Continued 

Existence 

Nonnative Fishes 

As described under Factor C above, 

nonnative fishes pose a significant 

threat to Gila River basin native fishes, 

including spikedace and loach minnow 

(Minckley 1985, pp. 1, 68; Williams et 

al. 1985, pp. 3, 17–20; Minckley and 

Deacon 1991, pp. 15–17). Competition 

with nonnative fish species is 

considered a primary threat to 

spikedace and loach minnow. See 

Factor C for the discussion of predation 

by nonnative fish species. 

As with many fish in the West, 

spikedace and loach minnow lacked 

exposure to a wider range of species 

over evolutionary time, so that they 

seem to lack the competitive abilities 

and predator defenses developed by 

fishes from regions where more species 

are present (Moyle 1986, pp. 28–31; 

Douglas et al. 1994, pp. 9–10). As a 

result, the native western fish fauna is 

significantly impacted by interactions 

with nonnative species. The 

introduction of more aggressive and 

competitive nonnative fish has led to 

significant losses of spikedace and loach 

minnow (Douglas et al. 1994, pp. 14– 

17). Nonnative fishes known to occur 

within the historical range of spikedace 

and loach minnow in the Gila River 

basin include channel catfish, flathead 

catfish, red shiner, fathead minnow, 

green sunfish, largemouth bass, 

smallmouth bass, rainbow trout, 

western mosquitofish, carp, warmouth 

(Lepomis gulosus), bluegill, yellow 

bullhead, black bullhead, and goldfish 

(Miller 1961, pp. 373–394; Nico and 

Fuller 1999, pp. 16, 21–24; Clark 2001, 

p. 1; AGFD 2004, Bahm and Robinson 

2009b, p. 3). 

The aquatic ecosystem of the central 

Gila River basin has relatively small 

streams with warm water and low 

gradients, and many of the native 

aquatic species are small. In these areas, 

small, nonnative fish species pose a 

threat to spikedace and loach minnow 

(Deacon et al. 1964, pp. 385, 388). 

Examples of this are the impacts of 

mosquitofish and red shiner, which may 

compete with, or predate upon, native 

fish in the Gila River basin (Meffe 1985, 

pp. 173, 177–185; Douglas et al. 1994, 

pp. 1, 13–17). However, negative 

interactions also occur between small 

native and large nonnative individuals. 

On the East and Middle Forks of the 

Gila River, where large nonnative 

predators were comparatively common, 

small native species were uncommon or 

absent. Conversely, on the West Fork 

Gila River, when large nonnative 

predators were rare, most small-bodied 

and young of large-bodied native fishes 

persisted (Stefferud et al. 2011, pp. 

1409–1411). 

For spikedace and loach minnow, 

every habitat that has not been 

renovated or protected by barriers has at 

least six nonnative fish species present, 

at varying levels of occupation. In 

addition to nonnative fishes, parasites 

have been introduced incidentally with 

nonnative species and may be 

deleterious to spikedace and loach 

minnow populations. Nonnative 

crayfish (Orconectes virilis) have 

invaded occupied spikedace and loach 

minnow habitats (Taylor et al. 1996, p. 

31; Robinson and Crowder 2009, p. 3; 

Robinson et al. 2009b, p. 4; USGS 2009, 

p. 1). Crayfish are known to eat fish 

eggs, especially those bound to the 

substrate (Dorn and Mittlebach 2004, p. 

2135), as is the case for spikedace and 

loach minnow. Additionally, crayfish 

cause decreases in macroinvertebrates, 

amphibians, and fishes (Hanson et al. 

1990, p. 69; Lodge et al. 2000, p. 11). 

Several of the nonnative species now in 

spikedace and loach minnow habitats 

arrived there since the species were 

listed, such as red shiner in Aravaipa 

Creek (Stefferud and Reinthal 2005, p. 

51) and Asian tapeworm in the middle 

Gila River. 

Competition can be classified as 

either interference competition or 

exploitive competition. Interference 

competition occurs when individuals 

directly affect others, such as by 

fighting, producing toxins, or preying 

upon them (Schoener 1983, p. 257). 

Exploitive competition occurs when 

individuals affect others indirectly, such 

as through use of common resources 

(Douglas et al. 1994, p. 14). Exploitive 

competition in the form of predation is 

discussed above under Factor C. 

Interference competition occurs with 

species such as red shiner. Nonnative 

red shiners compete with spikedace for 

suitable habitats, as the two species 

occupy essentially the same habitat 

types. The red shiner has an inverse 

distribution pattern in Arizona to 

spikedace (Minckley 1973, p. 138). 

Where the two species occur together, 

there is evidence of displacement of 

spikedace to less suitable habitats than 

previously occupied (Marsh et al. 1989, 

pp. 67, 107). As a result, if red shiners 

are present, suitable habitat for 

spikedace is reduced. In addition, the 

introduction of red shiner and the 

decline of spikedace have occurred 

simultaneously (Minckley and Deacon 

1968, pp. 1427–1428; Douglas et al. 

1994, pp. 13, 16–17). The red shiner was 

introduced in the mainstem Colorado 

River in the 1950s, spreading upstream 

to south-central Arizona by 1963, and 

by the late 1970s eastward into New 

Mexico. Spikedace disappeared at the 

same time and in the same progressively 

upstream direction, likely as a result of 

interactions with red shiner and in 

response to impacts of various water 

developments (Minckley and Deacon 

1968, pp. 1427–1428; Minckley and 

Deacon 1991, pp. 7, 15; Douglas et al. 

1994, pp. 13–17). 

One study focused on potential 

impacts of red shiner on spikedace in 

three areas: (1) Portions of the Gila River 

and Aravaipa Creek having only 

spikedace; (2) a portion of the Verde 

River where spikedace and red shiner 

co-occurred for three decades; and (3) a 

portion of the Gila River where red 

shiner invaded areas and where 

spikedace have never been recorded. 

The study indicated that, for reaches 

where only spikedace were present, 

spikedace displayed a preference for 

slower currents and smaller particles in 

the substrate than were generally 

available throughout the Gila River and 

Aravaipa Creek systems. Where red 

shiner occur in the Verde River, the 

study showed that red shiner occupied 

waters that were generally slower with 

smaller particle sizes in the substrate 

than were, on average, available in the 

system. The study concludes that in 

areas where spikedace co-occurrs with 

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red shiner, red shiner remain in the 

preferred habitat, while spikedace move 

into currents swifter than typically 

occupied (Douglas et al. 1994, pp. 14– 

16). The areas with swifter currents are 

likely less suitable for spikedace, as 

evidenced by their nonuse until such 

competition occurs. Red shiners are 

known to occur in the Verde River 

(Minckley 1993, p. 10; Jahrke 1999, pp. 

2–7; Bahm and Robinson 2009b, pp. 3– 

5), Aravaipa Creek (Reinthal, 2011, pp. 

1–2), Blue River (ASU 2004, multiple 

reports; ASU 2005, multiple reports), 

and Gila River (Minckley 1973, pp. 136– 

137; Marsh et al. 1989, pp. 12–13; 

Propst et al. 2009, pp. 14–18). 

As with spikedace, exploitive 

competition also appears to occur 

between red shiner and loach minnow. 

Red shiners occur in all places known 

to be formerly occupied by loach 

minnow, and are absent or rare in places 

where loach minnow persists. Because 

of this, red shiner has often been 

implicated in the decline of loach 

minnow. Loach minnow habitat is 

markedly different than that of red 

shiner, so interaction between the two 

species is unlikely to cause shifts in 

habitat use by loach minnow (Marsh et 

al. 1989, p. 39). Instead, studies indicate 

that red shiner move into voids left 

when native fishes such as loach 

minnow are extirpated due to habitat 

degradation in the area (Bestgen and 

Propst 1986, p. 209). Should habitat 

conditions improve and the habitat once 

again become suitable for loach 

minnow, the presence of red shiner may 

preclude occupancy of loach minnow, 

although the specific mechanism of this 

interaction is not fully understood. Prior 

to 1960, the Glenwood-Pleasanton reach 

of the San Francisco River supported a 

native fish assemblage of eight different 

species. Post-1960, four of these species 

became uncommon, and ultimately 

three of them were extirpated. In studies 

completed between 1961 and 1980, it 

was determined that loach minnow was 

less common than it had been, while the 

diversity of the nonnative fish 

community had increased in 

comparison to the pre-1960 period. 

Following 1980, red shiner, fathead 

minnow, and channel catfish were all 

regularly collected. Drought and 

diversions for irrigation resulted in a 

decline in habitat quality, with canyon 

reaches retaining most habitat 

components for native species. 

However, establishment of nonnative 

fishes in the canyon reaches has 

reduced the utility of these areas for 

native species (Propst et al. 1988, pp. 

51–56). 

Western mosquitofish were 

introduced outside of their native range 

to help control mosquitoes. Because of 

their aggressive and predatory behavior, 

mosquitofish may negatively affect 

populations of small fishes through 

predation and competition (Courtenay 

and Meffe 1989, pp. 320–324). 

Introduced mosquitofish have been 

particularly destructive to native fish 

communities in the American West, 

where they have contributed to the 

elimination or decline of populations of 

federally endangered and threatened 

species, such as the Gila topminnow 

(Poeciliopsis occidentalis occidentalis) 

(Courtenay and Meffe 1989, pp. 323– 

324). Pilger et al. (2010, p. 312) found 

that the generalist feeding strategy of 

smallbodied nonnative fishes could 

further affect native fishes through 

competition, particularly if there is a 

high degree of overlap in habitat use. In 

their study on the upper Gila River, they 

determined that the diets of nonnative, 

small-bodied fishes and all age groups 

of native fishes overlapped, so that the 

presence of both juvenile and adult 

nonnative species could pose a 

competitive threat to native fishes 

spikedace and loach minnow (Pilger et 

al. 2010, p. 311). Western mosquitofish 

represent an additional challenge for 

spikedace and loach minnow 

management, in that they are harder to 

effectively remove during stream 

renovation efforts. In the desert 

Southwest, the habitat conditions are so 

limited that native fish reintroductions 

can occur only in those areas where the 

competition and predation of nonnative 

fishes can be physically precluded, such 

as above a fish barrier. 

Drought 

The National Integrated Drought 

Information System (2011) classifies 

drought in increasing severity categories 

from abnormally dry, to moderate, 

severe, extreme, and, most severe, 

exceptional. The southwestern United 

States is currently experiencing drought 

conditions classified as moderate to 

exceptional. Drought conditions are 

reported as abnormally dry to moderate 

for the Verde River, with the remainder 

of the critical habitat streams in severe 

to extreme in Arizona. Critical habitat 

areas in New Mexico fall within the 

severe to extreme drought categories 

(National Integrated Drought 

Information System 2011). 

While spikedace and loach minnow 

have survived many droughts in their 

evolutionary histories, drought may 

have more of an impact on the species 

due to already reduced habitat 

suitability from other effects, as 

described above. In some areas of 

spikedace and loach minnow habitat, 

drought results in lower streamflow, 

and consequently warmer water 

temperatures beyond the species’ 

tolerance limits, and more crowded 

habitats with higher levels of predation 

and competition. In other areas, drought 

reduces flooding that would normally 

rejuvenate habitat and tend to reduce 

populations of some nonnative species, 

which are less adapted to the large 

floods of southwestern streams 

(Minckley and Meffe 1987, pp. 94, 104; 

Stefferud and Rinne 1996a, p. 80). The 

combined effects of drought with 

ongoing habitat loss and alteration; 

increased predation, competition, and 

disease from nonnative species; and the 

general loss of resiliency in highly 

altered aquatic ecosystems have had and 

continue to have negative consequences 

for spikedace and loach minnow 

populations. 

Genetics 

Each remaining population of 

spikedace is genetically distinct. 

Genetic distinctiveness in the Verde 

River and Gila River fishes indicates 

that these populations have been 

historically isolated (Tibbets and 

Dowling 1996, (pp. 1285–1291); 

Anderson and Hendrickson 1994, pp. 

148, 150–154). The center of the 

historical distribution for spikedace is 

permanently altered, and the remaining 

populations are isolated and represent 

the fringes of the formerly occupied 

range. Isolation of these populations has 

important ramifications for the overall 

survival of the species. Loss of any 

population may be permanent, as there 

is little ability to repopulate isolated 

areas, due largely to habitat alterations 

in areas between remaining populations 

(Propst et al. 1986, pp. 38, 86). No 

genetic exchange is possible between 

the remaining populations of spikedace 

without human assistance. In addition, 

because genetic variation is important to 

the species’ fitness and adaptive 

capability, losses of genetic variation 

represent a threat to the species (Meffe 

and Carroll 1997, pp. 162–172). 

Spikedace in the upper Verde River 

are genetically different than those that 

were translocated to Fossil Creek; 

however, there is a minimal opportunity 

for the two populations to interbreed 

due to the length of the river between 

the two occupied areas. While the Verde 

River supports many of the habitat 

features for spikedace, it currently 

supports a high number of nonnative 

species that compete with, and prey on, 

spikedace. We anticipate that, until 

extensive management takes place, 

spikedace in the two areas will remain 

isolated. The spikedace translocation in 

Fossil Creek has been in place for 

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approximately 4 years. It is not known 

if that translocation effort will succeed. 

As with spikedace, each remaining 

population of loach minnow is 

genetically distinct. Genetic subdivision 

into three geographic regions indicates 

that gene flow has been low but not 

historically absent (Tibbets 1993, pp. 

22–24, 33). The center of the loach 

minnow’s historical distribution is 

permanently gone, and the remaining 

populations are isolated and represent 

the fringes of the formerly occupied 

range. Isolation of these populations has 

important ramifications for the overall 

survival of the species. Loss of any 

population may be permanent, as there 

is little ability to repopulate isolated 

areas, due largely to habitat alterations 

in areas between remaining populations 

(Propst et al. 1988, p. 65). No genetic 

exchange is likely between the 

remaining populations of loach minnow 

without human assistance. As noted for 

spikedace, genetic variation is important 

to the species’ fitness and adaptive 

capability, and losses of genetic 

variation represent a threat to the 

species (Meffe and Carroll 1997, pp. 

162–172). 

Flow Regime, Nonnative Fishes, and 

Connectivity 

The competitive effects of nonnative 

fish species are often exacerbated by 

changes in flow regimes or declines in 

habitat conditions associated with water 

developments, as discussed above, and 

should be considered against the 

backdrop of historical habitat 

degradation that has occurred over time 

(Minckley and Meffe 1987, pp. 94, 103; 

Rinne 1991, p. 12). Stefferud and Rinne 

(1996b, p. 25) note that a long history 

of water development and diversion 

coupled with nonnative fish 

introductions has resulted in few 

streams in Arizona retaining their native 

fish communities. Using the Gila River 

as an example, Propst et al. (1988, p. 67) 

note that natural (e.g., drought) and 

human-induced (e.g., flow level 

reductions through irrigation diversion) 

factors combined to reduce loach 

minnow abundance in the Gila River. 

They note that where canyon habitat 

would normally continue to contain 

surface flows and suitable habitat for 

loach minnow, the establishment of 

nonnative fishes in canyon reaches has 

reduced their suitability as habitat for 

the minnow. Minckley and Douglas 

(1991, pp. 7–17) concluded that, for 

fishes native to the Southwest, the 

combination of changes in stream 

discharge patterns and nonnative fish 

introductions has reduced the range and 

numbers of all native species of fish, 

and has led to extinction of some. 

Recent work completed by Propst et 

al. (2008) indicates that individual 

factors, such as the presence of 

nonnative fishes or existing flow 

regimes may have impacts on native fish 

species, but it is likely that the 

interaction of these factors causes a 

decline in native fish species. In studies 

on the upper Gila River drainage in New 

Mexico, Propst et al. (2008) determined 

that flow regime was a primary factor in 

shaping fish assemblages, with the 

greatest densities of native fishes 

occurring in those years with higher 

stream discharges. However, they also 

found that pressure from competition 

and predation with nonnative fishes 

also affected fish assemblages. They 

concluded that there was a negative 

association between nonnatives and 

native fishes, which indicated that there 

is a complex relationship between 

naturally variable flows and nonnative 

species, and that natural flow alone was 

not enough to conserve native fish 

species (Propst et al. 2008, p. 1246). The 

way in which these factors interact 

varied from stream to stream in the 

study. 

Propst et al. (2008) also note the 

importance of connectivity, stating that 

it is critical to ensuring the long-term 

persistence of native fishes. They note 

that loach minnow, while still present 

throughout much of its historical range, 

has been apparently extirpated from 

four of six sites in 10 years or less, and 

that loss of connectivity among 

populations has reduced the likelihood 

that many will recover naturally, even if 

causes for elimination are removed. 

They conclude that ‘‘It is almost certain 

similar, but undocumented, losses have 

occurred throughout the species range, 

and its status is much more fragile than 

presumed’’ (Propst et al. 2008, p. 1251). 

However, where flows remain suitable, 

and connectivity is maintained, there is 

the inherent risk of exposure to 

nonnative species traveling from one 

area to another. They conclude that 

retention of natural hydrologic regimes 

and preclusion of nonnative predators 

and competitors are equally important 

(Propst et al. 2008, p. 1251). 

Summary of Factor E 

The reduced distribution and 

decreasing numbers of spikedace and 

loach minnow make the two species 

susceptible to natural environmental 

variability, including climate conditions 

such as drought. However, research 

indicates that it is the interaction of 

individual factors such as nonnative 

fishes and altered flow regimes that is 

causing a decline of native fish species. 

Native fishes are unable to maintain a 

competitive edge in areas where 

resources are already limited, and these 

resources are likely to become more 

limited due to water developments and 

drought. Increased water demands are 

likely to further limit the areas where 

spikedace or loach minnow can persist. 

We therefore conclude that the 

spikedace and loach minnow are 

threatened by other natural or manmade 

factors. 

Reclassification Determination 

As required by the Act, we considered 

the five factors in assessing whether the 

spikedace and loach minnow are 

endangered or threatened throughout all 

or a significant portion of their range. 

We carefully assessed the best scientific 

and commercial information available 

regarding reclassification of the 

spikedace and the loach minnow from 

threatened to endangered. There are 

many threats to both species, including 

habitat loss and modifications (Factor 

A) caused by historical and ongoing 

land uses such as water diversion and 

pumping, livestock grazing, and road 

construction. However, competition 

with, or predation by, nonnative 

species, such as channel and flathead 

catfish, green sunfish, and red shiner, is 

likely the largest remaining threat to the 

species (Factors C and E). In addition, 

recent research indicates that the 

combination of altered flow regimes and 

nonnative fishes together are causing 

declines in native fishes. Existing 

regulatory mechanisms (Factor D) have 

not proven adequate to halt the decline 

of spikedace or loach minnow or habitat 

losses since the time of their listing as 

threatened species. In addition, the 

warmer, drier, drought-like conditions 

predicted to occur due to climate 

change (Factor A) will further reduce 

available resources for spikedace and 

loach minnow. 

In 1991, we completed a 5-year 

review for spikedace and loach minnow 

in which we determined that the 

species’ status was very precarious and 

that a change in status from threatened 

to endangered was warranted. Since that 

time, although some recovery actions 

have occurred, the majority of the areas 

historically occupied by spikedace and 

loach minnow have experienced a shift 

from a predominance of native fishes to 

a predominance of nonnative fishes. 

The low numbers of spikedace and 

loach minnow, their isolation in 

tributary waters, drought, ongoing water 

demands, and other threats leads us to 

conclude the species are now in danger 

of extinction throughout their ranges. 

We determined in 1994 that 

reclassifying spikedace and loach 

minnow to endangered status was 

warranted but precluded (59 FR 35303, 

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10826 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

July 11, 1994), and restated this 

conclusion on January 8, 2001 (66 FR 

1295). We reanalyzed the determination 

each year in our Candidate Notice of 

Review, and determined that 

reclassification to endangered is 

warranted, in the Candidate Notice of 

Review published on November 9, 2009 

(74 FR 57804). Spikedace and loach 

minnow were not addressed in the 

Candidate Notice of Review published 

in 2011, as this reclassification 

determination was funded in FY 2010. 

Candidate assessments are not reviewed 

on an annual basis once they are 

funded. 

Both species have been reduced in 

range and numbers since the time of 

listing through either localized 

extirpations, reduced distribution 

within occupied drainages, or 

reductions in numbers within a given 

drainage. Spikedace and loach minnow 

are both extirpated from the Salt and 

San Pedro rivers. Spikedace are 

additionally extirpated from the San 

Francisco River, while loach minnow 

are extirpated from the Verde River. 

In terms of reduced distribution since 

listing within occupied drainages, 

spikedace currently have a much 

reduced distribution in the Verde River, 

where the known locations at listing 

occurred over approximately 25 percent 

of the previously occupied area. Loach 

minnow are reduced in distribution in 

the San Francisco and Tularosa rivers, 

occurring in a portion up and 

downstream of the Whitewater Creek 

confluence and again farther upstream 

of the Tularosa River. Spikedace and 

loach minnow are both reduced in 

distribution in the East and Middle 

Forks of the Gila River, occurring closer 

to the confluence with the Gila River, 

but no longer extending as far upstream 

as in the past. The strongholds for both 

species are Aravaipa Creek in Arizona 

and the Gila River mainstem in New 

Mexico, but more recent records 

indicate at least small reductions in the 

up and downstream extent of their 

distributions in these systems. 

In addition to extirpations and 

reductions in range, some spikedace and 

loach minnow populations persist, but 

are at reduced numbers. In the Verde 

River, spikedace numbers were 

frequently in the hundreds, with a high 

of 407 in 1986, but reduced to double 

and then single digits in the late 1980s 

and 1990s (ASU 2002). While spikedace 

likely still occur in the Verde River, 

they are at extremely low numbers and 

on the verge of extirpation. Survey 

records indicate a similar situation 

exists for both spikedace and loach 

minnow in Eagle Creek. Loach minnow 

are in extremely low numbers in the 

North Fork East Fork Black River as well 

(ASU 2002). 

Two of the primary threats to 

spikedace and loach minnow are 

nonnative fishes and loss of water due 

to diversions, pumping, drought, or 

other causes, as detailed above. 

Recently, Propst et al. (2008) indicated 

that individual factors, such as the 

presence of nonnative fishes or existing 

flow regimes may have impacts on 

native fish species, but it is likely that 

the interaction of these factors may 

cause a decline in native fish species. 

Past events (both legal and alleged 

illegal) resulted in the establishment of 

at least 60 nonnative fish species, at 

least three nonnative amphibians 

(American bullfrog, Rio Grande leopard 

frog, American tiger salamander), at 

least four invertebrates (two species of 

crayfish, Asiatic clam, and New Zealand 

mud snail), and several diseases or 

parasites that affect native fish or 

amphibians in areas across Arizona (See 

Service 2002a for additional 

information). The impacts of nonnative 

fishes on spikedace and loach minnow 

are detailed above. Nonnative aquatic 

species are known to occur in varying 

levels in every stream occupied by 

spikedace or loach minnow, with the 

exception of streams in the early stages 

of renovation and/or reintroduction 

projects, such as Hot Springs Canyon. 

Nonnative species are considered a 

serious cause of the decline of the two 

species in all streams except for 

Aravaipa Creek and the mainstem Gila 

River in New Mexico; however, 

nonnatives are present in these streams 

as well. 

Alteration or reductions of stream 

flow is a concern in many areas as well, 

including the Verde River, Salt River, 

San Pedro River, Gila River, Eagle 

Creek, and San Francisco River. In these 

areas, diversion structures may cause 

stream levels to drop or become 

dewatered, especially during drought 

and during the drier months. Future 

water needs in the arid southwest, 

coupled with the ongoing drought and 

climate change, are likely to increase the 

number of dewatered areas, the size of 

the dewatered areas, and the length of 

time for which dewatering occurs. 

Additional, pending water development 

projects have been identified above. 

Recovery actions have occurred at Hot 

Springs Canyon, Redfield Canyon, 

Fossil Creek, Bonita Creek, and the San 

Francisco River in New Mexico, and 

have focused on building barriers to 

nonnative fishes or using existing 

structures as barriers. In some instances, 

chemical and/or mechanical removal of 

nonnative species has occurred. To date, 

these projects have been costly, 

requiring millions of dollars for barrier 

construction, and extensive time and 

costs for personnel involved in the 

renovation. Sufficient time has not yet 

elapsed to determine the success of 

these projects. Fossil Creek is showing 

early signs of success for spikedace 

(Robinson 2011a, p. 1), but the 

downstream barrier has been breached 

by nonnatives on one occasion since the 

project began in 2007. Bonita Creek was 

reinvaded, despite its barrier. Redfield 

Canyon currently has inadequate flows 

to support either species. Regardless of 

the success of these efforts, Hot Springs 

Canyon and Redfield Canyon flow into 

the dry portions of the San Pedro River 

so are not connected to any other 

populations of spikedace or loach 

minnow. Fossil Creek does flow into the 

active channel of the Verde River, but 

the Verde River at that confluence is 

currently dominated by nonnatives. 

Bonita Creek flows into the Gila River, 

which is also dominated by nonnatives 

and ultimately becomes dewatered as 

well. Therefore, the recovery actions 

completed to date, while allowing the 

species to persist, have limited ability to 

help recover the species at this time. 

An additional complication in 

recovery of the species is the lack of 

available suitable habitat. The species 

are both currently found in isolated 

areas, with little opportunity for 

expansion or for genetic interchange. 

The Verde River feeds into two 

reservoirs, effectively isolating it from 

the Salt River. Those portions of the Salt 

River that were historically occupied by 

the species now have four dams and 

reservoirs. The San Pedro River is 

dewatered in some areas, especially 

downstream of known historical 

distribution. Aravaipa Creek, while 

supporting the largest population of the 

two species in Arizona, ends at a dry 

stretch of the San Pedro River. Those 

portions of Eagle Creek occupied by the 

two species occur above a diversion 

dam, downstream of which nonnative 

levels are high. Eagle Creek then joins 

the Gila River, which is also dominated 

by nonnative fishes. Downstream of the 

occupied area in the Gila River, which 

supports the largest known populations 

of the species, there are water diversions 

that ultimately result in a dry stream 

channel as the river travels into Arizona 

from New Mexico. 

In summary, spikedace and loach 

minnow previously had a relatively 

widespread distribution covering 

portions of Arizona, New Mexico, and 

northern Mexico. Both species have 

suffered major reductions in numbers 

and range over time due to persistent 

threats such that spikedace are now 

estimated to occur in only 10 percent of 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10827 

their former range, while loach minnow 

occur in 10 to 20 percent of their former 

range. Currently, only small, isolated 

populations of these species remain, 

with limited to no opportunities for 

interchange between populations or 

expansion of existing areas, making the 

species more vulnerable to threats 

including reproductive isolation. The 

two primary threats of nonnative 

aquatic species competition and 

predation and alteration or 

diminishment of stream flows are 

persistent, and research indicates that 

the combination of the two is leading to 

declines of native species such as 

spikedace and loach minnow (Propst et 

al. 2008). The ongoing drought and 

climate conditions aggravate the loss of 

water in some areas, and future water 

development projects have been 

identified. Finally, the opportunities for 

expansion of the two species’ range are 

limited by dams, reservoirs, dewatering, 

and nonnative species distribution. 

Based on this information, as well as 

the above review of the best scientific 

and commercial information available, 

we find that both species are currently 

in danger of extinction and therefore 

meet the definition of endangered 

species under the Act. Because we have 

determined that these species are 

currently on the brink of extinction and 

are not in danger of extinction in the 

foreseeable future, we have determined 

that the correct status for the species 

under the Act is endangered. As a 

result, we are reclassifying both 

spikedace and loach minnow from 

threatened species to endangered 

species. With this reclassification of 

spikedace and loach minnow to 

endangered status, we remove the 

special rules for these species at 50 CFR 

17.44(p) and 17.44(q), respectively. 

Special rules apply only to threatened 

species; therefore, as spikedace and 

loach minnow are now listed as 

endangered, these special rules no 

longer apply. 

Available Conservation Measures 

Conservation measures provided to 

spikedace and loach minnow under the 

Act include several reintroduction and 

augmentation projects. Some of these 

projects have already begun; others are 

in the planning stage. Project planning 

is under way for renovation efforts in 

Blue River and Spring Creek in Arizona. 

Other recovery actions include 

reintroduction or translocation of 

spikedace into streams within its 

historical range. In 2007, spikedace 

were translocated into Hot Springs 

Canyon, Redfield Canyon, and Fossil 

Creek. In 2008, spikedace were 

translocated into Bonita Creek in 

Arizona and reintroduced to the San 

Francisco River in New Mexico. 

Monitoring has occurred at each of these 

sites annually, with annual 

augmentations at Hot Springs Canyon, 

Redfield Canyon, and Fossil Creek in 

subsequent years when fish are 

available, up to and including 2011. 

Spikedace were augmented in the San 

Francisco River in 2009, but monitoring 

and augmentations did not occur in 

2010 or 2011 due to a lack of adequate 

staffing and resources. Due to a 

reinvasion by nonnative species, 

augmentations are temporarily on hold 

at Bonita Creek. 

Several translocation projects for 

loach minnow are also in the planning 

stages. These projects may occur with or 

without construction of fish barriers. 

Loach minnow may also benefit from 

the Blue River and Spring Creek 

renovation projects mentioned above. 

Additional recovery actions include 

translocations or reintroduction of loach 

minnow into streams within its 

historical range. In 2007, translocations 

of loach minnow occurred at Hot 

Springs Canyon, Redfield Canyon, and 

Fossil Creek. Monitoring of these sites 

occurs annually, and the sites have been 

augmented annually when fish are 

available, up to and including 2011. In 

2008, loach minnow were translocated 

into Bonita Creek, Arizona. Monitoring 

occurs annually at this site; however, 

due to a reinvasion by nonnative 

species, augmentations are temporarily 

on hold. 

The AGFD and Bureau of Reclamation 

continue to fund equipment and staff to 

run the Bubbling Ponds Native Fish 

Research Facility through the Gila River 

Basin Native Fishes Conservation 

Program (formerly known as the Central 

Arizona Project Fund Transfer Program). 

Salt River Project’s habitat conservation 

plan was signed in 2008, and is 

expected to benefit both the spikedace 

and the loach minnow in the Verde 

River watershed. Also in 2008, AGFD 

staff managed original source stock and 

their progeny at the Bubbling Ponds 

facility, totaling 740 Gila River 

spikedace, 1,650 Aravaipa Creek 

spikedace, 670 Blue River loach 

minnow, and 3,250 Aravaipa Creek 

loach minnow. Plans are under way to 

bring in stock from every extant 

population of loach minnow, including 

those in the San Francisco River, the 

three forks of the Gila River, the upper 

Gila River in New Mexico, and the Eagle 

and Black River system in Arizona. 

Bubbling Ponds will serve as a refuge 

for some populations, and as a captive 

breeding facility for others, depending 

on the status of the population and 

availability of translocation sites. 

In an effort to minimize impacts from 

nonnative fish interactions, the NMDGF 

initiated a nonnative removal effort in 

the Forks area in 2007, and at Little 

Creek (a tributary to West Fork Gila 

River) in 2010. These efforts are 

expected to continue. 

Critical Habitat Designations for 

Spikedace and Loach Minnow 

Summary of Changes From Proposed 

Rule 

As noted in our October 4, 2011, 

notice of availability (NOA) (76 FR 

61330), we used three criteria in the 

proposed rule to evaluate if unoccupied 

habitat was essential to the survival and 

recovery of the species. One of the 

criteria evaluated the potential of a 

stream segment to ‘‘connect to other 

occupied areas, which will enhance 

genetic exchange between populations.’’ 

After additional review of the stream 

segments proposed for critical habitat, 

we concluded there were no stream 

segments that met this criterion, and we 

removed it as an element of the ruleset. 

We continue to believe that both loach 

minnow and spikedace conservation 

will require genetic exchange between 

the remaining populations to allow for 

genetic variation, which is important for 

species’ fitness and adaptive capability. 

We also acknowledge that areas equally 

important to the conservation of the 

species, outside of the critical habitat 

designations, will be necessary for longterm conservation, subject to future onthe-ground recovery actions and 7(a)(1) 

opportunities. Based on information we 

received during the comment periods on 

the proposed rule, several changes have 

been made to the areas designated as 

critical habitat in this final rule. These 

changes are summarized in Table 1 

below. 

TABLE 1—CHANGES IN STREAM SEGMENTS INCLUDED WITHIN THE CRITICAL HABITAT DESIGNATIONS FOR LOACH MINNOW

AND SPIKEDACE

Stream From km (mi) To km (mi) Change in km (mi) 

San Francisco River * .................... 180.7 (112.3) ................................ 203.6 (126.5) ................................ Addition of 22.8 (14.2). 

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10828 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

TABLE 1—CHANGES IN STREAM SEGMENTS INCLUDED WITHIN THE CRITICAL HABITAT DESIGNATIONS FOR LOACH MINNOW

AND SPIKEDACE—Continued 

Stream From km (mi) To km (mi) Change in km (mi) 

Bear Creek * ................................... 0.0 (0.0) ........................................ 31.4 (19.5) .................................... Addition of 31.4 (19.5). 

Redfield Canyon ............................ 22.5 (14.0) .................................... 6.5 (4.0) ........................................ Reduction of 16.0 (10.0). 

Hot Springs Canyon ...................... 19.0 (11.8) .................................... 9.3 (5.8) ........................................ Reduction of 9.7 (6.0). 

Fossil Creek ................................... 7.5 (4.7) ........................................ 22.2 km (13.8 mi) ......................... Addition of 14.6 (9.1). 

* This change made for loach minnow only. 

San Francisco River. As noticed in the 

NOA (76 FR 61330; October 4, 2011), we 

are correcting an error made in the 

proposed rule by extending that portion 

of the San Francisco River designated 

for loach minnow by 22.8 km (14.2 mi). 

The mileage for spikedace remains the 

same as was in the proposed rule (75 FR 

66482; October 28, 2010); however, we 

had intended to include the same 

mileage for loach minnow as was in the 

2007 critical habitat designation as this 

area is currently occupied by loach 

minnow, as this area meets the 

definition of critical habitat for loach 

minnow. The total mileage included on 

the San Francisco River for loach 

minnow was changed from 180.7 km 

(112.3 mi) in the revised proposed rule 

to 203.6 km (126.5 mi) in this final rule. 

This change has been incorporated in 

this final rule. The mileage for 

spikedace remains the same as in the 

revised proposed rule. 

Bear Creek. We noted in the NOA that 

we intended to add portions of Bear 

Creek to the designation for loach 

minnow, based on occupancy of this 

area by loach minnow. The NOA noted 

that we were adding 31.4 km (19.5 mi) 

of Bear Creek from its confluence with 

the Gila River upstream to the 

confluence with Sycamore and North 

Fork Walnut creeks. We consider those 

portions of Bear Creek included within 

the final designation to have been 

occupied at listing, as described in the 

NOA, although records were not known 

until 2005 and 2006. These areas meet 

the definition of critical habitat for 

loach minnow. As noted in our NOA, 

we recognize that portions of this stream 

are intermittent, but also acknowledge 

that streams with intermittent flows can 

function as connective corridors 

through which the species may move 

when the area is wetted. We have 

reviewed all of the information 

received, and conclude that inclusion of 

Bear Creek is appropriate at this time. 

We do not anticipate that loach minnow 

will occupy the lowermost portions of 

the Creek when they are dry, but we 

have determined that that area has value 

as a connective corridor to the mainstem 

Gila River during high-flow events. 

It should be noted that the low 

number of fish does not, in all 

likelihood, represent the total number of 

fish present, as sampling rarely results 

in capture of all individuals present. 

Regardless, the number of fish present 

in Bear Creek is low. However, Bear 

Creek is a tributary to an occupied 

stream, and is within the historical 

range of the species. Loach minnow are 

currently much reduced in their overall 

distribution compared to historical 

conditions. The threats assessment 

above outlines current threats, which 

are numerous. While reintroduction 

projects are under way, the success of 

those efforts is currently limited. 

Streams are not abundant in the desert 

southwest. Because this area provides 

suitable habitat and is occupied by 

loach minnow, we conclude that it is 

essential to the conservation of the 

species. 

Redfield and Hot Springs Canyons. In 

response to comments received during 

the second comment period, we have 

reevaluated the extent of each stream 

included within the designations, and 

concluded that they do not meet the 

definition of critical habitat for either 

spikedace or loach minnow. With 

further review, we have determined 

that, although connective habitat is 

important, the area previously retained 

as connective habitat (i.e., between the 

barrier location and the San Pedro 

River) currently connects to dewatered 

portions of the San Pedro River. We 

have therefore shortened the overall 

stretch of each stream to include just 

those sections currently supporting 

perennial flows. For Redfield Canyon, 

the designations changed from 22.5 km 

(14.0 mi) in the revised proposed rule to 

approximately 6.5 km (4.0 miles) in this 

final rule, and include that portion of 

the stream from the confluence with 

Sycamore Canyon downstream to the 

barrier constructed at Township 11 

South, Range 19 East, section 36. 

For Hot Springs Canyon, we are 

making similar changes. The barrier 

location and the downstream extent of 

perennial flows are approximately one 

mile apart. As with Redfield Canyon, 

Hot Springs Canyon ultimately connects 

with dewatered portions of the San 

Pedro River. In the proposed rule we 

included Hot Springs Canyon from its 

confluence with Bass Canyon 

downstream for 19.0 km (11.8 mi). In 

the final rule, we are reducing the 

portion of Hot Springs Canyon included 

within critical habitat to that area from 

its confluence with Bass Canyon 

downstream for approximately 9.3 km 

(5.8 mi). 

Fossil Creek. We received several 

comments and new information 

indicating that the best habitat for the 

species in Fossil Creek occurs above the 

newly constructed barrier at Township 

111⁄2 North, Range 7 East, section 29. 

The portions of Fossil Creek above the 

barrier have been in use as a 

translocation site for spikedace 

beginning in 2008. Although there was 

limited success with the translocation 

initially, surveys in August 2011 

(Crowder, 2011, pers. comm.) located 

numerous spikedace within Fossil 

Creek. While it would be premature to 

call the translocation a success, the 

persistence of spikedace indicates that it 

is suitable, and this area meets the 

definition of critical habitat for 

spikedace and loach minnow. For this 

reason, we are adjusting the area 

included within Fossil Creek to include 

the portions upstream of the barrier to 

the old Fossil Diversion Dam at 

Township 12 North, Range 7 East, 

section 14. The area incorporated in this 

stream segment will increase from 7.5 

km (4.8 mi) to 22.2 km (13.8 mi). 

In total, the areas designated as 

critical habitat for both species were 

reduced as compared to the revised 

proposed rule. For spikedace, the area 

included within the designation was 

reduced by 155 km (96 mi). For loach 

minnow, the area included within the 

designation was reduced by 160 km (99 

mi). Portions of this are attributable to 

the changes noted above, and portions 

to changes made under the Exclusions 

section. The bulk of the reduced mileage 

can be attributed to exclusions on Eagle 

Creek and the San Pedro River and, to 

a lesser extent, on the Gila River. 

Critical Habitat Background 

Critical habitat is defined in section 3 

of the Act as: 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10829 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

insure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

seeks or requests Federal agency 

funding or authorization for an action 

that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) of the 

Act would apply, but even in the event 

of a destruction or adverse modification 

finding, the obligation of the Federal 

action agency and the landowner is not 

to restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, the critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical and biological features within 

an area, we focus on the principal 

biological or physical constituent 

elements (PCEs such as roost sites, 

nesting grounds, seasonal wetlands, 

water quality, tide, soil type) that are 

essential to the conservation of the 

species. PCEs are the elements of 

physical or biological features that, 

when laid out in the appropriate 

quantity and spatial arrangement to 

provide for a species’ life-history 

processes, are essential to the 

conservation of the species. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. For example, an area currently 

occupied by the species but that was not 

occupied at the time of listing may be 

essential to the conservation of the 

species and may be included in the 

critical habitat designation. We 

designate critical habitat in areas 

outside the geographical area occupied 

by a species only when a designation 

limited to its range would be inadequate 

to ensure the conservation of the 

species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

The location and suitability of habitat 

changes and species may move from one 

area to another over time. Climate 

change will be a particular challenge for 

biodiversity because the interaction of 

additional stressors associated with 

climate change and current stressors 

may push species beyond their ability to 

survive (Lovejoy 2005, pp. 325–326). 

The synergistic implications of climate 

change and habitat fragmentation are 

the most threatening facet of climate 

change for biodiversity (Hannah et al. 

2005, p. 4). Current climate change 

predictions for terrestrial areas in the 

Northern Hemisphere indicate warmer 

air temperatures, more intense 

precipitation events, and increased 

summer continental drying (Field et al. 

1999, pp. 1–3; Hayhoe et al. 2004, p. 

12422; Cayan et al. 2005, p. 6; IPCC 

2007b, p. 1181). Climate change may 

lead to increased frequency and 

duration of severe storms and droughts 

(Golladay et al. 2004, p. 504; 

McLaughlin et al. 2002, p. 6074; Cook 

et al. 2004, p. 1015. Generally, the 

outlook presented for the Southwest 

predicts warmer, drier, drought-like 

conditions (Seager et al. 2007, p. 1181; 

Hoerling and Eischeid 2007, p. 19), and 

a decline in water resources with or 

without climate change will be a 

significant factor in the compromised 

watersheds of the desert southwest. 

Habitat is dynamic, or frequently 

changing, and species may move from 

one area to another over time. We 

recognize that critical habitat designated 

at a particular point in time may not 

include all of the habitat areas that we 

may later determine are necessary for 

the recovery of the species. For these 

reasons, a critical habitat designation 

does not signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. Areas that are important to the 

conservation of the species, both inside 

and outside the critical habitat 

designations, will continue to be subject 

to: (1) Conservation actions 

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implemented under section 7(a)(1) of 

the Act, (2) regulatory protections 

afforded by the requirement in section 

7(a)(2) of the Act for Federal agencies to 

insure their actions are not likely to 

jeopardize the continued existence of 

any endangered or threatened species, 

and (3) the prohibitions of section 9 of 

the Act if actions occurring in these 

areas may affect the species. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. These 

protections and conservation tools will 

continue to contribute to recovery of 

this species. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Occupied Versus Unoccupied Areas 

We include as occupied those areas 

that were identified as occupied for 

each species in the original listing 

documents, as well as any additional 

areas determined to be occupied after 

1986. Our reasoning for including these 

additional areas (post-1986) is that they 

were likely occupied at the time of the 

original listings, but had not been 

detected in surveys. In summary, there 

are three reasons why a stream segment 

is considered occupied at the time of 

listing: (1) The stream segment was 

occupied in the 1986 listing document; 

or (2) the fish were found subsequently 

to 1986; and (3) the post-1986 stream 

segment is between two occupied, but 

separated, stream segments. 

Several factors may influence whether 

or not spikedace or loach minnow were 

detected in a given survey, and at what 

level. In some instances, survey efforts 

may have been minimal or absent for a 

given area. Once a species is listed, 

awareness of the species is heightened 

for wildlife and land managers, and 

survey efforts are often increased or 

expanded to include areas where they 

might be present. Moreover, spikedace 

and loach minnow are small-bodied fish 

that can be difficult to detect when in 

low numbers. This may be partially 

responsible for the lack of 

determinations over a 44-year period on 

Eagle Creek for loach minnow, for 

example. Finally, capture efficiencies 

for seining of fish are low, with some 

research indicating that capture 

efficiency of a seine haul averages 49 

percent (Dewey and Holland-Bartels 

1997, p. 101). This means that 51 

percent of the fish present may not be 

captured. It should be noted that various 

factors can affect seining efficiency, and 

that most surveys involve more than one 

seine haul. However, if a species is 

present in low numbers, as is common 

for spikedace and loach minnow, the 

likelihood of catching them at the low 

capture efficiencies associated with 

seining is low. Loach minnow are likely 

to be more difficult to detect due to their 

having a reduced gas bladder. They are 

typically restricted to bottom-dwelling 

habitat, swimming in only brief 

movements, which may further reduce 

the likelihood of its being collected in 

a seine. We believe a combination of 

these factors to be responsible for the 

lack of detections over a 44 year period 

on Eagle Creek for loach minnow, as 

described above. 

In some instances, areas were known 

to have been occupied by one or both 

species prior to listing, but were not 

described as occupied in the listing 

document based on the limited data 

available. Subsequent detections after 

listing in 1986 have caused us to 

reconsider the occupancy status of some 

streams. For example, we were aware of 

one loach minnow record for Dry Blue 

Creek from 1948 up until listing, but did 

not include Dry Blue Creek as occupied 

at listing in 1986 based on this record. 

Subsequent positive survey records in 

the late 1990s have caused us to 

reconsider this area. As a result, in this 

designation, we consider Dry Blue Creek 

to be occupied by loach minnow at the 

time of listing. Similarly, Eagle Creek 

had one record of loach minnow from 

1950, but was not included as occupied 

at listing in 1986. Loach minnow were 

subsequently detected again in the 

1990s, and it is therefore considered 

occupied at the time of listing within 

this designation. 

In every case, areas discovered to be 

occupied after 1986 are connected, or 

historically were connected, to occupied 

areas. For example, the Black River 

complex was not known to be occupied 

until 1996; however, it is connected, 

albeit over long distances, to the White 

River, which is currently occupied, and 

the Salt River, which was historically 

occupied. Dry Blue Creek, described 

above, is connected to the occupied 

Blue River. Eagle Creek is a tributary to 

the Gila River, and at one time perennial 

flows would have connected this 

population to those in the upper 

portions of the Gila River in New 

Mexico. It is therefore logical to 

conclude that these areas had been 

occupied since listing, although 

possibly at low numbers that were 

difficult to detect. 

Because areas determined to be 

occupied after 1986 are or were 

connected to occupied areas, the survey 

efforts for the species have been less 

than thorough, and because both species 

are difficult to detect in low numbers, 

we anticipate that, although occupancy 

was not determined in some areas until 

post-1986, the species were likely 

present at listing in 1986 in these areas, 

but not discovered until after listing. 

Given that spikedace and loach 

minnow are small-bodied fish that can 

be difficult to detect when in low 

numbers, we also consider those areas 

included in this designation to be 

essential to the conservation of the 

species. 

Physical and Biological Features 

Under the Act and its implementing 

regulations, we are required to identify 

the physical and biological features 

(PBFs) essential to the conservation of 

spikedace and loach minnow in areas 

occupied at the time of listing, focusing 

on the features’ primary constituent 

elements (PCEs). We consider PCEs to 

be the elements of physical and 

biological features that, when laid out in 

the appropriate quantity and spatial 

arrangement to provide for a species’ 

life-history processes, are essential to 

the conservation of the species. We 

outline the appropriate quantities and 

spatial arrangements of the elements in 

the Physical and Biological Features 

(PBFs) section of the October 28, 2010, 

proposed rule. For example, spawning 

substrate would be considered an 

essential feature, while the specific 

composition (sand, gravel, and cobble) 

and level of embeddedness are the 

elements (PCEs) of that feature. 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and regulations 

at 50 CFR 424.12, in determining which 

areas within the geographical area 

occupied by the species at the time of 

listing to designate as critical habitat, 

we consider the PBFs essential to the 

conservation of the species and which 

may require special management 

considerations or protection. These 

include, but are not limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

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We derive the specific PBFs required 

for spikedace and loach minnow from 

studies of their habitat, ecology, and life 

history as described in the Critical 

Habitat section of the proposed rule to 

designate critical habitat published in 

the Federal Register on October 28, 

2010, and in the information presented 

below. Additional information can be 

found in the final listing rule published 

in the Federal Register on July 1, 1986 

(spikedace; 51 FR 23769) and October 

28, 1986 (loach minnow; 51 FR 39468), 

and the recovery plans for each of the 

species (Service 1991a, 1991b). Below, 

we provide a discussion of the physical 

and biological features that are essential 

to the conservation of the spikedace and 

loach minnows: 

Space for Individual and Population 

Growth and for Normal Behavior 

Spikedace 

Microhabitats. Habitat occupied by 

spikedace can be broken down into 

smaller, specialized habitats called 

microhabitats. These microhabitats vary 

by stream, by season, and by species’ 

life stage. Studies on habitat use have 

been completed on the Gila River in 

New Mexico, and the Verde River and 

Aravaipa Creek in Arizona. Generally, 

spikedace occupy moderate to large 

perennial streams at low elevations over 

substrates (river bottom material) of 

sand, gravel, and cobble (Barber and 

Minckley 1966, p. 31; Propst et al. 1986, 

pp. 3, 12; Rinne and Kroeger 1988, p. 1). 

Occupied streams are typically of low 

gradient (Barber et al. 1970, p. 10; Rinne 

and Kroeger 1988, p. 2; Rinne 1991, pp. 

8–12; Rinne and Stefferud 1996, p. 17), 

and less than 1 meter (m) (3.28 feet (ft)) 

in depth (Propst et al. 1986, p. 41; 

Minckley and Marsh 2009, p. 155). 

Larval spikedace occur most 

frequently in slow-velocity water near 

stream margins or along pool edges. 

Most larvae are found over sand 

substrates. Juvenile spikedace tend to be 

found over a greater range of water 

velocities than larvae, but still in 

shallow areas. Juvenile spikedace 

occupy areas with a gravel or sand 

substrate, although some have been 

found over cobble substrates as well. 

Larvae and juveniles may occasionally 

be found in quiet pools or backwaters 

(e.g., pools that are connected with, but 

out of, the main river channel) (Sublette 

et al. 1990, p. 138). 

Adult spikedace occur in the widest 

range of flow velocities. They are 

typically associated with shear zones 

(areas within a stream where more 

rapidly flowing water abuts water 

moving at slower velocities), 

downstream of sand bars, and in eddies 

or small whirlpools along downstream 

margins of riffles (those shallow 

portions of the stream with rougher, 

choppy water). Adult spikedace are 

found in shallow water over 

predominantly gravel-dominated 

substrates (Propst et al. 1986, p. 40; 

Rinne 1991, pp. 8–12; Rinne and 

Stefferud 1997, p. 21; Rinne and Deacon 

2000, p. 106; Rinne 2001, p. 68), but 

also over cobble and sand substrates 

(Minckley and Marsh 2009, p. 155; 

Rinne and Kroeger 1988, p. 3; Sublette 

et al. 1990, p. 138). 

In addition to substrate type, the 

amount of embeddedness (filling in of 

spaces by fine sediments) is also 

important to spikedace. Spikedace more 

commonly occur in areas with low to 

moderate amounts of fine sediment and 

substrate embeddedness, which is 

important for the healthy development 

of eggs. Spawning has been observed in 

areas with sand and gravel beds and not 

in areas where fine materials smaller 

than sand coats the sand or gravel 

substrate. Additionally, low to moderate 

amounts of fine sediments ensure that 

eggs remain well-oxygenated and will 

not suffocate due to sediment 

deposition (Propst et al. 1986, p. 40). 

Water temperatures of occupied 

spikedace habitat vary with time of year. 

Water temperatures have been 

recorded at Aravaipa Creek, and on the 

Gila River in the Forks area and at the 

Cliff-Gila Valley. Water temperatures of 

occupied spikedace habitat vary with 

time of year. Summer water 

temperatures were between 19.3 degrees 

Celsius (°C) (66.7 degrees Fahrenheit 

(°F)) (Gila River, Forks Area) and 27 °C 

(80.6 °F) (Aravaipa Creek). Winter 

water temperatures ranged between 8.9 

°C (48.0 °F) at Aravaipa Creek and 11.7 

°C (53.1 °F) in the Cliff-Gila Valley 

(Barber and Minckley 1966, p. 316; 

Barber et al. 1970, pp. 11, 14; Propst et 

al. 1986, p. 57). 

Studies by the University of Arizona 

focused on temperature tolerances of 

spikedace. In the study, fish were 

acclimated to a given temperature, and 

then temperatures were increased by 

1 °C (33.8 °F) per day until test 

temperatures were reached. The study 

determined that no spikedace survived 

exposure of 30 days at 34 or 36 °C (93.2 

or 96.8 °F), and that 50 percent 

mortality occurred after 30 days at 32.1 

°C (89.8 °F). In addition, growth rate 

was slowed at 32 °C (89.6 °F), as well 

as at the lower test temperatures of 10 

and 4 °C (50 and 39.2 °F). Multiple 

behavioral and physiological changes 

were observed, indicating the fish 

became stressed at 30, 32, and 33 °C (86, 

89.6 and 91.4 °F). The study concludes 

that temperature tolerance in the wild 

may be lower due to the influence of 

additional stressors, including disease, 

predation, competition, or poor water 

quality. Survival of fish in the 

fluctuating temperature trials in the 

study likely indicates that exposure to 

higher temperatures for short periods 

during a day would be less stressful to 

spikedace. The study concludes that 100 

percent survival of spikedace at 30 °C 

(86 °F) in the experiment suggests that 

little juvenile or adult mortality would 

occur due to thermal stress if peak water 

temperatures remain at or below that 

level (Bonar et al. 2005, pp. 7–8, 29–30). 

Spikedace occupy streams with low to 

moderate gradients (Propst et al. 1986, 

p. 3; Rinne and Stefferud 1997, p. 14; 

Stefferud and Rinne 1996, p. 21; 

Sublette et al. 1990, p. 138). Specific 

gradient data are generally lacking, but 

the gradient of occupied portions of 

Aravaipa Creek and the Verde River 

varied between approximately 0.3 to 

< 1.0 percent (Barber et al. 1970, p. 10; 

Rinne and Kroeger 1988, p. 2; Rinne and 

Stefferud 1997, p. 14). 

Table 2 compares specific parameters 

of habitat occupied by spikedace at 

various ages as identified through 

studies completed to date. Studies on 

flow velocity in occupied spikedace 

habitat have been completed on the Gila 

River, Aravaipa Creek, and the Verde 

River (Barber and Minckley 1966, p. 

321; Minckley 1973, p. 114; Anderson 

1978, p. 17; Schreiber 1978, p. 4; Turner 

and Tafanelli 1983, pp. 15–16; Propst et 

al. 1986, pp. 39–41; Rinne and Kroeger 

1988, p. 1; Hardy et al. 1990, pp. 19–20, 

39; Sublette et al. 1990, p. 138; Rinne 

1991, pp. 9–10; Rinne 1999a, p. 6). 

TABLE 2—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF SPIKEDACE

Larvae Juveniles Adults 

Flow velocity in centimeters per 

second (inches per second).

8.4 (3.3) ........................................ 16.8 (6.6) ...................................... 23.3–70.0 (9.2–27.6). 

Depth in centimeters (inches) ........ 3.0–48.8 (1.2–19.2) ...................... 3.0–45.7 (1.2–18.0) ...................... 6.1–42.7 (2.4–16.8). 

Gradient (percent) .......................... No data ......................................... No data ......................................... 0.3 to <1.0. 

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TABLE 2—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF SPIKEDACE—Continued 

Larvae Juveniles Adults 

Substrates ...................................... Primarily sand, with some over 

gravel or cobble.

Primarily gravel, with some sand 

and cobble.

Sand, gravel, cobble, and low 

amounts of fine sediments. 

In studies on the Gila River, there 

were seasonal shifts in microhabitats 

used, involving depth or velocity, 

depending on the study site. It is 

believed that seasonal shifts in 

microhabitat use reflect selection by 

spikedace for particular microhabitats. 

In the cold season, when their metabolic 

rate decreases, spikedace near the Forks 

area on the Gila River seek protected 

areas among the cobble of stream 

channel margins, where water is 

shallower and warmer. In other areas 

such as the Cliff-Gila Valley, cobbled 

banks for protection were generally not 

available, but slow-velocity areas in the 

lee of gravel bars and riffles were 

common, and spikedace shifted to these 

protected areas of slower velocity 

during the cold season. Seasonal 

changes in microhabitat preference by 

spikedace are not entirely understood, 

and additional study is needed (Propst 

et al. 1986, pp. 47–49). 

Studies indicate a geographic 

variation in the portion of the stream 

used by spikedace. On the Verde River, 

outside of the April to June breeding 

season, 80 percent of the spikedace 

collected used run and glide habitat. For 

this study, a glide was defined as a 

portion of the stream with a lower 

gradient (0.3 percent), versus a run 

which had a slightly steeper gradient 

(0.3–0.5 percent) (Rinne and Stefferud 

1996, p. 14). In contrast, spikedace in 

the Gila River were most commonly 

found in riffle areas of the stream with 

moderate to swift currents (Anderson 

1978, p. 17) and some run habitats (J.M. 

Montgomery 1985, p. 21), as were 

spikedace in Aravaipa Creek (Barber 

and Minckley 1966, p. 321). 

Flooding. In part, suitable habitat 

conditions are maintained by flooding. 

Periodic flooding appears to benefit 

spikedace in three ways: (1) Removing 

excess sediment from some portions of 

the stream; (2) removing nonnative fish 

species from a given area; and (3) 

increasing prey species diversity. Items 

2 and 3 will be addressed in greater 

detail below. 

Flooding in Aravaipa Creek has 

resulted in the transport of heavier loads 

of sediments, such as cobble, gravel, and 

sand that are deposited where the 

stream widens, gradient flattens, and 

velocity and turbulence decreases. 

Natural dams formed by the deposition 

of this sediment can temporarily cause 

water to back up and break into braids 

downstream of the dam. The braided 

areas provide excellent nurseries for 

larval and juvenile fishes (Velasco 1997, 

pp. 28–29). 

On the Gila River in New Mexico, 

flows fluctuate seasonally with 

snowmelt, causing spring pulses and 

occasional floods, and late-summer or 

monsoonal rains produce floods of 

varying intensity and duration. These 

high flows likely rejuvenate spikedace 

spawning and foraging habitat (Propst et 

al. 1986, p. 3). Floods likely benefit 

native fish by breaking up embedded 

bottom materials (Mueller 1984, p. 355). 

A study of the Verde River analyzed the 

effects of flooding in 1993 and 1995, 

finding that the floods either stimulated 

spawning, enhanced recruitment of 

three native species, or eliminated one 

of the nonnative fish species (Stefferud 

and Rinne 1996a, p. 80). 

In summary, based on the best 

scientific and commercial information 

available for spikedace, we have 

developed the following ranges in 

habitat parameters: 

• Shallow water generally less than 

1 m (3.3 ft) in depth; 

• Slow to swift flow velocities 

between 5 and 80 cm per second (sec) 

(1.9 and 31.5 in. per sec); 

• Glides, runs, riffles, the margins of 

pools and eddies, and backwater 

components; 

• Sand, gravel, and cobble substrates 

with low or moderate amounts of fine 

sediment and substrate embeddedness, 

as maintained by a natural, unregulated 

flow regime that allows for periodic 

flooding or, if flows are modified or 

regulated, a flow regime that allows for 

adequate river functions, such as flows 

capable of transporting sediments; 

• Low gradients of less than 

approximately one percent; 

• Water temperatures in the general 

range of 8 to 28 °C (46.4 to 82.4 °F); and 

• Elevations below 2,100 m (6,890 ft). 

Loach Minnow 

Microhabitat. The best scientific and 

commercial information available 

indicates that, in general, loach minnow 

live on the bottom streams or rivers with 

low gradients within shallow, swift, and 

turbulent riffles. They are also known to 

occupy pool, riffle, and run habitats in 

some areas. They live and feed among 

clean, loose, gravel-to-cobble substrates. 

Their reduced air bladder (the organ 

that aids in controlling a fish’s ability to 

float without actively swimming) allows 

them to persist in high-velocity habitats 

with a minimal amount of energy, and 

they live in the interstitial spaces 

(openings) between rocks (Anderson 

and Turner 1977, pp. 2, 6–7, 9, 12–13; 

Barber and Minckley 1966, p. 315; Lee 

et al. 1980, p. 365; Britt 1982, pp. 10– 

13, 29–30; J.M. Montgomery 1985, p. 21; 

Marsh et al. 2003, p. 666; Minckley 

1981, p. 165; Propst et al. 1988, p. 35; 

Rinne 1989, p. 109; Velasco 1997, p. 28; 

Sublette et al. 1990, p. 187; AGFD 1994, 

pp. 1, 5–11; Bagley et al. 1995, pp. 11, 

13, 16, 17, 22; Rinne 2001, p. 69; 

Minckley and Marsh 2009, p. 174). 

Loach minnow are sometimes found in 

or near filamentous (threadlike) algae, 

which are attached to the stream 

substrates (Anderson and Turner 1977, 

p. 5; Lee et al. 1980, p. 365; Minckley 

1981, p. 165; Sublette et al. 1990, p. 187; 

Minckley and Marsh 2009, p. 174). 

Microhabitats used by loach minnow 

vary by life stage and stream. Adult 

loach minnow occupy a broad range of 

water velocities, with the majority of 

adults occurring in swift flows. Their 

eggs are adhesive, and are placed on the 

undersurfaces of rocks in the same 

riffles that they themselves occupy. 

After hatching, larval loach minnow 

move from the rocks under which they 

were spawned to areas with slower 

velocities than the main stream, 

typically remaining in areas with 

significantly slower velocities than 

juveniles and adults. Larval loach 

minnow occupy areas that are shallower 

and significantly slower than areas 

where eggs are found (Propst et al. 1988, 

p. 37; Propst and Bestgen 1991, p. 32). 

Juvenile loach minnow generally occur 

in areas where velocities are similar to 

those used by adults, and that have 

higher flow velocities than those 

occupied by larvae (Propst et al. 1988, 

pp. 36–37). 

Substrate is an important component 

of loach minnow habitat. Studies in 

Aravaipa Creek and the Gila River 

indicate that loach minnow prefer 

cobble and large gravel, avoiding areas 

dominated by sand or fine gravel. This 

may be because loach minnow maintain 

a relatively stationary position on the 

bottom of a stream in flowing water. An 

irregular bottom, such as that created by 

cobble or larger gravels, creates pockets 

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of lower water velocities around larger 

rocks where loach minnow can remain 

stationary with less energy expenditure 

(Turner and Tafanelli 1983, pp. 24–25). 

In the Gila and San Francisco rivers, the 

majority of loach minnow captured 

occurred in the upstream portion of a 

riffle, rather than in the central and 

lower sections of the riffle, where loose 

materials are more likely to fall out of 

the water column and settle on the 

stream bottom. This is likely due to the 

availability of interstitial spaces in the 

cobble-rubble substrate, which became 

filled with sediment more quickly in the 

central and lower sections of a riffle 

(Propst et al. 1984, p. 12). 

Varying substrates are used during 

different life stages of loach minnow. 

Adults occur over cobble and gravel, 

and place their eggs in these areas. 

Larval loach minnow are found where 

substrate particles are smaller than 

those used by adults. Juvenile loach 

minnow occupy areas with substrates of 

larger particle size than larvae. 

Generally, adults exhibited a narrower 

preference for depth and substrate than 

did juveniles, and were associated with 

gravel to cobble substrates within a 

narrower range of depths (Propst et al. 

1988, pp. 36–39; Propst and Bestgen 

1991, pp. 32–33). 

Loach minnow have a fairly narrow 

range in temperature tolerance, and 

their upstream distributional limits in 

some areas may be linked to low winter 

stream temperature (Propst et al. 1988, 

p. 62). Suitable temperature regimes 

appear to be fairly consistent across 

geographic areas. Studies of Aravaipa 

Creek, East Fork White River, the San 

Francisco River, and the Gila River 

determined that loach minnow were 

present in areas with water 

temperatures in the range of 9 to 22 °C 

(48.2 to 71.6 °F) (Britt 1982, p. 31; 

Propst et al. 1988, p. 62; Leon 1989, p. 

1; Propst and Bestgen 1991, p. 33; Vives 

and Minckley 1990, p. 451). 

Studies by the University of Arizona 

focused on temperature tolerances of 

loach minnow. In one study, fish were 

acclimated to a given temperature, and 

then temperatures were increased by 1 

°C (33.8 °F) per day until test 

temperatures were reached. The study 

determined that no loach minnow 

survived for 30 days at 32 °C (89.6 °F), 

and that 50 percent mortality occurred 

after 30 days at 30.6 °C (87.1 °F). In 

addition, growth rate slowed at 28 and 

30 °C (82.4 and 86.0 °F) compared to 

growth at 25 °C (77 °F), indicating that 

loach minnow were stressed at sublethal 

temperatures. Survival of fish in the 

fluctuating temperature trials of the 

study likely indicates that exposure to 

higher temperatures for short periods 

during a day would be less stressful to 

loach minnow. The study concludes 

that temperature tolerance in the wild 

may be lower due to the influence of 

additional stressors, including disease, 

predation, competition, or poor water 

quality. The study concludes that since 

100 percent survival of loach minnow at 

28 °C (82.4 °F) was observed, that little 

juvenile or adult mortality would occur 

due to thermal stress if peak water 

temperatures remain at or below that 

level (Bonar et al. 2005, pp. 6–8, 28, 33). 

Gradient may influence the 

distribution and abundance of loach 

minnow. In studies of the San Francisco 

River, Gila River, Aravaipa Creek, and 

the Blue River, loach minnow occurred 

in stream reaches where the gradient 

was generally low, ranging from 0.3 to 

2.2 percent (Rinne 1989, p. 109; Rinne 

2001, p. 69). 

Table 3 compares specific parameters 

of microhabitats occupied by loach 

minnow at various ages as identified 

through studies completed to date. 

Studies on habitat occupied by loach 

minnow have been completed on the 

Gila River, Tularosa River, San 

Francisco River, Aravaipa Creek, Deer 

Creek, and Eagle Creek (Barber and 

Minckley 1966, p. 321; Britt 1982, pp. 

1, 5, 10–12, 29; Turner and Tafanelli 

1983, pp. 15–20, 26; Propst et al. 1984, 

pp. 7–12; Propst et al. 1988, pp. 32, 36– 

39; Rinne 1989, pp. 111–113, 116; 

Propst and Bestgen 1991, p. 32; Vives 

and Minckley 1990, pp. 451–452; Propst 

and Bestgen 1991, pp. 32–33; Velasco 

1997, pp. 5–6; Marsh et al. 2003, p. 666). 

TABLE 3—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF LOACH MINNOW

Egg Larvae Juveniles Adults 

Flow velocity in centimeters per second 

(inches per second).

3.0–91.4 (1.2–36.0) ........... 0.0–48.8 (0.0–19.2) ........... 3.0–85.3 (1.2–33.6) ........... 0.0–79.2 (0.0–31.2). 

Depth in centimeters 

(inches).

3.0–30.5 (1.2–12) .............. 3.0–45.7 (1.2–8.0) ............. 6.1–42.7 (2.4–16.8) ........... 6.1–45.7 (2.4–18.0). 

Substrate ........................... Large gravel to rubble ....... No data ............................. No data ............................. Gravel to cobble. 

There are some differences in 

microhabitats occupied by loach 

minnow in different areas. Studies 

completed in New Mexico determined 

that there were significant differences in 

water velocities occupied among the 

three study sites, with the mean 

velocities at 37.4 (Tularosa River), 56.3 

(Forks area of the Gila River) and 60.5 

cm per second (Cliff-Gila Valley site on 

the Gila River). Differences in water 

depth were not as pronounced, 

however. Much of the variation in 

microhabitat utilization may be 

explained by habitat availability, as the 

compared streams varied in size (Propst 

et al. 1988, pp. 37–43). 

Flooding. Flooding also plays an 

important role in habitat suitability for 

loach minnow. In areas where 

substantial diversions (structures 

created to divert water to pools for 

pumping from the stream) or 

impoundments have been constructed, 

loach minnow are less likely to occur 

(Propst et al. 1988, pp. 63–64; Propst 

and Bestgen 1991, p. 37). This is in part 

due to habitat changes caused by the 

construction of the diversions, and in 

part due to the reduction of beneficial 

effects of flooding on loach minnow 

habitat. Flooding appears to positively 

affect loach minnow population 

dynamics by resulting in higher 

recruitment (reproduction and survival 

of young) and by decreasing the 

abundance of nonnative fishes 

(addressed further below) (Stefferud and 

Rinne 1996b, p. 1). 

Flooding also cleans, rearranges, and 

rehabilitates important riffle habitat 

(Propst et al. 1988, pp. 63–64). Flooding 

allows for the scouring of sand and 

gravel in riffle areas, which reduces the 

degree of embeddedness of cobble and 

boulder substrates (Britt 1982, p. 45). 

Typically, sediment is carried along the 

bed of a stream and deposited at the 

downstream, undersurface side of 

cobbles and boulders. Over time, this 

can result in the filling of cavities 

created under cobbles and boulders 

(Rinne 2001, p. 69). Flooding removes 

the extra sediment, and cavities created 

under cobbles by scouring action of the 

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flood waters provides enhanced 

spawning habitat for loach minnow. 

Studies on the Gila, Tularosa, and San 

Francisco rivers found that flooding is 

primarily a positive influence on native 

fish, and apparently had a positive 

influence on the relative abundance of 

loach minnow (Britt 1982, p. 45). Rather 

than following a typical pattern of 

winter mortality and population 

decline, high levels of loach minnow 

recruitment occurred after the flood, 

and loach minnow relative abundance 

remained high through the next spring. 

Flooding enhanced and enlarged loach 

minnow habitat, resulting in a greater 

survivorship of individuals through 

winter and spring (Propst et al. 1988, p. 

51). Similar results were observed on 

the Gila and San Francisco rivers 

following flooding in 1978 (Britt 1982, 

p. 45). 

In summary, based on the best 

scientific and commercial information 

available for loach minnow, we have 

developed generalized ranges in habitat 

parameters within streams or rivers, as 

follows: 

• Shallow water generally less than 1 

m (3.3 ft) in depth; 

• Slow to swift flow velocities 

between 0 and 80 cm per sec (0.0 and 

31.5 in. per sec); 

• Pools, runs, riffles and rapids; 

• Sand, gravel, cobble, and rubble 

substrates with low or moderate 

amounts of fine sediment and substrate 

embeddedness, as maintained by a 

natural, unregulated flow regime that 

allows for periodic flooding or, if flows 

are modified or regulated, flow regime 

that allows for adequate river functions, 

such as flows capable of transporting 

sediments; 

• Water temperatures in the general 

range of 8 to 25 °C (46.4 to 77 °F); 

• Low stream gradients of less than 

approximately 2.5 percent; and 

• Elevations below 2,500 m (8,202 ft). 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Spikedace 

Food. Spikedace are active, highly 

mobile fish that visually inspect drifting 

materials both at the surface and within 

the water column. Gustatory inspection, 

or taking the potential prey items into 

the mouth before either swallowing or 

rejecting it, is also common (Barber and 

Minckley 1983, p. 37). Prey body size is 

small, typically ranging from 2 to 5 mm 

(0.08 to 0.20 in) long (Anderson 1978, 

p. 36). 

Stomach content analysis of 

spikedace determined that mayflies, 

caddisflies, true flies (Order Diptera), 

stoneflies, and dragonflies (Order 

Odonata) are all potential prey items. In 

one Gila River study, the frequency of 

occurrence was 71 percent for mayflies, 

34 percent for true flies, and 25 percent 

for caddisflies (Propst et al. 1986, p. 59). 

A second Gila River study of four 

samples determined that total food 

volume was composed of 72.7 percent 

mayflies, 17.6 percent caddisflies, and 

4.5 percent true flies (Anderson 1978, 

pp. 31–32). At Aravaipa Creek, mayflies, 

caddisflies, true flies, stoneflies, and 

dragonflies were all prey items for 

spikedace, as were some winged insects 

and plant materials (Schreiber 1978, pp. 

12–16, 29, 35–37). Barber and Minckley 

(1983, pp. 34–38) found that spikedace 

at Aravaipa Creek also consumed ants 

and wasps (Order Hymenoptera), 

spiders (Order Areneae), beetles (Order 

Coleoptera), true bugs, and water fleas 

(Order Cladocera). 

Spikedace diet varies seasonally 

(Barber and Minckley 1983, pp. 34–38). 

Mayflies dominated stomach contents in 

July, but declined in August and 

September, increasing in importance 

again between October and June. When 

mayflies were available in lower 

numbers, spikedace consumed a greater 

variety of foods, including true bugs, 

true flies, beetles, and spiders. 

Spikedace diet varies with age class as 

well. Young spikedace fed on a diversity 

of small-bodied invertebrates occurring 

in and on sediments along the margins 

of the creek. True flies were found most 

frequently, but water fleas and aerial 

adults of aquatic and terrestrial insects 

also provide significant parts of the diet. 

As juveniles grow and migrate into the 

swifter currents of the channel, mayfly 

nymphs (invertebrates between the 

larval and adult life stages, similar to 

juveniles) and adults increase in 

importance (Barber and Minckley 1983, 

pp. 36–37). 

Spikedace are dependent on aquatic 

insects for sustenance, and the 

production of the aquatic insects 

consumed by spikedace occurs mainly 

in riffle habitats (Propst et al. 1986, p. 

59). Barber and Minckley (1983, pp. 36– 

37, 40) found that spikedace in pools 

had eaten the least diverse food, while 

those from riffles contained a greater 

variety of taxa, indicating that the 

presence of riffles in good condition and 

abundance help to ensure that a 

sufficient number and variety of prey 

items will continue to be available for 

spikedace. 

Aquatic invertebrates that constitute 

the bulk of the spikedace diet have 

specific habitat parameters of their own. 

Mayflies occur primarily in fresh water 

with an abundance of oxygen. 

Spikedace consume mayflies from the 

genus Baetidae (Schreiber 1978, p. 36), 

which are free-ranging species of rapid 

waters that maintain themselves in 

currents by clinging to pebbles. 

Spikedace also consumed individuals 

from two other mayfly genera 

(Heptageniidae and Ephemerellidae), 

which are considered ‘‘clinging 

species,’’ as they cling tightly to stones 

and other objects and may be found in 

greatest abundance in crevices and on 

the undersides of stones (Pennak 1978, 

p. 539). The importance of gravel and 

cobble substrates is illustrated by the 

fact that the availability of these prey 

species, which make up the bulk of the 

spikedace diet, requires these surfaces 

to persist. 

The availability of food for spikedace 

is affected by flooding. The onset of 

flooding corresponds with an increased 

diversity of food items, as inflowing 

flood water carries terrestrial 

invertebrates, such as ants, bees, and 

wasps, into aquatic areas (Barber and 

Minckley 1983, p. 39). 

Water. As a purely aquatic species, 

spikedace are entirely dependent on 

streamflow habitat for all stages of their 

life cycle. Therefore, perennial flows are 

an essential feature. Areas with 

intermittent flows may serve as 

connective corridors between occupied 

or seasonally occupied habitat through 

which the species may move when the 

habitat is wetted. 

In addition to water quantity, water 

quality is important to spikedace. Water 

with no or low levels of pollutants is 

essential for the survival of spikedace. 

For spikedace, pollutants such as 

copper, arsenic, mercury, cadmium, 

human and animal waste products, 

pesticides, suspended sediments, ash, 

and gasoline or diesel fuels should not 

be present at high levels (Baker, 2005, 

pers. comm.). In addition, for freshwater 

fish, dissolved oxygen should generally 

be greater than 3.5 cubic centimeters per 

liter (cc per l) (Bond 1979, p. 215). 

Below this level, some stress to fish may 

occur. 

Fish kills have been documented 

within the range of the spikedace, 

including on the San Francisco River 

(Rathbun 1969, pp. 1–2) and the San 

Pedro River (Eberhardt 1981, pp. 1–4, 6– 

9, 11–12, 14, 16, and Tables 2–8). 

Occupancy by spikedace at the San 

Francisco River site is less certain, but 

spikedace were present in the Gila River 

upstream of its confluence with the San 

Francisco. Spikedace were present in 

the San Pedro River up through 1969 

within the area affected by the Cananea 

Mine spill, which extended 97 km (60 

mi) north of the United States/Mexico 

border (Eberhardt 1981, p. 3). All 

aquatic life within this 97-km (60-mi) 

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stretch was killed between 1977 and 

1979, and no spikedace records are 

known after that time. For both the San 

Francisco and San Pedro rivers, 

leaching ponds associated with copper 

mines released waters into the streams, 

resulting in elevated levels of toxic 

chemicals. For the San Pedro River, this 

included elevated levels of iron, copper, 

manganese, and zinc. Both incidents 

resulted in die-offs of species inhabiting 

the streams. Eberhardt (1981, pp. 1, 3, 

9, 10, 14–15) noted that no bottomdwelling aquatic insects, live fish, or 

aquatic vegetation of any kind were 

found in the area affected by the spill. 

Rathbun (1969, pp. 1–2) reported 

similar results for the San Francisco 

River. As detailed above under the 

threats discussion, spills or discharges 

have occurred in the Gila River and 

affected streams within the watersheds 

of spikedace, including the Gila River, 

San Francisco River, San Pedro River, 

and some of their tributaries (EPA 1997, 

pp. 24–67; Arizona Department of 

Environmental Quality 2000, p. 6; 

Church et al. 2005, p. 40; Arizona 

Department of Environmental Quality 

2007, p. 1). 

In summary, based on the best 

scientific and commercial information 

available for spikedace, we conclude 

that an appropriate prey base and water 

quality parameters for spikedace will 

include: 

• An abundant aquatic insect food 

base consisting of mayflies, true flies, 

black flies, caddisflies, stoneflies, and 

dragonflies; 

• Streams with no or no more than 

low levels of pollutants; 

• Perennial flows, or interrupted 

stream courses that are periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted; 

• Streams with a natural, unregulated 

flow regime that allows for periodic 

flooding or, if flows are modified or 

regulated, a flow regime that allows for 

adequate river functions, such as flows 

capable of transporting sediments. 

Loach Minnow 

Food. Loach minnow are 

opportunistic, feeding on riffle-dwelling 

larval mayflies, black flies, and true 

flies, as well as from larvae of other 

aquatic insect groups such as caddisflies 

and stoneflies. Loach minnow in the 

Gila, Tularosa, and San Francisco rivers 

consumed primarily true flies and 

mayflies, with mayfly nymphs being an 

important food item throughout the 

year. Mayfly nymphs constituted the 

most important food item throughout 

the year for adults studied on the Gila 

and San Francisco Rivers, while larvae 

of true flies (insects of the order Diptera) 

were most common in the winter 

months (Propst et al. 1988, p. 27; Propst 

and Bestgen 1991, p. 35). In Aravaipa 

Creek, loach minnow consumed 11 

different prey items, including mayflies, 

stoneflies, caddisflies, and true flies. 

Mayflies constituted the largest 

percentage of their diet during this 

study except in January, when true flies 

made up 54.3 percent of the total food 

volume (Schreiber 1978, pp. 40–41). 

Loach minnow consume different 

prey items during their various life 

stages. Both larvae and juveniles 

primarily consumed true flies, which 

constituted approximately 7 percent of 

their food items in one year, and 49 

percent the following year in one study. 

Mayfly nymphs were also an important 

dietary element at 14 percent and 31 

percent during a one-year study. Few 

other aquatic macroinvertebrates were 

consumed (Propst et al. 1988, p. 27). In 

a second study, true fly larvae and 

mayfly nymphs constituted the primary 

food of larval and juvenile loach 

minnow (Propst and Bestgen 1991, p. 

35). 

The availability of pool and run 

habitats affects availability of prey 

species. While most of the food items of 

loach minnow are riffle species, two are 

not, including true fly larvae and mayfly 

nymphs. Mayfly nymphs, at times, 

made up 17 percent of the total food 

volume of loach minnow in a study at 

Aravaipa Creek (Schreiber 1978, pp. 40– 

41). The presence of a variety of habitat 

types is, therefore, important to the 

persistence of loach minnow in a 

stream, even though they are typically 

associated with riffles. 

Water Quality. Water, with no or low 

pollutant levels, is important for the 

conservation of loach minnow. For 

loach minnow, waters should have no 

more than low levels of pollutants, such 

as copper, arsenic, mercury, cadmium, 

human and animal waste products, 

pesticides, suspended sediments, and 

gasoline or diesel fuels (Baker, 2005, 

pers. comm.). In addition, for freshwater 

fish, dissolved oxygen should generally 

be greater than 3.5 cc per l (Bond 1979, 

p. 215). Below this, some stress to the 

fish may occur. 

Fish kills associated with previous 

mining accidents, as well as other 

contaminants issues, are detailed under 

the spikedace discussion above. These 

incidents occurred within the historical 

range of the loach minnow. As with 

spikedace, loach minnow were known 

to occur in the area affected by the 

Cananea Mine spill up through 1961. 

All aquatic life within the affected area 

was killed between 1977 and 1979, and 

no loach minnow records are known 

after that time. On the San Francisco 

River, loach minnow are known to have 

occurred in the general area of the spill 

in the 1980s and 1990s (ASU 2002). 

Additional spills or discharges have 

occurred in the Gila River and affected 

streams within the watersheds occupied 

by loach minnow, including the Gila 

River, San Francisco River, San Pedro 

River, and some of their tributaries (EPA 

1997, pp. 24–67; Arizona Department of 

Environmental Quality 2000, p. 6; 

Church et al. 2005, p. 40; Arizona 

Department of Environmental Quality 

2007, p. 1). 

In summary, based on the best 

scientific and commercial information 

available for loach minnow, we have 

identified an appropriate prey base and 

water quality for loach minnow to 

include: 

• An abundant aquatic insect food 

base consisting of mayflies, true flies, 

black flies, caddisflies, stoneflies, and 

dragonflies; 

• Streams with no or no more than 

low levels of pollutants; 

• Perennial flows, or interrupted 

stream courses that are periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted; and 

• Streams with a natural, unregulated 

flow regime that allows for periodic 

flooding or, if flows are modified or 

regulated, a flow regime that allows for 

adequate river functions, such as flows 

capable of transporting sediments. 

Cover or Shelter 

Spikedace. No specific information on 

habitat parameters used specifically for 

cover and shelter is available for 

spikedace. Therefore, we have not 

identified any specific conditions 

specific to cover and shelter for 

spikedace. 

Loach Minnow. As noted above, adult 

loach minnow are sometimes associated 

with filamentous algae, which may 

serve as a protective cover (Anderson 

and Turner 1977, p. 5; Lee et al. 1980, 

p. 365; Minckley 1981, p. 165; Sublette 

et al. 1990, p. 187; Minckley and Marsh 

2009, p. 174). Loach minnow adults 

place their adhesive eggs on the 

undersides of rocks, with the rock 

serving as protective cover. Propst et al. 

(1988, p. 21) found that the rocks used 

were typically elevated from the surface 

of the streambed on the downstream 

side, with most rocks flattened and 

smooth surfaced. Adult loach minnow 

remain with the eggs, so that the rock 

serves as a protective cover for them as 

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well (Propst et al. 1988, pp. 21–25, 36– 

39). 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

Spikedace 

Suitable sites. Spikedace occur in 

specific habitat during the breeding 

season, with female and male spikedace 

becoming segregated. Females occupy 

pools and eddies, while males occupy 

riffles flowing over sand and gravel beds 

in water approximately 7.9 to 15.0 cm 

(3.1 to 5.9 in) deep. Females then enter 

the riffles occupied by the males before 

eggs are released into the water column 

(Barber et al. 1970, pp. 11–12). 

Spikedace eggs are adhesive and 

develop among the gravel and cobble of 

the riffles following spawning. 

Spawning in riffle habitat ensures that 

the eggs are well oxygenated and are not 

normally subject to suffocation by 

sediment deposition due to the swifter 

flows found in riffle habitats. However, 

after the eggs have adhered to the gravel 

and cobble substrate, excessive 

sedimentation could cause suffocation 

of the eggs (Propst et al. 1986, p. 40). 

Larval and juvenile spikedace occupy 

peripheral portions of streams that have 

slower currents (Anderson 1978, p. 17; 

Propst et al. 1986, pp. 40–41). Gila River 

studies found larval spikedace in 

velocities of 8.4 cm per second (3.3 in. 

per sec) while juvenile spikedace 

occupy areas with velocities of 

approximately 16.8 cm per second (6.6 

in. per sec) (Propst et al. 1986, p. 41). 

Once they emerge from the gravel of 

the spawning riffles, spikedace larvae 

disperse to stream margins where water 

velocity is very slow or still. Larger 

larval and juvenile spikedace (those fish 

25.4 to 35.6 mm (1.0 to 1.4 in) in length) 

occurred over a greater range of water 

velocities than smaller larvae, but still 

occupied water depths of less than 32.0 

cm (12.6 in) (Propst et al. 1986, p. 40). 

Juveniles and larvae are also 

occasionally found in quiet pools or 

backwaters (e.g., pools that are 

connected with, but out of, the main 

river channel) lacking streamflow 

(Sublette et al. 1990, p. 138). 

During a study on the Gila River, 60 

percent of spikedace larvae were found 

over sand-dominated substrates, while 

18 percent were found over gravel, and 

an additional 18 percent found over 

cobble-dominated substrates. While 45 

percent of juvenile spikedace were 

found over sand substrates, an 

additional 45 percent of the juveniles 

were found over gravel substrates, with 

the remaining 10 percent associated 

with cobble-dominated substrates. 

Juveniles occupy a wider range in flow 

velocities than larvae (0.0 to 57.9 cm per 

second (22.8 in. per second)), but 

occurred at similar depths as larvae 

(Propst et al. 1986, pp. 40–41). 

As noted above, excessive 

sedimentation can lead to suffocation of 

eggs. Clean substrates are therefore 

essential for successful breeding. Both 

flooding and unaltered flow regimes are 

essential for maintenance of suitable 

substrates. As noted above under habitat 

requirements, periodic flooding appears 

to benefit spikedace by removing excess 

sediment from some portions of the 

stream, breaking up embedded bottom 

materials, or rearranging sediments in 

ways that restore suitable habitats. 

Flooding may also stimulate spawning 

or enhance recruitment (Mueller 1984, 

p. 355; Propst et al. 1986, p. 3; Stefferud 

and Rinne 1996a, p. 80; Minckley and 

Meffe 1987, pp. 99, 100; Rinne and 

Stefferud 1997, pp. 159, 162; Velasco 

1997, pp. 28–29). Streams in the 

southwestern United States have a wide 

fluctuation in flows and some are 

periodically dewatered. While portions 

of stream segments included in these 

designations may experience dry 

periods, they are still considered 

important because the spikedace is 

adapted to stream systems with 

fluctuating water levels. While they 

cannot persist in dewatered areas, 

spikedace will use these areas as 

connective corridors between occupied 

or seasonally occupied habitat when 

they are wetted. Areas that serve as 

connective corridors are those 

ephemeral or intermittent stream 

segments that connect two or more other 

perennial stream segments. 

Therefore, based on the information 

above, we identify appropriate sites for 

breeding, reproduction, or development 

of offspring for spikedace to include: 

• Sand, gravel, and cobble substrates; 

• Riffle habitat; 

• Slower currents along stream 

margins with appropriate stream 

velocities for larvae; 

• Appropriate water depths for larvae 

and juvenile spikedace; 

• Flow velocities that encompass the 

range of 8.5 cm per sec (3.3 in. per sec) 

to 57.9 cm per sec (22.8 in. per sec); and 

• Streams with a natural, unregulated 

flow regime that allows for periodic 

flooding or, if flows are modified or 

regulated, a flow regime that allows for 

adequate river functions, such as flows 

capable of transporting sediments. 

Loach Minnow 

Adult loach minnow attach eggs to 

the undersurfaces of rocks in the same 

riffles in which they are typically found. 

In studies conducted on the Gila River, 

water velocities in these areas ranged 

from 3.0 to 91.4 cm per second (36.0 in. 

per second). The majority of rocks with 

attached eggs were found in water 

flowing at approximately 42.7 cm per 

second (16.8 in. per second). The range 

of depths in which rocks with eggs 

attached were found was 3.0 to 30.5 cm 

(1.2 to 12 in), with the majority found 

between 6.1 and 21.3 cm (2.4 and 8.4 in) 

(Propst et al. 1988, pp. 36–39). 

Loach minnow larvae occupy 

shallower and slower water than eggs. 

In Gila River studies, larvae occurred in 

flow velocities averaging 7.9 cm per 

second (3.1 in. per second), and in 

depths between 3.0 to 45.7 cm (1.2 to 18 

in). Juveniles occurred in areas with 

higher velocities, ranging between 35.1 

and 85.3 cm per second (13.8 and 33.6 

in. per second). Juveniles occurred in 

slightly deeper water of approximately 

6.1 to 42.7 cm (2.4 to 16.8 in) (Propst et 

al. 1988, pp. 36–39). 

As noted above under general habitat 

requirements, flooding is important in 

maintaining loach minnow habitat, 

including habitats used for breeding. 

Flooding reduces embeddedness of 

cobble and boulder substrates under 

which eggs are placed (Britt 1982, p. 

45). The construction of water 

diversions have reduced or eliminated 

riffle habitat in many stream reaches, 

resulting in pool development. Loach 

minnow are generally absent in stream 

reaches affected by impoundments. 

While the specific factors responsible 

for this are not known, it is likely 

related to modification of thermal 

regimes, habitat, food base, or discharge 

patterns (Propst et al. 1988, p. 64; 

Minckley 1973, pp. 1–11). 

Therefore, based on the information 

above, we identify appropriate sites for 

breeding, reproduction, or development 

of offspring for loach minnow to 

include: 

• Cobble substrates; 

• Riffle habitats; 

• Slower currents along stream 

margins with appropriate stream 

velocities for larvae; 

• Appropriate water depths for larvae 

and juvenile loach minnow; 

• Flow velocities that encompass the 

range of 6.1 to 42.7 cm (2.4 to 16.8 in); 

and 

• Streams with a natural, unregulated 

flow regime that allows for periodic 

flooding or, if flows are modified or 

regulated, a flow regime that allows for 

adequate river functions, such as flows 

capable of transporting sediments. 

Spikedace 

Nonnative aquatic species. One of the 

primary reasons for the decline of native 

species is the presence of nonnative 

aquatic species, as described above 

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under Factors C and E above. Nonnative 

aquatic species can include fishes, 

crayfish, or parasites, among others. 

Interactions with nonnative fishes can 

occur in the form of interference 

competition (e.g., predation) or 

exploitive competition (competition for 

resources), and introduced species are 

considered a primary factor in the 

decline of native species (Anderson 

1978, pp. 50–51; Miller et al. 1989, p. 

1; Lassuy 1995, p. 392). Multiple 

nonnative fish species are now present 

in the range of spikedace and loach 

minnow. In addition, nonnative 

parasites are also present. 

Flooding may help to reduce the 

threat presented by nonnative species. 

Minckley and Meffe (1987, pp. 99–100) 

found that flooding, as part of a natural 

flow regime, may temporarily remove 

nonnative fish species, which are not 

adapted to flooding patterns in the 

Southwest. Thus flooding consequently 

removes the competitive pressures of 

nonnative fish species on native fish 

species which persist following the 

flood. Minckley and Meffe (1987, pp. 

99–100) studied the differential 

response of native and nonnative fishes 

in seven unregulated and three 

regulated streams or stream reaches that 

were sampled before and after major 

flooding and noted that fish faunas of 

canyon-bound reaches of unregulated 

streams invariably shifted from a 

mixture of native and nonnative fish 

species to predominantly, and in some 

cases exclusively, native fishes after 

large floods. Samples from regulated 

systems indicated relatively few or no 

changes in species composition due to 

releases from upstream dams at low, 

controlled volumes. However, during 

emergency releases, effects to nonnative 

fish species were similar to those seen 

with flooding on unregulated systems. 

There is some variability in fish 

response to flooding. Some nonnative 

species, such as smallmouth bass and 

green sunfish, appear to be partially 

adapted to flooding, and often reappear 

in a few weeks (Minckley and Meffe 

1987, p. 100). 

The information presented above 

indicates the detrimental effects of 

interference and exploitive competition 

with nonnative species to spikedace, as 

well as the issues presented by the 

introduction of nonnative parasites. 

Therefore, based on the best scientific 

and commercial information currently 

available for spikedace, we conclude 

that suitable habitat with respect to 

nonnative aquatic species is habitat 

devoid of nonnative aquatic species, or 

habitat in which nonnative aquatic 

species are at levels that allow 

persistence of spikedace. 

Loach Minnow 

As with spikedace (discussed above), 

interference and exploitive competition 

with nonnative species can be 

detrimental to loach minnow. 

Interference competition, in the form of 

predation, may result from interactions 

between loach minnow and nonnative 

channel and flathead catfish, while 

exploitive competition likely occurs 

with red shiner. 

The discussion under Factor C above 

on disease and predation includes 

information on other nonnative aquatic 

species, such as Asian tapeworm, 

anchor worm, and Ich, which are also 

detrimental to loach minnow. 

The discussion under spikedace on 

flooding and its benefits in potentially 

minimizing threats from nonnative 

fishes applies to loach minnow as well. 

The information presented above 

indicates the detrimental effects of 

interference and exploitive competition 

with nonnative species to loach 

minnow, as well as the issues presented 

by the introduction of nonnative 

parasites. Therefore, based on the best 

scientific and commercial information 

currently available for spikedace, we 

conclude that suitable habitat with 

respect to nonnative aquatic species 

should include: 

• Habitat devoid of nonnative aquatic 

species, or habitat in which nonnative 

aquatic species are at levels that allow 

persistence of loach minnow; and 

• Streams with a natural, unregulated 

flow regime that allows for periodic 

flooding or, if flows are modified or 

regulated, a flow regime that allows for 

adequate river functions, such as flows 

capable of transporting sediments. 

Primary Constituent Elements for 

Spikedace 

As noted above, we are required to 

identify the PBFs essential to the 

conservation of spikedace and loach 

minnow in areas occupied at the time of 

listing, focusing on the features’ PCEs. 

We consider PCEs to be the elements of 

PBFs that provide for a species’ lifehistory processes, and that are essential 

to the conservation of the species. We 

outline the appropriate quantities and 

spatial arrangements of the elements in 

the Physical or Biological Features 

(PBFs) section of the October 28, 2010, 

proposed rule. For example, spawning 

substrate would be considered an 

essential feature, while the specific 

composition (sand, gravel, and cobble) 

and level of embeddedness are the 

elements (PCEs) of that feature. This 

section identifies the PCEs for both 

spikedace and loach minnow. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species and 

the habitat requirements for sustaining 

the essential life-history functions of the 

species, we have determined that PCEs 

for the spikedace are: 

(1) Habitat to support all egg, larval, 

juvenile, and adult spikedace, which 

includes: 

a. Perennial flows with a stream depth 

generally less than 1 m (3.3 ft), and with 

slow to swift flow velocities between 5 

and 80 cm per second (1.9 and 31.5 in. 

per second). 

b. Appropriate stream microhabitat 

types including glides, runs, riffles, the 

margins of pools and eddies, and 

backwater components over sand, 

gravel, and cobble substrates with low 

or moderate amounts of fine sediment 

and substrate embeddedness; 

c. Appropriate stream habitat with a 

low gradient of less than approximately 

1.0 percent, at elevations below 2,100 m 

(6,890 ft); and 

d. Water temperatures in the general 

range of 8.0 to 28.0 °C (46.4 to 82.4 °F). 

(2) An abundant aquatic insect food 

base consisting of mayflies, true flies, 

black flies, caddisflies, stoneflies, and 

dragonflies. 

(3) Streams with no or no more than 

low levels of pollutants. 

(4) Perennial flows, or interrupted 

stream courses that are periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted. 

(5) No nonnative aquatic species, or 

levels of nonnative aquatic species that 

are sufficiently low as to allow 

persistence of spikedace. 

(6) Streams with a natural, 

unregulated flow regime that allows for 

periodic flooding or, if flows are 

modified or regulated, a flow regime 

that allows for adequate river functions, 

such as flows capable of transporting 

sediments. 

Primary Constituent Elements for Loach 

Minnow 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species and 

the habitat requirements for sustaining 

the essential life-history functions of the 

species, we have determined that PCEs 

for the loach minnow are: 

(1) Habitat to support all egg, larval, 

juvenile, and adult loach minnow 

which includes: 

(a) Perennial flows with a stream 

depth of generally less than 1 m (3.3 ft), 

and with slow to swift flow velocities 

between 0 and 80 cm per second (0.0 

and 31.5 in. per second); 

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(b) Appropriate microhabitat types 

including pools, runs, riffles, and rapids 

over sand, gravel, cobble, and rubble 

substrates with low or moderate 

amounts of fine sediment and substrate 

embeddedness; 

(c) Appropriate stream habitats with a 

low stream gradient of less than 2.5 

percent and are at elevations below 

2,500 m (8,202 ft); and 

(d) Water temperatures in the general 

range of 8.0 to 25.0 °C (46.4 to 77 °F). 

(2) An abundant aquatic insect food 

base consisting of mayflies, true flies, 

black flies, caddisflies, stoneflies, and 

dragonflies. 

(3) Streams with no or no more than 

low levels of pollutants. 

(4) Perennial flows, or interrupted 

stream courses that are periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted. 

(5) No nonnative aquatic species, or 

levels of nonnative aquatic species that 

are sufficiently low to allow persistence 

of loach minnow. 

(6) Streams with a natural, 

unregulated flow regime that allows for 

periodic flooding or, if flows are 

modified or regulated, a flow regime 

that allows for adequate river functions, 

such as flows capable of transporting 

sediments. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas 

determined to be occupied at the time 

of listing contain the PBFs and may 

require special management 

considerations or protection. We believe 

each area included in these designations 

requires special management and 

protections as described in our unit 

descriptions. 

Special management considerations 

for each area will depend on the threats 

to the spikedace or loach minnow, or 

both, in that critical habitat area. For 

example, threats requiring special 

management include nonnative fish 

species and the continued spread of 

nonnative fishes into spikedace or loach 

minnow habitat. Other threats requiring 

special management include the threat 

of fire, retardant application during fire, 

and excessive ash and sediment 

following fire. Poor water quality and 

adequate quantities of water for all life 

stages of spikedace and loach minnow 

threaten these fish and may require 

special management actions or 

protections. Certain livestock grazing 

practices can be a threat to spikedace 

and loach minnow and their habitats, 

although concern for this threat has 

lessened due to improved management 

practices. The construction of water 

diversions can cause increasing water 

depth behind diversion structures, and 

has reduced or eliminated riffle habitat 

in many stream reaches. In addition, 

loach minnow are generally absent in 

stream reaches affected by 

impoundments. While the specific 

factor responsible for this is not known, 

it is likely related to modification of 

thermal regimes, habitat, food base, or 

discharge patterns. 

We have included below in our 

description of each of the critical habitat 

areas for the spikedace and loach 

minnow a discussion of the threats 

occurring in that area requiring special 

management or protections. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available in 

determining areas within the 

geographical area occupied at the time 

of listing that contain the features 

essential to the conservation of 

spikedace and loach minnow, and areas 

outside of the geographical areas 

occupied at the time of listing that are 

essential for the conservation of 

spikedace and loach minnow. Sources 

of data for these two species include 

multiple databases maintained by 

universities and State agencies for 

Arizona and New Mexico, existing 

recovery plans, endangered species 

reports (Propst et al. 1986, 1988), and 

numerous survey reports on streams 

throughout the species’ range. We have 

also reviewed available information that 

pertains to the habitat requirements of 

this species. Sources of information on 

habitat requirements include existing 

recovery plans, endangered species 

reports, studies conducted at occupied 

sites and published in peer-reviewed 

articles, agency reports, and data 

collected during monitoring efforts. 

The recovery plans for spikedace and 

loach minnow were both finalized in 

1991 (Service 1991a; Service 1991b), 

and are in need of revision to update 

information on species distribution, 

revisit conservation priorities, address 

any new information developed through 

monitoring and research, and bring the 

plans into conformance with current 

Service standards. At the time the plans 

were written, captive propagation and 

reintroduction projects had not yet 

begun. With these efforts now under 

way, prioritization is needed. We are in 

the process of convening a recovery 

team for this purpose. In the interim, we 

have developed an internal preliminary 

recovery assessment of potential steps 

necessary for achieving recovery of 

spikedace and loach minnow. 

The current distribution of both 

spikedace and loach minnow is much 

reduced from their historical 

distribution. We anticipate that recovery 

will require continued protection of 

existing populations and habitat, as well 

as establishing populations in 

additional streams within their 

historical ranges. Not all streams within 

their historical range have retained the 

necessary PBFs, and the critical habitat 

designation does not include all streams 

known to have been occupied by the 

species historically. The critical habitat 

designation instead focuses on streams 

within the historical range that have 

retained the necessary PBFs, and that 

will allow the species to reach recovery 

by ensuring that there are adequate 

numbers of fish in stable populations, 

and that these populations occur over a 

wide geographic area. This will help to 

minimize the likelihood that 

catastrophic events, such as wildfire or 

contaminant spills, would be able to 

simultaneously affect all known 

populations. We developed necessary 

steps for downlisting as well as 

delisting. 

For spikedace, our preliminary 

recovery assessment recommends that, 

in order to downlist the species from 

endangered to threatened, one 

additional stable population be 

established in either the Salt or Verde 

subbasins, and the number of occupied 

streams be increased from 8 (the current 

level) to 10 rangewide. Occupancy may 

be established through natural means 

(i.e., expansion by the fish themselves) 

or through translocation efforts. For 

delisting of spikedace, our preliminary 

recovery assessment indicates that a 

stable population should be established 

in the remaining subbasin, and that 

occupied streams within the historical 

range of the species be increased to 12. 

In addition, the goal is to ensure that all 

genetic lineages are adequately 

represented in the 12 occupied streams, 

where appropriate and feasible. 

For loach minnow, our preliminary 

recovery assessment recommends that, 

in order to downlist the species from 

endangered to threatened, the number of 

occupied streams be increased from 19 

(the current level) to 22, with one 

occupied stream in each of the major 

watersheds. For delisting, the 

preliminary recovery assessment 

recommends increasing the number of 

occupied streams to 25, with at least one 

occupied stream in each of the major 

watersheds, and that remaining genetic 

lineages be adequately represented in at 

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least one stream, where appropriate and 

feasible. 

The preliminary recovery assessment 

makes other recommendations, 

including establishing protective 

measures for connective areas, 

maintaining captive breeding stocks, 

and developing plans for augmentation 

of captive breeding stock. 

Our preliminary recovery assessment 

of the habitats needed for conservation 

of these species attempts to provide 

geographic distribution across the 

ranges of the species, represent the full 

ranges of habitat and environmental 

variability the species have occupied, 

and preserve existing genetic diversity. 

We anticipate that the final recovery 

plans developed by the Recovery Team, 

once formed, may vary from this 

assessment, and will likely provide 

additional criteria and prioritization of 

recovery actions. However, the broad 

goals used in our preliminary recovery 

assessment will be similar to those for 

the recovery planning process as 

recovery will require expanding the 

currently contracted ranges and 

establishing additional populations. 

We determined that all areas 

designated as critical habitat for 

spikedace and loach minnow contain 

the PCEs for each species. There are no 

developed areas within the designations 

for either species except for barriers 

constructed on streams or road crossings 

of streams, which do not remove the 

suitability of these areas for these 

species. 

Using our preliminary recovery 

assessment for selection of critical 

habitat, we have developed a 

designation to expand the current 

distribution of the two species by 

including both specific areas known to 

be occupied by the species at listing, as 

well as including some areas that were 

not known to be occupied at listing, but 

which were once part of their historical 

ranges. These unoccupied areas are 

essential to the recovery of the species 

because their current distribution is 

reduced to 10 to 20 percent of historical 

range, and concentrates fish in a few 

remaining areas that could be more 

susceptible to catastrophic events. 

We used the following ruleset for both 

spikedace and loach minnow, also 

summarized in Table 4, to determine 

which areas to designate as critical 

habitat: 

(1) Evaluate the habitat suitability of 

stream segments known to have been 

occupied at listing: 

(a) Retain those segments that contain 

the PCEs to support life-history 

functions essential for the conservation 

of the species, or 

(b) Eliminate those areas known to 

have been occupied at listing, but that 

no longer contain any PCEs for the 

species. 

(2) Evaluate stream segments not 

known to have been occupied at listing 

but that are within the historical range 

of the species to determine if they are 

essential to the survival and 

conservation (i.e., recovery) of the 

species. Essential areas are those that: 

(a) Serve as an extension of habitat 

within the geographic area of an 

occupied unit; or 

(b) Expand the geographic 

distribution within areas not occupied 

at the time of listing across the historical 

range of the species. 

TABLE 4—SUMMARY OF CATEGORIZATION OF WATERWAYS DESIGNATED AS CRITICAL HABITAT FOR LOACH MINNOW AND

SPIKEDACE

Stream category Criterion Categorized as 

Occupied at listing .................................................................... Segment contains sufficient PCEs * to support life-history 

functions essential to the conservation of the species.

1a 

Segment no longer supports any PCEs for the species, or 

segment has been permanently altered so that restoration 

is unlikely.

1b 

Not known to be occupied at listing but within the species’ 

historical range.

Segment serves as an extension of habitat in the unit ........... 2a 

Segment expands the geographic distribution across the 

range of the species.

2b 

* PCE = primary constituent element. 

The critical habitat designation 

includes two different categories of 

habitat. The ‘‘2a’’ category includes 

currently unoccupied stream reaches 

within units that are tributaries to other, 

occupied stream reaches. For example, 

within Unit 1, we include West Clear 

Creek as a 2a stream for spikedace. West 

Clear Creek is not currently occupied, 

but it is a tributary to the Verde River, 

which is currently occupied. Increasing 

the amount of occupied habitat in units, 

like the Verde River, already occupied 

by the species is essential because it 

expands the available habitat within a 

given unit that can be occupied by the 

two species and provides for an 

increased population size within that 

stream system. Increased population 

sizes are essential to conserving the two 

species as higher numbers of 

individuals increases the likelihood of 

their persistence over time. 

The ‘‘2b’’ category includes streams 

within units that are not currently 

occupied by the species but that are still 

within their historical range. The 

difference between ‘‘2a’’ and ‘‘2b’’ 

streams is that there is no occupancy 

within the entire unit for a ‘‘2b’’ stream. 

For example, while there are historical 

records of spikedace from within the 

Salt River Subbasin (Unit 2), this 

subbasin is unoccupied by the species. 

We have included Tonto Creek and 

some of its tributaries as ‘‘2b’’ streams 

within the designation. Inclusion of this 

area provides for expansion of the 

overall geographic distribution of 

spikedace. Expanding the geographic 

distribution of both species is essential 

for species that occur in only a fragment 

of their former range, as is the case for 

spikedace and loach minnow. 

Identifying additional streams for 

recovery of the two species ultimately 

allows for additional occupied units 

over a broader geographic range, which 

reduces the overall impacts of 

catastrophic events. 

In summary, we have considered the 

known occupancy of the area in 

determining which areas are either in 

category 1 (occupied at listing) versus 

category 2 (not occupied at listing), as 

well as the suitability and level of 

adverse impacts to habitat within each 

unit. We believe the areas designated as 

critical habitat provide for the 

conservation of the spikedace and the 

loach minnow because they include 

habitat for all extant populations and 

provide habitat for all known genetic 

lineages. 

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We evaluated those stream segments 

retained through the above analysis, and 

refined the starting and end points by 

evaluating the presence or absence of 

appropriate PCEs. We selected upstream 

and downstream cutoff points not to 

include areas that are highly degraded 

and are not likely restorable. For 

example, permanently dewatered areas, 

permanently developed areas, or areas 

in which there was a change to 

unsuitable parameters (e.g., a steep 

gradient, bedrock substrate) were used 

to mark the start or endpoint of a stream 

segment within the designation. Critical 

habitat stream segments were then 

mapped using ArcMap (Environmental 

Systems Research Institute, Inc.), a 

Geographic Information Systems 

program. 

With respect to length, the 

designations were designed to provide 

sufficient riverine area for breeding, 

nonbreeding, and dispersing adult 

spikedace and loach minnow, as well as 

for the habitat needs for juvenile and 

larval stages of these fishes. In addition, 

with respect to width, we evaluated the 

lateral extent necessary to support the 

PCEs for spikedace and loach minnow. 

The resulting designations take into 

account the naturally dynamic nature of 

riverine systems and floodplains 

(including riparian and adjacent upland 

areas) that are an integral part of the 

stream ecosystem. For example, riparian 

areas are seasonally flooded habitats 

(i.e., wetlands) that are major 

contributors to a variety of functions 

vital to fish within the associated stream 

channel (Brinson et al. 1981, pp. 2–61, 

2–69, 2–72, 2–75, 2–84 through 2–85; 

Federal Interagency Stream Restoration 

Working Group 1998). Riparian areas 

filter runoff, absorb and gradually 

release floodwaters, recharge 

groundwater, maintain streamflow, 

protect stream banks from erosion, and 

provide shade and cover for fish and 

other aquatic species. Healthy riparian 

and adjacent upland areas help ensure 

water courses maintain the habitat 

important for aquatic species (e.g., see 

USFS 1979, pp. 18, 109, 158, 264, 285, 

345; Middle Rio Grande Biological 

Interagency Team 1993, pp. 64, 89, 94; 

Castelle et al. 1994, pp. 279–281), 

including the spikedace and loach 

minnow. Habitat quality within the 

mainstem river channels in the 

historical range of the spikedace and 

loach minnow is intrinsically related to 

the character of the floodplain and the 

associated tributaries, side channels, 

and backwater habitats that contribute 

to the key habitat features (e.g., 

substrate, water quality, and water 

quantity) in these reaches. We have 

determined that a relatively intact 

riparian area, along with periodic 

flooding in a relatively natural pattern, 

is important for maintaining the PCEs 

necessary for long-term conservation of 

the spikedace and the loach minnow. 

The lateral extent (width) of riparian 

corridors fluctuates considerably 

between a stream’s headwaters and its 

mouth. The appropriate width for 

riparian buffer strips has been the 

subject of several studies and varies 

depending on the specific function 

required for a particular buffer (Castelle 

et al. 1994, pp. 879–881). Most Federal 

and State agencies generally consider a 

zone 23 to 46 m (75 to 150 ft) wide on 

each side of a stream to be adequate 

(Natural Resource Conservation Service 

1998, pp. 2–3; Moring et al. 1993, p. 

204; Lynch et al. 1985, p. 164), although 

buffer widths as wide as 152 m (500 ft) 

have been recommended for achieving 

flood attenuation benefits (U.S. Army 

Corps 1999, pp. 5–29). In most 

instances, however, riparian buffer 

zones are primarily intended to reduce 

(i.e., buffer) detrimental impacts to the 

stream from sources outside the river 

channel, such as pollutants in adjacent 

areas. Consequently, while a riparian 

corridor 23 to 46 m (75 to 150 ft) in 

width may protect water quality and 

provide some level of riparian habitat 

protection, a wider area would provide 

full protection of riparian habitat 

because the stream itself can move 

within the floodplain in response to 

high flow events. A 91.4 m (300 ft) 

buffer would better protect water 

temperatures, as well as reduce the 

impacts of high flow events, thereby 

providing additional protection to 

critical habitat areas. 

To address this issue, the lateral 

extent of streams included in these 

designations is 91.4 m (300 ft) to either 

side of bankfull stage. We believe this 

width is necessary to accommodate 

stream meandering and high flows, and 

in order to ensure that these 

designations contain the features 

essential to the conservation of the 

species. Bankfull stage is defined as the 

upper level of the range of channelforming flows, which transport the bulk 

of available sediment over time. 

Bankfull stage is generally considered to 

be that level of stream discharge reached 

just before flows spill out onto the 

adjacent floodplain. The discharge that 

occurs at bankfull stage, in combination 

with the range of flows that occur over 

a length of time, govern the shape and 

size of the river channel (Rosgen 1996, 

pp. 2–2 to 2–4; Leopold 1997, pp. 62– 

63, 66). The use of bankfull stage and 

91.4 m (300 ft) on either side recognizes 

the naturally dynamic nature of riverine 

systems, recognizes that floodplains are 

an integral part of the stream ecosystem, 

and contains the area and associated 

features essential to the conservation of 

the species. Bankfull stage is not an 

ephemeral feature, meaning it does not 

disappear. Bankfull stage can always be 

determined and delineated for any 

stream we have designated as critical 

habitat. We acknowledge that the 

bankfull stage of any given stream may 

change depending on the magnitude of 

a flood event, but it is a definable and 

standard measurement for stream 

systems. Unlike trees or cliff facings 

used by terrestrial species, stream 

systems provide habitat that is in 

constant change. Following high flow 

events, stream channels can move from 

one side of a canyon to the opposite 

side, for example. If we were to 

designate critical habitat based on the 

location of the stream on a specific date, 

the area within the designation could be 

a dry channel in less than one year from 

the publication of the determination, 

should a high flow event occur. 

We determined the 91.4-m (300-ft) 

lateral extent for several reasons. First, 

the implementing regulations of the Act 

require that critical habitat be defined 

by reference points and lines as found 

on standard topographic maps of the 

area (50 CFR 424.12(c)). Although we 

considered using the 100-year 

floodplain, as defined by the Federal 

Emergency Management Agency, we 

found that it was not included on 

standard topographic maps, and the 

information was not readily available 

from the Federal Emergency 

Management Agency or from the U.S. 

Army Corps of Engineers for the areas 

we are designating. We suspect this is 

related to the remoteness of many of the 

stream reaches where these species 

occur. Therefore, we selected the 91.4- 

m (300-ft) lateral extent, rather than 

some other delineation, for four 

biological reasons: 

(1) The biological integrity and 

natural dynamics of the river system are 

maintained within this area (i.e., the 

floodplain and its riparian vegetation 

provide space for natural flooding 

patterns and latitude for necessary 

natural channel adjustments to maintain 

appropriate channel morphology and 

geometry, store water for slow release to 

maintain base flows, provide protected 

side channels and other protected areas, 

and allow the river to meander within 

its main channel in response to large 

flow events). 

(2) Conservation of the adjacent 

riparian area also helps to provide 

important nutrient recharge and 

protection from sediment and 

pollutants. 

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(3) Vegetated lateral zones are widely 

recognized as providing a variety of 

aquatic habitat functions and values 

(e.g., aquatic habitat for fish and other 

aquatic organisms, moderation of water 

temperature changes, and detritus for 

aquatic food webs) and help improve or 

maintain local water quality (see U.S. 

Army Corps of Engineers’ Final Notice 

of Issuance and Modification of 

Nationwide Permits, March 9, 2000, 65 

FR 12818). 

(4) A 91.4-m (300-ft) buffer 

contributes to the functioning of a river, 

thereby supporting the PCEs needed for 

suitable spikedace and loach minnow 

habitat. 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas such as lands covered 

by buildings, pavement, and other 

structures because such lands lack PCEs 

for spikedace and loach minnow. The 

scale of the maps we prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such lands inadvertently left 

inside critical habitat boundaries shown 

on the maps of this final rule have been 

excluded by text in the rule and are not 

designated as critical habitat. Therefore, 

a Federal action involving these lands 

will not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the PCEs in the adjacent critical habitat. 

Eight units were designated as critical 

habitat based on sufficient elements of 

physical and biological features being 

present to support spikedace and loach 

minnow life processes. Some units 

contained all of the identified elements 

of physical and biological features and 

supported multiple life processes. Some 

segments contained only some elements 

of the physical and biological features 

necessary to support spikedace and 

loach minnow use of that habitat. 

Final Critical Habitat Designations 

We are designating eight units as 

critical habitat for spikedace and loach 

minnow. Within this designation, we 

refer to the eight units by subbasin 

name, as they are all subbasins to the 

Colorado River Basin. The critical 

habitat areas described below constitute 

our best assessment at this time of areas 

that meet the definition of critical 

habitat. Those eight units are: (1) Verde 

River Subbasin, (2) Salt River Subbasin, 

(3) San Pedro River Subbasin, (4) Bonita 

Creek Subbasin, (5) Eagle Creek 

Subbasin, (6) San Francisco River 

Subbasin, (7) Blue River Subbasin, and 

(8) Gila River Subbasin. Table 5 

(spikedace) and Table 6 (loach minnow) 

show the occupied units. 

TABLE 5—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY SPIKEDACE

Unit 

Occupied at 

time of listing 

or 

documented 

after listing 

Currently 

occupied 

Translocated 

population 

Unit 1—Verde River Subbasin 

Verde River ...................................................................................................................................... Yes ............... Yes ............... No. 

Granite Creek ................................................................................................................................... No ................ No ................ No. 

Oak Creek ........................................................................................................................................ No ................ No ................ No. 

Beaver and Wet Beaver Creek ........................................................................................................ No ................ No ................ No. 

West Clear Creek ............................................................................................................................. No ................ No ................ No. 

Fossil Creek ..................................................................................................................................... No ................ Uncertain ...... Yes. 

Unit 2—Salt River Subbasin 

Salt River Mainstem ......................................................................................................................... No ................ No ................ No. 

Tonto Creek ...................................................................................................................................... No ................ No ................ No. 

Greenback Creek ............................................................................................................................. No ................ No ................ No. 

Rye Creek ........................................................................................................................................ No ................ No ................ No. 

Spring Creek .................................................................................................................................... No ................ No ................ No. 

Rock Creek ....................................................................................................................................... No ................ No ................ No. 

Unit 3—San Pedro River Subbasin 

San Pedro River ............................................................................................................................... No ................ No ................ No. 

Hot Springs Canyon ......................................................................................................................... No ................ Yes ............... Yes. 

Bass Canyon .................................................................................................................................... No ................ No ................ No. 

Redfield Canyon ............................................................................................................................... No ................ Uncertain ...... Yes. 

Aravaipa Creek ................................................................................................................................. Yes ............... Yes ............... No. 

Deer Creek ....................................................................................................................................... No ................ No ................ No. 

Turkey Creek .................................................................................................................................... No ................ No ................ No. 

Unit 4—Bonita Creek Subbasin 

Bonita Creek ..................................................................................................................................... No ................ Uncertain ...... Yes. 

Unit 5—Eagle Creek Subbasin 

Eagle Creek ...................................................................................................................................... Yes ............... Yes ............... No. 

Unit 6—San Francisco River Subbasin 

San Francisco River ......................................................................................................................... No ................ Uncertain ...... Yes. 

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TABLE 5—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY SPIKEDACE—Continued 

Unit 

Occupied at 

time of listing 

or 

documented 

after listing 

Currently 

occupied 

Translocated 

population 

Unit 7—Blue River Subbasin 

Blue River ......................................................................................................................................... No ................ No ................ No. 

Campbell Blue Creek ....................................................................................................................... No ................ No ................ No. 

Little Blue Creek ............................................................................................................................... No ................ No ................ No. 

Pace Creek ....................................................................................................................................... No ................ No ................ No. 

Frieborn Creek ................................................................................................................................. No ................ No ................ No. 

Dry Blue Creek ................................................................................................................................. No ................ No ................ No. 

Unit 8—Gila River Subbasin 

Gila River .......................................................................................................................................... Yes ............... Yes ............... No. 

West Fork Gila River ........................................................................................................................ Yes ............... Yes ............... No. 

Middle Fork Gila River ..................................................................................................................... Yes ............... Yes ............... No. 

East Fork Gila River ......................................................................................................................... Yes ............... Yes ............... No. 

Mangas Creek .................................................................................................................................. Yes * ............. No ................ No. 

* Spikedace documented after 1986 listing, including: Mangas Creek, first occupied in 1999. 

TABLE 6—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY LOACH MINNOW

Stream segment Occupied at 

time of listing 

Currently 

occupied 

Translocated 

population 

Unit 1—Verde River Subbasin 

Verde River ...................................................................................................................................... No ................ No ................ No. 

Granite Creek ................................................................................................................................... No ................ No ................ No. 

Oak Creek ........................................................................................................................................ No ................ No ................ No. 

Beaver and Wet Beaver Creek ........................................................................................................ No ................ No ................ No. 

Fossil Creek ..................................................................................................................................... No ................ Uncertain ...... Yes. 

Unit 2—Salt River Subbasin 

White River Mainstem ...................................................................................................................... Yes ............... Yes ............... No. 

East Fork White River ...................................................................................................................... Yes ............... Yes ............... No. 

East Fork Black River ...................................................................................................................... No ................ No ................ No. 

North Fork East Fork Black River .................................................................................................... Yes* ............. Yes ............... No. 

Boneyard Creek ............................................................................................................................... Yes* ............. No ................ No. 

Coyote Creek ................................................................................................................................... No ................ Yes ............... No. 

Unit 3—San Pedro River Subbasin 

San Pedro River ............................................................................................................................... No ................ No ................ No. 

Hot Springs Canyon ......................................................................................................................... No ................ Yes ............... Yes. 

Bass Canyon .................................................................................................................................... No ................ No ................ No. 

Redfield Canyon ............................................................................................................................... No ................ Uncertain ...... Yes. 

Aravaipa Creek ................................................................................................................................. Yes ............... Yes ............... No. 

Deer Creek ....................................................................................................................................... Yes* ............. Yes ............... No. 

Turkey Creek .................................................................................................................................... Yes* ............. Yes ............... No. 

Unit 4—Bonita Creek Subbasin 

Bonita Creek ..................................................................................................................................... No ................ Uncertain ...... Yes. 

Unit 5—Eagle Creek Subbasin 

Eagle Creek ...................................................................................................................................... Yes* ............. Yes ............... No. 

Unit 6—San Francisco River Subbasin 

San Francisco River ......................................................................................................................... Yes ............... Yes ............... No. 

Tularosa River .................................................................................................................................. Yes ............... Yes ............... No. 

Negrito River .................................................................................................................................... Yes* ............. Yes ............... No. 

Whitewater Creek ............................................................................................................................. Yes ............... No ................ No. 

Unit 7—Blue River Subbasin 

Blue River ......................................................................................................................................... Yes ............... Yes ............... No. 

Campbell Blue Creek ....................................................................................................................... Yes* ............. Yes ............... No. 

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TABLE 6—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY LOACH MINNOW—Continued 

Stream segment Occupied at 

time of listing 

Currently 

occupied 

Translocated 

population 

Little Blue Creek ............................................................................................................................... Yes* ............. No ................ No. 

Pace Creek ....................................................................................................................................... Yes* ............. Yes ............... No. 

Frieborn Creek ................................................................................................................................. Yes* ............. Yes ............... No. 

Dry Blue Creek ................................................................................................................................. Yes* ............. Yes ............... No. 

Unit 8—Gila River Subbasin 

Gila River .......................................................................................................................................... Yes ............... Yes ............... No. 

West Fork Gila River ........................................................................................................................ Yes ............... Yes ............... No. 

Middle Fork Gila River ..................................................................................................................... Yes ............... Yes ............... No. 

East Fork Gila River ......................................................................................................................... Yes ............... Yes ............... No. 

Mangas Creek .................................................................................................................................. Yes* ............. Yes ............... No. 

Bear Creek ....................................................................................................................................... Yes* ............. Yes ............... No. 

* Loach minnow documented after 1986 listing, including: North Fork East Fork Black River in 1996; Boneyard Creek in 1996; Deer Creek in 

1996; Turkey Creek in 1996; Eagle Creek in 1994; Negrito Creek in 1998; Campbell Blue Creek in 1987; Little Blue Creek in 1994; Dry Blue 

Creek in 1998; Frieborn Creek in 1998; Pace Creek in 1998; Mangas Creek in 1999; and Bear Creek in 2005. 

The approximate area of each critical 

habitat unit is shown in Table 7. 

TABLE 7—LENGTH OF DESIGNATED CRITICAL HABITAT UNITS FOR SPIKEDACE AND LOACH MINNOW

[Length estimates reflect all land within critical habitat unit boundaries] 

Unit 

Federal State Local or tribal* Private Total 

Km Mi Km Mi Km Mi Km Mi Km Mi 

1 ............................... 155 96 4 2 3 2 133 82 295 182 

2 ............................... 117 72 0 0 0 0 14 9 131 81 

3 ............................... 37 23 4 2 2 2 31 19 74 46 

4 ............................... 16 10 0 0 0 0 8 5 24 15 

5 ............................... 19 12 0 0 0 0 8 5 27 17 

6 ............................... 155 96 3 2 0 0 70 44 228 142 

7 ............................... 93 58 0 0 0 0 15 9 108 67 

8 ............................... 161 100 10 6 0 0 88 55 259 161 

Total .................. 753 467 21 12 5 4 367 228 1146 711 

Note: Area sizes may not sum due to rounding. Total figures vary from those in the text description. The additional stream miles fall within different landowner categories, which were not summarized here. 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for 

spikedace and loach minnow or both, 

below. Table 8 at the end of this section 

summarizes the criteria from the ruleset 

(above) under which units were 

included. 

Unit 1: Verde River Subbasin 

Within the Verde River Subbasin, we 

are designating 294.5 km (183.0 mi) 

from Sullivan Lake downstream on the 

Verde River and its tributaries Granite 

Creek, Oak Creek, Beaver and Wet 

Beaver Creek, West Clear Creek, and 

Fossil Creek for spikedace. For loach 

minnow, we are designating 231.5 km 

(143.9 mi) from Sullivan Lake 

downstream on the Verde River and its 

tributaries Granite Creek, Oak Creek, 

Beaver and Wet Beaver Creek, and 

Fossil Creek. All of the area in the 

designation for loach minnow falls 

within the designation for spikedace. 

The Verde River and its tributaries 

included within these designations are 

in Yavapai and Gila Counties, Arizona. 

From Sullivan Lake, near its 

headwaters, the Verde River flows for 

201 km (125 mi) downstream to 

Horseshoe Reservoir. This reach of the 

Verde River is unique in comparison to 

other desert streams such as the Salt or 

Gila Rivers in that it is free-flowing and 

perennial (Sullivan and Richardson 

1993, pp. 19–21; The Nature 

Conservancy 2010). 

Verde River Mainstem. The Verde 

River was considered occupied at listing 

for spikedace, but not for loach minnow. 

None of the tributaries within this unit 

were occupied at listing for either 

species. For spikedace, the Verde River 

meets criteria for a 1a stream as defined 

in the ruleset, indicating that it was 

occupied at listing and has the features 

essential to support life-history 

functions essential for the conservation 

of the species. All of the tributaries 

within this unit meet criteria for 2a 

streams as defined in the ruleset for 

spikedace, indicating that they were not 

occupied at listing and would serve as 

an extension of habitat in the unit. For 

loach minnow, the Verde River and its 

tributaries meet the criteria for 2b 

streams under the ruleset, indicating 

that they were not occupied at listing, 

but would expand the geographic 

distribution of the species. We 

determined that those areas classified as 

2a or 2b are essential to the conservation 

of both species because they contain 

suitable habitat, and securing both 

species in this watershed will contribute 

significantly to their recovery by 

protecting occupied habitat for 

spikedace, extending protection to 

tributary streams which will serve as 

extensions of occupied habitat, and by 

protecting habitat for loach minnow 

which will allow for them to expand 

their current distribution. Additional 

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details on areas designated under Unit 

1 are provided below. 

Spikedace Only. For spikedace, we 

are designating as critical habitat 170.5 

km (106.0 mi) of the Verde River from 

Sullivan Lake downstream to the 

confluence with Fossil Creek. The Verde 

River mainstem was considered 

occupied at the time of listing (ASU 

2002, 51 FR 23679). While current 

occupancy remains uncertain, the Verde 

River is essential to the conservation of 

the species. It currently contains 

suitable habitat for all life stages of 

spikedace (PCE 1); has an appropriate 

food base (PCE 2); consists of perennial 

streams with no or low levels of 

pollutants (PCEs 3 and 4); and has an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). The Verde River is the only 

occupied stream system in this 

geographic portion of the species’ 

historical range, and represents one of 

four units in this designation in which 

spikedace are most likely to be found. 

Protection of the species in this portion 

of the historical range will contribute to 

the long-term conservation of the 

species. As noted above, spikedace are 

currently restricted to 10 percent of 

their historical range, so that every 

remaining population is important to 

their recovery. Critical habitat 

designation will ensure protection of the 

habitat in this occupied unit which in 

turn will contribute to conserving the 

species in this area. Finally, spikedace 

in the Verde River are genetically 

(Tibbets 1993, pp. 25–27, 34) and 

morphologically (Anderson and 

Hendrickson 1994, pp. 148, 154) 

distinct from all other spikedace 

populations. 

The essential features in this unit may 

require special management 

considerations and protections due to 

water diversions; existing and proposed 

groundwater pumping potentially 

resulting in drying of habitat; residual 

effects of past livestock grazing and 

impacts to uplands riparian vegetation 

and the stream channel; human 

development of surrounding areas; 

increased recreation including off-road 

vehicle use; abnormally dry drought 

conditions (University of NebraskaLincoln 2011, p. 1); and competition 

with or predation by nonnative aquatic 

species. 

We are designating as critical habitat 

for spikedace 10.9 km (6.8 mi) of West 

Clear Creek from the confluence with 

the Verde River upstream to the 

confluence with Black Mountain 

Canyon. Gradient and channel 

morphology changes above Black 

Mountain Canyon make the upstream 

area unsuitable for spikedace. West 

Clear Creek is on private and Coconino 

National Forest lands. West Clear Creek 

was not considered occupied at listing; 

however, one record exists for spikedace 

from West Clear Creek (from 1937; ASU 

2002). West Clear Creek does have 

suitable habitat for spikedace, and is 

under consideration as a translocation 

site for spikedace by a multi-agency 

team. We consider this tributary 

essential for the conservation of the 

species based on the presence of 

suitable habitat, its past records of 

occupancy, and its consideration for 

translocation of spikedace, which 

indicates the area will serve as an 

important extension of the area 

occupied by spikedace in the Verde 

River watershed. 

Loach Minnow Only. We are 

designating as critical habitat 118.5 km 

(73.6 mi) of the Verde River from 

Sullivan Lake downstream to the 

confluence with Wet Beaver Creek. The 

Verde River was not considered 

occupied by loach minnow at listing; 

however, there are later records of loach 

minnow from the Verde River mainstem 

near its confluence with Granite Creek, 

at the mouth of Beaver Creek, and in 

portions of the Verde River near Beaver 

Creek (ASU 2002). Subsequent surveys 

have failed to detect loach minnow in 

the Verde River or its tributaries. 

However, the Verde River is located in 

the far northwestern portion of the 

species’ range, and is the only river 

system in that geographic portion of the 

species’ range. Therefore, because the 

Verde River contains suitable habitat 

and will allow for the species’ range to 

be expanded; we conclude that the 

Verde River is essential to the 

conservation of the loach minnow. 

Within the Verde River Subbasin, 

approximately 1.2 km (0.8 mi) of the 

Verde River and 0.2 km (0.1 mi) of 

Beaver Creek/Wet Beaver Creek occur 

on lands owned by the Yavapai-Apache 

Nation. These areas have been excluded 

from the final critical habitat 

designations under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section below for additional 

information). 

Verde River Tributaries—Spikedace and 

Loach Minnow 

For both spikedace and loach 

minnow, the designation of critical 

habitat for each species includes 3.2 km 

(2.0 mi) of Granite Creek from the 

confluence with the Verde River 

upstream to an unnamed spring. Above 

the unnamed spring, flows are 

insufficient to maintain these species. 

Granite Creek occurs predominantly on 

lands managed by the AGFD in their 

Upper Verde Wildlife Area. The primary 

emphasis in this area is on management 

of riparian habitat and maintenance of 

native fish diversity. The AGFD parcel 

includes approximately 1.6 km (1.0 mi) 

of Granite Creek; the remaining 

landownership is private. 

Both Species. There are no known 

records of spikedace or loach minnow 

from Granite Creek. However, because 

of its suitability, confluence with 

occupied portions of the Verde River, 

and the opportunities it provides for 

extension of occupied habitat for 

spikedace and recovery habitat for loach 

minnow, this designated portion of 

Granite Creek is essential to the 

conservation of both species. Granite 

Creek is a perennial tributary of the 

Verde River, and its confluence with the 

Verde River occurs in that portion of the 

river with the highest species density 

for spikedace. Granite Creek meets 

criteria for a 2a stream for spikedace, 

serving as an extension of occupied 

spikedace habitat in the Verde River. 

For loach minnow, Granite Creek meets 

criteria for a 2b stream, expanding the 

current distribution of the species 

within its historically occupied range. 

We are designating as critical habitat 

54.3 km (33.7 mi) of Oak Creek from the 

confluence with the Verde River 

upstream to the confluence with an 

unnamed tributary near the Yavapai and 

Coconino County boundary. The lower 

portions of the creek contain suitable, 

although degraded, habitat. Above the 

unnamed tributary, the creek becomes 

unsuitable due to urban and suburban 

development, increasing gradient, and 

substrate size. Oak Creek occurs on a 

mix of private and Coconino National 

Forest lands. 

Oak Creek was not considered 

occupied at listing for spikedace or 

loach minnow; however, we consider it 

to be essential for the conservation of 

both species. It contains suitable habitat 

for both species. A multi-agency team is 

currently evaluating Oak Creek as a 

translocation site for spikedace and 

loach minnow. As noted below in the 

Fossil Creek discussion, areas suitable 

for such actions are rare in the desert 

southwest. As a perennial tributary of 

the Verde River, Oak Creek contains the 

physical features that provide an 

important extension area for spikedace 

and would help to expand the current 

distribution of loach minnow within its 

historical range. 

We are designating as critical habitat 

33.3 km (20.7 mi) of Beaver and Wet 

Beaver Creek from the confluence with 

the Verde River upstream to the 

confluence with Casner Canyon. Beaver 

and Wet Beaver Creek occur on a mix 

of private, National Park, and Coconino 

National Forest lands. Neither Beaver 

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nor Wet Beaver Creek were considered 

occupied at listing by either spikedace 

or loach minnow. Beaver Creek and its 

upstream extension in Wet Beaver Creek 

historically supported spikedace (ASU 

2002; AGFD 2004) and contains 

suitable, although degraded, habitat. 

There is one record for loach minnow 

from Beaver Creek but none from Wet 

Beaver Creek. There is an additional 

record for loach minnow on the 

mainstem Verde River approximately 

7.2 km (4.5 mi) above the confluence 

with Beaver and Wet Beaver Creek (ASU 

2002; AGFD 2004). 

Beaver and Wet Beaver creeks are 

essential to the conservation of both 

species, and meet criteria 2a under the 

ruleset for spikedace as a stream that 

would extend occupied habitat. They 

meet the criteria for a 2b stream under 

the ruleset for loach minnow, expanding 

the species range. As noted under 

Granite and Oak creeks, habitat within 

this portion of the species’ ranges is 

limited to the Verde River Unit, and 

including the Verde and a few of its 

perennial tributaries like Beaver and 

Wet Beaver Creeks expands the overall 

unit size, adding to available habitat, as 

well as expanding recovery potential for 

both species in this portion of their 

historical ranges. 

We are including within these 

designations 22.2 km (13.8 mi) of Fossil 

Creek extending from the confluence 

with the Verde River upstream to the 

confluence with an unnamed tributary. 

Fossil Creek was not known to be 

occupied by spikedace or loach minnow 

at listing. Historically, sufficient flows 

were lacking in this creek but, in 2005, 

following decommissioning of the 

Childs-Irving Hydroelectric Power 

Plant, formerly diverted flows were 

returned to Fossil Creek (Robinson 

2009b, p. 3). Spikedace and loach 

minnow were translocated into this 

stream in 2007 (Carter 2007a, p. 1), and 

additional fish were added in 2008 

(Carter 2008a, pp. 1–2) and 2010 

(Crowder, 2010, pers. comm.). Fossil 

Creek occurs primarily on Federal 

lands, forming the boundary between 

the Coconino and Tonto National 

Forests. 

We consider this area to be essential 

to the conservation of the species. With 

the severe reductions in the species’ 

overall distribution, and a translocation 

effort under way, Fossil Creek is 

essential to the recovery of spikedace 

and loach minnow because, if 

successful, the translocation effort will 

extend the distribution of spikedace in 

the Verde River watershed, meeting 

criteria for a 2a stream, and expand the 

distribution of loach minnow within its 

historical range, meeting criteria for a 2b 

stream. The translocation of spikedace 

and loach minnow into Fossil Creek is 

part of a larger conservation planning 

effort to restore a native fishery to the 

creek. 

Unit 2: Salt River Subbasin 

We are not designating any portion of 

the mainstem Salt River as critical 

habitat for spikedace or loach minnow 

at this time. Those portions below 

Theodore Roosevelt Reservoir have been 

altered by numerous dams and 

reservoirs, permanently limiting the 

natural flow regime and resulting in 

regulated flows. Those portions of the 

Salt River above the Reservoir support 

three historical records of spikedace 

near the confluence with Cibecue Creek 

(from 1950; ASU 2002). However, the 

majority of the Salt River, as well as the 

lower portions of Cibecue Creek, are 

canyon bound. While spikedace may 

occur in or travel through canyon areas, 

long stretches of canyon-bound rivers 

typically do not support the wider, 

shallower streams in which spikedace 

occur. Canyons are typically associated 

with a bedrock substrate, rather than the 

sand, gravel, or cobble over which 

spikedace are typically found. Due to its 

limited available habitat, limited habitat 

suitability, and permanent alteration for 

reservoirs, we have concluded that the 

PCEs for spikedace are not present at 

this time in the Salt River, in part due 

to permanent habitat alteration. 

While we are not designating any 

habitat on the mainstem Salt River, we 

are designating critical habitat for both 

spikedace and loach minnow on other 

streams within the Salt River Subbasin. 

Within the Salt River Subbasin, there is 

no overlap between the areas we are 

designating for spikedace and loach 

minnow. For spikedace, the designation 

includes a total of 98.6 km (61.3 mi) of 

Tonto Creek and its tributaries Rye, 

Greenback, and Spring Creeks, as well 

as Rock Creek, which is a tributary to 

Spring Creek. None of these streams 

were known to be occupied by 

spikedace at listing, and therefore are 

classified as 2b streams under the 

ruleset, meaning that their occupancy 

by spikedace would allow for an 

increased distribution of the species 

within its historical range. 

For loach minnow, we are designating 

a total of 32.0 km (19.9 mi) of the East 

Fork Black River, its tributaries Coyote 

Creek and North Fork East Fork Black 

River, and Boneyard Creek, a tributary 

to the North Fork East Fork Black. While 

East Fork Black River and Coyote Creek 

were not considered occupied at listing, 

the remainder of the streams included 

in the Salt River Subbasin for loach 

minnow were either occupied at listing 

(White River, East Fork White River) or 

determined to be occupied after listing 

(North Fork East Fork Black River, 

Boneyard Creek). Therefore, the East 

Fork Black River and Coyote Creek meet 

criteria for 2a streams under the ruleset, 

indicating they would serve as an 

extension to occupied habitat on the 

North Fork East Fork Black River, while 

White River, East Fork White River, 

North Fork East Fork Black River, and 

Boneyard Creek meet criteria for 1a 

streams under the ruleset. The unit 

descriptions and their rationale for 

inclusion are described below. 

Spikedace Only. The Salt River 

Subbasin is a significant portion of 

spikedace historical range but currently 

has no known extant populations of 

spikedace. None of the streams within 

the Salt River Subbasin were known to 

be occupied at listing and therefore 

meet the criteria for 2b streams under 

the ruleset and are considered essential 

to the conservation of the species. Large 

areas of the subbasin are unsuitable, 

either because of topography or because 

of reservoirs and other stream-channel 

alterations. However, the presence of 

substantial areas of USFS lands, and 

suitable habitat in some stream 

segments makes this a promising 

subbasin for the reestablishment of 

spikedace, and conservation efforts are 

under way (see Spring Creek below). All 

stream segments designated for 

spikedace in the Salt River Subbasin are 

in Gila County, Arizona. 

While it was not considered occupied 

at listing, there are limited records for 

spikedace from Tonto Creek (from 1937 

only; ASU 2002). We are including 

within the designation 47.8 km (29.7 

mi) of Tonto Creek from the confluence 

with Greenback Creek upstream to the 

confluence with Houston Creek. Tonto 

Creek below Greenback Creek is 

influenced by Theodore Roosevelt 

Reservoir, resulting in unsuitable 

habitat below Greenback Creek. Those 

portions of Tonto Creek above the 

confluence with Houston Creek are of a 

gradient and substrate that are not 

suitable to spikedace. Tonto Creek is 

within the historical range of spikedace, 

and occupancy of the creek would serve 

to increase the distribution of the 

species, as well as add to available, 

suitable habitat. We therefore consider 

the designated streams in this subbasin 

to be essential to the conservation of the 

species. 

We are designating 15.1 km (9.4 mi) 

of Greenback Creek beginning at the 

confluence with Tonto Creek and 

continuing upstream to the confluence 

with Lime Springs. Portions of 

Greenback Creek are intermittent, but 

may connect Greenback Creek to Tonto 

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10846 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

Creek during seasonal flows. While 

there are no known records of spikedace 

from Greenback Creek, the Salt River 

Subbasin is a significant portion of 

spikedace historical range, and there are 

limited areas of suitable habitat. The 

suitable habitat in Greenback Creek, its 

connection with Tonto Creek, and the 

fact that it occurs almost entirely on 

Federal lands makes this area an 

important expansion area for spikedace 

recovery, and we therefore consider it 

essential to the conservation of 

spikedace. 

We are including within the 

designation 2.8 km (1.8 mi) of Rye Creek 

from the confluence with Tonto Creek 

upstream to the confluence with Brady 

Canyon. There are no known records of 

spikedace from Rye Creek. The entire 

portion of the designation is perennial. 

As with Greenback Creek, Rye Creek 

serves as connected perennial stream 

habitat that expands the available 

suitable habitat associated with Tonto 

Creek and the Salt River Subbasin; 

therefore, we believe it is essential to 

the conservation of the species. 

We are including within the 

designation 27.2 km (16.9 mi) of Spring 

Creek from the confluence with Tonto 

Creek upstream to its confluence with 

Sevenmile Canyon. Portions of Spring 

Creek are perennial, while the lower 

portions are intermittent. The perennial 

portions of Spring Creek provide 

suitable habitat, and likely connect to 

Tonto Creek during seasonal flows, 

thereby expanding the available suitable 

habitat for spikedace. In addition, for 

both Spring and Rock (see below) 

creeks, conservation efforts for 

spikedace are under way. The feasibility 

of constructing a barrier and 

translocating spikedace to Spring Creek, 

a tributary to Tonto Creek, has been 

initiated with draft NEPA documents 

under development. 

Finally, we are including within the 

designation 5.7 km (3.6 mi) of Rock 

Creek from its confluence with Spring 

Creek upstream to its confluence with 

Buzzard Roost Canyon. There are no 

known records of spikedace from Rock 

Creek; however, Rock Creek will further 

expand the available habitat in the Salt 

River Subbasin. The suitable habitat, 

perennial flows, and location within the 

Salt River Subbasin make Rock Creek 

essential to the conservation of the 

spikedace. 

Within the Salt River Subbasin, a 

single record exists for spikedace on the 

Agua Fria River, which is located on the 

extreme western edge of the species’ 

range in Yavapai and Maricopa 

Counties, Arizona. The Agua Fria River 

supports stretches of perennial flows 

interspersed with sections of 

intermittent flows before entering the 

Lake Pleasant reservoir created by 

Pleasant Dam. Suitable habitat on the 

Agua Fria River is therefore minimal, 

with perennial stretches mixed with 

predominantly intermittent stretches, 

and isolated from any mainstem system 

by a large reservoir. For these reasons, 

we have concluded that the Agua Fria 

River is not essential to the conservation 

of spikedace at this time. 

Loach Minnow Only. Areas included 

for loach minnow within the Salt River 

Subbasin include portions of the East 

Fork Black River, North Fork East Fork 

Black River, and Coyote and Boneyard 

creeks. The East Fork Black River, North 

Fork East Fork Black River, Coyote, and 

Boneyard creeks are in Apache and 

Greenlee counties. All of these streams 

are perennial (The Nature Conservancy 

2010). 

The Salt River Subbasin encompasses 

a significant portion of loach minnow 

historical range, and the Salt River 

mainstem was known at listing to have 

historical records near the U.S. 60 (from 

1950; ASU 2002). The Black and White 

rivers join to form the Salt River. The 

North Fork East Fork Black River, and 

Boneyard Creek were newly discovered 

as occupied after listing, and meet the 

criteria for 1a streams. We have no 

records of loach minnow from East Fork 

Black River or Coyote Creek, and have 

designated these areas as 2a streams. 

Within the Salt River Subbasin, we 

are designating a total of 32.0 km (20 

mi) of the East Fork Black River and its 

tributary Coyote Creek, and the North 

Fork East Fork Black River and its 

tributary Boneyard Creek. The presence 

of suitable habitat, and the presence of 

a distinct genetic population in the 

adjoining North Fork East Fork River, 

makes these streams important 

expansion areas for loach minnow, and 

they are therefore essential to the 

conservation of the species. We are 

including within this designation 19.1 

km (11.9 mi) of the East Fork Black 

River extending from the confluence 

with the West Fork Black River 

upstream to the confluence with an 

unnamed tributary just downstream of 

Boneyard Creek and 3.4 km (2.1 mi) of 

Coyote Creek, extending from the 

confluence with East Fork Black River 

upstream to the confluence with an 

unnamed tributary. This area is 

connected to the North Fork East Fork 

Black River, which is occupied by loach 

minnow (Lopez, 2000, pers. comm.; 

ASU 2002; Gurtin, 2004, pers. comm., 

Robinson et al. 2009b, p. 1). East Fork 

Black River and Coyote Creek contain 

suitable habitat for loach minnow, and 

will allow for expansion of the existing 

population of loach minnow in North 

Fork East Fork Black River and 

Boneyard Creek. 

The presence of multiple PCEs, its 

occupied status, and the presence of a 

distinct genetic population makes the 

North Fork East Fork Black River and 

Boneyard Creek essential to the 

conservation of loach minnow. We are 

including within the designation 7.1 km 

(4.4 mi) of the North Fork East Fork 

Black River extending from the 

confluence with East Fork Black River 

upstream to the confluence with an 

unnamed tributary, and 2.3 km (1.4 mi) 

of Boneyard Creek extending from the 

confluence with the North Fork East 

Fork Black River upstream to the 

confluence with an unnamed tributary. 

Above this tributary, the river has finer 

substrate and lacks riffle habitat, making 

it unsuitable for loach minnow. The 

North Fork East Fork Black River is 

currently occupied (ASU 2002; Gurtin, 

2004, pers. comm.; Robinson et al. 

2009b, p. 1), and is presumed to have 

been occupied at listing. Boneyard 

Creek is also occupied, and is connected 

to the North Fork East Fork Black River, 

which is occupied (ASU 2002; Gurtin, 

2004, pers. comm.; Robinson et al. 

2009b, p. 1), and contains suitable 

habitat for loach minnow. North Fork 

East Fork Black River contains suitable 

habitat for all life stages of loach 

minnow (PCE 1); has an appropriate 

food base (PCE 2); consists of perennial 

streams with no or low levels of 

pollutants (PCEs 3 and 4); and has an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). 

The portions of the North Fork East 

Fork Black River and Boneyard Creek 

included within this designation are 

entirely on Apache-Sitgreaves National 

Forests lands. Essential features may 

require special management or 

protection from the residual effects of 

past livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; and competition with and 

predation by nonnative aquatic species. 

Native trout species are regularly 

stocked into the Black River, possibly 

resulting in increased competition for 

resources and predation by trout. The 

Wallow Fire burned through this stream 

complex in 2011, and there may be 

temporary increases in sediment carried 

into the stream from burned areas in the 

uplands. 

White River and its tributary East 

Fork White River were considered 

occupied at listing, and meet criteria for 

1a streams under the ruleset. We 

included within the designation 29.0 

km (18.0 mi) of the White River from the 

confluence with the Black River 

upstream to the confluence with the 

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North and East Forks of the White River, 

as well as approximately 17.2 km (10.7 

mi) of the East Fork White River from 

the confluence with North Fork White 

River upstream to the confluence with 

Bones Canyon. These areas have been 

excluded from the final critical habitat 

designations under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section below for additional 

information). 

In previous critical habitat 

designations, we have included portions 

of Tonto Creek, Rye Creek, and 

Greenback Creek as critical habitat for 

loach minnow. These areas have no 

historical records for loach minnow. 

Because there are other suitable areas 

for loach minnow within this portion of 

the species’ range, we believe the 

limited mileage and habitat features in 

Tonto Creek and its tributaries are less 

important to the overall conservation of 

loach minnow, and our current 

assessment is that they are therefore not 

essential to the conservation of the 

species. 

Unit 3: San Pedro Subbasin 

Within the San Pedro Subbasin, we 

are designating 74.1 km (46.1 mi) of 

habitat on Aravaipa Creek and its 

tributaries Deer and Turkey creeks, 

Redfield Canyon, and Hot Springs 

canyons and its tributary Bass Canyon. 

All areas within this subbasin were 

proposed for both species. Aravaipa 

Creek, Redfield and Hot Spring canyons 

and their tributaries included within 

these designations are in Cochise, Pinal, 

and Graham counties, Arizona. The 

majority of Redfield Canyon, Hot 

Springs Canyon, and Aravaipa Creek are 

perennial, with small downstream areas 

considered formerly perennial (The 

Nature Conservancy 2010) but still 

connected during high flow events. 

Streams included within this subbasin 

occur primarily on BLM, State, and 

private lands. 

The San Pedro Subbasin contains 

streams that are known to have been 

occupied by both species at listing, 

some of which are currently occupied, 

and some with translocated populations 

of spikedace and loach minnow. 

Aravaipa Creek was occupied by both 

species at listing, and is classified as a 

1a stream for both species. Deer and 

Turkey creeks are considered occupied 

by loach minnow due to the species 

being newly detected after listing in 

1996 (ASU 2002), but were not 

considered occupied at listing by 

spikedace and therefore meet criteria for 

1a streams for loach minnow, and for 2a 

streams for spikedace. Hot Springs, 

Redfield, and Bass canyons were not 

known to be occupied at listing by 

either species. Both Hot Springs and 

Redfield canyons currently support 

translocated populations of spikedace 

and loach minnow that were placed into 

the streams in 2007 (Robinson 2008a, 

pp. 1, 15–16). They, along with Bass 

Canyon, meet criteria for 2a streams for 

both species. 

We proposed as critical habitat 60.0 

km (37.2 mi) on the upper San Pedro 

River from the international border with 

Mexico downstream to the confluence 

with the Babocomari River. However, 

due to concerns for national security, 

the San Pedro River in its entirety has 

been excluded from the final critical 

habitat designations under section 

4(b)(2) of the Act (see ‘‘Application of 

Section 4(b)(2) of the Act’’ section below 

for additional information). In addition, 

in response to comments received, we 

have reduced the overall mileage 

included for Hot Springs and Redfield 

canyons. Please see the ‘‘Summary of 

Changes from Proposed Rule’’ for more 

detail. 

With the removal of the San Pedro 

and decreased mileage on Hot Springs 

and Redfield Canyon, we are including 

within these designations a total of 74.1 

km (46.1 mi) for spikedace and loach 

minnow. This area includes 44.9 km 

(27.9 mi) of Aravaipa Creek from the 

confluence with the San Pedro River 

upstream to the confluence with Stowe 

Gulch. Stowe Gulch is the upstream 

limit of sufficient perennial flows to 

support spikedace and loach minnow, 

and no records of either species are 

known from above this point. Aravaipa 

Creek currently supports one of the 

largest remaining populations of 

spikedace and loach minnow, and has 

been monitored regularly since 1943 

(ASU 2002; Stefferud and Reinthal 

2005, pp. 15–21; AGFD 2004; Reinthal 

2011, pp. 1–2). 

The long-term presence and current 

occupancy by both species, makes this 

area essential to their conservation. 

Aravaipa Creek is unique in that it 

supports an intact native fish fauna 

comprising seven species (Stefferud and 

Reinthal 2005, p. 11). It contains 

suitable habitat for all life stages of 

spikedace and loach minnow (PCE 1); 

has an appropriate food base (PCE 2); 

consists of perennial flows (PCE 3); has 

no nonnative aquatic species, or levels 

of nonnative aquatic species are 

sufficiently low to allow for persistence 

of both species (PCE 5); and has an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). 

Land ownership at Aravaipa Creek is 

predominantly BLM, with large parcels 

of private and State land on either end 

of the river. The essential features in 

this unit may require special 

management considerations or 

protection due to contaminants issues 

with lead, arsenic, and cadmium; 

surface and groundwater removal; 

limited recreation; severe drought 

(University of Nebraska-Lincoln 2011, p. 

1); and channelization in upstream 

portions (Stefferud and Reinthal 2005, 

pp. 36–38). 

We are including within these 

designations 3.7 km (2.3 mi) of Deer 

Creek from the confluence with 

Aravaipa Creek upstream to the 

boundary of the Aravaipa Wilderness. 

Above this point, habitat is no longer 

suitable for spikedace or loach minnow. 

We are also including 4.3 km (2.7 mi) 

of Turkey Creek from the confluence 

with Aravaipa Creek upstream to the 

confluence with Oak Grove Canyon. 

Above this point, flows are not suitable 

for spikedace or loach minnow. 

Both Deer and Turkey creeks are 

considered occupied by loach minnow 

with the species first detected in 1996, 

and both creeks are currently occupied 

by loach minnow. Each of these 

tributary streams contains suitable 

habitat for all life stages of loach 

minnow (PCE 1); have appropriate food 

bases (PCE 2); consist of perennial 

streams with no or low levels of 

pollutants (PCEs 3 and 4); and have an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). Both Deer and Turkey creeks 

occur on lands managed by the BLM. 

The essential features in these two 

streams may require special 

management due to surface and ground 

water removal; limited recreation; 

severe drought (University of NebraskaLincoln 2011, p. 1); occasional issues 

with nonnative aquatic species; and 

proposed utilities projects, such as the 

SunZia Southwest Transmission Project, 

which is currently in the study phase 

(Service 2010b, pp. 1–7). In addition, 

Turkey Creek experiences low flows 

through part of most years, limiting 

occupancy by loach minnow during 

those times. Occupancy by loach 

minnow, as well as the presence of 

perennial water and other key features 

indicate that Deer and Turkey creeks are 

likely suitable for spikedace as well. 

Because they are tributaries to Aravaipa 

Creek, they meet criteria for a 2a stream 

for spikedace. We have therefore 

determined they are essential to the 

conservation of spikedace. 

We have included within these 

designations 9.3 km (5.8 mi) of stream 

in Hot Springs Canyon from the 

confluence with the San Pedro River 

upstream to the confluence with Bass 

Canyon. (The stream in Hot Springs 

Canyon is not named and is known only 

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10848 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

as Hot Springs Canyon.) Hot Springs 

Canyon occurs on a mix of State, 

private, and BLM lands. There are no 

known records of spikedace or loach 

minnow from Hot Springs Canyon, but 

it is within the geographical range 

known to be occupied by both species, 

and meets criteria as a 2a stream for 

both species. 

Following coordination by a multiagency team, spikedace and loach 

minnow were translocated into Hot 

Springs Canyon in 2007, with 

augmentations in 2008, 2009, 2010, and 

2011 (Robinson 2008a, pp. 1, 15–16; 

Robinson et al. 2010a, pp. 4–5; 

Robinson et al. 2010b, pp. 5–6, 20–22; 

Robinson and Crowder 2011, In Draft, p. 

9). Spikedace and loach minnow have 

been captured each year since the 

project began (Robinson et al. 2010b, p. 

7) indicating that conditions in the 

stream allow the species to persist year 

to year; however, insufficient time has 

elapsed to allow for evaluation of the 

ultimate success of the translocation 

effort. 

Hot Springs Canyon contains suitable 

habitat for both spikedace and loach 

minnow, is currently occupied by a 

translocated population, and serves as 

an extension of habitat in this subbasin. 

We have therefore determined this area 

essential to the conservation of the two 

species. 

We are including within this 

designation 6.5 km (4.0 mi) of stream in 

Redfield Canyon from the confluence 

with the San Pedro River upstream to 

the confluence with Sycamore Canyon. 

(The stream in Redfield Canyon is not 

named and is known only as Redfield 

Canyon.) Above Sycamore Canyon, 

perennial water becomes very scarce, 

and the habitat becomes steeper, and 

more canyon-confined, thus making it 

unsuitable for spikedace and loach 

minnow. The majority of Redfield 

Canyon occurs on State lands, with 

smaller areas of private and Federal 

(BLM) lands. Although there are no 

known records of spikedace or loach 

minnow from Redfield Canyon, it is 

within the geographical range known to 

be occupied by both species, and meets 

criteria as a 2a stream for both species. 

Redfield Canyon was specifically 

identified within the species’ Recovery 

Plan as an area with potential for 

spikedace (Service 1991a, p. 21; Service 

1991b, p. 20). Following coordination 

by a multi-agency team, spikedace and 

loach minnow were translocated into 

Redfield Canyon in 2007, with 

augmentations in 2008 (Robinson 

2008b, pp. 1, 15–16; Robinson et al. 

2010a, pp. 4–5, Robinson et al. 2010b, 

pp. 5–6, 20–22). Redfield Canyon 

currently supports loach minnow that 

were translocated to the site (Robinson 

et al. 2010b, pp. 20–22), and contains 

suitable habitat for both spikedace and 

loach minnow. The most recent surveys 

of Redfield Canyon (Robinson et al. 

2010b) did not detect spikedace; 

however, the reintroduction project is 

not yet complete. The current 

occupancy by loach minnow and the 

presence of suitable habitat, which 

extends the available habitat in this 

unit, make this area essential to the 

conservation of both species. 

We are including within these 

designations 5.5 km (3.4 mi) of stream 

in Bass Canyon from the confluence 

with Hot Springs Canyon upstream to 

the confluence with Pine Canyon. (The 

stream in Bass Canyon is not named and 

is known only as Bass Canyon). Bass 

Canyon occurs on private and BLM 

lands. There are no known records of 

spikedace or loach minnow from Bass 

Canyon, but it is within the 

geographical range known to be 

occupied by both species. In addition, 

spikedace and loach minnow have been 

translocated into Hot Springs Canyon, to 

which Bass Canyon is connected and is 

a tributary stream (see discussion above 

under Hot Springs Canyon). Bass 

Canyon contains suitable habitat for 

spikedace and loach minnow, has been 

identified as a potential stream for 

restoration activities, and meets criteria 

for a 2a stream under the ruleset. Bass 

Canyon serves as an extension to Hot 

Springs Canyon fish populations. We 

therefore consider it to be essential to 

the conservation of both species. 

Unit 4: Bonita Creek Subbasin 

Within the Bonita Creek Subbasin, we 

are including 23.8 km (14.8 mi) of 

Bonita Creek from the confluence with 

the Gila River upstream to the 

confluence with Martinez Wash in 

Graham County, Arizona. The Bonita 

Creek subbasin is not known to have 

been occupied at listing but is within 

the geographical range known to have 

been occupied by both species. It meets 

criteria for a 2b stream for both species 

under our ruleset. Land ownership at 

Bonita Creek is almost entirely Federal 

(BLM), with a few small private parcels. 

The designations end at the San Carlos 

Indian Reservation boundary. 

Cooperative conservation efforts for 

spikedace and loach minnow are 

ongoing in Bonita Creek. A 

Memorandum of Understanding is in 

place with the City of Safford regarding 

water management for Bonita Creek as 

part of this effort. To date, those 

activities have resulted in the removal 

of nonnative fish species and 

translocation of spikedace, loach 

minnow, Gila topminnow, and desert 

pupfish into Bonita Creek. Spikedace 

and loach minnow were translocated 

into the lower portions of Bonita Creek 

in 2008 (Robinson, 2008c, pers. comm.). 

In 2009, an additional small population 

of spikedace was placed above the City 

of Safford’s infiltration gallery, but 

below the southern boundary of the San 

Carlos Indian Reservation. However, 

due to a reinvasion by nonnative 

species, augmentations of spikedace and 

loach minnow are temporarily on hold 

at Bonita Creek. 

As noted above for Fossil Creek, Hot 

Springs Canyon, and Redfield Canyon, 

there are limited opportunities for 

translocating or reintroducing 

populations of spikedace and loach 

minnow, and the current reduction in 

the species’ distribution necessitates 

that additional populations be 

established to recover the species. 

Bonita Creek is considered essential to 

the survival and recovery of spikedace 

and loach minnow because it contains 

suitable habitat for all life stages of both 

species, occurs within the historical 

range of both species, and allows for the 

expansion of the geographic distribution 

of the species’ ranges. 

Unit 5: Eagle Creek Subbasin 

We are including within these 

designations 26.5 km (16.5 mi) of Eagle 

Creek from the Freeport-McMoRan 

(FMC) diversion dam upstream to the 

confluence with East Eagle Creek in 

Greenlee and Graham Counties, 

Arizona. Eagle Creek is a largely 

perennial system (The Nature 

Conservancy 2010). Eagle Creek occurs 

primarily on San Carlos Apache Tribal 

and Apache-Sitgreaves National Forests’ 

lands, along with small parcels of State, 

private, and BLM lands. Spikedace and 

loach minnow are both considered 

currently present, but likely in small 

numbers (Marsh 1996, p. 2; ASU 2002; 

Bahm and Robinson 2009a, p. 1). 

Eagle Creek was known to be 

occupied at the time of listing by 

spikedace, and therefore meets criteria 

for a 1a stream under our ruleset. It was 

determined to be occupied by loach 

minnow after listing, in 1994 (ASU 

2002), and therefore meets criteria for a 

1a stream for loach minnow under our 

ruleset. Eagle Creek contains suitable 

habitat for all life stages of spikedace 

and loach minnow (PCE 1); has an 

appropriate food base (PCE 2); consists 

of perennial flows with no or low levels 

of pollutants (PCEs 3 and 4); and has an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6) above the barrier, which serves 

as the endpoint of this unit. 

Approximately 27.5 km (17.1 mi) of 

Eagle Creek in Graham County are on 

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the San Carlos Apache Reservation. 

Additionally, 21.4 km (13.3 mi) of Eagle 

Creek also flow through private lands 

belonging to Freeport McMoRan. These 

areas have been excluded from the final 

critical habitat designations under 

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

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

Act’’ section below for additional 

information). 

The essential features in this stream 

may require special management 

considerations or protection due to 

competition with and predation by 

nonnative aquatic species; residual 

effects of past livestock grazing and 

impacts to uplands, riparian vegetation, 

and the stream; mining activities in the 

uplands; moderate to severe drought 

(University of Nebraska-Lincoln 2011, p. 

1); road construction and maintenance 

within and adjacent to the stream 

channel, and the indirect effect of 

wildfires that have occurred in the 

watershed since 2007. 

Unit 6: San Francisco River Subbasin 

We are including within these 

designations 228.1 km (141.7 miles) of 

stream segments from the San Francisco 

River and its tributaries Tularosa River, 

Negrito Creek, and Whitewater Creek. 

All of this area is designated for loach 

minnow, while 166.6 km (103.5 miles) 

is also designated for spikedace. All of 

the area included for spikedace is 

within the area designated for loach 

minnow. The portions of the San 

Francisco, Tularosa River, Negrito 

Creek, and Whitewater Creek included 

within these designations are in 

Greenlee County, Arizona, and Catron 

County, New Mexico. 

Portions of the San Francisco River in 

Greenlee County totaling 14.1 km (8.8 

mi) are on lands owned by FMC. These 

areas have been excluded from the final 

critical habitat designations under 

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

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

Act’’ section below for additional 

information). 

The San Francisco River is one of the 

larger intact streams remaining within 

the species’ ranges, with an overall 

length of approximately 202 km (125 

mi). It is considered perennial 

throughout this length, except for 

seasonal drying in the Alma Valley. 

Land ownership on the San Francisco 

River includes primarily BLM and 

Apache-Sitgreaves National Forest with 

small parcels of private and State lands 

in Arizona, and the Gila National Forest 

with small parcels of private lands in 

New Mexico. 

Occupancy within this subbasin is 

mixed. The San Francisco River 

downstream of the Tularosa River 

confluence was not known to be 

occupied by spikedace at listing; 

however, a reintroduction of spikedace 

occurred in 2008 above the town of 

Alma, New Mexico (NMDGF 2009, p. 1). 

The success of this translocation effort 

remains to be determined, but the 

stream meets criteria for a 2b for 

spikedace. The San Francisco River was 

known to be occupied by loach minnow 

at listing (NMDGF 2008; Propst et al. 

2009, pp. 5–6), and therefore meets the 

criteria for a 1a stream under the ruleset 

for loach minnow. 

There are no known records of 

spikedace from the Tularosa River, 

Negrito Creek, or Whitewater Creek, and 

spikedace have not been known to occur 

any higher in the San Francisco River 

than Pleasanton (Paroz and Propst 2007, 

pp. 13–15). We are not including any of 

these tributary streams for spikedace in 

the designation at this time. In contrast, 

the Tularosa River and Whitewater 

Creek were known to have been 

occupied at listing by loach minnow, 

and meet the criteria for a 1a stream 

under the ruleset. Negrito Creek was not 

known to have been occupied at listing 

by loach minnow, but loach minnow 

have since been detected in Negrito 

Creek (Miller 1998, pp. 1–6). For this 

reason, we have included Negrito Creek 

as a 1a stream under the ruleset. 

Both Species. This designation 

includes 166.6 km (103.5 mi) of the San 

Francisco River as critical habitat for 

spikedace from the confluence with the 

Gila River upstream to the confluence 

with the Tularosa River. We are 

including a total of 203.6 km (126.5 mi) 

of the San Francisco River for loach 

minnow, from its confluence with the 

Gila River upstream to the town of 

Cruzville. For loach minnow, the San 

Francisco River was known to be 

occupied at listing. The San Francisco 

River contains suitable habitat for all 

life stages of loach minnow (PCE 1); has 

an appropriate food base (PCE 2); 

consists of perennial flows with no or 

low levels of pollutants (PCEs 3 and 4); 

and has an appropriate hydrologic 

regime to maintain suitable habitat 

characteristics (PCE 6). The essential 

features in this stream may require 

special management considerations or 

protection due to livestock grazing and 

impacts to uplands, riparian vegetation, 

and the stream; severe drought 

(University of Nebraska-Lincoln 2011, p. 

1) in those portions in Arizona; 

competition with and predation by 

nonnative aquatic species; water 

diversions; road construction and 

maintenance; and channelization. 

The San Francisco River was not 

known to be occupied by spikedace at 

listing. The presence of loach minnow, 

suitable habitat characteristics, 

reintroduced population of spikedace, 

and location within the historical range 

of spikedace indicate that this area is 

suitable for spikedace. The reduced 

distribution of spikedace and the 

suitability of this large, intact river 

system in the upper San Francisco River 

indicates that it is essential to the 

conservation of the species. 

Loach Minnow Only. We are 

designating 30.0 km (18.6 mi) of the 

Tularosa River from the confluence with 

the San Francisco River upstream to the 

town of Cruzville, New Mexico. Above 

Cruzville, habitat becomes unsuitable 

for loach minnow. The Tularosa River is 

currently occupied by loach minnow 

(Propst et al. 2009, pp. 4–5). The 

Tularosa River is perennial throughout 

this reach, and contains suitable habitat 

for all life stages of loach minnow (PCE 

1); has an appropriate food base (PCE 2); 

consists of perennial flows with no or 

low levels of pollutants (PCEs 3 and 4); 

and has an appropriate hydrologic 

regime to maintain suitable habitat 

characteristics (PCE 6). Land ownership 

along the Tularosa River is 

predominantly Gila National Forest, 

with private inholdings. The essential 

features in this stream may require 

special management considerations or 

protection due to residual effects of 

livestock grazing, and impacts to 

uplands, and competition with and 

predation by nonnative aquatic species. 

We include within this designation 

6.8 km (4.2 mi) of Negrito Creek 

extending from the confluence with the 

Tularosa River upstream to the 

confluence with Cerco Canyon. Negrito 

Creek is perennial through this reach. 

Above this point, gradient and channel 

morphology make the creek unsuitable 

for loach minnow. Loach minnow in 

Negrito Creek were newly discovered 

after listing (Miller 1998, pp. 1–6). 

Negrito Creek contains suitable habitat 

for all life stages of loach minnow (PCE 

1); has an appropriate food base (PCE 2); 

consists of perennial flows with no or 

low levels of pollutants (PCEs 3 and 4); 

and has an appropriate hydrologic 

regime to maintain suitable habitat 

characteristics (PCE 6). Negrito Creek 

occurs primarily on the Gila National 

Forest, with a few parcels of private 

land interspersed with the Forest lands. 

The essential features in this stream 

may require special management 

considerations or protection due to 

residual effects of past livestock grazing 

and impacts to uplands, riparian 

vegetation, and the stream, as well as 

other disturbances in the watershed. 

We include within this designation 

1.9 km (1.2 mi) of Whitewater Creek 

from the confluence with the San 

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Francisco River upstream to the 

confluence with Little Whitewater 

Creek. Upstream of this point, gradient 

and channel changes make the habitat 

unsuitable for loach minnow. 

Whitewater Creek was known to be 

occupied by loach minnow at the time 

of listing and has perennial flows. It 

serves as an extension of habitat on the 

San Francisco River. Whitewater Creek 

contains suitable habitat for all life 

stages of loach minnow (PCE 1); has an 

appropriate food base (PCE 2); consists 

of perennial flows with no or low levels 

of pollutants (PCEs 3 and 4); and has an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). Whitewater Creek occurs 

entirely on private lands. The essential 

features in this stream may require 

special management considerations or 

protection due to residual impacts from 

past livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; water diversions; competition 

with and predation by nonnative 

aquatic species; road construction and 

maintenance; channelization, and 

moderate drought (University of 

Nebraska-Lincoln 2011, p. 1). 

Unit 7: Blue River Subbasin 

Within the Blue River Subbasin, we 

are including 106.6 km (66.3 mi) of the 

Blue River, Campbell Blue and Little 

Blue creeks in Greenlee County, 

Arizona, and portions of Campbell Blue, 

Pace, Frieborn, and Dry Blue creeks in 

Catron County, New Mexico, for both 

spikedace and loach minnow. The Blue 

River, Campbell Blue Creek, and Little 

Blue Creek occur predominantly on 

Federal lands of the Apache-Sitgreaves 

National Forest. The tributaries Pace, 

Frieborn, and Dry Blue creeks occur 

entirely on Federal lands on the Gila 

National Forest in New Mexico. 

Within this subbasin, occupancy by 

spikedace and loach minnow is mixed. 

None of the streams designated as 

critical habitat in the Blue River 

Subbasin were known to have been 

occupied at listing by spikedace. 

Streams within this subbasin are 

included as 2b streams for spikedace 

under the ruleset. In contrast, the Blue 

River was known to have been occupied 

at listing, and all of the tributary streams 

of Campbell Blue, Little Blue, Pace, Dry 

Blue, and Frieborn Creeks were 

discovered to be occupied by loach 

minnow after listing, as follows: 

Campbell Blue Creek—1987; Pace 

Creek—1998; Dry Blue Creek—1998, 

and Frieborn Creek—1998 (ASU 2002). 

We are therefore including each of these 

streams as 1a streams under the ruleset 

for loach minnow. Additional detail on 

the suitability of each stream is 

provided below. 

Both Species. We are including within 

these designations 81.4 km (50.6 mi) of 

the Blue River from the confluence with 

the San Francisco River upstream to the 

confluence of Campbell Blue and Dry 

Blue creeks. As noted above, this river 

was not known to have been occupied 

by spikedace at listing. The Blue River 

is occupied by loach minnow, and 

contains suitable habitat for all life 

stages of loach minnow (PCE 1); has an 

appropriate food base (PCE 2); consists 

of perennial streams with no or low 

pollutant issues (PCEs 3 and 4); has no 

nonnative aquatic species, or levels of 

nonnative aquatic species that are 

sufficiently low to allow persistence of 

spikedace and loach minnow (PCE 5); 

and has an appropriate hydrologic 

regime to maintain suitable habitat 

characteristics (PCE 6). The Blue River 

occurs predominantly on Federal lands 

on the Apache-Sitgreaves National 

Forest, as well as on private parcels of 

land within the Forest. The essential 

features in this stream may require 

special management considerations or 

protection due to residual effects of past 

livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; moderate to severe drought 

(University of Nebraska-Lincoln 2011, p. 

1); and competition with and predation 

by nonnative aquatic species. 

The larger size of the Blue River, 

compared to smaller, tributary streams 

within the species’ range, along with its 

perennial flows and conservation 

management activities, make this area 

important to spikedace. In addition, 

planning among several State and 

Federal agencies is underway for 

restoration of native fish species, 

including spikedace, in the Blue River 

through construction of a barrier that 

will exclude nonnative fish from 

moving upstream and allow for 

translocation of spikedace. Barrier 

feasibility studies have been completed, 

as has a draft Memorandum of 

Understanding with land managers and 

residents in this area. Federal land 

ownership throughout the majority of 

this proposed critical habitat unit would 

facilitate management for the species. 

We therefore consider the Blue River to 

be essential to the conservation of 

spikedace. 

We are including within these 

designations stream miles on multiple 

tributaries for both spikedace and loach 

minnow, as follows: 

• Campbell Blue Creek—12.4 km (7.7 

mi) extending from the confluence of 

Dry Blue and Campbell Blue Creeks 

upstream to the confluence with 

Coleman Canyon. Above Coleman 

Canyon, the creek changes and becomes 

steeper and rockier, making it 

unsuitable for spikedace and loach 

minnow. 

• Pace Creek—1.2 km (0.8 mi) of Pace 

Creek from the confluence with Dry 

Blue Creek upstream to a barrier falls. 

Habitat above the barrier is considered 

unsuitable. 

• Dry Blue Creek—4.7 km (3.0 mi) of 

Dry Blue Creek from the confluence 

with Campbell Blue Creek upstream to 

the confluence with Pace Creek. 

• Frieborn Creek—1.8 km (1.1 mi) of 

Frieborn Creek from the confluence 

with Dry Blue Creek upstream to an 

unnamed tributary. 

• Little Blue Creek—5.1 km (3.1 mi) 

of Little Blue Creek. This includes the 

lower, perennial portions of Little Blue 

Creek extending from the confluence 

with the Blue River upstream to the 

confluence with an unnamed canyon. 

Above the canyon, flows are not 

perennial. 

Each of these streams were occupied 

at the time of listing by loach minnow, 

contain suitable habitat for all life stages 

(PCE 1); have an appropriate food base 

(PCE 2); consist of perennial flows with 

no or low levels of pollutants (PCEs 3 

and 4); have no nonnative aquatic 

species, or levels of nonnative aquatic 

species that are sufficiently low to allow 

persistence of spikedace and loach 

minnow (PCE 5); and have an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). the essential features in this 

subbasin may require special 

management considerations or 

protection due to residual impacts of 

past livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; moderate to severe drought 

(University of Nebraska-Lincoln 2011, p. 

1); and competition with and predation 

by nonnative aquatic species. Campbell 

Blue Creek and portions of the Blue 

River were burned during the Wallow 

Fire in 2011, and increased ash and 

sedimentation within the active stream 

may be a temporary issue in these 

streams. 

Because these streams are occupied 

by loach minnow, which often co-occur 

with spikedace, and because they occur 

within the historical range of the 

species, we believe these streams are 

suitable for spikedace. In addition, as 

discussed above, perennial flows, and 

occurrence predominantly on Federal 

lands make these areas especially 

suitable for spikedace recovery, and 

cooperative management plans for a 

native fishery in the Blue River enhance 

opportunities for spikedace 

conservation. We therefore believe the 

Blue River, Campbell Blue, Pace, Dry 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10851 

Blue, Frieborn, and Little Blue creeks to 

be essential to the conservation of the 

species. 

Unit 8. Gila River Subbasin 

These designations include 

approximately 258.6 km (160.7 mi) of 

the upper Gila River and five tributaries 

including West Fork Gila River, Middle 

Fork Gila River, East Fork Gila River, 

Mangas Creek, and Bear Creek in 

Hidalgo, Grant, and Catron Counties, 

New Mexico. A slightly larger area was 

included for loach minnow on the 

Middle Fork Gila River. All mileage 

included for spikedace on the Middle 

Fork Gila River is included within this 

area. All streams included within this 

unit are considered occupied at listing 

by both species (Paroz et al. 2009, p. 12), 

and therefore meet the criteria for 1a 

streams under the ruleset. Spikedace 

and loach minnow were first detected in 

Mangas Creek after listing, which meets 

the criteria for a 1a stream under the 

ruleset (in 1999; NMGFD 2008). 

Similarly, loach minnow were first 

detected in Bear Creek after listing, 

which also meets the criteria for a 1a 

stream (in 2005; Schiffmiller 2005; 

NMGFD 2008). 

Both Species. These designations 

include 153.5 km (95.4 mi) of the Gila 

River from the confluence with Moore 

Canyon (near the Arizona-New Mexico 

border) upstream to the confluence of 

the East and West Forks are included 

within these designations. Below Moore 

Canyon, the river is substantially altered 

by agriculture, diversion, and urban 

development. In addition, there are no 

loach minnow and only one spikedace 

records known from the Gila River 

between its confluence with Moore 

Canyon and a spikedace record from 

Pinal County, Arizona, near the 

Ashurst-Hayden Dam. This portion of 

the Gila River supports the largest 

remaining populations of spikedace and 

loach minnow (NMDGF 2008; Propst et 

al. 2009, pp. 14–17). In addition, we are 

designating 13.0 km (8.1 mi) of the West 

Fork Gila River from the confluence 

with the East Fork Gila River upstream 

to the confluence with EE Canyon and 

42.1 km (26.2 mi) of the East Fork Gila 

River from the confluence with the West 

Fork Gila River upstream to the 

confluence of Beaver and Taylor Creeks. 

Above EE Canyon, the river becomes 

unsuitable for spikedace and loach 

minnow due to gradient and channel 

morphology. All stream segments 

contain suitable habitat for all life stages 

of spikedace and loach minnow (PCE 1); 

have an appropriate food base (PCE 2); 

consist of perennial streams with no or 

low levels of pollutants (PCEs 3 and 4); 

and have an appropriate hydrologic 

regime to maintain suitable habitat 

characteristics (PCE 6). 

Spikedace and loach minnow on the 

Gila River mainstem occur primarily on 

Federal lands managed by the BLM and 

the Gila National Forest, interspersed 

with private and State lands (NMDGF at 

Heart Bar Wildlife Area). The essential 

features in the Gila River may require 

special management considerations or 

protection due to residual impacts of 

past livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; competition with and predation 

by nonnative aquatic species; road 

construction and maintenance; water 

diversions; recreation; and moderate 

drought (University of Nebraska-Lincoln 

2011, p. 1). 

Approximately 11.5 km (7.2 mi) of 

streams on the Gila River mainstem 

within this unit are owned and managed 

by FMC. This area has been excluded 

from the final critical habitat 

designations under section 4(b)(2) of the 

Act (see ‘‘Application of Section 4(b)(2) 

of the Act’’ section below for additional 

information). 

The West Fork Gila River occurs 

primarily on a mix of Federal lands on 

the Gila National Forest, the National 

Park Service, and private lands. The 

essential features in this stream may 

require special management 

considerations or protection due to 

competition with and predation by 

nonnative aquatic species, road 

construction and maintenance, 

watershed impacts associated with past 

wildfires, and moderate drought 

(University of Nebraska-Lincoln 2011, 

p. 1). 

The East Fork Gila River occurs 

primarily on Federal lands on the Gila 

National Forest, with small parcels of 

private lands interspersed. The essential 

features in this stream may require 

special management considerations or 

protection due to residual impacts of 

past livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; competition with and predation 

by nonnative aquatic species; watershed 

impacts associated with past wildfires 

(University of Nebraska-Lincoln 2011, 

p. 1). 

We are including within these 

designations 1.2 km (0.8 mi) of Mangas 

Creek for both species from the 

confluence with the Gila River upstream 

to the confluence with Willow Creek. 

Mangas Creek is currently occupied by 

spikedace and loach minnow (NMDGF 

2008). Mangas Creek contains suitable 

habitat for all life stages of spikedace 

and loach minnow (PCE 1); has an 

appropriate food base (PCE 2); and has 

an appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). 

Approximately 7.9 km (4.9 mi) on 

Mangas Creek within this unit are on 

lands owned and managed by FMC. 

These areas have been excluded from 

the final critical habitat designations 

under section 4(b)(2) of the Act (see 

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

Act’’ section below for additional 

information). 

Spikedace and loach minnow on 

Mangas Creek occur primarily on 

private lands, with small portions 

occurring on lands managed by the 

BLM. The essential features in Mangas 

Creek may require special management 

considerations or protection due to 

residual impacts of past livestock 

grazing and impacts to uplands, riparian 

vegetation, and the stream; impaired 

water quality due to high organic matter 

and excessive algal growth likely caused 

by resource extraction (mining), loss of 

riparian habitat, wildlife use of the area, 

municipal discharges, recreation and 

tourism, agriculture (livestock grazing) 

(EPA 2002, pp. 4–12; EPA 2004; EPA 

2010, p. 1) and moderate drought 

(University of Nebraska-Lincoln 2011, 

p. 1). 

Spikedace Only. We are including 

within the designation 12.5 km (7.7 mi) 

of the Middle Fork Gila River extending 

from the confluence with West Fork 

Gila River upstream to the confluence 

with Big Bear Canyon. This area is 

currently occupied by spikedace and is 

connected to currently occupied habitat 

on the West Fork of the Gila River 

(NMDGF 2008; Propst et al. 2009, pp. 9– 

11). The Gila River contains suitable 

habitat for all life stages of spikedace 

(PCE 1); has an appropriate food base 

(PCE 2); consists of perennial streams 

with no or low pollutant issues (PCEs 3 

and 4); and has an appropriate 

hydrologic regime to maintain suitable 

habitat characteristics (PCE 6). This area 

is considered essential to the survival 

and recovery of the species because of 

its historical and current occupancy and 

multiple PCEs. In addition, the Middle 

Fork Gila River is connected to habitat 

occupied by spikedace on the West Fork 

Gila River. The Middle Fork Gila River 

occurs primarily on Federal lands 

managed by the Gila National Forest, 

with small parcels of private lands 

interspersed with Federal lands. The 

essential features in this stream may 

require special management 

considerations or protection due to 

residual impacts of past livestock 

grazing and impacts to uplands, riparian 

vegetation, and the stream; competition 

with and predation by nonnative 

aquatic species; watershed impacts 

associated with past wildfires; and 

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10852 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

moderate drought (University of 

Nebraska-Lincoln 2011, p. 1). 

Loach Minnow Only. In addition to 

the areas described above for this unit, 

we are including within the designation 

19.1 km (11.9 mi) of the Middle Fork 

Gila River extending from the 

confluence with West Fork Gila River 

upstream to the confluence with 

Brothers West Canyon. The 12.5 km (7.7 

mi) designated on the Middle Fork Gila 

River for spikedace is completely within 

this 19.1 km (11.9 mi). This area is 

currently occupied by loach minnow 

(NMDGF 2008; Propst et al. 2009, 

pp. 9–11). 

The Middle Fork Gila River contains 

suitable habitat for all life stages of 

loach minnow (PCE 1); has an 

appropriate food base (PCE 2); consists 

of perennial flows with no or low levels 

of pollutants (PCEs 3 and 4); and has an 

appropriate hydrologic regime to 

maintain suitable habitat characteristics 

(PCE 6). This area is considered 

essential to the survival and recovery of 

loach minnow due to its historical and 

current occupancy, its multiple PCEs, 

and its connection to the West Fork of 

the Gila River, which is currently 

occupied by loach minnow. See the 

description above, describing the 

designation along the West and Middle 

Forks of the Gila River for spikedace for 

details on land ownership and special 

management needs. 

We are including within this 

designation 31.4 km (19.5 mi) of Bear 

Creek from its confluence with the Gila 

River upstream to the confluence with 

Sycamore Creek and North Fork Walnut 

Creek. Loach minnow were first found 

in Bear Creek in 2005 and again in 2006 

(Schiffmiller 2005, pp. 1–4; NMDGF 

2008). Bear Creek is classified as 

perennial interrupted, with stream 

segments that may dry up seasonally, 

depending on weather events (USFS 

2010). While it was initially believed 

that loach minnow detected in 2005 

came from the Gila River during a 

period when the upstream, perennial 

section was temporarily connected to 

the Gila River, further discussions with 

biologists familiar with the stream, a 

review of the loach minnow records, 

and reconsideration of the species 

biology make this seem unlikely. The 

location of the loach minnow detections 

on Bear Creek was approximately 18 

miles upstream of the Gila River 

confluence. We believe it is unlikely 

that loach minnow were able to swim 

upstream 18 miles during a high flow 

event to become established in this 

location. Nearby Dorsey Spring 

maintains perennial flows in the section 

of river in which the loach minnow are 

found, and we believe it is more likely 

that loach minnow persist in this area 

of perennial flows. 

Portions of Bear Creek contain 

suitable habitat for all life stages of 

loach minnow (PCE 1); have an 

appropriate food base (PCE 2); consist of 

perennial flows with no or low levels of 

pollutants (PCEs 3 and 4); have no 

nonnative aquatic species, or levels of 

nonnative aquatic species that are 

sufficiently low to allow persistence of 

spikedace and loach minnow (PCE 5); 

and have an appropriate hydrologic 

regime to maintain suitable habitat 

characteristics (PCE 6). The essential 

features in this stream may require 

special management considerations or 

protection due to some residual impacts 

of past livestock grazing and impacts to 

uplands, riparian vegetation, and the 

stream; and moderate drought 

(University of Nebraska-Lincoln 2011, 

p. 1). 

Approximately .9 km (1.2 mi) on Bear 

Creek within this unit are on lands 

owned and managed by FMC. These 

areas have been excluded from the final 

critical habitat designations under 

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

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

Act’’ section below for additional 

information). 

TABLE 8—STREAM SEGMENTS CONSIDERED IN THESE CRITICAL HABITAT DESIGNATIONS AND THE CRITERIA UNDER

WHICH THEY ARE IDENTIFIED

Stream 

Occupied by 

spikedace at the time 

of listing or at any 

time thereafter/rule 

criteria met 

Occupied by loach 

minnow at the time of 

listing or at any time 

thereafter/rule criteria 

met * 

Unit 1—Verde River Subbasin 

Verde River ...................................................................................................................................... Yes/1a ....................... No/2b. 

Granite Creek .................................................................................................................................. No/2a ......................... No/2b. 

Oak Creek ........................................................................................................................................ No/2a ......................... No/2b. 

Beaver and Wet Beaver Creek ....................................................................................................... No/2a ......................... No/2b. 

West Clear Creek ............................................................................................................................ No/2a ......................... Not applicable. 

Fossil Creek ..................................................................................................................................... No/2a ......................... No/2b. 

Unit 2—Salt River Subbasin 

Salt River ......................................................................................................................................... No/ ............................. Not applicable. 

Tonto Creek ..................................................................................................................................... No/2b ......................... Not applicable. 

Greenback Creek ............................................................................................................................. No/2b ......................... Not applicable. 

Rye Creek ........................................................................................................................................ No/2b ......................... Not applicable. 

Spring Creek .................................................................................................................................... No/2b ......................... Not applicable. 

Rock Creek ...................................................................................................................................... No/2b ......................... Not applicable. 

White River ...................................................................................................................................... Not Applicable ........... Yes/1a. 

East Fork White River ..................................................................................................................... Not Applicable ........... Yes/1a. 

East Fork Black River ...................................................................................................................... Not applicable ........... No/2a. 

North Fork East Fork Black River ................................................................................................... Not applicable ........... Yes/1a. 

Boneyard Creek ............................................................................................................................... Not applicable ........... Yes/1a. 

Coyote Creek ................................................................................................................................... Not applicable ........... No/2a. 

Unit 3—San Pedro River Subbasin 

San Pedro River .............................................................................................................................. No/2b ......................... No/2b. 

Hot Springs Canyon ........................................................................................................................ No/2a ......................... No/2a. 

Bass Canyon ................................................................................................................................... No/2a ......................... No/2a. 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10853 

TABLE 8—STREAM SEGMENTS CONSIDERED IN THESE CRITICAL HABITAT DESIGNATIONS AND THE CRITERIA UNDER

WHICH THEY ARE IDENTIFIED—Continued 

Stream 

Occupied by 

spikedace at the time 

of listing or at any 

time thereafter/rule 

criteria met 

Occupied by loach 

minnow at the time of 

listing or at any time 

thereafter/rule criteria 

met * 

Redfield Canyon .............................................................................................................................. No/2a ......................... No/2a. 

Aravaipa Creek ................................................................................................................................ Yes/1a ....................... Yes/1a. 

Deer Creek ...................................................................................................................................... No/2a ......................... Yes/1a. 

Turkey Creek ................................................................................................................................... No/2a ......................... Yes/1a. 

Unit 4—Bonita Creek Subbasin 

Bonita Creek .................................................................................................................................... No/2b ......................... No/2b. 

Unit 5—Eagle Creek Subbasin 

Eagle Creek ..................................................................................................................................... Yes/1a ....................... Yes1a. 

Unit 6—San Francisco River Subbasin 

San Francisco River ........................................................................................................................ No/2b ......................... Yes/1a. 

Tularosa River ................................................................................................................................. Not applicable ........... Yes/1a. 

Negrito Creek ................................................................................................................................... Not applicable ........... Yes/1a. 

Whitewater Creek ............................................................................................................................ Not applicable ........... Yes/1a. 

Unit 7—Blue River Subbasin 

Blue River ........................................................................................................................................ No/2b ......................... Yes/1a. 

Campbell Blue Creek ....................................................................................................................... No/2b ......................... Yes/1a 

Little Blue Creek .............................................................................................................................. No/2b ......................... Yes/1a. 

Pace Creek ...................................................................................................................................... No/2b ......................... Yes/1a 

Frieborn Creek ................................................................................................................................. No/2b ......................... Yes/1a. 

Dry Blue Creek ................................................................................................................................ No/2b ......................... Yes/1a. 

Unit 8—Gila River Subbasin 

Gila River ......................................................................................................................................... Yes/1a ....................... Yes/1a. 

West Fork Gila River ....................................................................................................................... Yes/1a ....................... Yes/1a. 

Middle Fork Gila River ..................................................................................................................... Yes/1a ....................... Yes/1a. 

East Fork Gila River ........................................................................................................................ Yes/1a ....................... Yes/1a. 

Mangas Creek ................................................................................................................................. Yes/1a ....................... Yes/1a. 

Bear Creek ....................................................................................................................................... Not Applicable ........... Yes/1a. 

Effects of Critical Habitat Designations 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

Decisions by the 5th and 9th Circuit 

Courts of Appeals have invalidated our 

regulatory definition of ‘‘destruction or 

adverse modification’’ (50 CFR 402.02) 

(see Gifford Pinchot Task Force v. U.S. 

Fish and Wildlife Service, 378 F. 3d 

1059 (9th Cir. 2004) and Sierra Club v. 

U.S. Fish and Wildlife Service et al., 245 

F.3d 434, 442 (5th Cir. 2001)), and we 

do not rely on this regulatory definition 

when analyzing whether an action is 

likely to destroy or adversely modify 

critical habitat. Under the statutory 

provisions of the Act, we determine 

destruction or adverse modification on 

the basis of whether, with 

implementation of the proposed Federal 

action, the affected critical habitat 

would continue to serve its intended 

conservation role for the species. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat, and actions 

on State, tribal, local, or private lands 

that are not federally funded or 

authorized, do not require section 7 

consultation. 

As a result of section 7 consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, or are likely to 

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10854 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Director’s opinion, 

avoid the likelihood of jeopardizing the 

continued existence of the listed species 

and/or avoid the likelihood of 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies sometimes may need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that appreciably reduces the 

conservation value of critical habitat for 

spikedace and loach minnow. As 

discussed above, the role of critical 

habitat is to support life-history needs of 

the species and provide for the 

conservation of the species. 

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

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Examples of activities that, when 

authorized, funded, or carried out by a 

Federal agency, may affect critical 

habitat and therefore should result in 

consultation for the spikedace and loach 

minnow include, but are not limited to: 

(1) Actions that would significantly 

diminish flows within the active stream 

channel. Such activities could include, 

but are not limited to: Water diversions; 

channelization; construction of any 

barriers or impediments within the 

active river channel; removal of flows in 

excess of those allotted under a given 

water right; construction of permanent 

or temporary diversion structures; and 

groundwater pumping within aquifers 

associated with the river. These actions 

could affect water depth, velocity, and 

flow pattern, all of which are essential 

to the different life stages of spikedace 

or loach minnow. 

(2) Actions that significantly alter the 

water chemistry of the active channel. 

Such activities could include, but are 

not limited to: Release of chemicals, 

biological pollutants, or other 

substances into the surface water or 

connected groundwater at a point 

source or by dispersed release (nonpoint 

source); and storage of chemicals or 

pollutants that can be transmitted, via 

surface water, groundwater, or air into 

critical habitat. These actions can affect 

water chemistry, and in turn the prey 

base of spikedace and loach minnow. 

(3) Actions that would significantly 

increase sediment deposition within a 

stream channel. Such activities could 

include, but are not limited to: 

Excessive sedimentation from improper 

livestock grazing; road construction; 

commercial or urban development; 

channel alteration; timber harvest; ORV 

use; recreational use; or other watershed 

and floodplain disturbances. These 

activities could adversely affect 

reproduction of the species by 

preventing hatching of eggs, or by 

eliminating suitable habitat for egg 

placement by loach minnow. In 

addition, excessive levels of 

sedimentation can make it difficult for 

these species to locate prey. 

(4) Actions that could result in the 

introduction, spread, or augmentation of 

aquatic species in occupied stream 

segments, or in stream segments that are 

hydrologically connected to occupied 

stream segments, even if those segments 

are occasionally intermittent, or 

introduction of other species that 

compete with or prey on spikedace or 

loach minnow. Possible actions could 

include, but are not limited to: 

Introduction of parasites or disease; 

stocking of nonnative fishes; stocking of 

sport fish (whether native or nonnative); 

stocking of nonnative amphibians or 

other nonnative taxa; or other related 

actions. These activities can affect the 

growth, reproduction, and survival of 

spikedace and loach minnow. 

(5) Actions that would significantly 

alter channel morphology. Such 

activities could include, but are not 

limited to: Channelization, 

impoundment, road and bridge 

construction, mining, dredging, and 

destruction of riparian vegetation. These 

activities may lead to changes in water 

flows and levels that would eliminate 

the spikedace or loach minnow, degrade 

their habitats, or both. These actions can 

also lead to increased sedimentation 

and degradation in water quality to 

levels that are beyond the tolerances of 

spikedace and loach minnow. 

Exemptions 

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

The Sikes Act Improvement 

Amendment of 1997 (Sikes Act) (16 

U.S.C. 670a) required each military 

installation that includes land and water 

suitable for the conservation and 

management of natural resources to 

complete an integrated natural resource 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

(1) An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

(2) A statement of goals and priorities; 

(3) A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

(4) A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

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restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the critical habitat designations for 

either species. Therefore, we are not 

exempting lands from these final 

designations of critical habitat for 

spikedace or loach minnow pursuant to 

section 4(a)(3)(B)(i) of the Act. 

Exclusions 

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

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

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

In considering whether to exclude a 

particular area from the designations, 

we identify the benefits of including the 

area in the designations, identify the 

benefits of excluding the area from the 

designations, and evaluate whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If the analysis 

indicates that the benefits of exclusion 

outweigh the benefits of inclusion, the 

Secretary may exercise his discretion to 

exclude the area only if such exclusion 

would not result in the extinction of the 

species. 

When identifying the benefits of 

inclusion for an area, we consider the 

additional regulatory benefits that area 

would receive from the protection from 

adverse modification or destruction as a 

result of actions with a Federal nexus; 

the educational benefits of mapping 

essential habitat for recovery of the 

listed species; and any benefits that may 

result from a designation due to State or 

Federal laws that may apply to critical 

habitat. 

When identifying the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation; 

the continuation, strengthening, or 

encouragement of partnerships; or 

implementation of a management plan 

that provides equal to or more 

conservation than a critical habitat 

designation would provide, forego 

disproportionate economic impacts 

resulting from the designation of critical 

habitat, or avoid potential conflicts with 

national security issues. 

After evaluating the benefits of 

inclusion and the benefits of exclusion, 

we carefully weigh the two sides to 

determine whether the benefits of 

exclusion outweigh those of inclusion. 

If our analysis indicates that the benefits 

of exclusion outweigh the benefits of 

inclusion, we then determine whether 

exclusion would result in extinction. If 

exclusion of an area from critical habitat 

will result in extinction, we will not 

exclude it from the designations. 

Based on the information provided by 

entities seeking exclusion, as well as 

any additional public comments 

received, we evaluated whether certain 

lands in the critical habitat in Units 1, 

2, 3, 5, and 8 were appropriate for 

exclusion from these final designations 

pursuant to section 4(b)(2) of the Act. As 

discussed in detail below, the Secretary 

is exercising his discretion to exclude 

the following areas from critical habitat 

designations for both spikedace and 

loach minnow: 

(1) The San Pedro River in its entirety 

within Unit 3 of the designations; 

(2) Those portions of the Verde River 

and Beaver and Wet Beaver Creeks in 

Unit 1 occurring within the boundaries 

of the Yavapai-Apache Nation and 

subject to the provisions of Tribal 

Resolution 46–2006; 

(3) Those portions of the mainstem 

White River and East Fork White River 

within the boundaries of the White 

Mountain Apache Tribe and subject to 

the provisions of the Loach Minnow 

Management Plan; 

(4) Those portions of Eagle Creek in 

Unit 5 that are within the boundaries of 

the San Carlos Apache Nation and 

subject to the provisions of their FMP; 

(5) Those portions of the mainstem 

Eagle Creek and the San Francisco River 

that are owned by FMC or their 

subsidiaries; and 

(6) Those portions of the Gila River, 

Mangas Creek, or Bear Creek that are 

owned by FMC or their subsidiaries. 

The Secretary is also exercising his 

discretion to exclude the areas because 

we determined the following: 

(1) Their value for conservation will 

be preserved for the foreseeable future 

by existing protective actions, or 

(2) The benefit of excluding them 

under the ‘‘other relevant factor’’ 

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

outweighs the benefit of including them 

in critical habitat. 

Table 9 below provides approximate 

length of streams that meet the 

definition of critical habitat but are 

excluded under section 4(b)(2) of the 

Act from the final critical habitat rule. 

Table 9 also provides our reasons for the 

exemptions and exclusions. 

TABLE 9—EXCLUSIONS AND AREAS CONSIDERED FOR EXCLUSION FROM DESIGNATION OF CRITICAL HABITAT FOR LOACH

MINNOW AND SPIKEDACE BY CRITICAL HABITAT UNIT

Unit Specific area Basis for 

exclusion 

Areas meeting the definition 

of critical habitat in kilometers 

(miles) 

Areas excluded in kilometers 

(miles) 

1 ................... Verde River and Beaver and 

Wet Beaver Creeks on 

Yavapai-Apache Nation 

lands.

Yavapai-Apache Nation Tribal 

Resolution 46–2006; Tribal 

Sovereignty; Working Relationship with the YavapaiApache Nation.

1.2 km (0.8 mi) of the Verde 

River and 0.2 km (0.1 mi) of 

Beaver Creek and Wet 

Beaver Creek.

1.2 km (0.8 mi) of the Verde 

River and 0.2 km (0.1 mi) of 

Beaver Creek and Wet 

Beaver Creek. 

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TABLE 9—EXCLUSIONS AND AREAS CONSIDERED FOR EXCLUSION FROM DESIGNATION OF CRITICAL HABITAT FOR LOACH

MINNOW AND SPIKEDACE BY CRITICAL HABITAT UNIT—Continued 

Unit Specific area Basis for 

exclusion 

Areas meeting the definition 

of critical habitat in kilometers 

(miles) 

Areas excluded in kilometers 

(miles) 

2 ................... Mainstem White River and 

East Fork White River.

Loach Minnow Management 

Plan; Tribal Sovereignty; 

Working Relationship with 

the White Mountain Apache 

Tribe.

29.0 km (18.0 mi) of the 

White River and 17.2 km 

(10.7 mi) of the East Fork 

White River.

29.0 km (18.0 mi) of the 

White River and 17.2 km 

(10.7 mi) of the East Fork 

White River. 

3 ................... San Pedro River ..................... National Security .................... 59.8 km (37.2 mi) of the San 

Pedro River.

59.8 km (37.2 mi) of the San 

Pedro River. 

5 ................... Eagle Creek ............................ San Carlos Apache Tribe 

Fisheries Management 

Plan; Tribal Sovereignty; 

Working Relationship with 

the San Carlos Apache 

Tribe.

75.5 km (46.9 mi) of Eagle 

Creek.

27.5 km (17.1 mi) of Eagle 

Creek on the San Carlos 

Apache Reservation. 

5 ................... Eagle Creek ............................ FMC Spikedace and Loach 

Minnow Management Plan 

Eagle Creek and San Francisco River Greenlee and 

Graham County, Arizona.

75.5 km (46.9 mi) of Eagle 

Creek.

Approximately 21.4 km (13.3 

mi) of Eagle Creek owned 

by FMC or its subsidiaries. 

5 ................... San Francisco River ............... FMC Spikedace and Loach 

Minnow Management Plan 

Eagle Creek and San Francisco River Greenlee and 

Graham County, Arizona.

203.6 km (126.5 mi of the 

San Francisco River for 

loach minnow; 180.7 km 

(112.3 mi) of the San Francisco River for spikedace.

14.1 km (8.8 mi) of the San 

Francisco River owned by 

FMC or its subsidiaries. 

8 ................... Gila River ................................ FMC Spikedace and Loach 

Minnow Management Plan 

Upper Gila River, Including 

Bear Creek and Mangas 

Creek Grant County, New 

Mexico.

165.1 km (102.6 mi) of the 

Gila River.

12.9 km (7.2 mi) of the Gila 

River owned by FMC or its 

subsidiaries. 

8 ................... Bear Creek ............................. FMC Spikedace and Loach 

Minnow Management Plan 

Upper Gila River, Including 

Bear Creek and Mangas 

Creek Grant County, New 

Mexico.

31.4 km (19.5 mi) of Bear 

Creek.

1.9 km (1.2 mi) of Bear Creek 

owned by FMC or its subsidiaries. 

8 ................... Mangas Creek ........................ FMC Spikedace and Loach 

Minnow Management Plan 

Upper Gila River, Including 

Bear Creek and Mangas 

Creek Grant County, New 

Mexico.

9.1 km (5.7 mi) of Mangas 

Creek.

7.9 km (4.9 mi) of Mangas 

Creek owned by Freeport 

McMoRan or its subsidiaries. 

Exclusions Based on Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we prepared a draft economic 

analysis of the critical habitat 

designations and related factors (IEc. 

2011). The draft analysis, dated July 6, 

2011, was made available for public 

review from October 4, 2011, through 

November 3, 2011 (76 FR 61330). 

Following the close of the comment 

period, a final analysis (dated January 

24, 2012) of the potential economic 

effects of the designations was 

developed taking into consideration the 

public comments and any new 

information (IEc 2012). 

The intent of the final economic 

analysis (FEA) is to quantify the 

economic impacts of all potential 

conservation efforts for spikedace and 

loach minnow; some of these costs will 

likely be incurred regardless of whether 

we designate critical habitat (baseline). 

The economic impact of the final 

critical habitat designations is analyzed 

by comparing scenarios both ‘‘with 

critical habitat’’ and ‘‘without critical 

habitat.’’ The ‘‘without critical habitat’’ 

scenario represents the baseline for the 

analysis, considering protections 

already in place for the species (e.g., 

under the Federal listing and other 

Federal, State, and local regulations). 

The baseline, therefore, represents the 

costs incurred regardless of whether 

critical habitat is designated. The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designations of 

critical habitat for the species. The 

incremental conservation efforts and 

associated impacts are those not 

expected to occur absent the 

designations of critical habitat for the 

species. In other words, the incremental 

costs are those attributable solely to the 

designations of critical habitat above 

and beyond the baseline costs; these are 

the costs we consider in the final 

designations of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since the 

species was listed, and forecasts both 

baseline and incremental impacts likely 

to occur with the designations of critical 

habitat. 

While we think that the incremental 

effects approach is appropriate and 

meets the intent of the Act, we have 

taken a conservative approach in this 

instance to ensure that we are fully 

evaluating the probable effects of this 

designation. Given that we do not have 

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a new definition of ‘‘destruction or 

adverse modification,’’ there may be 

certain circumstances where we may 

want to evaluate impacts beyond those 

that are solely incremental. Such is the 

case with spikedace and loach minnow, 

where we have extensive case law and 

determinations of effects that suggest we 

gather information concerning not only 

incremental effects, but also coextensive 

effects. 

The FEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. Decision-makers can use 

this information to assess whether the 

effects of the designations might unduly 

burden a particular group or economic 

sector. Finally, the FEA considers those 

costs that may occur in the 20 years 

following the designation of critical 

habitat, which was determined to be the 

appropriate period for analysis based on 

the data available during the analysis. 

The FEA quantifies economic impacts of 

spikedace and loach minnow 

conservation efforts associated with the 

following categories of activity: Water 

use and management; livestock grazing; 

recreation; species management; 

residential and commercial 

development; transportation, fire 

management; and Tribal lands. 

The FEA estimates that no significant 

economic impacts are likely to result 

from the designation of critical habitat. 

Quantified incremental impacts are 

estimated to be $2.95 million to $6.7 

million over 20 years ($261,000 to 

$592,000 annually) using a discount rate 

of seven percent. The San Pedro River 

Unit, is anticipated to bear the highest 

incremental costs in both the low and 

high end scenarios. Quantified 

incremental costs are related to an 

anticipated large and costly consultation 

at Fort Huachuca Military Reservation, 

as well as annual monitoring costs on 

the San Pedro River of $100,000 to 

$200,000 annually. It should be noted 

that the San Pedro River has been 

excluded under section 4(b)(2) of the 

Act and is not part of the final 

designation, due to national security 

impacts at Fort Huachuca. The next 

largest quantified incremental impacts 

are expected in the Gila River unit 

primarily related to anticipated costs 

related to riparian fencing construction. 

In conclusion, there is not significant 

economic impact are likely to be a result 

from the designation of critical habitat 

for these two species. As a result, the 

Secretary is not exercising his discretion 

to exclude any particular area from the 

final designation based on a 

disproportionate economic impact to 

any entity or sector. A copy of the FEA 

with supporting documents may be 

obtained by contacting the Arizona 

Ecological Services Field Office (see 

ADDRESSES) or by downloading from the 

Internet at http://www.regulations.gov 

or at http://www.fws.gov/southwest/es/ 

arizona/. 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense (DOD) where a national security 

impact might exist. In preparing these 

designations, we determined that the 

lands within the designations of critical 

habitat for spikedace and loach minnow 

are not owned or managed by the DOD. 

A nexus exists, however, between 

critical habitat in the San Pedro River in 

Subunit 3 and groundwater pumping by 

the United States Army Garrison Fort 

Huachuca (Fort Huachuca) in Cochise 

County, Arizona. An additional nexus is 

created by the geographic areas not 

owned but designated for use by Fort 

Huachuca. Because of this, and in 

response to comments received from 

Fort Huachuca, we completed a 

balancing analysis of the benefits of 

inclusion and the benefits of exclusion 

of lands in the San Pedro River in 

Subunit 3. 

Fort Huachuca 

Fort Huachuca is located in Cochise 

County, Arizona, approximately 15 

miles north of the international border 

with Mexico. While the area designated 

as Fort Huachuca itself does not occur 

along the San Pedro River, Fort 

Huachuca officials indicated in their 

comment letter that there are geographic 

areas designated for Department of 

Defense (DOD) use including the Buffalo 

Soldier Electronic Test Range (BSETR), 

R–2303 restricted airspace, and 

groundwater resources in a regional 

aquifer of the Sierra Vista Subwatershed 

of the San Pedro River that are all 

located within critical habitat in Unit 3. 

The BSETR covers approximately 10.5 

square kilometers (4.1 square miles), 

with 10.1 square kilometers (3.9 square 

miles) off-post and encompassing the 

entire 60 km (30.7 mi) of the critical 

habitat proposed along the San Pedro. 

Their R–2303 restricted airspace covers 

3.9 square kilometers (1.5 square miles), 

with 3.4 square kilometers (1.3 square 

miles) off-post and nearly totally 

encompassing the critical habitat along 

the San Pedro River. 

Fort Huachuca notes that the Army 

and Joint Military testing community is 

co-located at Fort Huachuca because of 

the BSETR and the unique 

environmental setting in which it 

occurs, which allows for specialized 

electronic testing. According to Fort 

Huachuca, the BSETR and R–2303 

restricted airspace are vital resources to 

national security that are not duplicated 

elsewhere within the United States. For 

the BSETR, Fort Huachuca notes that 

‘‘the metal-bearing mountain ranges on 

the Fort create conditions conducive to 

testing and that these conditions are not 

replicated anywhere else in the United 

States with the only other known 

location in the world in the outback of 

Australia (Fort Huachuca 2011).’’ With 

respect to the R–2303 restricted 

airspace, Fort Huachuca notes that the 

special restricted airspace that extends 

downward to the ground surface is 

critical for the training of Unmanned 

Aerial Systems operators for the Army, 

Marines, National Guard, and 

Department of Homeland Security. Fort 

Huachuca notes that this type of 

restricted airspace, which extends to the 

ground surface, is not duplicated 

anywhere else in the United States, and 

that this is one of the only Military 

Restricted Airspace complexes in the 

country: (1) Whose activation has no 

impact on commercial air traffic 

corridors; and (2) allows for unmanned 

aircraft to have priority over manned 

aircraft for testing, training, and border 

security. Fort Huachuca cites several 

other examples of the importance of 

their activities to national security; 

however, the BSETR and the unique 

environmental settings in which it 

occurs, as well as the R–2303 restricted 

airspace, were of greatest concerns in 

this evaluation due to lack of duplicate 

conditions elsewhere in the United 

States. 

To carry out these missions, Fort 

Huachuca pumps groundwater to serve 

its on-base military and civilian 

population. Fort Huachuca’s pumping 

results in both removal of groundwater 

from storage in the regional aquifer and 

the capture of water from discharge. 

Groundwater in storage is that which 

resides in an aquifer. Such stored water 

may be discharging to a spring or 

waterway. Water withdrawn from the 

ground by wells initially derives 

exclusively from storage. As pumping 

continues, increasing proportions of 

water are derived from the capture of 

discharge, and decreasing proportions 

are derived from storage. In other words, 

ground water wells are withdrawing not 

only water residing in the aquifer, but 

also water that was otherwise destined 

to become the surface flow of a stream 

or be available to sustain riparian 

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vegetation. If water withdrawal 

continues unmitigated, it will 

eventually deplete storage, reverse the 

flow direction of groundwater, and 

capture (dewater) the stream itself. 

Deprivation of the base flow of the San 

Pedro River could eventually cause 

perennial reaches to become 

intermittent or ephemeral. While these 

portions of the San Pedro River are not 

currently occupied by either species, 

such a change in the hydrologic regime 

of the San Pedro River, depending upon 

the reach in which it occurred, may not 

allow the San Pedro River to facilitate 

the expansion of the geographic 

distribution of spikedace and loach 

minnow in areas not occupied at the 

time of listing. Expansion within the 

geographic historic range of the species 

is important to the conservation of the 

species, as identified in the ruleset for 

‘‘2b’’ areas. 

The potential impacts of groundwater 

pumping by Fort Huachuca on several 

threatened and endangered species are 

described in detail in a 2007 section 7 

biological opinion (Service 2007; 

Service 2002b and Service 2002c). This 

opinion also details the actions taken by 

Fort Huachuca to minimize the effects 

of their groundwater pumping. These 

actions are numerous, and include 

fixture upgrades (i.e., replacement of 

high water use plumbing fixtures with 

low water use fixtures), facility 

infrastructure removal/consolidation 

(i.e., demolition of facilities), aggressive 

leak detection and repair, water 

conservation education, and 

implementation of a strict landscape 

watering policy in military family 

housing. Fort Huachuca has also 

undertaken groundwater recharge, 

acquisition of conservation easements to 

reduce future developments, mitigation 

for increases in personnel, participation 

in and providing funding to the Upper 

San Pedro Partnership (USPP), and 

development of a strategic plan for 

water mitigation. 

According to the biological opinion, 

costs to Fort Huachuca for this work are 

considerable. As noted in the biological 

opinion, Fort Huachuca typically 

invests $3.3 to $5.5 million per year in 

environmental, natural resources, and 

cultural projects. From 1997 through 

2006, Fort Huachuca spent over $42 

million in those categories exclusive of 

the $12 million spent for large 

construction (effluent recharge and 

extension of an effluent distribution 

system) projects. The biological opinion 

notes that recently, funding emphasis 

has shifted toward management of 

threatened and endangered species, and 

Fort Huachuca spent an estimated 

$10 million in a 4-year period for 

conservation work. 

The biological opinion addressed 

potential impacts of actions taken by 

Fort Huachuca on Huachuca water 

umbel (Lilaeopsis schaffneriana var. 

recurva) with critical habitat, 

southwestern willow flycatcher 

(Empidonax traillii extimus) with 

critical habitat, Mexican spotted owl 

(Strix occidentalis lucida), lesser longnosed bat (Leptonycteris curasoae 

yerbabuenae), Sonora tiger salamander 

(Ambystoma tigrinum stebbinsi), 

Huachuca springsnail (Pyrgulopsis 

thompsoni), Ramsey Canyon leopard 

frog (Rana subaquavocalis), Canelo 

Hills ladies’ tresses (Spiranthes 

delitescens); bald eagle, (Haliaeetus 

leucocephalus); jaguar (Panthera onca); 

spikedace with critical habitat; Gila 

topminnow (Poeciliopsis occidentalis 

occidentalis), and desert pupfish 

(Cyprinodon macularius). With respect 

to the critical habitat designation, Fort 

Huachuca notes they already completely 

offset groundwater pumping associated 

with on-post groundwater use, and are 

required to mitigate an additional 1,000 

acre feet of groundwater use due to offpost groundwater usage at an estimated 

cost of $20,000 to $40,000 per acre foot, 

or a total cost of $20 million to $40 

million. Fort Huachuca further notes 

that the completed biological opinion 

allows for up to 16,000 employees, 

which limits their flexibility with 

respect to DOD’s needs to ‘‘* * * bring 

additional high priority, high visibility 

missions to the fort (Fort Huachuca 

2011, p. 11)’’. They conclude that any 

additional restrictions placed on them 

have a strong probability of impacting 

the missions currently present at Fort 

Huachuca as well as DOD’s flexibility to 

respond to changing requirements in 

theater and to protect the lives of 

military personnel (Fort Huachuca 2011, 

p. 11). 

In a 2011 court decision (See Center 

for Biological Diversity et al. v. Salazar 

et al. 4:07-cv-00484–AWT), United 

States District Court, District of 

Arizona), the completed biological 

opinion was deemed inadequate in 

addressing recovery of the Huachuca 

water umbel and the Southwestern 

willow flycatcher, among other factors, 

and Fort Huachuca will be required to 

reconsult with the Service. 

Benefits of Inclusion—Fort Huachuca 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. Federal agencies must also 

consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects of 

a proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The jeopardy analysis 

evaluates the action’s impact to survival 

and recovery of the species, while the 

destruction or adverse modification 

analysis evaluates the action’s effects to 

the designated habitat’s contribution to 

conservation. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

However, for some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often also result in effects 

to the species. In the case of spikedace 

and loach minnow in the San Pedro 

River, consultation would occur strictly 

based on critical habitat as the species 

are absent from this stream. Therefore, 

this principal benefit of section 7 

consultation under the Act would be a 

benefit of inclusion of the San Pedro 

within the designation. BLM manages 

50.6 km (31.4 mi), or 84 percent, of the 

land along the portion of the San Pedro 

River included within the designation, 

so actions taken by them or on their 

lands would likely result in section 7 

consultation for any potential effects to 

critical habitat for spikedace or loach 

minnow. 

An additional benefit of including 

portions of the San Pedro River within 

the critical habitat designation for 

spikedace and loach minnow is that it 

provides an additional 59.8 km (37.2 

mi) of critical habitat within the 

southeastern portion of their historical 

range. The San Pedro River has 

collection records for both species that 

begins in the 1840s and spans more than 

120 years. We categorized the San Pedro 

River as a 2a stream in this rule, as it 

was not identified as occupied at listing 

by either species, but has the features 

essential to the conservation for 

spikedace and loach minnow and would 

serve as an extension of occupied 

habitat in Aravaipa Creek within Unit 3. 

Public education is often cited as 

another possible benefit of including 

lands in critical habitat as it may help 

focus conservation efforts on areas of 

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high value for certain species. A critical 

habitat designation can inform the 

public about the Act, listed species, 

their habitat needs, and conservation. 

Only 9.2 km (5.7 mi), or 16 percent, of 

the portion of the San Pedro within the 

designation are on private lands; 

however, because this area is indirectly 

tied to Fort Huachuca, and Fort 

Huachuca can have a staff of up to 

16,000 individuals and interacts with 

other management groups through the 

Upper San Pedro Partnership, the 

educational benefits may be expanded 

beyond private landowners immediately 

adjacent to the stream. 

The designation of critical habitat 

may strengthen or reinforce some 

Federal laws, such as NEPA or the Clean 

Water Act. These laws analyze the 

potential for projects to significantly 

affect the environment. Critical habitat 

may signal the presence of sensitive 

habitat that could otherwise be missed 

in the review process for these other 

environmental law. Because multiple 

listed species are known to occur along 

the San Pedro River, the overall impact 

of the designation in strengthening or 

reinforcing other laws is somewhat 

diminished as there have been and 

would continue to be awareness for 

other species listed under the Act that 

would lead to conservation measures. 

Benefits of Exclusion—Fort Huachuca 

As noted above, there are benefits to 

spikedace and loach minnow from 

having this portion of the San Pedro 

River protected as critical habitat for the 

two species, particularly given that it is 

currently unoccupied by either species. 

However, the minimal conservation and 

regulatory benefits gained through 

inclusion of this area as critical habitat 

for spikedace and loach minnow are at 

least partially offset by the fact that this 

area is already managed for a number of 

other species under which protections 

would be in place, including those 

covered by the biological opinion, as 

discussed above. 

According to Fort Huachuca’s 

comment letter, inclusion of the San 

Pedro as critical habitat for spikedace 

and loach minnow has a high 

probability of negative impacts to 

missions that are essential to national 

security. While actions taken by Fort 

Huachuca are already analyzed for 

effects to other species, Fort Huachuca 

states that, should critical habitat be 

designated in the San Pedro River, 

additional restrictions may result for 

protection of spikedace and loach 

minnow critical habitat, particularly as 

both species require running streams for 

habitat. Fort Huachuca currently has a 

staff of approximately 13,100, but 

anticipates that number could rise to 

16,000. They note that any additional 

restrictions to water usage could affect 

their ability to increase staffing when 

needed, or carry out missions critical to 

national security. Further, because of 

the unique conditions within the 

BSETR, these missions could not be 

moved to another location as no other 

areas within the United States currently 

have those conditions. With the recent 

litigation on the existing biological 

opinion, and the requirement that 

consultation be completed again, the 

Fort believes there is both uncertainty as 

to what measures may be required of 

them through section 7 consultation to 

resolve the court’s concern, as well as 

strong evidence that third party 

litigation may influence actions 

required of them in the future. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—Fort Huachuca 

We reviewed and evaluated the 

benefits of inclusion and the benefits of 

exclusion of the 59.8-km (37.2-mi) 

stretch of the San Pedro River for which 

Fort Huachuca has requested exclusion 

from these designations of critical 

habitat. Since this portion of the San 

Pedro River is unoccupied, a benefit of 

inclusion of this portion of the San 

Pedro River would be the requirement 

of section 7 consultation under the 

adverse modification standard. 

However, we believe there would be 

minimal additional regulatory and 

educational benefits from a designation 

of critical habitat for spikedace and 

loach minnow because multiple listed 

species are known to occur along the 

San Pedro River and are currently being 

managed. 

Because of the unique conditions 

within the BSETR, the critical national 

security missions could not be moved to 

another location as no other areas 

within the United States currently have 

those conditions. Therefore, exclusion 

of these lands from critical habitat will 

allow Fort Huachuca to continue their 

critical national security missions. 

Therefore, in consideration of the 

potential impact to national security, we 

determined the significant benefits of 

exclusion outweigh the benefits of 

inclusion in the critical habitat 

designation. 

In summary, we find that excluding 

this 59.8-km (37.2-mi) stretch of the San 

Pedro River from this final critical 

habitat will preserve Fort Huachuca’s 

ability to continue with their missions 

critical to national security. This benefit 

of continuing critical national security 

missions are significant and outweigh 

the minimal additional regulatory and 

educational benefits of including these 

lands in final critical habitat for 

spikedace and loach minnow. 

Exclusion Will Not Result in Extinction 

of the Species—Fort Huachuca 

The San Pedro River is not currently 

occupied by either spikedace or loach 

minnow. Loach minnow were last 

detected in 1961, and spikedace in 1966 

(ASU 2002). The San Pedro represents 

a portion of the streams included within 

Unit 3, which also includes Aravaipa 

Creek, Hot Springs Canyon, Redfield 

Canyon, and Bass Canyon. As a result, 

this portion of the species range would 

not be void of protected habitat. Finally, 

the Service has identified eight units for 

designation as critical habitat, and the 

San Pedro River represents a portion of 

the habitat within one of eight units. 

Because the San Pedro is unoccupied, 

represents approximately eight percent 

of the overall proposed critical habitat 

designation for either spikedace or loach 

minnow, does not represent the only 

critical habitat designated within Unit 3, 

and will receive some protection 

through section 7 consultation for other 

species, we conclude that excluding the 

San Pedro River will not result in 

extinction of the species. Therefore, the 

Secretary is exercising his discretion to 

exclude the 59.8-km (37.2-mi) stretch of 

the San Pedro River from the 

designations of critical habitat for 

spikedace and loach minnow. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors including 

whether the landowners have developed 

any HCPs or other management plans 

for the area, or whether there are 

conservation partnerships that would be 

encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at any tribal issues, 

and consider the government-togovernment relationship of the United 

States with tribal entities. We also 

consider any social impacts that might 

occur because of the designations. 

Land and Resource Management Plans, 

Conservation Plans, or Agreements 

Based on Conservation Partnerships 

We consider a current land 

management or conservation plan (HCPs 

as well as other types) to provide 

adequate management or protection if it 

meets the following criteria: 

(1) The plan is complete and provides 

the same or better level of protection 

from adverse modification or 

destruction than that provided through 

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a consultation under section 7 of the 

Act; 

(2) There is a reasonable expectation 

that the conservation management 

strategies and actions will be 

implemented for the foreseeable future, 

based on past practices, written 

guidance, or regulations; and 

(3) The plan provides conservation 

strategies and measures consistent with 

currently accepted principles of 

conservation biology. 

We received information and 

management plans from four different 

entities, including the Yavapai-Apache 

Nation, White Mountain Apache Tribe, 

the San Carlos Apache Tribe, and from 

FMC Corporation. We have identified 

the benefits of inclusion and the 

benefits of exclusion for each of these 

management plans, and we carefully 

weighed the two sides to evaluate 

whether the benefits of exclusion 

outweigh those of inclusion. 

Tribal Exclusions 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s Memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); 

President’s Memorandum of November 

5, 2009, ‘‘Tribal Consultation’’ (74 FR 

57881); Executive Order 13175; and the 

relevant provision of the Departmental 

Manual of the Department of the Interior 

(512 DM 2), we believe that fish, 

wildlife, and other natural resources on 

tribal lands are more appropriately 

managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. In most cases, 

designation of tribal lands as critical 

habitat provides very little additional 

conservation benefit to endangered or 

threatened species. Conversely, such 

designation is often viewed by tribes as 

an unwarranted and unwanted intrusion 

into tribal self-governance, and may 

negatively impact a positive 

government-to-government relationship 

between the Service and tribal 

governments essential to achieving a 

mutual goal of successfully managing 

ecosystems upon which endangered and 

threatened species depend. When 

conducting our analysis under section 

4(b)(2) of the Act, we consider our 

existing and future partnerships with 

tribes and existing conservation actions 

that tribes have implemented or are 

currently implementing. We also take 

into consideration conservation actions 

that are planned as a result of ongoing 

government-to-government 

consultations with tribes. 

Yavapai-Apache Nation—The 

Yavapai-Apache Nation submitted a 

comment letter during the first comment 

period in 2010 in which they discuss 

measures in place to protect the Verde 

River and its surrounding habitat on the 

lands of the Yavapai-Apache Nation. 

According to these comments, the 

Yavapai-Apache Nation is 

implementing conservation measures 

designed to preserve the Verde River 

and its riparian corridor for the benefit 

of all species, and in order to protect the 

traditional and cultural practices of the 

Nation. The Yavapai-Apache Nation’s 

continued efforts to work cooperatively 

with the Service to protect federally 

listed species have been demonstrated 

through adoption of a Southwestern 

Willow Flycatcher Management Plan, 

dated May 25, 2005, which details 

objectives for protection of the riparian 

community on Tribal lands. The 

Yavapai-Apache Nation notes that the 

habitat protected under the 

Southwestern Willow Flycatcher 

Management Plan overlaps those areas 

proposed as critical habitat for 

spikedace. Because the existing 

Management Plan requires that the 

habitat of the Verde River be protected 

and preserved for the flycatcher, its 

protections similarly extend to the 

spikedace. 

More specifically to spikedace and 

loach minnow and their habitat, the 

Yavapai-Apache Nation adopted Tribal 

Resolution 46–2006. Resolution 46– 

2006, completed in June of 2006, details 

land use restrictions and management 

plan goals along the Verde River 

‘‘* * * in order to continue to protect 

the traditional and cultural practices of 

the Nation, and to preserve those PCEs 

found within the riparian corridor of the 

Verde River which are essential to 

native wildlife species, including 

species listed as endangered or 

threatened by the federal government 

under the Endangered Species Act, such 

as the federally listed spikedace and 

loach minnow (Yavapai-Apache Nation 

2006).’’ 

The Resolution provides for 

conservation of the PCEs for spikedace 

and loach minnow both through 

conservation of existing habitat, and 

through restriction of some activities. 

The resolution established a riparian 

conservation corridor along both sides 

of the Verde River that encompasses the 

critical habitat designations. Protection 

and conservation of the riparian 

corridor minimizes disturbance in the 

active channel, protects vegetation, 

which in turn can act as a buffer strip 

and filter out sediment and 

contaminants from overland flow, 

stabilizes banks and reduces erosion 

and siltation, and maintains 

temperatures by preserving vegetation 

that provides shading of the stream 

channel (PCEs 1 and 2). In addition, the 

Resolution resolved that there would be 

no stocking of nonnative fishes (PCE 5), 

and that livestock, grazing, construction, 

and other activities would be minimized 

to assure that no net loss of habitat for 

spikedace and loach minnow occurs 

and that no permanent modification of 

habitat essential to spikedace and loach 

minnow is allowed. The Resolution also 

details a commitment by the YavapaiApache Nation to continue to cooperate 

with the Service on a variety of issues, 

including habitat monitoring and 

surveys. 

In their 2010 comment letter, the 

Yavapai-Apache Nation notes that, 

under the Resolution, they have taken 

additional steps to protect the Verde 

River and its habitat. Specifically, they 

note that the Yavapai-Apache Nation’s 

Tribal Housing Department and 

Planning Committee do not allow 

development within the riparian 

conservation corridor. The YavapaiApache Nation has also taken steps to 

educate Tribal members on the 

importance of protecting and preserving 

the Verde River and its riparian habitat 

for future generations. The YavapaiApache Nation further notes that they 

have pursued and secured grants that 

will enable them to examine ways to 

protect Verde River water quality and 

remove invasive plant species from the 

riparian corridor. The Yavapai-Apache 

Nation is examining how possible 

restoration activities and instream flow 

regimes could improve the health of 

riparian habitat within the Verde River 

and Beaver Creek to provide for 

restoration of native plants. Finally, the 

Yavapai-Apache Nation notes in their 

comment letter that they are continuing 

to improve their working relationship 

with the Service through improved 

coordination. These comments 

demonstrate that the Yavapai-Apache 

Nation has begun and continues to 

implement the Resolution, and provides 

the Service with the assurance that 

implementation of the Resolution is 

likely to continue. 

The Yavapai-Apache Nation notes 

that a critical habitat designation on 

their lands would have adverse impacts 

to the Yavapai-Apache Nation and its 

ability to exist within its permanent 

Tribal homeland. Specifically, they 

believe these impacts will include 

interfering with the sovereign right of 

the Yavapai-Apache Nation to protect 

and control its own resources; 

undermining the positive and effective 

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government-to-government relationship 

between the Yavapai-Apache Nation 

and the Service; hampering or confusing 

the Yavapai-Apache Nation’s own longstanding protections for the Verde River 

and its habitat; imposing an additional 

and disproportionate impact on the 

Yavapai-Apache Nation’s overall land 

base, and adding additional economic 

and administrative costs, and 

potentially personnel burdens to the 

Yavapai-Apache Nation in order to meet 

increased section 7 consultations and 

other requirements under the Act. A 

Federal nexus exists for land use 

decisions or other tribal actions which 

require approval by the Bureau of 

Indian Affairs due the fact that the 

United States holds the Yavapai Apache 

land in trust, A federal nexus could also 

exists if a tribal action utilizes other 

Federal funding, or requires a Federal 

permit for their actions. The Service 

respects these concerns. 

Benefits of Inclusion—Yavapai-Apache 

Nation 

Those portions of the Verde River on 

lands belonging to the Yavapai-Apache 

Nation within the critical habitat 

designations for spikedace and loach 

minnow constitute part of a continuous 

stream habitat for the two species. 

Spikedace records exist for both the 

Verde River and Beaver Creek, although 

they are few in number and only as 

recent as 1950. We categorized the 

Verde River as a 1a stream for spikedace 

in the rule, as it was identified as 

occupied at listing, and supports one or 

more of the PCEs for the two species. 

We categorized the Verde River as a 2b 

stream for loach minnow, as it was not 

known to be occupied at listing. 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. The analysis of effects of a 

proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. We do consider the Verde 

River occupied, albeit at low numbers. 

Section 7 consultation would therefore 

require both a jeopardy and an adverse 

modification analysis. The draft and 

final economic analyses identified a 

future housing project, as well as 

wastewater treatment facilities and 

water development projects, all with 

potential ties to Federal funding or 

permitting, that could potentially 

require section 7 consultation. 

Public education is often another 

possible benefit of including lands in 

critical habitat as it may help focus 

conservation efforts on areas of high 

value for certain species. The Service 

will continue ongoing coordination with 

the Yavapai-Apache Nation. However, 

we note that the Yavapai-Apache Nation 

has already undertaken education of 

Tribal members, as noted in their 

comment letter in which they indicate 

that they have taken steps to educate 

Tribal members on the importance of 

protecting and preserving the Verde 

River and its riparian habitat for future 

generations. 

Finally, the designation of critical 

habitat may strengthen or reinforce 

some Federal laws, such as NEPA or the 

Clean Water Act. These laws analyze the 

potential for projects to significantly 

affect the environment. Critical habitat 

may signal the presence of sensitive 

habitat that could otherwise be missed 

in the review process for these other 

environmental laws. However, the 

Yavapai-Apache Nation is fully aware of 

the sensitive habitat on their lands. 

Benefits of Exclusion—Yavapai-Apache 

Nation 

Under Secretarial Order 3206, 

American Indian Tribal Rights, FederalTribal Trust Responsibilities and the 

Endangered Species Act, we recognize 

that we must carry out our 

responsibilities under the Act in a 

manner that harmonizes the Federal 

trust responsibility to tribes and tribal 

sovereignty while striving to ensure that 

tribes do not bear a disproportionate 

burden for the conservation of listed 

species, so as to avoid or minimize the 

potential for conflict and confrontation. 

In accordance with the Presidential 

memorandums of April 29, 1994, and 

November 9, 2009, we believe that, to 

the maximum extent possible, tribes are 

the appropriate governmental entities to 

manage their lands and tribal trust 

resources, and that we are responsible 

for strengthening government-togovernment relationships with tribes. 

Federal regulation through critical 

habitat designation will adversely affect 

the tribal working relationships we now 

have and which we are strengthening 

throughout the United States. 

Maintaining positive working 

relationships with tribes is the key to 

implementing natural resource 

programs of mutual interest, including 

habitat conservation planning efforts. In 

light of the above-mentioned Secretarial 

Order 3206, and because of their 

sovereignty status, critical habitat 

designation is typically viewed by tribes 

as an unwarranted and unwanted 

intrusion into tribal self-governance. In 

comments submitted during the public 

comment periods on this proposed rule, 

tribes have stated that designation of 

critical habitat would negatively impact 

government-to-government relations. 

In the case of the critical habitat 

designations for spikedace and loach 

minnow, the Yavapai-Apache Nation 

has indicated that designation on the 

Yavapai-Apache Reservation is not 

necessary to protect the habitat as the 

Nation already protects the riparian 

areas under its jurisdiction. They further 

note that such a designation is not only 

unwarranted but would be disruptive of 

the Nation’s exercise of its own 

sovereign authority over its Tribal 

resources and lands. In addition, they 

state that the designation of critical 

habitat on Yavapai-Apache Nation lands 

would interfere with their ability to 

preserve themselves in their Tribal 

homeland, and that designation of 

critical habitat on the Reservation is 

contrary to the United States’ 

obligations under the Apache Treaty of 

1852 and to the Constitution of the 

Yavapai-Apache Nation, which was 

approved by the Secretary of the 

Interior. Finally, they note that 

designation of critical habitat on their 

lands would lead to restrictions and/or 

other circumstances that would violate 

the trust responsibility of the United 

States to the Yavapai-Apache Nation, as 

well as the letter and spirit of numerous 

Secretarial Orders and Presidential 

memoranda, as well as the Department 

of the Interior’s own manual. The 

Yavapai-Apache Nation notes in their 

comment letter that they will use their 

own regulatory structure, including 

Resolution 46–2006, in protecting the 

Verde River and its riparian corridor. 

They note they have an ongoing 

commitment to cooperate with the 

Service on a wide variety of matters, 

including habitat monitoring, surveys, 

and future activities within the riparian 

corridor that may have the potential to 

adversely impact habitat essential to the 

conservation and recovery of federally 

listed species such as the spikedace and 

loach minnow. 

We believe there are significant 

benefits from exclusion of the portion of 

the Verde River on the Yavapai-Apache 

Nation’s lands. These benefits include: 

(1) Continuing and strengthening of 

our ongoing coordination with the Tribe 

to promote conservation of spikedace 

and loach minnow and their habitat, as 

well as other federally listed species; 

and 

(2) Allowing continued meaningful 

collaboration and cooperation in 

working toward recovering these 

species, including conservation actions 

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developed by a partnership with the 

Tribe that might not otherwise occur. 

Because the Yavapai-Apache Nation 

is the entity that carries out protective 

regulations on Tribal trust reservation 

land, and we have a working 

relationship with them, we believe 

exclusion of these lands will yield a 

significant partnership benefit. There 

has been a substantial amount of 

coordination with the Yavapai-Apache 

Nation on spikedace and loach minnow, 

other federally listed species, and water 

management issues on the Verde River. 

In their comment letter, the YavapaiApache Nation has noted that we have 

established a positive and effective 

government-to-government relationship 

with them which in and of itself serves 

to protect federally listed species and 

their habitat. We will continue to work 

cooperatively with the Yavapai-Apache 

Nation on efforts to conserve spikedace 

and loach minnow. Therefore, 

excluding these lands from critical 

habitat would provide the benefit of 

maintaining and strengthening our 

existing conservation partnership. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—Yavapai-Apache 

Nation 

We reviewed and evaluated the 

benefits of inclusion and the benefits of 

exclusion of those portions of the Verde 

River on the Yavapai-Apache Nation. 

The Yavapai-Apache Nation is 

educating Tribal members on the 

importance of conservation of the 

riparian corridor along the Verde River. 

Further, they are applying restrictions 

for building within the 100-year 

floodplain. The Yavapai-Apache Nation 

has indicated they will continue to use 

their existing regulatory structure in 

regulating development in this area to 

protect spikedace and loach minnow 

and their habitat. Further, exclusion of 

these lands from critical habitat will 

help preserve and strengthen the 

conservation partnership we have 

developed with the Yavapai-Apache 

Nation. 

We believe that the Verde River 

supports one or more of the PCEs for 

spikedace and loach minnow. However, 

we believe the benefits to be gained 

through the Yavapai-Apache Nation’s 

Tribal Resolution exceed those that 

would be gained through a critical 

habitat designation. Based on the 

information provided by the YavapaiApache Nation in their comment letter 

and Tribal resolution, the concerns 

outlined by the Yavapai-Apache Nation, 

and the protective measures already in 

place, we conclude that the benefits of 

excluding the 1.2 km (0.8 mi) of the 

Verde River and 0.2 km (0.1 mi) of 

Beaver Creek/Wet Beaver Creek 

outweigh the benefits of including this 

area. 

Exclusion Will Not Result in Extinction 

of the Species—Yavapai-Apache Nation 

While we believe these stream 

segments are important to the 

conservation of the species and 

currently support one or more PCEs, any 

direct impacts to the fish themselves 

due to exclusion of these areas is 

unlikely due to the low numbers of fish 

remaining in the Verde River. The 

protective measures already established 

by the Yavapai-Apache Nation will 

ensure that habitat remains in these 

streams for spikedace and loach 

minnow and that conservation of the 

two species and their habitat will not be 

precluded in this area. We therefore 

believe that excluding those portions of 

the Verde River and Beaver/Wet Beaver 

Creek on Yavapai-Apache Nation lands 

will not result in extinction of the 

species. Therefore, the Secretary is 

exercising his discretion to exclude the 

1.2 km (0.8 mi) of the Verde River and 

0.2 km (0.1 mi) of Beaver Creek/Wet 

Beaver Creek on Yavapai-Apache Nation 

lands from the designations of critical 

habitat for spikedace and loach 

minnow. 

White Mountain Apache Tribe—The 

White Mountain Apache Tribe provided 

comments during the first comment 

period in 2010, and incorporated their 

2000 Loach Minnow Management Plan 

(White Mountain Apache Tribe 2000) as 

part of their comments. The Loach 

Minnow Management Plan identifies 

several Tribal regulation and 

management efforts they believe to be 

beneficial to loach minnow, including 

Resolution #89–149, which designates 

streams and riparian zones as Sensitive 

Fish and Wildlife areas, requiring that 

authorized programs ensure these zones 

remain productive for fish and wildlife. 

The White Mountain Apache Tribe 

additionally adopted a Water Quality 

Protection Ordinance in 1999 to 

‘‘promote the health of Tribal waters 

and the people, plants and wildlife that 

depend on them through holistic 

management and sustainable use.’’ 

The White Mountain Apache Tribe 

has also adopted Livestock and Range 

Management Plans, which regulate their 

stocking, rotation, and management 

practices for their Cattle Associations. 

According to their comments, their plan 

is aimed at ‘‘maintaining or improving 

a stable and desired vegetative 

community, improving water quality 

and quantity, and reducing soil erosion’’ 

while providing for livestock. The 

White Mountain Apache Tribe has also 

established Recreation Regulations and 

Game and Fish Code which regulates 

fishing, camping, hunting, and other 

recreational activities. The White 

Mountain Apache Tribe notes that large 

portions of the Reservation continue to 

be closed to recreational use. 

The White Mountain Apache Tribe 

notes that they also have a process to 

review and approve all development 

activities on the Reservation. The Tribal 

Plan and Project Review Panel, among 

other things, investigates impacts to 

sensitive habitats and species, and 

provides for the implementation of 

mitigation measures to avoid adverse 

impacts to those resources. Finally, the 

White Mountain Apache Tribe noted in 

their comment letter that Tribal fish 

biologists and the sensitive species 

coordinator monitor any land operations 

or proposed timber sales along the East 

Fork White River, and monitor river 

levels, so that if river flows fall below 

a certain level, irrigation ditch gates that 

serve Tribal member farmlands are 

closed until such time as stream levels 

are restored. 

The White Mountain Apache Tribe 

has a full-time Sensitive Species 

Coordinator and Technician who 

coordinate and participate in protection, 

research, management, and 

administrative activities involving 

Federally listed sensitive species on the 

Reservation, and these individuals are 

responsible for overseeing the 

implementation and ongoing 

development of the Loach Minnow 

Management Plan. The goals of the 

Loach Minnow Management Plan are to 

determine and quantify the full extent of 

loach minnow distribution on the 

Reservation; continue to develop and 

strengthen management actions that 

effectively address species threats and 

that provide adequate protection for, 

and sustainability of, existing 

Reservation loach minnow populations 

and habitats; complete the development 

and ongoing maintenance of Tribal data, 

information, and mapping for this and 

other native fish species; and evaluate 

and refine the application of Plan 

management practices, over time, in a 

manner that promotes the practical and 

effective long-term conservation of all 

Reservation native fish populations and 

assemblages, including those of loach 

minnow (White Mountain Apache Tribe 

2000). 

The Loach Minnow Management Plan 

provides an action and strategy outline 

with eight steps that provide additional 

detail on how they will be carried out. 

The eight steps and corresponding PCEs 

that they may affect include: 

• Determining the distribution of 

loach minnow within Reservation 

boundaries; 

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• Continuing routine surveys and 

expanding efforts to include habitat 

assessment; continuing to monitor and 

refine existing management treatments 

involving irrigation uses and activities 

to develop adequate mitigation against 

related threats; 

• Continuing to apply and refine 

existing monitoring and mitigation 

protocols involving low water and/or 

drought conditions to provide 

sustainable protection of loach minnow 

populations (PCEs 1 and 4); 

• Development of contingency plans 

with responses to potential catastrophic 

events; evaluating and refining existing 

nonnative fish management and 

mitigation practices to provide 

sustainable protection of loach minnow 

populations and habitat (PCE 1); and 

• Organizing data collection, 

handling, storage, and maintenance 

among partners; and continuing to 

monitor and refine existing Tribal Plan 

and Project Review Process, 

management plans, and practices to 

meet loach minnow and native fish 

management goals. 

The Tribe additionally notes that they 

have a long-standing history of 

conservation efforts involving listed 

species and cooperation with the 

Service and other entities. These efforts 

include development of management 

plans for Mexican spotted owls (Strix 

occidentalis lucida), Arizona willow 

(Salix arizonica), Apache trout 

(Oncorhynchus gilae apache), and 

Mexican gray wolf (Canis lupus baileyi). 

Their comment letter notes additional 

conservation efforts, incorporated 

herein by reference, and the recognition 

that they have received for their 

conservation ethic. 

Benefits of Inclusion—White Mountain 

Apache Tribe 

Those portions of the mainstem White 

River and the East Fork White River on 

lands belonging to the White Mountain 

Apache and within the critical habitat 

designations for loach minnow are part 

of a continuous stream habitat for the 

species. Loach minnow records exist for 

both streams. We categorized the 

mainstem White River and the East Fork 

White River as 1a streams for loach 

minnow in the proposed rule, as they 

were identified as occupied at listing, 

and supports one or more of the PCEs 

for the species. Neither stream is known 

to have been occupied by spikedace. 

Those portions of the mainstem White 

River and East Fork White River on 

lands belonging to the White Mountain 

Apache Tribe that are within the critical 

habitat designation for loach minnow 

may support a genetically distinct 

population of loach minnow, and 

comments received from peer reviewers 

note that loach minnow in the White 

River are likely highly divergent and 

deserving of management as a distinct 

unit. The length of perennial flows with 

suitable habitat parameters, historical 

occupancy, and potential current 

occupancy make this area important to 

the conservation of the loach minnow. 

Both the White River and East Fork 

White River were classified as 1a 

streams in this designation, indicating 

they were known to be occupied at 

listing. Both are considered currently 

occupied by loach minnow. 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. The analysis of effects of a 

proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The analysis of effects of 

a proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The jeopardy analysis 

evaluates the action’s impact to survival 

and recovery of the species, while the 

destruction or adverse modification 

analysis evaluates the action’s effects to 

the designated habitat’s contribution to 

conservation. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

However, for some species, and in some 

locations, the outcome of these analyses 

will be similar, because effects to habitat 

will often also result in effects to the 

species. Lands being evaluated for 

exclusion in this unit are occupied by 

loach minnow and are subject to 

consultation requirements of the Act. 

Public education is often another 

possible benefit of including lands in 

critical habitat as it may help focus 

conservation efforts on areas of high 

value for certain species. The Service 

will continue ongoing coordination with 

the White Mountain Apache Tribe for 

exchange of relevant information. 

However, we note that the White 

Mountain Apache Tribe has developed 

a management plan for loach minnow, 

and currently employs a Sensitive 

Species Coordinator through which 

education of Tribal members can occur 

without critical habitat designation. In 

addition, Tribal fisheries biologists 

participate in review of development 

projects and timber sales, and can work 

to educate project proponents of the 

species’ needs. 

Finally, the designation of critical 

habitat may strengthen or reinforce 

some Federal laws, such as NEPA or the 

Clean Water Act. These laws analyze the 

potential for projects to significantly 

affect the environment. Critical habitat 

may signal the presence of sensitive 

habitat that could otherwise be missed 

in the review process for these other 

environmental laws. However, because 

the White Mountain Apache Tribe is 

fully aware of the sensitive habitat on 

their lands, designation of critical 

habitat is not necessary to heighten 

awareness when applying these laws. 

Benefits of Exclusion—White Mountain 

Apache Tribe 

Please see the discussion on 

Secretarial Order 3206, American Indian 

Tribal Rights, and Federal-Tribal Trust 

Responsibilities and the Endangered 

Species Act under ‘‘Benefits of 

Exclusion—Yavapai Apache Nation’’ 

above. As stated there, we seek to 

balance our responsibilities under the 

Act in a manner that harmonizes the 

Federal trust responsibility to tribes and 

tribal sovereignty while ensuring that 

tribes do not bear a disproportionate 

burden for the conservation of listed 

species. We also note that, to the 

maximum extent possible, tribes are the 

appropriate governmental entities to 

manage their lands and tribal trust 

resources, and we are responsible for 

strengthening government-togovernment relationships with tribes. 

We further believe that Federal 

regulation through critical habitat 

designation can adversely affect the 

tribal working relationships we now 

have and which we are strengthening 

throughout the United States. 

In the case of this critical habitat 

designation for loach minnow, the 

White Mountain Apache Tribe states in 

their comment letter that Federal 

common law embodied in the decisions 

of the U.S. Supreme Court, the Indian 

Reorganization Act (IRA), the Tribe’s 

IRA Constitution, and Congressional 

policies and laws established for the 

protection of Indian natural resources 

and forests confirm their retained or 

residual inherent sovereign authority to 

promulgate regulations and 

management plans to protect and 

manage Tribal trust lands, wildlife, 

forests and other natural resources. 

They cite numerous authorities that 

confirm their authority over wildlife 

and other natural resources existing 

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within their ancestral lands and to 

govern both their members and their 

territory and retain sovereign interests 

in activities that occur on land that they 

own and control. 

The White Mountain Apache Tribe 

states in their comment letter that the 

benefits of excluding White Mountain 

Apache Tribal lands from critical 

habitat will continue to: ‘‘(1) Advance 

the Service’s Federal Indian Trust 

obligations, deference for tribes to 

develop and implement tribal 

conservation and natural resources 

management plans for the lands and 

resources, which includes the Loach 

minnow and other federal trust species; 

(2) maintain the effective working 

relationship to promote the 

conservation of the Loach minnow and 

their habitats; (3) perpetuate a 

continued and meaningful collaboration 

and cooperation on the Loach minnow 

management and other resources of 

interest to the federal government; and 

(4) enhance the provision of 

conservation benefits to riparian 

ecosystems and a host of species, 

including the Loach minnow and their 

habitat, that might not otherwise occur.’’ 

We agree with the White Mountain 

Apache Tribe’s explanation regarding 

the benefits of exclusion. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—White Mountain 

Apache Tribe 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. The analysis of effects of a 

proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The analysis of effects of 

a proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The jeopardy analysis 

evaluates the action’s impact to survival 

and recovery of the species, while the 

destruction or adverse modification 

analysis evaluates the action’s effects to 

the designated habitat’s contribution to 

conservation. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

However, for some species, and in some 

locations, the outcome of these analyses 

will be similar, because effects to habitat 

will often also result in effects to the 

species. Lands being evaluated for 

exclusion in this unit are occupied by 

both species and are subject to 

consultation requirements of the Act. 

The White Mountain Apache Tribe 

clearly explained their sovereign 

authority to promulgate regulations and 

management plans to protect and 

manage Tribal trust lands, wildlife, 

forests, and other natural resources, and 

cited numerous authorities that confirm 

their authority over wildlife and other 

natural resources existing within their 

ancestral lands. In addition, they have 

shown a commitment to other federally 

listed species, such as the Mexican 

spotted owl (Strix occidentalis lucida) 

and the Arizona willow (Salix 

arizonica). 

Based on our working relationship 

with the Tribe, their demonstration of 

conservation through past efforts, and 

the protective provisions of the Loach 

Minnow Management Plan, we 

conclude that the benefits of excluding 

the 29.0 km (18.0 mi) of the mainstem 

White River and 17.2 km (10.7 mi) of 

East Fork White River outweigh the 

benefits of including this area. 

Exclusion Will Not Result in Extinction 

of the Species—White Mountain Apache 

Tribe 

The current occupancy of streams on 

the White Mountain Apache Tribe are 

unknown due to the proprietary nature 

of Tribal survey information. However, 

the information contained in the 

management plan, as well as 

commitments to management through 

ordinances, codes, and the hiring of a 

sensitive species coordinator indicate 

that the White Mountain Apache Tribe 

has committed to management of loach 

minnow on their Tribal lands. While we 

continue to believe these stream 

segments are important to the 

conservation of the species and 

currently support one or more PCEs, we 

believe that commitments made by the 

White Mountain Apache Tribe in their 

management plan and comment letter 

ensure that habitat remains in these 

streams for loach minnow. We therefore 

believe that excluding those portions of 

the mainstem White River and East Fork 

White River will not result in extinction 

of the species. Therefore, the Secretary 

is exercising his discretion to exclude 

the 29.0 km (18.0 mi) of the mainstem 

White River and 17.2 km (10.7 mi) of 

East Fork White River on White 

Mountain Apache Tribal lands from the 

designations of critical habitat for 

spikedace and loach minnow. 

San Carlos Apache Tribe—The San 

Carlos Apache Tribe submitted 

comments during the second comment 

period. Within their comment letter the 

Tribe notes that Traditional Ecological 

Knowledge (TEK) is ‘‘* * * a key and 

fundamental principle of species 

conservation and land management on 

the Reservation,’’ and that TEK uses an 

ecosystem-based approach to land and 

species management and preservation. 

The Tribe notes that use of TEK by 

Tribal government, Tribal leaders, 

Tribal elders, and the Apache people 

results in incorporation of adaptive 

management practices for land and 

species management and preservation. 

The Tribe also notes that jeopardizing 

the existence of any species would be 

counter to their beliefs, and that TEK 

was critical in the development of the 

2005 Fishery Management Plan (FMP). 

In their comment letter, the Tribe 

notes that the FMP does not specifically 

address loach minnow, but that both 

loach minnow and spikedace benefit 

from management actions in the FMP. 

The FMP was adopted in 2005, and has 

been actively implemented since that 

time on Tribal lands. Under the FMP, 

one management step taken to benefit 

spikedace and loach minnow is that the 

Tribe no longer stocks nonnative fishes 

in the Bonita Creek or Eagle Creek 

drainages (PCE 5). In addition, the Tribe 

is working with both the Service and the 

AGFD to complete additional survey 

work on Eagle Creek. The Tribe is 

currently discussing captive 

propagation of any spikedace or loach 

minnow found in Eagle Creek for future 

recovery purposes. 

The Tribe notes that various 

departments are taking actions that 

benefit the species. The Recreation and 

Wildlife Department consults with other 

Tribal departments interested in 

restoration activities and, using the 

FMP, evaluates impacts on spikedace 

and loach minnow and their habitats 

and determines how to prevent or 

mitigate any impacts (PCE 1). The Soil 

and Moisture Conservation Department 

is developing a project for the removal 

of nonnative and invasive salt cedar and 

planting of native species, and has 

worked with the Recreational and 

Wildlife Department in applying the 

FMP to the proposal. The Recreation 

and Wildlife Department also surveys 

all proposed home and construction 

projects, and consults with the Tribal 

attorneys, providing information from 

the FMP for use in negotiating water 

exchanges and in determining 

mitigation measures for projects that 

may impact listed species or their 

habitat. Consultation with the 

Recreation and Wildlife Department is 

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for prescribed burns or thinning, and 

wildfire management actions are 

measured to ensure no net loss or 

permanent modification to spikedace 

and loach minnow habitat. The Tribe 

has also built fencing to exclude 

livestock grazing in riparian areas 

containing native fish or their habitats 

(PCE 1). 

The Tribe’s comment letter 

incorporated information from their 

FMP. The FMP has several goals 

relevant to native fish management, 

including development and 

implementation of integrated, 

watershed-based approaches to fishery 

resource management; conserving, 

enhancing, and maintaining existing 

native fish populations and their 

habitats as part of the natural diversity 

of the Reservation and preventing, 

minimizing, or mitigating adverse 

impacts to all native fishes, especially 

threatened or endangered, and their 

habitats when consistent with the 

Reservation as a permanent home and 

abiding place for San Carlos Apache 

Tribal members; restoring extirpated 

native fishes and degraded natural 

habitats when appropriate and 

economically feasible; increasing Tribal 

awareness of native fish conservation 

and values; and aggressively pursuing 

funding adequate to support all Tribal 

conservation and management activities 

for all native fishes and their habitats. 

Each of the goals has identified 

objectives, actions, and evaluations, 

which are incorporated here by 

reference (San Carlos Apache Tribe 

2005, pp. 63–71). 

Benefits of Inclusion—San Carlos 

Apache Tribe 

Evidence of occupancy for Eagle 

Creek was most recently found in 1989 

for spikedace and in 1997 for loach 

minnow in 1997 (ASU 2002). This area 

continues to support one or more of the 

PCEs for the two species. The benefits 

of including this stream within the 

designations include protecting an area 

with a long record of occupancy, and 

with perennial flows, as well as other 

PCEs. The length of perennial flows 

with suitable habitat parameters, 

historical occupancy, and current 

occupancy by both spikedace and loach 

minnow make Eagle Creek an area 

important to the conservation of both 

species. Eagle Creek was classified as a 

1a stream for both species for these 

designations, indicating it was known to 

be occupied at listing. 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. A Federal nexus may exist 

for tribal projects such as land leases or 

water development through either the 

Bureau of Indian Affairs or the U.S. 

Army Corps of Engineers. The analysis 

of effects of a proposed project on 

critical habitat is separate and different 

from that of the effects of a proposed 

project on the species itself. The 

analysis of effects of a proposed project 

on critical habitat is separate and 

different from that of the effects of a 

proposed project on the species itself. 

The jeopardy analysis evaluates the 

action’s impact to survival and recovery 

of the species, while the destruction or 

adverse modification analysis evaluates 

the action’s effects to the designated 

habitat’s contribution to conservation. 

Therefore, the difference in outcomes of 

these two analyses represents the 

regulatory benefit of critical habitat. 

This will, in many instances, lead to 

different results and different regulatory 

requirements. Thus, critical habitat 

designations may provide greater 

benefits to the recovery of a species than 

would listing alone. However, for some 

species, and in some locations, the 

outcome of these analyses will be 

similar, because effects to habitat will 

often also result in effects to the species. 

Lands being evaluated for exclusion in 

this unit are occupied by both species 

and are subject to consultation 

requirements of the Act. 

Public education is often another 

possible benefit of including lands in 

critical habitat as it may help focus 

conservation efforts on areas of high 

value for certain species. The Service 

will continue ongoing coordination with 

the San Carlos Apache Tribe for 

exchange of relevant information. 

However, we note that the San Carlos 

Apache Tribe, through their Recreation 

and Wildlife Department, surveys all 

proposed home and construction 

projects, and provides information from 

the FMP for use in negotiating water 

exchanges and in determining 

mitigation measures for projects that 

may impact listed species or their 

habitat. The Recreation and Wildlife 

Department therefore has an 

opportunity to provide information 

regarding the species and their habitat 

across the Reservation. In addition, per 

their comment letter, the San Carlos 

Apache Tribe has adopted an 

interdisciplinary team approach to all 

natural resources matters. The team 

works together to provide an ecosystem 

management approach in developing 

strategic plans and management plans. 

Through this team, Tribal members can 

be informed of steps necessary to 

conservation of spikedace and loach 

minnow and their habitat. 

The designation of critical habitat 

may strengthen or reinforce some 

Federal laws, such as NEPA or the Clean 

Water Act. These laws analyze the 

potential for projects to significantly 

affect the environment. Critical habitat 

may signal the presence of sensitive 

habitat that could otherwise be missed 

in the review process for these other 

environmental law. However, because 

the San Carlos Apache Tribe is fully 

aware of the sensitive species and 

habitat on their lands, designation of 

critical habitat is not necessary to 

heighten awareness when applying 

these laws. 

Benefits of Exclusion—San Carlos 

Apache Tribe 

Please see the discussion on 

Secretarial Order 3206, American Indian 

Tribal Rights, and Federal-Tribal Trust 

Responsibilities and the Endangered 

Species Act under ‘‘Benefits of 

Exclusion—Yavapai Apache Nation’’ 

above. As stated there, we seek to 

balance our responsibilities under the 

Act in a manner that harmonizes the 

Federal trust responsibility to tribes and 

tribal sovereignty while ensuring that 

tribes do not bear a disproportionate 

burden for the conservation of listed 

species. We also believe that, to the 

maximum extent possible, tribes are the 

appropriate governmental entities to 

manage their lands and tribal trust 

resources, we are responsible for 

strengthening government-togovernment relationships with tribes. 

We also note that Federal regulation 

through critical habitat designation can 

adversely affect the tribal working 

relationships we now have and which 

we are strengthening throughout the 

United States. 

In the case of these critical habitat 

designations for spikedace and loach 

minnow, the San Carlos Apache Tribe 

notes in their comment letter that there 

is a unique and distinctive relationship 

between the United States and Indian 

Tribes, as defined by the Constitution, 

treaties, statutes, executive orders, and 

judicial decisions that differentiate 

tribes from other entities that work with 

or are affected by the Federal 

government. They note that, in 

recognition of the responsibilities and 

the relationship between the United 

States and Indian tribes, the Secretaries 

of Commerce and the Interior issued 

Secretarial Order 3206, which strives to 

ensure that Indian Tribes do not bear a 

disproportionate burden for the 

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conservation of listed species. They 

conclude that, oftentimes, tribal lands 

provide some of the better quality for 

federally protected species because the 

lands have not been subjected to the 

same development philosophies and 

pressures as those on non-tribal lands, 

and that tribal conservation practices, 

such as those established by the FMP, 

should be embraced, if not rewarded. 

We believe there are significant 

benefits from exclusion of the portion of 

those portions of Eagle Creek on the San 

Carlos Apache Reservation. These 

benefits include: 

(1) Continuing and strengthening of 

our ongoing coordination with the Tribe 

to promote conservation of spikedace 

and loach minnow and their habitat, as 

well as other federally listed species; 

and 

(2) Allowing continued meaningful 

collaboration and cooperation in 

working toward recovering these 

species, including conservation actions 

that might not otherwise occur. 

Because the San Carlos Apache Tribe 

is the entity that enforces protective 

regulations on Tribal trust reservation 

land, and because we have a working 

relationship with them, we believe 

exclusion of these lands will yield a 

significant partnership benefit. As 

noted, the San Carlos Apache Tribe is 

coordinating with the AGFD and the 

Service on surveys and captive 

propagation plans. We will continue to 

work cooperatively with the San Carlos 

Apache Nation on efforts to conserve 

spikedace and loach minnow. 

Therefore, excluding these lands from 

critical habitat would provide the 

benefit of maintaining and 

strengthening our existing conservation 

partnership. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—San Carlos 

Apache Tribe 

As noted above, the San Carlos 

Apache Tribe has indicated a 

commitment to TEK, which uses an 

ecosystem-based approach to land and 

species management and preservation. 

In addition, they have developed the 

FMP, which benefits spikedace and 

loach minnow by discontinuing 

nonnative fish stocking in the Bonita 

Creek or Eagle Creek drainages. Further, 

the Tribe is working with both the 

Service and the AGFD to complete 

additional survey work on Eagle Creek, 

and is discussing captive propagation 

for spikedace and loach minnow. 

The Tribe has focused on known areas 

of concern for the species management, 

and has discontinued stocking of 

nonnative fishes in the Bonita and Eagle 

Creek watersheds. The FMP contains 

goals of conserving and enhancing 

native fishes on the Reservation; 

restoring native fishes and their 

habitats; and preventing, minimizing or 

mitigating impacts to native fishes, 

among others. In addition, the Tribe has 

indicated that, through TEK, they 

practice an ecosystem-based approach 

to land-and-species based management 

and preservation. We conclude that the 

benefits to be gained through the FMP, 

coordination with the Service and 

AGFD, discontinuance of sportfish 

stocking, and proactive measures such 

as captive propagation all indicate that 

the San Carlos has committed to 

conservation measures that exceed 

benefits to be gained through a critical 

habitat designation. We, therefore, 

conclude that the benefits of excluding 

the 27.5 km (16.1 mi) of Eagle Creek on 

Tribal lands of the San Carlos Apache 

Tribe outweigh the benefits of including 

this area. 

Exclusion Will Not Result in Extinction 

of the Species—San Carlos Apache 

Tribe 

The Service considers Eagle Creek to 

be an occupied stream for both 

spikedace and loach minnow. The 

information provided by the San Carlos 

Apache Tribe regarding TEK and the 

FMP, as well as their discontinuance of 

sportfish stocking in the Eagle Creek 

watershed and continued coordination 

with the Service, will help to ensure 

that habitat remains in Eagle Creek for 

spikedace and loach minnow, and will 

reduce the potential for harm to the fish. 

We, therefore, believe that excluding 

those portions of Eagle Creek on the San 

Carlos Apache Reservation will not 

result in extinction of the species. 

Therefore, the Secretary is exercising his 

discretion to exclude the 27.5 km (16.1 

mi) of Eagle Creek on Tribal lands of the 

San Carlos Apache Tribe from the 

designations of critical habitat for 

spikedace and loach minnow. 

Freeport-McMoRan—FreeportMcMoRan provided two separate 

management plans during the second 

comment period. The first plan focuses 

on Eagle Creek and the San Francisco 

River in Arizona, while the second 

focuses on the Gila River, Mangas Creek, 

and Bear Creek in New Mexico. These 

two plans are evaluated separately 

below. 

Background—Freeport-McMoRan is a 

member of the International Council on 

Mining and Minerals (ICMM). In their 

management plan for Eagle Creek and 

the San Francisco River, FMC notes 

that, as a member of ICMM, their parent 

company, FMC Copper & Gold Inc. 

(FCX), adheres to ten sustainable 

development principles, including 

integration of sustainable development 

considerations within the corporate 

decision making process; seeking 

continual improvement of our 

environmental performance; and 

contributing to conservation of 

biodiversity and integrated approaches 

to land use planning. In addition, FCM 

adhere to the ICMM requirement to 

report its performance against the 

Global Reporting Initiative (GRI) G3 

metrics and identify/manage and report 

against key sustainable development 

risks and opportunities. As part of this 

effort, FCX annually establishes 

corporate Sustainable Development 

Performance Targets and reports 

progress against those targets in its 

annual Working Towards Sustainable 

Development Report (See www.fcx.com). 

In support of the company’s efforts in 

implementing the ICMM Sustainable 

Development principles, FCX 

established a corporatewide 

Biodiversity Task Force in 2010. In 

accordance with these principles and 

reporting obligations, FMC has prepared 

these management plans to guide 

actions associated with the management 

of its lands along portions of Eagle 

Creek, the lower San Francisco River in 

Arizona, and portions of the Gila River, 

Bear Creek, and Mangas Creek in New 

Mexico. According to their management 

plans, it is FMC’s intention, through 

implementation of these plans, to 

provide for the long-term protection and 

multiple use benefits of these natural 

systems. 

FMC recognizes that the conservation 

of the spikedace, the loach minnow, and 

other native aquatic species is an 

important goal. In the southwest, FMC 

has funded studies and granted access 

to company land along Eagle Creek for 

many years, allowing the development 

of detailed information on the creek’s 

native and nonnative fish communities. 

In addition, FMC has implemented a 

management system on its U–Bar 

Ranch, which is located along the upper 

Gila River in the vicinity of Cliff in 

Grant County, New Mexico. The Pacific 

Western Land Company (PWLC), a 

subsidiary of FMC, owns the U–Bar 

Ranch. Under FMC’s existing 

management system, the riparian zone 

adjacent to the Gila River has expanded 

in width, benefitting the endangered 

southwestern willow flycatcher and 

other riparian species. Currently, the U– 

Bar Ranch supports one of the largest 

flycatcher populations in the Southwest. 

Freeport-McMoRan has been conducting 

surveys for flycatchers since 1994. 

The land management practices that 

have allowed the flycatcher to flourish 

are compatible with the maintenance of 

spikedace and loach minnow habitat, 

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and the Gila/Cliff Valley segment of the 

Gila River currently supports the largest 

number of spikedace and loach minnow 

of any area within the species’ ranges. 

In addition, surveys show that there are 

low levels of nonnative fishes in this 

stream segment. Freeport-McMoRan 

also has funded surveys for spikedace, 

loach minnow, and other fishes. 

Monitoring supported by FMC along 

Mangas Creek determined that, at that 

time, Mangas Creek supported only 

native fish species. Most of the lower 

9.3 km (5.8 mi) of Mangas Creek is 

located on private land belonging to an 

FMC subsidiary, and has been grazed at 

moderate levels for decades. 

Freeport-McMoRan has previously 

developed and implemented 

management plans for the conservation 

of listed species. In 2005, FMC prepared 

and submitted a plan to the Service for 

the management of the U-Bar Ranch, 

which supported exclusion of the FMC’s 

land from the 2006 southwestern willow 

flycatcher critical habitat designation. 

The following year, FMC prepared and 

submitted management plans for the 

spikedace and loach minnow in Eagle 

Creek and in the upper Gila River, in the 

Gila/Cliff Valley. Those management 

plans supported the exclusion of FMC’s 

land along Eagle Creek and the upper 

Gila River from the 2007 spikedace and 

loach minnow critical habitat 

designations. 

Freeport-McMoRan has supported 

biological surveys for spikedace and 

loach minnow, as well as other species, 

on Eagle Creek for several years by 

allowing access to private lands to 

researchers, and also contracted with 

BIOME, a consulting firm, who 

provided assistance in completing 

surveys on Eagle Creek. During the 2007 

critical habitat designation process, 

FMC developed management plans for 

Eagle Creek that involved monitoring 

the distribution and abundance of the 

loach minnow and spikedace in Eagle 

Creek passing through the FMC reach; 

providing the Service with reasonable 

notice of any significant changes to the 

water supply management system 

outside of historical operating 

parameters; making reasonable efforts to 

attend regularly scheduled fisheries 

management working group meetings; 

and continuing historical land use 

practices and water supply practices 

that enhance water flows in the FMC 

reach; and consideration of loach 

minnow and spikedace habitat when 

deviating from such historic 

management practices. In implementing 

these management plans, FMC provided 

annual reports to the Service regarding 

changes in management, or anticipated 

changes in management for the coming 

year. No changes were made to 

management during the time period 

covered by these plans. 

Spikedace and Loach Minnow 

Management Plan—Eagle Creek and 

San Francisco River, Greenlee and 

Graham County, Arizona 

Freeport-McMoRan owns land and 

water rights in the watersheds of both 

Eagle Creek and the San Francisco 

River, which are used in connection 

with the operation of the Morenci Mine 

near Clifton, Arizona. Under the current 

management plan, FMC will spend up 

to $4,000,000 over the next 10 years to 

investigate, design, and implement 

conservation measures along Eagle 

Creek upstream of its diversion dam and 

on the lower San Francisco River near 

Clifton, Arizona. 

As part of the overall management 

plan, FMC has established a 

coordination process for review of all 

conservation measures. In order to 

ensure that their proposed projects are 

consistent and compatible with the 

goals and actions of the Gila River Basin 

Native Fishes Conservation Program 

(Native Fishes Program), under which 

much of the management of spikedace 

and loach minnow occurs, FMC will 

develop individual work plans and 

submit the plans to the Native Fishes 

Program Technical Committee during 

their annual project review period. This 

Committee consists of personnel from 

the Service, Bureau of Reclamation, 

USFS, Bureau of Land Management, 

New Mexico Department of Game and 

Fish, and the AGFD, all of whom are 

actively involved in native fish 

management. The purposes of the 

Native Fishes Program are: (1) to 

undertake conservation actions 

(recovery and protection) for Federal 

and state-listed or candidate fish species 

native to the Gila River Basin by 

implementing existing and future 

recovery plans for those fishes; and (2) 

to implement nonnative control 

activities to manage nonnative aquatic 

organisms where they interfere with 

native fish conservation activities, or 

provide funding for research in support 

of nonnative control actions. FreeportMcMoRan may revise work plans to 

meet comments received from the 

Native Fishes Program, or may respond 

to their recommendations and submit a 

final work plan to the Native Fishes 

Program. If necessary, FMC will meet 

with the Native Fishes Program to 

present revised work plans at that time. 

As part of their management plan, 

FMC would submit a Safe Harbor 

Agreement and application for a permit 

pursuant to 50 CFR 17.22(c) which may 

also include a request for a permit under 

50 CFR 17.22(d) and 17.32(d). The 

permit would address all listed fish 

species currently found in Eagle Creek 

and the San Francisco River, as well as 

other species that might be listed as 

threatened or endangered in the future. 

The Safe Harbor Agreement would be 

based on the conservation measures set 

forth in the management plan. 

Eagle Creek. Eagle Creek was 

occupied by both species at listing, and 

is classified as a 1a stream under this 

designation. The management plan 

consists of four conservation measures, 

the first of which is investigation and 

construction of a fish passage barrier. 

Within their management plan, FMC 

commits to completing a feasibility 

study to determine three possible sites 

for the construction of a fish barrier 

above the Willow Creek confluence. 

Freeport-McMoRan has indicated that 

the area above Willow Creek is most 

suitable for a barrier due to the fact that 

nonnative fishes still enter Eagle Creek 

from the San Carlos Apache 

Reservation. Following review of the 

proposed sites by the Service, FMC will 

prepare a preliminary work plan that 

describes barrier construction, which 

will be submitted for review to the 

Native Fishes Program by September 1, 

2014, using the coordination process 

described above. If the Native Fish 

Program finds the work plan acceptable, 

and if the barrier will cost $1.5 million 

or less, FMC will prepare an engineering 

study and prepare related documents for 

the fish barrier. Upon approval by the 

Native Fishes Program, FMC will secure 

required permits and approvals and 

build the fish barrier. For those portions 

of Eagle Creek upstream of the barrier, 

this conservation measure would be 

effective in addressing PCE #5, 

regarding no nonnative aquatic species, 

or levels of nonnative aquatic species 

that are sufficiently low as to allow 

persistence of spikedace and loach 

minnow. 

The second conservation measure 

involves alternatives to barrier 

construction. Should barrier 

construction exceed $1.5 million in cost 

to build or be determined to be 

infeasible, FMC and the Service will 

develop other projects that will provide 

conservation benefits to spikedace and 

loach minnow in Eagle Creek and its 

tributaries. Alternative conservation 

measures, such as crayfish removal, and 

chemical treatment of the stream, or 

others that will contribute to the 

recovery of the two species, be 

technically sound and be implemented 

in a reasonable timeframe, and will not 

be redundant in scope with other 

projects will be considered. All 

alternative measures will be submitted 

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10868 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

for review to the Native Fishes Program, 

as described above. Freeport-McMoRan 

will fund alternative projects not to 

exceed $1.5 million. 

The third conservation measure is an 

exotic species removal study. FreeportMcMoRan will develop and implement 

a 3-year monitoring program to detect 

the presence of other types of invasive 

aquatic species (e.g., bullfrogs and 

crayfish) within the upper reach of 

Eagle Creek, and will investigate the 

practicability and cost of removal 

actions to suppress the populations of 

these species in the upper reach of Eagle 

Creek. The results of the study would be 

used to inform future management 

actions to remove nonnative species 

within Eagle Creek. This conservation 

measure would inform management 

agencies on how to better achieve PCE 

5 regarding no nonnative aquatic 

species, or levels of nonnative aquatic 

species that are sufficiently low as to 

allow persistence of spikedace and 

loach minnow. 

The fourth conservation measure is 

ecological monitoring for spikedace, 

loach minnow, and other warm water 

fish species. The Recovery Plans for 

both the spikedace and the loach 

minnow emphasize the need to 

consistently monitor the status of 

existing populations, including the 

establishment of standard monitoring 

locations and techniques, as well as 

investigate and quantify through field 

research the habitat needs of the species 

and effects of physical habitat 

modification (Service 1991a, pp.12–27; 

Service 1991b, pp. 11–27). FreeportMcMoRan will use the existing 

permanent sample locations that have 

been used in previous survey efforts, 

and will undertake a more robust 

monitoring program on both Eagle Creek 

and the lower reach of the San 

Francisco River, from its confluence 

with the Gila River upstream to its 

confluence with the Blue River. 

Monitoring will be conducted annually, 

with reports on information gathered 

provided to the Service and the Native 

Fishes Program. As part of this 

management plan, FMC will study and 

analyze the ecology of the loach 

minnow, spikedace, other native fish, 

and their habitat in Eagle Creek, 

including the relationship between 

native fish preferences for selected 

habitats and various associated 

environmental factors (e.g., substrates, 

channel characteristics, vegetation, and 

channel morphology). A key component 

of this effort will be the regular 

monitoring of PCEs within targeted 

stream segments that can affect the 

suitability of these streams for native 

fish and inform adaptive management 

decisions. 

As mentioned earlier, in conjunction 

with the submission of the preliminary 

studies of possible fish barrier sites on 

Eagle Creek and the San Francisco 

River, FMC will submit a Safe Harbor 

Agreement and application for a permit 

pursuant to 50 CFR 17.22(c). 

Benefits of Inclusion—FreeportMcMoRan at Eagle Creek 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. Federal agencies must also 

consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects of 

a proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The jeopardy analysis 

evaluates the action’s impact to survival 

and recovery of the species, while the 

destruction or adverse modification 

analysis evaluates the action’s effects to 

the designated habitat’s contribution to 

conservation. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

However, for some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often also result in effects 

to the species. Lands being evaluated for 

exclusion in this unit are occupied by 

both species and are subject to 

consultation requirements of the Act. 

Approximately 20.5 km (12.7 mi) of 

Eagle Creek are on Federal lands, and 

projects with a Federal nexus through 

permitting or funding on non-Federally 

owned areas along Eagle Creek may also 

require section 7 consultation. As 

proposed, the designation included 75.5 

km (46.9 mi) of contiguous habitat. 

However, it should be noted that those 

portions on the San Carlos Apache 

Indian Reservation have been excluded 

under a separate management plan, as 

noted above, and that not all of the 

remaining 75.5 km (46.9 mi) occur on 

Federal lands or would have a Federal 

nexus for purposes of section 7 

consultation. 

All lands considered for exclusion are 

currently considered occupied by 

spikedace and loach minnow and will 

be subject to the consultation 

requirements of the Act in the future. 

Although a jeopardy and adverse 

modification analysis must satisfy two 

different standards, because any 

modifications to proposed actions 

resulting from a section 7 consultation 

to minimize or avoid impacts to 

spikedace and loach minnow would be 

habitat-based, it is difficult to 

differentiate measures implemented 

solely to minimize impacts to the 

critical habitat from those implemented 

to minimize impacts to the species. 

Therefore, in the case of spikedace and 

loach minnow, we believe the 

incremental benefits of critical habitat 

designation are minimal as compared to 

the conservation and regulatory benefits 

derived from the species being listed. 

The Service has completed one 

consultation on a water diversion 

structure modification on FMC mining 

operations in the past. Generally, the 

mining operations have not resulted in 

consultation, as the Morenci Mine (as 

well as the Tyrone Mine) are not located 

adjacent to the stream channel. As noted 

in the water quality section above, spills 

associated with mines have occurred in 

spikedace and loach minnow habitat in 

the past. However, even absent a section 

7 connection, other safeguards are in 

place, including water quality 

parameters and monitoring by the 

Arizona Department of Environmental 

Quality and the EPA. The Service also 

has an Environmental Contaminants 

Program and staff involved in 

identification of environmental 

contaminant problems affecting 

threatened and endangered species and 

other resources. Through this program, 

the Service identifies contaminant 

problems and pursues appropriate 

actions to eliminate contaminant threats 

and restore affected resources. 

Public education is often cited as 

another possible benefit of including 

lands in critical habitat as it may help 

focus conservation efforts on areas of 

high value for certain species. Eagle 

Creek occurs in an isolated area; 

however, there are ranchers in the area, 

and the area is used for sportfishing by 

the general public. Designation of 

critical habitat could inform those who 

either live locally or use the area for 

recreation about listed species and their 

habitat needs. Freeport-McMoRan has 

indicated that this area is heavily used 

by employees of the Morenci Mine, and 

it is possible that a public outreach 

campaign could be used to educate 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10869 

those who fish in the area about native 

fish species. Partnership efforts with 

FMC to conserve spikedace and loach 

minnow have resulted in awareness 

about the species that occur within the 

Eagle Creek. However, we believe there 

is little, if any, educational benefit 

attributable to critical habitat beyond 

those achieved from listing the species 

under the Act, and FMC’s continued 

work in conserving these species. 

The designation of critical habitat for 

spikedace and loach minnow within 

Eagle Creek may strengthen or reinforce 

some Federal laws, such as NEPA or the 

Clean Water Act. These laws analyze the 

potential for projects to significantly 

affect the environment. Critical habitat 

may signal the presence of sensitive 

habitat that could otherwise be missed 

in the review process for these other 

environmental laws; however, the 

listing of these species, prior 

designations of critical habitat and 

consultations that have already occurred 

will provide this benefit. Therefore, in 

this case we view the regulatory benefit 

to be largely as redundant with the 

benefit the species will receive from 

listing under the Act and may only 

result in minimal additional benefits. 

In summary, we do not believe that 

designating critical habitat within lands 

owned and managed by FMC along 

Eagle Creek will provide significant 

additional benefits for spikedace and 

loach minnow. Projects on these lands 

with a Federal nexus will require 

section 7 consultation with the Service 

(regardless of critical habitat 

designation) because the habitat is 

occupied and we believe the 

incremental benefit from critical habitat 

would be minimal. Furthermore, FMC 

continues to show a commitment to 

conservation of these species. 

Benefits of Exclusion—FreeportMcMoRan at Eagle Creek 

The significant benefit of exclusion of 

FMC owned lands which are subject to 

the management plan for the Eagle 

Creek is the maintenance and 

strengthening of the ongoing 

partnership with the Service. FreeportMcMoRan has demonstrated a 

partnership with the Service beginning 

with the management plan submitted to 

the Service in 2005 for the southwestern 

willow flycatcher, the 2007 management 

plans for spikedace and loach minnow, 

and they have indicated a willingness to 

continue as a partner to the Service in 

the conservation of spikedace and loach 

minnow on Eagle Creek. Evidence of 

this partnership can be shown through 

the assistance with past monitoring 

efforts for spikedace and loach minnow 

on Eagle Creek, carried out under their 

2007 management plan, and the 

continued occupancy of Eagle Creek by 

spikedace and loach minnow. 

Additional evidence of the partnership 

between FMC and the Service is shown 

by FMC’s past commitment in 2005 to 

develop and implement a management 

plan for southwestern willow flycatcher 

and their current commitment to pursue 

a safe harbor agreement for all native 

fish in Eagle Creek. In addition, the 

identified coordination procedures and 

funding indicate a commitment on the 

part of FMC to on-the-ground spikedace 

and loach minnow conservation. And, 

FMC has also identified monitoring and 

exotic species removal studies. 

Information gained by both studies 

would be useful in guiding future 

management of the species and in 

managing Eagle Creek. In summary, 

exclusion of this area from the 

designation would maintain, and 

strengthen the partnership between the 

Service and FMC. The exclusion of 

these lands may enhance opportunities 

to partner with other entities not yet 

identified. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—FreeportMcMoRan at Eagle Creek 

We reviewed and evaluated the 

benefits of inclusion and the benefits of 

exclusion of FMC owned lands along 

Eagle Creek as critical habitat for 

spikedace and loach minnow. We 

believe past, present, and future 

coordination with FMC has provided 

and will continue to provide sufficient 

education regarding spikedace and 

loach minnow habitat conservation 

needs on these lands, such that there 

would be minimal additional 

educational benefit from designation of 

critical habitat. Further, because any 

potential impacts to spikedace and 

loach minnow habitat from future 

projects with a Federal nexus will be 

addressed through a section 7 

consultation with the Service under the 

jeopardy standard, we believe that the 

incremental conservation and regulatory 

benefit of designated critical habitat on 

Freeport-McMoRan owned lands would 

largely be redundant with the combined 

benefits of listing and existing 

management. Therefore, the incremental 

conservation and regulatory benefits of 

designating critical habitat on FMC 

owned lands along Eagle Creek are 

minimal. 

On the other hand, the benefits of 

excluding FMC owned lands along 

Eagle Creek from critical habitat are 

significant. Freeport-McMoRan’s 

management plan establishes a 

framework for cooperation and 

coordination with the Service in 

connection with resource management 

activities based on adaptive 

management principles, including, if 

necessary, the development of 

alternative conservations measures, at a 

total cost of up to $1,500,000 to protect 

habitat for spikedace and loach minnow 

on Eagle Creek. Most importantly, the 

management plans indicate a continuing 

commitment to ongoing management 

that has resulted in habitat that supports 

spikedace and loach minnow. 

Exclusion of these lands from critical 

habitat will help preserve and 

strengthen the conservation partnership 

we have developed with FMC, reinforce 

those we are building with other 

entities, and foster future partnerships 

and development of management plans; 

whereas inclusion will negatively 

impact our relationships with FMC and 

other existing or future partners. We are 

committed to working with FMC to 

further the conservation of spikedace 

and loach minnow and other 

endangered and threatened species. 

Freeport-McMoRan will continue to 

implement their management plans and 

play an active role to protect spikedace 

and loach minnow and their habitat. 

Therefore, in consideration of the 

relevant impact to our partnership with 

FMC, and the ongoing conservation 

management practices of FMC, we 

determined the significant benefits of 

exclusion outweigh the benefits of 

inclusion in the critical habitat 

designation. 

In summary, we find that excluding 

FMC owned lands along Eagle Creek 

from this final critical habitat will 

preserve our partnership and may foster 

future habitat management and species 

conservation plans with FMC and with 

other entities now and in the future. 

These partnership benefits are 

significant and outweigh the minimal 

additional regulatory and educational 

benefits of including these lands in final 

critical habitat for spikedace and loach 

minnow. 

Exclusion Will Not Result in Extinction 

of the Species—Eagle Creek 

We have determined that the 

exclusion of 21.4 km (13.3 mi) of FMC 

owned lands along Eagle Creek from the 

designation of critical habitat for 

spikedace and loach minnow will not 

result in the extinction of either species. 

The jeopardy standard of section 7 of 

the Act and routine implementation of 

conservation measures through the 

section 7 process due to spikedace and 

loach minnow occupancy provide 

assurances that this species will not go 

extinct as a result of excluding these 

lands from the critical habitat 

designation. Therefore, based on the 

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10870 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

above discussion, the Secretary is 

exercising his discretion to exclude 

approximately of 21.4 km (13.3 mi) of 

FMC owned lands along Eagle Creek 

from the designation of critical habitat 

for spikedace and loach minnow. 

San Francisco River. The San 

Francisco River was not occupied by 

spikedace at listing, and is classified as 

a 2b stream for spikedace, indicating it 

would serve as an expansion of the 

species’ range. Spikedace were 

reintroduced into the San Francisco 

River in 2007; however, insufficient 

time has elapsed to determine if the 

reintroduction program will be a 

success. The San Francisco River was 

occupied at listing by loach minnow 

and is currently occupied, and is 

therefore classified as a 1a stream under 

this designation. 

Freeport-McMoRan notes that they are 

the primary private property owner 

along the lower reach of the San 

Francisco River in Arizona. Under the 

Eagle Creek and San Francisco River 

Management Plan, FMC proposes to 

spend $2,500,000 on the San Francisco 

River. The coordination process with 

the Native Fishes Program, as detailed 

above, would apply to conservation 

measures for the San Francisco River as 

well. 

The management plan describes the 

lower reach of the San Francisco River 

as a well-known sport fishery, with 

channel catfish, carp, and red shiner. 

For the San Francisco River, FMC’s 

management plan proposes completing 

a feasibility study to evaluate three 

potential barrier sites. Provided that a 

suitable barrier site is found, FMC will 

prepare a preliminary work plan 

following the coordination procedures 

outlined above, and will submit it to the 

Service for review and comment, and 

then to the Native Fishes Program by 

September 1, 2014. 

If approved by the Native Fish 

Program, and provided the cost does not 

exceed $2,500,000, FMC will construct 

a barrier on the San Francisco River 

with the goal of completing construction 

in 5 years. Freeport-McMoRan will 

report progress on the report semiannually until barrier construction is 

complete. For those portions of the San 

Francisco River upstream of the barrier, 

this conservation measure would be 

effective in addressing PCE #5, 

regarding no nonnative aquatic species, 

or levels of nonnative aquatic species 

that are sufficiently low as to allow 

persistence of spikedace and loach 

minnow. 

As with Eagle Creek, should barrier 

construction costs be estimated to 

exceed $2,500,000, if barrier 

construction is deemed infeasible, or if 

the Native Fish Program determines that 

it is not advisable to construct a fish 

barrier, FMC commits in the 

management plan to conferring in good 

faith with the Service to identify other 

projects that will provide conservation 

benefits to spikedace and loach 

minnows in the San Francisco River and 

its tributaries. Any identified 

conservation measures would contribute 

to the recovery of the two species, 

would be technically sound and able to 

be implemented in a reasonable 

timeframe, and would not be redundant 

in scope. Any alternative proposals 

developed would be reviewed through 

the coordination process described 

above, and FMC commits to paying 

$2,500,000 for the development, review, 

and implementation of conservation 

measures, including any expenditures to 

investigate the feasibility of a fish 

barrier. 

In addition, FMC commits in the 

management plan to implementing a 

detailed monitoring program along the 

lower reach of the San Francisco River 

to assist in the conservation of 

spikedace and loach minnow. As noted 

above, the Recovery Plans for both the 

spikedace and the loach minnow 

emphasize the need to consistently 

monitor the status of existing 

populations, including the 

establishment of standard monitoring 

locations and techniques, as well as 

investigating and quantifying through 

field research the habitat needs of the 

species and effects of physical habitat 

modification (Service 1991a, pp. 12–27; 

Service 1991b, pp. 11–27). There is no 

regular monitoring of the portions of the 

San Francisco River in Arizona at this 

time. The monitoring program would 

include a minimum of 15 permanent 

sample locations. As with Eagle Creek, 

standardized sampling techniques and 

protocols would be used, and the 

management plan contains additional 

detail on equipment and procedures. 

Freeport-McMoRan commits to 

providing an annual report to the 

Service regarding its implementation of 

the management plan. The report will 

provide a description of implementation 

of plan elements over the course of the 

previous year and discuss anticipated 

implementation for the coming year. 

Each year’s report would be provided to 

the Service by April of the following 

year. 

Benefits of Inclusion—FreeportMcMoRan on the San Francisco River 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. Federal agencies must also 

consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects of 

a proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The jeopardy analysis 

evaluates the action’s impact to survival 

and recovery of the species, while the 

destruction or adverse modification 

analysis evaluates the action’s effects to 

the designated habitat’s contribution to 

conservation. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

However, for some species, and in some 

locations, the outcome of these analyses 

will be similar, because effects to habitat 

will often also result in effects to the 

species. Lands being evaluated for 

exclusion in this unit are occupied by 

loach minnow (and possibly by 

spikedace, if the translocation efforts are 

successful) and are subject to 

consultation requirements of the Act. 

Approximately 13.2 km (8.2 mi) of those 

portions of the San Francisco River 

covered by the management plan are on 

Federal lands, and projects impacting 

other non-Federally owned areas may 

require section 7 consultation for 

impacts to critical habitat if they require 

Federal permitting or use Federal funds. 

It is possible that projects impacting 

other non-Federally owned areas may 

require section 7 consultation for 

impacts to critical habitat if they require 

Federal permitting or use Federal funds. 

However, we do not anticipate there 

being many consultations along FMC’s 

lands on the San Francisco River due to 

the lack of a Federal nexus and due to 

the lack of a history of consultations. 

Due to the lack of consultations in these 

areas, we conclude the benefit of 

inclusion based on consultation 

requirements under the Act is reduced. 

All lands considered for exclusion are 

currently considered occupied by loach 

minnow and will be subject to the 

consultation requirements of the Act in 

the future. Although a jeopardy and 

adverse modification analysis must 

satisfy two different standards, because 

any modifications to proposed actions 

resulting from a section 7 consultation 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10871 

to minimize or avoid impacts to loach 

minnow would be habitat-based, it is 

difficult to differentiate measures 

implemented solely to minimize 

impacts to the critical habitat from those 

implemented to minimize impacts to 

the species. Therefore, in the case of 

spikedace and loach minnow, we 

believe the incremental benefits of 

critical habitat designation are minimal 

as compared to the conservation and 

regulatory benefits derived from the 

species being listed. 

Public education is often cited as 

another possible benefit of including 

lands in critical habitat as it may help 

focus conservation efforts on areas of 

high value for certain species. The San 

Francisco River occurs near the towns of 

Clifton and Morenci. The area is 

currently heavily used for sportfishing 

by the general public, and designation 

of critical habitat could inform those 

who either live locally or use the area 

for recreation about listed species and 

their habitat needs. Partnership efforts 

with FMC to conserve spikedace and 

loach minnow have resulted in 

awareness about the species that occur 

within the San Francisco River. 

However, we believe there is little, if 

any, educational benefit attributable to 

critical habitat beyond those achieved 

from listing the species under the Act, 

and FMC’s continued work in 

conserving these species. 

The designation of critical habitat for 

spikedace and loach minnow within the 

San Francisco River may strengthen or 

reinforce some Federal laws, such as 

NEPA or the Clean Water Act. These 

laws analyze the potential for projects to 

significantly affect the environment. 

Critical habitat may signal the presence 

of sensitive habitat that could otherwise 

be missed in the review process for 

these other environmental laws; 

however, the listing of these species, 

prior designations of critical habitat, 

and consultations that have already 

occurred will provide this benefit. 

Therefore, in this case we view the 

regulatory benefit to be largely 

redundant with the benefit the species 

will receive from listing under the Act 

and may only result in minimal 

additional benefits. 

In summary, we do not believe that 

designating critical habitat within lands 

owned and managed by FMC along the 

San Francisco River will provide 

significant additional benefits for 

spikedace and loach minnow. Projects 

on these lands with a Federal nexus will 

require section 7 consultation with the 

Service (regardless of critical habitat 

designation) because the habitat is 

occupied and we believe the 

incremental benefit from critical habitat 

would be minimal. However, due to the 

lack of a consultation history along the 

San Francisco River, the benefits of 

inclusion that stem from consultation 

requirements under the Act are reduced. 

Furthermore, FMC continues to show a 

commitment to conservation of these 

species through the development and 

implementation of the management 

plans which cover the San Francisco 

River for spikedace and loach minnow. 

Benefits of Exclusion—FreeportMcMoRan on the San Francisco River 

The significant benefit of exclusion of 

FMC owned lands which are subject to 

the management plan for the San 

Francisco River is the maintenance and 

strengthening of the ongoing 

partnership with the Service. FreeportMcMoRan has demonstrated a 

partnership with the Service beginning 

with the management plan submitted to 

the Service in 2005 for the southwestern 

willow flycatcher, the 2007 management 

plans for spikedace and loach minnow, 

and they have indicated a willingness to 

continue as a partner to the Service in 

the conservation of spikedace and loach 

minnow on San Francisco River. 

Evidence of this partnership can be 

shown through the past monitoring 

efforts for spikedace and loach minnow 

on Eagle Creek, carried out under their 

2007 management plan. Additional 

evidence of the partnership between 

FMC and the Service is shown by FMC’s 

past commitment in 2005 to develop 

and implement a management plan for 

southwestern willow flycatcher and 

their current commitment to pursue a 

safe harbor agreement for all native fish 

in the San Francisco River. In addition, 

the identified coordination procedures 

and funding indicate a commitment on 

the part of FMC to on-the-ground 

spikedace and loach minnow 

conservation. Finally, FreeportMcMoRan has demonstrated a 

commitment to the 2007 management 

plans, and indicated a willingness to 

continue as a partner to the Service in 

the conservation of spikedace and loach 

minnow in the San Francisco River. 

Excluding the San Francisco River 

would promote that partnership. The 

identified coordination procedures and 

funding indicate a commitment on the 

part of FMC to on-the-ground spikedace 

and loach minnow conservation. And, 

FMC has also identified increased 

monitoring on the San Francisco River. 

The lower portions of the San Francisco 

River have been surveyed with less 

frequency and regularity than most 

spikedace and loach minnow streams. 

The commitment to monitoring in the 

management plan would assist 

conservation management efforts for the 

species. In summary, exclusion of this 

area from the designation would 

maintain, and strengthen the 

partnership between the Service and 

FMC. The exclusion of these lands may 

enhance opportunities to partner with 

other entities not yet identified. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—FreeportMcMoRan on the San Francisco River 

We reviewed and evaluated the 

benefits of inclusion and the benefits of 

exclusion of FMC owned lands along 

the San Francisco River as critical 

habitat for spikedace and loach 

minnow. We believe past, present, and 

future coordination with FMC has 

provided and will continue to provide 

sufficient education regarding spikedace 

and loach minnow habitat conservation 

needs on these lands, such that there 

would be no additional educational 

benefit from designation of critical 

habitat. Further, because any potential 

impacts to spikedace and loach minnow 

habitat from future projects with a 

Federal nexus will be addressed through 

a section 7 consultation with the Service 

under the jeopardy standard, we believe 

that the incremental conservation and 

regulatory benefit of designated critical 

habitat on FMC owned lands would 

largely be redundant with the combined 

benefits of listing and existing 

management. Therefore, the incremental 

conservation and regulatory benefits of 

designating critical habitat on FMC 

owned lands along the San Francisco 

River are minimal. 

On the other hand, the benefits of 

excluding FMC owned lands along the 

San Francisco River from critical habitat 

are significant. Freeport-McMoRan’s 

management plan establishes a 

framework for cooperation and 

coordination with the Service in 

connection with resource management 

activities based on adaptive 

management principles, including, if 

necessary, the development of 

alternative conservations measures, at a 

total cost of up to $2,500,000 to protect 

habitat for spikedace and loach minnow 

on the San Francisco River. Most 

importantly, the management plans 

indicate a continuing commitment to 

ongoing management that has resulted 

in habitat that supports spikedace and 

loach minnow. 

Exclusion of these lands from critical 

habitat will help preserve and 

strengthen the conservation partnership 

we have developed with FMC, reinforce 

those we are building with other 

entities, and foster future partnerships 

and development of management plans; 

whereas inclusion will negatively 

impact our relationships with FMC and 

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other existing or future partners. We are 

committed to working with FMC to 

further the conservation of spikedace 

and loach minnow and other 

endangered and threatened species. 

Freeport-McMoRan will continue to 

implement their management plans and 

play an active role to protect spikedace 

and loach minnow and their habitat. 

Therefore, in consideration of the 

relevant impact to our partnership with 

FMC, and the ongoing conservation 

management practices of FMC, we 

determined the significant benefits of 

exclusion outweigh the benefits of 

inclusion in the critical habitat 

designation. 

In summary, we find that excluding 

FMC owned lands along the San 

Francisco River from this final critical 

habitat will preserve our partnership 

and may foster future habitat 

management and species conservation 

plans with FMC and with other entities 

now and in the future. These 

partnership benefits are significant and 

outweigh the minimal additional 

regulatory and educational benefits of 

including these lands in final critical 

habitat for spikedace and loach 

minnow. 

Exclusion Will Not Result in Extinction 

of the Species—San Francisco River 

We have determined that the 

exclusion of 14.1 km (8.8 mi) FMC 

owned lands along the San Francisco 

River from the designation of critical 

habitat for spikedace and loach minnow 

will not result in the extinction of either 

species. The jeopardy standard of 

section 7 of the Act and routine 

implementation of conservation 

measures through the section 7 process 

due to loach minnow occupancy (and 

spikedace if the translocation efforts are 

successful) provide assurances that this 

species will not go extinct as a result of 

excluding these lands from the critical 

habitat designation. Therefore, based on 

the above discussion, the Secretary is 

exercising his discretion to exclude 

approximately 14.1 km (8.8 mi) of FMC 

owned lands along the San Francisco 

River from the designation of critical 

habitat for spikedace and loach 

minnow. 

Spikedace and Loach Minnow 

Management Plan—Upper Gila River, 

Including Bear Creek and Mangas 

Creek, Grant County, New Mexico 

Freeport-McMoRan provided this 

management plan during the second 

comment period. Freeport-McMoRan 

currently owns more than 11.5 km (7.2 

mi) along the Gila River, approximately 

7.9 km (4.9 mi) along Mangas Creek, and 

approximately 1.9 km (1.2 mi) along 

Bear Creek. Much of this area is owned 

by the Pacific Western Land Company 

(PWLC), a subsidiary of FMC, and is 

included in the U-Bar Ranch. FreeportMcMoRan’s land and water rights in the 

Gila/Cliff Valley support operations at 

the Tyrone Mine in addition to its 

agricultural operations along the Gila 

River. Freeport-McMoRan diverts water 

from the Gila River for use at the Tyrone 

Mine located southwest of Silver City, 

New Mexico. Their water right includes 

a diversion structure on the Gila River 

above its confluence with Mangas 

Creek, which diverts water into a canal. 

A pump station moves water from the 

canal to the Bill Evans Reservoir, and 

water is pumped from the reservoir 

through a 35.4-km (22-mi) pipeline to 

the Tyrone Mine. The Bill Evans 

Reservoir is managed by the NMDGF as 

a recreational facility, and stocked with 

sportfish. The Reservoir is separated 

from the active stream channel. 

Freeport-McMoRan’s management 

plan provides background on steps 

taken by FMC for environmental 

management in this region in general, as 

well as conservation measures for 

spikedace and loach minnow. One such 

measure is FMC’s participation in a 

voluntary water conservation program 

administered by the New Mexico Office 

of the State Engineer (OSE). Under this 

program, FMC has enrolled 2,876 acre 

feet of its annual average diversion 

rights through 2018. The program 

allows FMC to increase or decrease the 

amount of water rights that are 

restricted from diversion and 

consumptive use on an annual basis, 

depending on their current water needs. 

As detailed in the plan, this portion 

of the Gila River maintains a healthy 

stream and riparian system, and 

supports the largest populations of 

spikedace and loach minnow in the two 

species’ ranges. The river in this area is 

perennial, and has very low levels of 

nonnative fishes. Under the plan, FMC 

will continue participation in the water 

conservation program noted above, and 

commits to re-enrolling to continue 

their participation in the water 

conservation program should their 

enrollment lapse during the life of the 

management plan. 

The management plan would also 

maintain minimum flow levels in the 

Gila River during periods of drought. 

Specifically, FMC will not divert water 

from the Gila River at the Bill Evans 

Reservoir diversion structure into the 

reservoir if both of the following 

conditions exist: (1) The Gila River is 

flowing at less than 25 cfs at the USGS 

Gage 09431500 near Redrock, New 

Mexico; and (2) the water level in Bill 

Evans Reservoir is at 1,424 meters 

(4,672 feet) above sea level. Should Gila 

River flows be less than 25 cfs, but the 

reservoir levels fall below 1,424 meters 

(4,672 feet), FMC will consult with the 

NMDGF regarding a temporary 

curtailment of water. FreeportMcMoRan concludes that the 25 cfs 

trigger will ensure that FMC diversions 

do not cause the river to dry up during 

low-flow conditions. Should FMC need 

to modify its water use and diversion 

activities due to unanticipated 

circumstances, they will confer with 

FWS regarding the impacts of such 

changes for the purpose of developing 

alternative conservation measures. 

Should such measures be needed, FMC 

commits to spending up to $500,000 for 

these measures. This measure would 

assist in maintaining perennial flows, as 

described under PCE 4. 

Freeport-McMoRan has funded 

monitoring on Mangas Creek and the 

Gila River in the past, and commits to 

funding surveys on these two streams 

on a biennial basis, and furnishing the 

results of the surveys to the Service. The 

Recovery Plans for both the spikedace 

and the loach minnow emphasize the 

need to consistently monitor the status 

of existing populations, including the 

establishment of standard monitoring 

locations and techniques, as well as 

investigating and quantifying through 

field research the habitat needs of the 

species and effects of physical habitat 

modification (Service 1991a; Service 

1991b). In addition, FMC will develop 

and implement a program to detect and 

remove crayfish from Mangas Creek. 

Removal of this nonnative aquatic 

species would help in improving habitat 

conditions for spikedace and loach 

minnow by reducing/minimizing the 

number of nonnative aquatic species as 

described in PCE 5. 

Freeport-McMoRan commits to 

making a reasonable effort to coordinate 

with other landowners in the Gila/Cliff 

Valley regarding conservation-related 

issues and activities. They will ask that 

neighboring landowners assist in FMC’s 

conservation efforts, and will provide 

assistance to neighboring landowners 

who wish to implement conservation 

measures. Freeport-McMoRan will also 

confer with the Service regarding 

activities that might be undertaken to 

increase public awareness of the habitat 

needs of spikedace and loach minnow. 

The management plan contains 

provisions for reporting requirements, 

as well as for adaptive management. For 

reporting requirements, FMC notes that 

they will provide an annual report to 

the Service discussing implementation 

of the management plan, which will 

include information affirming plan 

implementation; note any changes from 

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historic operating parameters; and 

discuss anticipated implementation of 

the plan for upcoming years. Reports 

will be submitted each year by April 1 

for the previous year. 

With respect to adaptive management, 

FMC anticipates that operational 

requirements may require modification 

of its land and water use in the Gila/ 

Cliff Valley, or that future surveys and 

monitoring activities could detect 

significant changes in the native and 

nonnative fish populations or key 

habitat parameters, indicating that an 

alternative conservation measure is 

needed to protect spikedace and low 

minnow. They commit to conferring in 

good faith in the development of 

alternative conservation measures and, 

as noted above, will spend up to 

$500,000 on these measures. 

For Bear Creek, FMC indicates that 

they will continue to discourage 

trespass on their lands in the lower 

portions of Bear Creek, which can aid in 

maintaining or improving water quality 

by minimizing sedimentation. In 

addition, the management plan states 

that FMC will continue its existing land 

uses and management practices in the 

Gila/Cliff Valley. The lower portions of 

Bear Creek included in the management 

plan are part of the U-Bar Ranch and 

managed by an FMC subsidiary. 

Freeport-McMoRan notes that they will 

continue their existing land uses and 

management practices on this property, 

unless unanticipated circumstances 

arise that necessitate changes. In such 

an event, FMC would provide the 

Service with notice of any significant 

changes in land use and management 

practices that are outside the range of 

the historic operating parameters they 

provide in the management plan, and 

discuss potential impacts to loach 

minnow. 

We conclude that the management 

plans provide benefits to spikedace and 

loach minnow that are equivalent to 

those that would be provided by critical 

habitat designation. Under FMC’s past 

and current management, portions of 

the Gila River and Mangas Creek 

continue to support the largest numbers 

of spikedace and loach minnow in their 

range. Nonnative species currently 

appear to be at levels that have a 

minimal impact on native species in the 

Gila River, and are currently 

nonexistent in Mangas Creek, meeting 

PCE 5 for these streams. FreeportMcMoRan has made a commitment to 

maintaining perennial flows in the Gila 

River downstream of their diversion. 

Should the situation change, FMC has 

committed to meeting with the Service 

to develop additional conservation 

measures, and has dedicated funding in 

the amount of $500,000 to this task. The 

management plan details reporting 

requirements and effective dates for the 

initiation of the plan. 

Benefits of Inclusion—FreeportMcMoRan on the Gila River, Mangas 

Creek, and Bear Creek 

The principal benefit of including an 

area in a critical habitat designation is 

the requirement for Federal agencies to 

ensure actions they fund, authorize, or 

carry out are not likely to result in the 

destruction or adverse modification of 

any designated critical habitat, the 

regulatory standard of section 7(a)(2) of 

the Act under which consultation is 

completed. Federal agencies must also 

consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects of 

a proposed project on critical habitat is 

separate and different from that of the 

effects of a proposed project on the 

species itself. The jeopardy analysis 

evaluates the action’s impact to survival 

and recovery of the species, while the 

destruction or adverse modification 

analysis evaluates the action’s effects to 

the designated habitat’s contribution to 

conservation. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

However, for some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often also result in effects 

to the species. Lands being evaluated for 

exclusion in this unit are occupied by 

both species and are subject to 

consultation requirements of the Act. 

Within the stream reach managed by 

FMC, only approximately 0.25 mile is 

managed by BLM, while the remainder 

of this reach is private or State owned. 

It is possible that projects impacting 

other non-Federally owned areas may 

require section 7 consultation for 

impacts to critical habitat if they require 

Federal permitting or use Federal funds. 

However, we do not anticipate there 

being many consultations along the Gila 

River, Mangas Creek, and Bear Creek 

due to the lack of a Federal nexus and 

due to the lack of a history of 

consultations. Due to the lack of 

consultations in these areas, we 

conclude the benefit of inclusion based 

on consultation requirements under the 

Act is reduced. 

All lands considered for exclusion are 

currently considered occupied by either 

spikedace or loach minnow and will be 

subject to the consultation requirements 

of the Act in the future. Although a 

jeopardy and adverse modification 

analysis must satisfy two different 

standards, because any modifications to 

proposed actions resulting from a 

section 7 consultation to minimize or 

avoid impacts to spikedace and loach 

minnow would be habitat-based, it is 

not possible to differentiate any 

measures implemented solely to 

minimize impacts to the critical habitat 

from those implemented to minimize 

impacts to the species. Therefore, in the 

case of spikedace and loach minnow, 

we believe the incremental benefits of 

critical habitat designation are minimal 

as compared to the conservation and 

regulatory benefits derived from the 

species being listed. 

Public education is often cited as 

another possible benefit of including 

lands in critical habitat as it may help 

focus conservation efforts on areas of 

high value for certain species. 

Partnership efforts with FMC to 

conserve spikedace and loach minnow 

have resulted in awareness about the 

species that occur within the Gila River, 

Mangas Creek, and Bear Creek. 

However, we believe there is little, if 

any, educational benefit attributable to 

critical habitat beyond those achieved 

from listing the species under the Act 

and FMC’s continued work in 

conserving these species. 

The designation of critical habitat for 

spikedace and loach minnow within the 

Gila River, Mangas Creek, and Bear 

Creek may strengthen or reinforce some 

Federal laws, such as NEPA or the Clean 

Water Act. These laws analyze the 

potential for projects to significantly 

affect the environment. Critical habitat 

may signal the presence of sensitive 

habitat that could otherwise be missed 

in the review process for these other 

environmental laws; however, the 

listing of these species, prior 

designations of critical habitat and 

consultations that have already occurred 

will provide this benefit. Therefore, in 

this case we view the regulatory benefit 

to be largely as redundant with the 

benefit the species will receive from 

listing under the Act and may only 

result in minimal additional benefits. 

In summary, we do not believe that 

designating critical habitat within lands 

owned and managed by FMC along the 

Gila River, Mangas Creek, and Bear 

Creek will provide significant additional 

benefits for spikedace and loach 

minnow. Projects on these lands with a 

Federal nexus will require section 7 

consultation with the Service 

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(regardless of critical habitat 

designation) because the habitat is 

occupied and we believe the 

incremental benefit from critical habitat 

would be minimal. However, due to the 

lack of a consultation history along the 

Gila River, Mangas Creek, and Bear 

Creek, the benefits of inclusion that 

stem from consultation requirements 

under the Act are reduced. Furthermore, 

FMC continues to show a commitment 

to conservation of these species through 

the development and implementation of 

the management plans which cover the 

Gila River, Mangas Creek, and Bear 

Creek for spikedace and loach minnow. 

Benefits of Exclusion—FreeportMcMoRan on the Gila River, Mangas 

Creek, and Bear Creek 

The significant benefits of exclusion 

of FMC owned lands that are subject to 

the management plan for the Gila River, 

Mangas Creek, and Bear Creek is the 

maintenance and strengthening of the 

ongoing partnership with the Service. 

Freeport-McMoRan has demonstrated a 

partnership with the Service beginning 

with the management plan submitted to 

the Service in 2005 for the southwestern 

willow flycatcher, and the 2007 

management plans for spikedace and 

loach minnow, and they have indicated 

a willingness to continue as a partner to 

the Service in the conservation of 

spikedace and loach minnow on the 

Gila River, Mangas Creek, and Bear 

Creek. Freeport-McMoRan has 

demonstrated a commitment to this 

partnership through conservation in this 

area by voluntarily enrolling in a water 

conservation program with the OSE for 

which they have dedicated 2,876 af of 

water that may be used for 

nonconsumptive purposes. 

Evidence of this partnership can be 

shown through the management of those 

portions of the Gila River, Mangas 

Creek, and Bear Creek on FMC lands, 

which has resulted in expansion of 

riparian areas that provide suitable 

habitat for spikedace and loach 

minnow. Additional evidence of the 

partnership between FMC and the 

Service is shown by FMC’s commitment 

to provide for adaptive management, 

such that should FMC need to modify 

its water use and diversion activities 

due to unanticipated circumstances, 

they will confer with the Service 

regarding the impacts of such changes 

and will adopt alternative conservation 

measures not to exceed $500,000 in 

cost. Exclusion of this area from the 

designation would maintain, and 

strengthen the partnership between the 

Service and FMC. The exclusion of 

these lands may enhance opportunities 

to partner with other entities not yet 

identified. 

Weighing Benefits of Exclusion Against 

Benefits of Inclusion—FreeportMcMoRan on the Gila River, Mangas 

Creek, and Bear Creek 

We reviewed and evaluated the 

benefits of inclusion and the benefits of 

exclusion of FMC-owned lands along 

the Gila River, Mangas Creek, and Bear 

Creek as critical habitat for spikedace 

and loach minnow. We believe past, 

present, and future coordination with 

FMC has provided and will continue to 

provide sufficient education regarding 

spikedace and loach minnow habitat 

conservation needs on these lands, such 

that there would be minimal additional 

educational benefit from designation of 

critical habitat. Further, because any 

potential impacts to spikedace and 

loach minnow habitat from future 

projects with a Federal nexus will be 

addressed through a section 7 

consultation with the Service under the 

jeopardy standard, we believe that the 

incremental conservation and regulatory 

benefit of designated critical habitat on 

FMC-owned lands would largely be 

redundant with the combined benefits 

of listing and existing management. 

Therefore, the incremental conservation 

and regulatory benefits of designating 

critical habitat on FMC owned lands 

along the San Francisco River are 

minimal. 

On the other hand, the benefits of 

excluding FMC-owned lands along the 

Gila River, Mangas Creek, and Bear 

Creek from critical habitat are 

significant. Freeport-McMoRan’s 

management plan establishes a 

framework for cooperation and 

coordination with the Service in 

connection with resource management 

activities based on adaptive 

management principles. Most 

importantly, the management plans 

indicate a continuing commitment to 

ongoing management that has resulted 

in habitat that supports spikedace and 

loach minnow. Exclusion of these lands 

from critical habitat will help preserve 

and strengthen the conservation 

partnership we have developed with 

FMC, reinforce those we are building 

with other entities, and foster future 

partnerships and development of 

management plans whereas inclusion 

will negatively impact our relationships 

with FMC and other existing or future 

partners. We are committed to working 

with FMC to further the conservation of 

spikedace and loach minnow and other 

endangered and threatened species. 

Freeport-McMoRan will continue to 

implement their management plans and 

play an active role to protect spikedace 

and loach minnow and their habitat. 

Therefore, in consideration of the 

relevant impact to our partnership with 

FMC, and the ongoing conservation 

management practices of FMC, we 

determined that the significant benefits 

of exclusion outweigh the benefits of 

inclusion in the critical habitat 

designation. 

In summary, we find that excluding 

FMC-owned lands along the Gila River, 

Mangas Creek, and Bear Creek from this 

final critical habitat will preserve our 

partnership and may foster future 

habitat management and species 

conservation plans with FMC and with 

other entities now and in the future. 

These partnership benefits are 

significant and outweigh the minimal 

additional regulatory and educational 

benefits of including these lands in final 

critical habitat for spikedace and loach 

minnow. 

Exclusion Will Not Result in Extinction 

of the Species—Gila River, Bear and 

Mangas Creek 

We have determined that the 

exclusion of 20.3 km (13.3 mi) FMC 

owned lands along the Gila River, 

Mangas Creek, and Bear Creek from the 

designation of critical habitat for 

spikedace and loach minnow will not 

result in the extinction of either species. 

The jeopardy standard of section 7 of 

the Act and routine implementation of 

conservation measures through the 

section 7 process due to spikedace and 

loach minnow occupancy provide 

assurances that this species will not go 

extinct as a result of excluding these 

lands from the critical habitat 

designation. Therefore, based on the 

above discussion, the Secretary is 

exercising his discretion to exclude 

approximately 20.3 km (13.3 mi) of 

FMC-owned lands along the Gila River, 

Mangas Creek, and Bear Creek from the 

designation of critical habitat for 

spikedace and loach minnow. 

Summary of Comments and Responses 

We requested written comments from 

the public on the proposed designations 

of critical habitat for the spikedace and 

the loach minnow during two comment 

periods. The first comment period was 

associated with the publication of the 

proposed rule opened on October 28, 

2010 (75 FR 66482) and closed on 

December 27, 2010. The second notice 

reopening the comment period opened 

on October 4, 2011, (76 FR 61330) and 

closed on November 3, 2011. We held 

a public hearing on October 17, 2011. 

We also contacted appropriate Federal, 

State, and local agencies; scientific 

organizations; peer reviewers, and other 

interested parties and invited them to 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10875 

comment on the proposed rule and draft 

economic and environmental analyses 

during these comment periods. 

During the first comment period we 

received 36 comment letters directly 

addressing the proposed critical habitat 

designations. During the second 

comment period we received 25 

comment letters addressing the 

proposed critical habitat designations or 

the draft economic and environmental 

analyses. No individuals or 

organizations made comments on the 

proposed designations of critical habitat 

or the analyses for the spikedace and 

loach minnow during the October 17, 

2011, public hearing, All substantive 

information provided during comment 

periods has either been incorporated 

directly into this final determination or 

addressed below. Comments received 

were grouped into four general issues 

specifically relating to reclassification 

for spikedace and loach minnow and 

the proposed critical habitat 

designations and are addressed in the 

following summary. 

Peer Review 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from 13 knowledgeable individuals 

outside the Service with scientific 

expertise to review our technical 

assumptions, interpretations of biology, 

and use of ecological principles with 

respect to the spikedace and loach 

minnow, and our analysis of the 

primary constituent elements (PCEs) 

and areas essential to the conservation 

of these species. We also asked for 

review on our adherence to regulations 

related to species reclassification and 

the critical habitat designations, and on 

whether or not we had used the best 

available information. We received 

responses from 6 of the 13 peer 

reviewers. 

We reviewed all comments received 

from the peer reviewers for substantive 

issues and new information regarding 

threats to critical habitat for the 

spikedace and loach minnow. The peer 

reviewers generally concurred with our 

methods and conclusions and provided 

additional information, clarifications, 

and suggestions to improve the final 

critical habitat and reclassification rule. 

One peer reviewer noted that the 

literature cited contained a thorough 

listing of relevant reports and other 

literature relating to species status 

reclassification and critical habitat 

designation, which represents the best 

available scientific information to the 

best of the reviewer’s knowledge. Peer 

reviewer comments are addressed in the 

following summary and incorporated 

into the final rule as appropriate. 

Peer Reviewer Comments 

(1) Comment: The reviewer stated that 

the term ‘‘reasonably occupied’’ in the 

proposed rule is not clear; suggest using 

the term ‘‘occupied by the species at the 

time of listing.’’ 

Our Response: In the October 4, 2011, 

NOA (76 FR 61330), we stated that, in 

order to improve clarity, we were 

revising the definition of occupied to 

include those areas identified as 

occupied for each species in the original 

listing documents, as well as any 

additional areas determined to be 

occupied after 1986. Our reasoning for 

including these additional, post-1986 

areas is that it is likely that those areas 

were occupied at the time of the original 

listings, but had not been detected in 

surveys due to minimal or no survey 

efforts in some areas; low capture 

efficiencies associated with seining, and 

their small size. This language from the 

NOA has been incorporated into the 

final rule. 

(2) Comment: The water temperature 

discussion should address the effects of 

shading on water temperature, 

including how water temperature would 

be affected by reductions in streambank 

vegetation. Belsky et al. 1999, Larson 

and Larson 1996, LeBlank et al. 1997, 

and Rutherford et al. 2004 were 

provided as potential sources of 

information for this discussion. 

Our Response: We reviewed and 

added literature to address the possible 

increase in water temperatures as a 

result of the loss of vegetation by 

wildfire and recreation. Specifically, we 

added information indicating that 

indirect effects of wildfire, such as 

increases in stream temperatures, can 

last for several years to more than a 

decade after the fire. 

(3) Comment: The term ‘‘essential 

feature’’ is used in the document, but is 

not defined. The peer reviewer noted 

that they would assume this means 

physical and biological features 

‘‘essential to the conservation of the 

species.’’ 

Our Response: We have changed the 

language at the first use of essential 

feature to read ‘‘essential feature to the 

conservation of the species.’’ 

(4) Comment: Although the criteria for 

designating critical habitat are well 

described in the proposed rule, they 

seem overly focused on historical and 

present occupancy standards and do not 

always take into account how the 

species could best be recovered. For 

example, failing to consider designation 

of critical habitat within the Agua Fria 

drainage simply due to rejection of its 

single historical collection locality 

seems imprudent without more 

thoughtful deliberation. 

Our Response: Please see page 66518, 

column 1 of the proposed rule. The 

Agua Fria was not included in the 

designation for spikedace for several 

reasons as stated there, including its 

location on the western edge of the 

species’ range, and its relatively short 

stretches of perennial flows that enter 

the Lake Pleasant reservoir. Even with 

those conditions, we may have 

designated the Agua Fria had it served 

as an extension to any other spikedace 

area; however, it does not connect to 

any other occupied area. We do note 

elsewhere in the proposed rule (see page 

66496, column 2) and the NOA (see 

page 61330) that we recognize that we 

have not necessarily included all areas 

that may be needed for recovery, and 

that other areas may be considered 

important for the species conservation 

by species managers or the Spikedace 

and Loach Minnow Recovery Team in 

the future. Page 66493, column 3 of the 

proposed rule further notes that critical 

habitat designations made on the basis 

of the best available information at the 

time of designations will not control the 

direction and substance of future 

recovery plans. 

(5) Comment: It would seem that 

future designations of critical habitat 

should first be drafted by recovery 

teams to ensure that the entire process 

of recovery planning is 

comprehensively integrated and will 

produce the best possible chance of 

overall success. 

Our Response: We agree. In the 1994 

designation of critical habitat, the 

recovery plans from 1991 were in place 

to guide the designation. We used a 

revised and updated recovery outline to 

guide the current designation. There is 

no requirement in the Act that recovery 

plans need to be in place before critical 

habitat is designated, but we agree that 

recovery plans can be useful for critical 

habitat designations. 

(6) Comment: The proposed rule 

states (page 66504, column 3) that all 

areas proposed for designation contain 

the physical and biological features 

(PBFs) for spikedace and loach minnow. 

However, on prior pages one PBF is 

defined as ‘‘habitat devoid of nonnative 

aquatic species, or habitat in which 

nonnative aquatic species are at levels 

that allow persistence of spikedace and 

loach minnow.’’ This is probably not 

true for most of the designation reaches, 

and actions such as barrier construction, 

chemical renovations upstream, and 

species augmentation or repatriations to 

achieve this PCE will be exceedingly 

difficult to implement. The document 

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falls short in its discussion of the 

intricacies associated with this PCE and 

the critical importance it has toward 

recovery of both species. 

Our Response: Both the proposed and 

final rules provide a lengthy discussion 

of the impacts on spikedace and loach 

minnow from nonnative fishes. In 

addition, the descriptions of the streams 

throughout the document note the 

presence of nonnatives. In the final rule, 

we have added a section discussing the 

interaction between altered flow 

regimes and nonnatives. We recognize 

that nonnative aquatic species are a 

persistent threat throughout much, if 

not all, of the two species’ ranges. Two 

facts about the PBFs are important to 

note. First, as written, the PCE on 

nonnatives is ‘‘No nonnative aquatic 

species, or levels of nonnative aquatic 

species that are sufficiently low as to 

allow persistence’’ of spikedace or loach 

minnow. It is not required that 

nonnative aquatic species be absent. 

Second, we look for one or more PBFs 

within a given unit in order to include 

it within the designations. In other 

words, a stream segment does not need 

to have all the PCEs in order to be 

designated as critical habitat. 

(7) Comment: The potential for 

establishment of spikedace and loach 

minnow in Fossil Creek is much higher 

above the barrier than below, in the area 

proposed as critical habitat. 

Our Response: Following review of 

comments received during the two 

comment periods, as well as new 

information received on the presence of 

spikedace, we have amended the area 

included within the designations to 

include that portion of Fossil Creek 

from its confluence with the Verde 

River, past and upstream of the barrier 

up to the old Fossil Diversion Dam. 

Please see the discussion under the 

section on ‘‘Summary of Changes from 

Proposed Rule’’ above for more detail. 

(8) Comment: For Spring and Rock 

creeks in the Tonto River basin there 

was not enough justification provided to 

explain why spikedace was included 

but loach minnow was not. The chances 

of reestablishing both species are equal. 

It is not possible to accurately predict 

the outcome of the Rock and Spring 

Creeks translocation effort, and an a 

priori exclusion seems illogical and illadvised. 

Our Response: Please refer to the 

ruleset described in both the proposed 

rule and this final rule. Because there 

are no loach minnow known from Tonto 

Creek, Rock Creek, Spring Creek, Rye 

Creek, or Greenback Creek, these areas 

do not meet the category 1a criterion 

under the ruleset for occupied at the 

time of listing. Because none of these 

streams are tributary to an occupied 

stream, they do not meet criterion for 

category 2a of the ruleset. Because other 

streams are designated for loach 

minnow within this Subbasin (North 

Fork East Fork Black River, Coyote 

Creek, Boneyard Creek, and East Fork 

Black River), these areas would not 

significantly expand the distribution of 

loach minnow within its historical 

range (category 2b). 

(9) Comment: With respect to 

reclassification, there seems to be little 

evidence presented to justify that the 

situation for either species is different 

(i.e., worse) now than at the time of 

listing. More recent reports may not 

show population decrease. Many 

surveys showed a boom for both species 

following the winter 2007–2008 

flooding. 

Our Response: As noted under the 

Reclassification Determination section 

of this rule, the decision to reclassify the 

two species began in 1991 with a 5-year 

review during which we determined 

that the species’ status was precarious 

and that a change in status from 

threatened to endangered was 

warranted. While some recovery actions 

have occurred in the intervening years, 

and while we occasionally see an 

increase in numbers in a given area in 

response to flooding, the majority of 

areas occupied by spikedace and loach 

minnow have seen an increase in 

nonnative species, with nonnatives 

dominating some streams. The low 

numbers of spikedace and loach 

minnow, their isolation in tributary 

waters, drought, ongoing water 

demands, and other threats indicate that 

the species are now in danger of 

extinction throughout their ranges. 

While streams that were occupied at 

listing may continue to be occupied, the 

overall length of the occupied segment 

has shrunk in some areas (e.g., Verde 

River, East Fork Gila River), or the two 

species occur in extremely limited 

numbers (e.g., Eagle Creek). In other 

areas, the species are considered 

extirpated (e.g., San Pedro River). 

(10) Comment: There are 

inconsistencies between the occupancy 

table (Tables 3 and 4) in the proposed 

rule and the tables in the draft 

Environmental Assessment (Tables 5 

and 6). 

Our Response: We agree and the 

tables have been modified for the final 

rule and final environmental 

assessment. 

(11) Comment: Section A Threats 

need to include the need for flushing 

flows to provide loose/clean substrate. 

Our Response: Please see the 

discussion under Stream Channel 

Alteration within the Factor A analysis, 

which discusses disruptions to natural 

channel dynamics. In the final rule, we 

have also added a section on the 

relationship between altered flow 

regimes and nonnative predators which 

also highlights the importance of stream 

flow. 

(12) Comment: There is no mention of 

yellow grubs or black spot parasites 

under the disease discussion, and they 

are fairly prevalent in the San Francisco 

River. 

Our Response: In response to this 

comment, we have added information 

regarding both yellow grub and black 

grub parasites to the discussion under 

Factor C. 

(13) Comment: Loose substrate should 

be included as a PBF for the two 

species. 

Our Response: We discuss substrate 

within PCE 1 for both species, which 

includes ‘‘Appropriate stream 

microhabitat types include glides, runs, 

riffles, the margins of pools and eddies, 

and backwater components over loose 

sand, gravel, and cobble substrates with 

low or moderate amounts of fine 

sediment and substrate embeddedness.’’ 

(14) Comment: There are no records of 

spikedace for those portions of the Blue 

River in New Mexico, and it may not be 

good habitat for that species. 

Our Response: We do not have any 

records of spikedace for those portions 

of the Blue River in New Mexico. 

Within the proposed rule, we classified 

this stream as a 2b stream for spikedace, 

indicating that it would serve to expand 

the geographic distribution of the 

species. The Blue River system provides 

the PCEs for suitable habitat for 

spikedace, and we note that loach 

minnow, which often co-occur with 

spikedace, are found throughout the 

system, including those portions in both 

Arizona and New Mexico. 

(15) Comment: Spikedace in the 

Verde River are very distinct from those 

in the Gila River. Hendrickson’s 

morphology paper emphasizes the 

significance of thoroughly sampling the 

Verde to see if spikedace can be found. 

Our Response: Please see the 

discussion under the Summary of 

Factors Affecting the Species. We 

include information regarding genetic 

and morphological differences, and 

cited Anderson and Hendrickson (1994) 

under Factor A in the proposed rule, 

and have added Anderson and 

Hendrickson (1994) as a cite under 

Factor E in the final rule. 

(16) Comment: Populations of loach 

minnow actually show higher levels of 

differentiation than those of spikedace. 

Each unit identified to date is very 

distinct and each of the geographic 

subdrainages needs to be managed 

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independently. White River is likely 

highly divergent and deserving of 

management as a distinct unit. 

Our Response: While not a criteria in 

the critical habitat designations, this 

information is used in ongoing 

management for the two species, and 

genetics is an important consideration 

in all captive propagation and 

translocation efforts. Additionally, 

information regarding the genetic and 

morphological distinctness of the two 

species will be considered as a revised 

recovery plan is completed. 

(17) Comment: Throughout the 

document, but especially under the 

Available Conservation Measures 

section, the terms reintroduction, 

translocation, and augmentation are 

used. I would suggest they be defined, 

and defined early. I assume that for 

these purposes, reintroduction and 

translocation, when referring to loach 

minnow and spikedace, are 

synonymous. If so, defining them as 

synonymous early on or selecting one 

term and using it throughout the 

document would be of great value 

Our Response: We have added 

definitions of reintroduction, 

translocation, and augmentation to the 

text. Briefly, a reintroduction occurs 

where the species was known to be 

present previously, but is believed 

likely absent based on a lack of 

detections; translocation occurs where 

the species was not known to be present 

previously, and augmentations are 

additions of more fish to streams as 

follow-up to reintroduction or 

translocation efforts. 

Comments From States 

Section 4(i) of the Act states, ‘‘the 

Secretary shall submit to the State 

agency a written justification for his 

failure to adopt regulations consistent 

with the agency’s comments or 

petition.’’ Comments received from the 

State regarding the proposal to designate 

critical habitat for the spikedace and 

loach minnow are addressed below. 

(18) Comment: Some commenters 

questioned whether it is appropriate to 

include as critical habitat those areas 

used for reintroduction sites when no 

success has yet been shown. They note 

that, if the species do not become 

established then it is likely that the 

habitat is unsuitable and, therefore, 

should not be included in the critical 

habitat designations. If designated, the 

AGFD would like the rule to state these 

areas will be removed if it is determined 

they are unsuitable. This would apply to 

Rock and Spring Creek, Fossil Creek, 

Hot Springs Canyon, Redfield Canyon, 

and Bonita Creek for both species, and 

the Blue River for spikedace only. 

Our Response: Our studies indicate 

that inclusion of these areas is 

appropriate at this time. The 

translocation sites were chosen 

carefully, after field and scientific 

review of their suitability for spikedace 

and loach minnow. In some instances 

(e.g., spikedace in the San Francisco 

River in New Mexico), the species have 

been eradicated from the area, but 

previously occurred there, so that 

suitability is more certain. In other 

instances, a translocation may 

ultimately prove successful, and 

designation of critical habitat in the area 

will further protect and conserve habitat 

for the species. In some areas, should 

the translocation prove unsuccessful, it 

would be necessary to determine which 

factors are responsible for the failure. 

For example, a reinvasion by nonnative 

aquatic species, health issues, or water 

quality issues may ultimately prove 

responsible. Additional translocation 

efforts may be appropriate if these 

factors are addressed. Should this be the 

case, but suitable habitat is otherwise 

present, these streams could ultimately 

prove beneficial in the conservation of 

the species. 

(19) Comment: The lower 33.7 

kilometers (20.9 miles) of Oak Creek 

should not be included within the 

designations because there are no 

known records of either species, and 

this area is degraded. The upstream 

portions are in an urban area. In 

addition, this area is not currently being 

considered for translocation. 

Our Response: We agree that there are 

no known records from this stream for 

either species, that some degradation 

has occurred, and there are no 

translocation efforts currently planned 

for this stream. However, spikedace and 

loach minnow are known to have 

occurred in the mainstem Verde River 

both above and below Oak Creek. Oak 

Creek does have perennial flows, and 

none of the degradation is permanent in 

nature (i.e., a dam, reservoir, or other 

permanent alteration). Because of its 

lack of occupancy records, Oak Creek is 

classified as an essential area for the 

conservation of both species. For 

spikedace, it was classified as a 2a 

stream, indicating that it will serve as an 

extension of habitat in the unit. For 

loach minnow, it was classified as a 2b 

stream, indicating it can serve to expand 

the geographic distribution of the 

species across its historical range. 

(20) Comment: The lower portions of 

Fossil Creek below the barrier should 

not be included in the designations 

because of the presence of nonnatives. 

Our Response: We agree that 

nonnative species are present in the 

lower portions of Fossil Creek. 

Ultimately, this is a situation which 

may be resolved, although that is not 

likely in the short term. Because we are 

attempting to conserve the species, and 

attempting to develop connectivity 

between occupied stream systems 

wherever possible, inclusion of this 

portion of the stream could ultimately 

serve as a connective corridor between 

the Verde River and upstream portions 

of Fossil Creek. 

(21) Comment: The lower 2.8 km (1.7 

miles) of Sycamore Creek should be 

included within the designations. 

Our Response: We developed a 

ruleset, as described in both the 

proposed and final rules, which we 

applied in making determinations about 

the appropriateness of including or 

excluding specific areas. In addition, we 

used the best available information in 

determining which stream segments to 

include. At this time, we have no 

information regarding the suitability of 

this area. 

(22) Comment: Those portions of the 

Verde River downstream of Tapco 

should be removed from the 

designations, as this area is developed. 

Our Response: Development, in and 

of itself, does not make an area 

unsuitable for spikedace or loach 

minnow. The Verde River through these 

areas is classified as perennial, and 

spikedace are known to have occurred 

throughout this portion of the Verde 

River, while loach minnow records 

occur both above and below Tapco. The 

area may ultimately prove to provide 

suitable habitat, or serve as an important 

connective corridor between upstream 

portions of the Verde River and 

downstream areas, including tributary 

streams. 

(23) Comment: The Salt River within 

the Salt River Canyon Wilderness 

should be included as there are records 

of spikedace from the Salt River 

confluence with Cibecue Creek. 

Our Response: There are records for 

spikedace at the confluence with 

Cibecue Creek, with the most recent in 

1967. Under the ruleset, however, we 

categorized this stream as a 1b stream, 

indicating the stream has been 

permanently altered by Theodore 

Roosevelt Dam and Lake, so that 

restoration is unlikely. 

(24) Comment: Bass Canyon dries up 

into pools and is therefore not suitable 

for either species and should be 

removed from the designations. 

Our Response: We have reviewed the 

site and spoken with individuals 

familiar with the site’s flow regime and 

habitat. While the stream is not 

considered perennial, it provides 

suitable expansion habitat when 

flowing, and is a tributary to Hot 

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10878 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

Springs Canyon. As such, we have 

classified it as an essential area (see 

discussion at 75 FR 66504). Hot Springs 

Canyon is the site of translocated 

populations of spikedace and loach 

minnow. These species were placed in 

Hot Springs Canyon in 2007, with 

annual augmentations of fish. 

Monitoring efforts showed that both 

species were present in 2011 (Robinson, 

2011, pers. comm.). We anticipate that 

this translocation effort will be a 

success, and that Bass Canyon will serve 

as an extension of habitat in Hot Springs 

Canyon. 

(25) Comment: The designations 

should exclude areas that have an 

economic impact on recreational 

fishing. 

Our Response: Potential changes to 

recreational activities are discussed in 

Section 6 of the draft economic analysis. 

Potential impacts on recreational fishing 

losses are specifically discussed and 

estimated in Sections 6.4.1 and 6.5.2. 

The draft economic analysis notes that 

the AGFD has no planned or ongoing 

sportfish stocking projects on occupied 

reaches, with the exception of native 

Apache trout stocking on Fossil Creek. 

In New Mexico, the NMDGF stocked the 

East Fork Gila River in 2008 and 2009 

and plans to continue stocking in the 

future. However, the Service completed 

a biological opinion on sportfish 

stocking activity in August 2011 that 

suggests that future stocking activities 

will not be found to jeopardize 

spikedace or loach minnow. 

(26) Comment: Those portions of the 

Verde River covered by the SRP HCP 

should be excluded from the 

designations. 

Our Response: While implementation 

of the HCP will provide some 

conservation measures for spikedace 

and loach minnow on the Verde River, 

the HCP does not involve all 

landowners on this portion of the Verde 

River, and therefore does not allow for 

exclusion of the area under section 

4(b)(2) of the Act. 

(27) Comment: Inclusion of Mangas 

Creek is appropriate. 

Our Response: We agree, however, we 

have opted to exclude portions of 

Mangas Creek due to protections 

afforded by the FMC management plan 

for this area. We are retaining 1.2 km 

(0.7 mi) of Mangas Creek that are not on 

lands owned by FMC. Please see the 

discussion under the Exclusions section 

for additional detail. 

(28) Comment: The decision not to 

include the Agua Fria River and those 

portions of the Gila River within 

Arizona is appropriate. 

Our Response: We agree with this 

comment. 

(29) Comment: The lower 4.2 

kilometers (2.6 miles) of Negrito Creek 

are proposed as critical habitat and 

stated as occupied. The NMDGF is 

unaware of any records for this area. 

The lower 2.0 kilometers (1.25 miles) of 

Negrito will likely provide suitable 

habitat. 

Our Response: Dennis Miller (1998) 

identified loach minnow from Negrito 

Creek in 1998, approximately 2.0 km 

(1.25 mi) upstream of its confluence 

with the Tularosa River. While the 

known collection sites are at this point, 

biologists from the Service and NMDGF 

had determined that Negrito Creek 

provided suitable habitat upstream as 

far as the Cerco Canyon confluence, as 

reflected in the designation. 

(30) Comment: One State commenter 

noted a lack of awareness of any records 

for Frieborn Creek and stated that 

Frieborn Creek is marginal habitat for 

either species. 

Our Response: Two monitoring efforts 

in 1998 and 2000 located loach minnow 

in Frieborn Canyon, indicating the 

suitability of the stream for loach 

minnow (ASU 2002; NMDGF 2008). We 

anticipate translocating spikedace to the 

Blue River system within the next 2 to 

3 years, and conclude that Frieborn 

Canyon may serve as expansion habitat 

for spikedace as well. 

(31) Comment: We recommend that 

the portions of the Gila River mainstem 

that are owned by FMC not be excluded 

from the final designations unless they 

adopt comprehensive plans that protect 

and enhance habitat within their 

ownership. 

Our Response: Under Section 4(b)(2) 

of the Act, we consider a number of 

factors, during the development of a 

critical habitat designation, including 

whether the landowners have developed 

any HCPs or other management plans 

for an area. As with the 2007 

designation, FMC provided a 

management plan for the Gila River, 

Mangas Creek, and Bear Creek in New 

Mexico. We have determined that it is 

appropriate to exclude portions of these 

three streams on FMC lands based on 

their management plans, with 

additional conditions. See the 

Exclusions section for further detail. 

(32) Comment: We recommend that 

original work, especially published, be 

the primary source of information rather 

than synthesis documents or reports 

(e.g., Sublette et al. 1990, Propst 1999, 

and Minckley and Marsh 2009) unless 

synthesis documents report original 

sources of information. 

Our Response: We are charged with 

using the best scientific information and 

commercial information available in a 

rule. In many instances, especially with 

monitoring data, ‘‘synthesis’’ documents 

are the only source of information 

available. Wherever possible, we 

attempt to use the original information. 

(33) Comment: Stock tanks are an 

attractive nuisance and potential 

sources of nonnative fishes, and the 

problem of nonnatives caught in stock 

tanks and being released in the river 

should be identified. 

Our Response: We agree that stock 

tanks can be a concern in native fish 

management, and have added language 

to our threats assessment to address this 

issue. 

(34) Comment: The proposed rule 

states (p. 66483) that population 

estimates have not been developed as a 

result of the difficulty in detecting the 

species. The NMDGF notes that they do 

not find them difficult to detect in 

appropriate habitats with appropriate 

gear, but rather that population 

estimates likely have not been 

attempted, or reported, because of broad 

confidence intervals associated with 

estimates, the considerable effort 

associated with making reliable 

population estimates, and the brief time 

any estimate is relevant. 

Our Response: Spikedace and loach 

minnow can be difficult to detect when 

at low numbers, as is the case for Eagle 

Creek or the Verde River. We agree, 

however, that at least in part, 

population estimates have not been 

attempted for the reasons cited in this 

comment. In addition, we note that 

different methodologies are applied in 

different streams by different survey 

teams, which can also complicate 

discussions on population numbers 

across the species’ ranges as a whole. 

(35) Comment: Soles 2003 should be 

added as a citation to the statement ‘‘In 

the Gila River, agricultural diversions 

and groundwater pumping have caused 

declines in the water table, and surface 

flows in the central portion of the river 

basin are diverted for agriculture.’’ 

Our Response: We have reviewed 

Soles 2003 and added the citation as 

recommended. 

(36) Comment: Under the Water 

withdrawals section, the AWSA is 

discussed as a potential diversion on the 

Gila River. The AWSA also has the 

potential to facilitate diversions on the 

San Francisco River. 

Our Response: This is correct, and we 

have made appropriate modifications to 

reflect this information. 

(37) Comment: Additional or different 

citations should be used for portions of 

the document, including Propst et al. 

2008, Paroz et al. 2009, and Pilger et al. 

2010. 

Our Response: We reviewed the 

citations and the text in the proposed 

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rule, and have made appropriate 

modifications in the final rule. 

(38) Comment: The proposed rule 

states that the State of New Mexico 

lacks adequate regulatory mechanisms 

to address the issue of introduction and 

spread of nonnative aquatic species. It 

should be noted that New Mexico State 

regulations prohibit the use of 

nonnative baitfish, except for the use of 

fathead minnow (Pimephales promelas) 

as a baitfish in the Gila and San 

Francisco river drainages. 

Our Response: This comment is, in 

part, correct. The remainder of the text 

on this point states that regulation of 

activities that can lead to the spread of 

nonnative species is inadequate, as 

many introductions are the result of 

incidental or unregulated actions. 

(39) Comment: The NMDGF suggests 

adding language to the discussion on 

‘‘Available Conservation Measures’’ 

regarding repatriation of spikedace to 

the San Francisco River, removal of 

nonnative fishes from the Forks area, 

beginning in 2007, and removal of 

nonnative fishes in Little Creek 

beginning in 2010; and efforts to acquire 

and hold separate stocks of spikedace 

and loach minnow in a refuge facility. 

Our Response: Appropriate 

modifications were made to this section 

in the final rule. 

(40) Comment: The rule should be 

updated to include Propst et al. 2008 as 

a reference regarding nonnative fishes, 

in place of Propst 1986. 

Our Response: We have included 

Propst et al. 2008 in several places 

within the document in regards to 

nonnative fish. 

(41) Comment: The final rule should 

include information about competition 

with and predation by smallmouth bass 

as a likely threat, and Pilger et al. 2010 

should be added as a citation. 

Our Response: Smallmouth bass are 

mentioned in several places within the 

rule. Pilger et al. 2010 is also cited in 

the text. Please see the Disease or 

Predation section. In addition, results of 

the study by Pilger et al. 2010 are 

discussed. 

(42) Comment: Riffles are identified as 

a PBF for spikedace, but they prefer 

runs and glides, not riffles. 

Our Response: While we agree that 

spikedace are primarily associated with 

runs and glides, they may be associated 

with other habitat types and many 

authors (Barber and Minckley 1966, p. 

31; Propst et al. 1986, p. 12; Rinne and 

Kroeger 1988, p. 1; Rinne 1991, pp. 8– 

10) note use of riffles by spikedace. 

(43) Comment: The San Francisco 

River dries annually through the Alma 

Valley and is not perennial throughout 

as stated on page 66515. 

Our Response: This correction has 

been made within the text, with an 

appropriate citation. 

General Comments Issue 1: Biological 

Concerns 

(44) Comment: There were many 

comments submitted with technical 

corrections, additional literature 

citations, and specific biological 

information on stream segments. 

Our Response: We have reviewed all 

of these comments and have 

incorporated the information in this 

final rule, as appropriate. 

(45) Comment: We received 

comments that Bear Creek should be 

included within the designation for 

loach minnow, and conversely that Bear 

Creek should not be included within the 

designation. 

Our Response: In reviewing the 

information on Bear Creek, including 

surveys and habitat, we have 

determined that inclusion of Bear Creek 

is appropriate. Please see the discussion 

on Bear Creek in the section on 

Summary of Changes from Proposed 

Rule. 

(46) Comment: The lowermost 

mileage on the Gila River in New 

Mexico, as it travels through the Virden 

Valley, is predominantly dry, and has 

three diversion structures, rarely 

supports fish, and is not connected to 

any other suitable habitats at this time. 

Our Response: We reviewed 

occupancy data for this area. Spikedace 

have been detected occasionally within 

the area downstream of the diversion 

structures during surveys conducted 

over a 50-year period, with the most 

recent detection in 1999 (Rinne et al. 

1999, p. 22; NMDGF 2008). Spikedace 

and loach minnow have been detected 

immediately upstream of the diversion 

more recently, into 2003, and the area 

around the Sunset Diversion had 

sufficient potential for spikedace and 

loach minnow that it was added to 

regularly monitored sites in 2010 and 

2011 (Propst, 2011, pers. comm.). 

With respect to flow patterns, the 

nearest gage station is just downstream 

of the confluence with Blue Creek, so 

does not accurately portray the flow 

patterns below the diversion structures. 

The next nearest USGS gage 

downstream of the barriers is 09439000 

on the Gila River at Duncan. The 

monthly statistical data for this gage, 

recorded since 2003, show that flows 

have been at 0 cfs on one occasion, and 

been below 5 cfs on five occasions in 

the months of May, June, or July. 

However, in the area immediately 

downstream of the Sunset Diversion, 

native suckers and channel catfish are 

frequently present, indicating that water 

remains in this area and may indicate 

that the area serves as a refuge. While 

the diversion structure may serve as an 

impediment to upstream movement, it 

is not necessarily a barrier to upstream 

movement of fish (Propst, 2011, pers. 

comm.). With water present below the 

diversion, and the presence of spikedace 

in this area, albeit not consistently, over 

the last 50 years, we conclude it is 

appropriate to retain this area within the 

critical habitat designations. 

(47) Comment: Bass Canyon is 

unsuitable for spikedace and loach 

minnow due to lack of flows. 

Our Response: We have visited the 

site and conclude that, while it may not 

be classified as perennial, it contains 

adequate flows and appropriate 

substrates during significant portions of 

the year to support the two species. In 

addition, it joins with Hot Springs 

Canyon, where a spikedace and loach 

minnow translocation effort has been 

under way since 2007. Bass Canyon can 

serve as an extension of habitat for that 

population, and we are therefore 

retaining Bass Canyon within the 

designations at this time. 

(48) Comment: The Biological 

Opinion issued by the Service for Fort 

Huachuca on 14 June 2007 states that 

the ‘‘most likely sites for such 

reestablishments appear to be springs 

within the tributaries to the mainstem 

San Pedro River rather than along the 

mainstem river where critical habitat 

would be designated. A scientific basis 

for changing the approach from 

reestablishing the spikedace at springs 

within the tributaries to the mainstem 

San Pedro River needs to be provided. 

Our Response: This is an error in the 

biological opinion, and not in the 

proposed rule. The habitat use, as 

described in the proposed rule at pages 

66483 and 66497 through 66498 is 

correct. All reestablishment efforts to 

date have occurred on flowing streams 

(Hot Springs Canyon, Redfield Canyon, 

Fossil Creek, Bonita Creek, and the San 

Francisco River) and not in springs. 

(49) Comment: The proposed rule 

assumes that these species were present 

in the San Pedro River at the time of 

listing in 1986 but were undetected due 

to infrequent or inconsistent surveys. 

Our Response: This statement is 

incorrect, and reflects a 

misunderstanding in the terminology 

used within the proposed rule. Our 

determination of ‘‘occupied at listing’’ 

was based on whether or not the species 

was present up to the date of listing in 

1986, and not on the presumption that 

the species was present but undetected. 

It should be noted that in the NOA, we 

announced that we were modifying our 

definition of occupied to improve 

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clarity on our approach to the critical 

habitat designation. In the NOA, we 

defined areas occupied at the time of 

listing to be those areas where the fish 

were identified in the original listing 

documents, as well as any additional 

areas determined to be occupied after 

1986. Our reasoning for the inclusion of 

these additional areas (post-1986) is that 

it is likely that those areas were 

occupied at the time of the original 

listings, but had not been detected in 

surveys. This change in definition does 

not result in a change to any of the areas 

included or excluded as critical habitat 

in the proposed rule. 

(50) Comment: The statement that 

‘‘After leaving the Mogollon Mountains 

in New Mexico, the Gila River is 

affected by agricultural and industrial 

water diversions, impoundment, and 

channelization’’ is incorrect. There have 

been no significant modifications to the 

river channel or further commercial 

activities along the river from Mogollon 

Creek to the New Mexico/Arizona State 

line since listing these species in 1986. 

Our Response: This statement 

encompasses present uses of the area as 

well. Propst et al. 2008 (pp. 1237–1238) 

notes that irrigated agriculture and 

livestock grazing are the predominant 

uses, and that human settlement has 

increased since 1988. Soles (2003 p. 69) 

notes that diversions for agriculture in 

the Cliff-Gila Valley are modest, but 

that, during dry seasons, may remove 

the Gila’s entire baseflow of about 40 

cubic feet per second (cfs). 

Part of the language in this statement 

pertains primarily to the Gila River 

below the Arizona border. We have 

separated these statements for accuracy 

and added the Propst et al. 2008 and 

Soles 2003 citations to the rule. 

(51) Comment: Additional data 

should be supplied to support the 

conclusion that declines of native fish 

species appear linked to increases in 

nonnative fishes (p. 66491). FWS cites 

data with a 28-year gap, which is not 

good science because the periodicity 

cannot be used to establish a reasonable 

trend. 

Our Response: We have added 

additional information from Propst et al. 

2008. Propst et al. 2008 found that 

physical modification of streams, 

coupled with widespread introduction 

and establishment of nonnative aquatic 

species led to the decline of native 

fishes (Propst et al. 2008, p. 1236, 1246). 

This study took place just downstream 

of the town of Cliff. While this study 

does implicate both altered flow regimes 

and nonnative aquatic species, Propst et 

al. 2008 (p. 1246) conclude that 

managing for natural flow alone would 

not be sufficient to conserve native fish 

assemblages where nonnatives are 

present. 

(52) Comment: The Service failed to 

establish that there is a need for 

uplisting spikedace and loach minnow, 

and does not give population estimates 

or know the status of the species. The 

Service should provide actual 

population counts. 

Our Response: Please see our 

response at Comment 9 above, which 

addresses the status of the species. 

(53) Comment: The Service is not 

using best scientific and commercial 

information available. Fifty percent of 

the citations are 10 or more years old. 

A number of links to Web sites cited 

were broken; at least nine of the 

citations referenced data about species 

other than the spikedace or loach 

minnow, or referenced different 

ecological environments than that of the 

spikedace or loach minnow. 

Our Response: Critical habitat 

designations use the best available 

commercial and scientific data to 

identify lands that contain the physical 

and biological features essential to the 

conservation of the species. The Act 

requires that we use the best available 

scientific information regardless of the 

age of the information. In some cases, 

the best available information is derived 

from different species with similar 

habitat requirements. In designating 

critical habitat for spikedace and loach 

minnow, we have used the best 

available scientific and commercial 

information, including results of 

numerous surveys, peer-reviewed 

literature, unpublished reports by 

scientists and biological consultants, 

and expert opinion from biologists with 

extensive experience with these species. 

Further, information provided in 

comments on the proposed designations 

and the draft environmental and 

economic analysis were evaluated and 

taken into consideration in the 

development of these final designations, 

as appropriate. 

(54) Comment: The Service has failed 

to specify what ‘‘residual effects of past 

livestock grazing and impacts to 

uplands, riparian vegetation’’ and 

streams actually entail. 

Our Response: Please see the 

discussion on livestock grazing under 

‘‘The Present or Threatened Destruction, 

Modification, or Curtailment of Habitat 

or Range’’ section. This section outlines 

the types of impacts that can occur as 

a result of improper livestock grazing. 

We used the term ‘‘residual effects’’ to 

indicate that, in some areas, these 

impacts are due to past, and not 

ongoing, livestock grazing. 

(55) Comment: The Service should 

state what is accomplished by uplisting. 

Our Response: The Act provides 

definitions of threatened and 

endangered species. A threatened 

species is one which is likely to become 

an endangered species within the 

foreseeable future throughout all or a 

significant portion of its range. An 

endangered species is one which is in 

danger of extinction throughout all or a 

significant portion of its range. We 

provide justification for the 

reclassification within the proposed and 

final rule, and note that we determined 

that listing the species as endangered 

was warranted but precluded in 1994 

(59 FR 35303). In part, reclassifying the 

two species to endangered status fulfills 

our obligation for finalizing the 

reclassification. In addition, 

appropriately classifying the species 

notifies Federal agencies of the correct 

status of the species so that they can 

manage for the species appropriately. 

The Service treats endangered animal 

species similarly to threatened species 

with regard to prohibitions on take and 

requirements for consultation by 

Federal agencies. However, the Act 

provides management flexibility for 

threatened species that is not allowed 

for endangered species. The Service 

sometimes makes exceptions to the take 

rule for threatened species (for example, 

to allow some traditional land-use 

activities to continue), and is able to 

issue take permits to allow more 

activities that affect threatened species 

than would be permitted for endangered 

species. 

(56) Comment: We received several 

comments indicating that the Service 

did not adequately show that an 

individual land use necessitated 

designation of critical habitat. 

Specifically, one comment noted that 

numbers of cows and elk are down and 

that the Service should justify 

designation of critical habitat in light of 

the reduced populations of grazing 

animals. Another comment noted that 

the Service failed to provide 

justification for the designations of 

critical habitat due to improperly 

managed wildfire and the use of 

chemicals for fire suppression. 

Our Response: We note that grazing 

animals and fire management are only 

one of several concerns for spikedace 

and loach minnow. Please see the 

discussion under Summary of Factors 

Affecting the Species. 

(57) Comment: The spikedace and 

loach minnow coexisted with the 

diversion dams that have been a part of 

the local agricultural culture and 

heritage for hundreds of years. The 

Service should demonstrate how water 

uses today could impact habitat 

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although these same uses have not done 

so in the past. 

Our Response: Please see the 

discussion on water diversions under 

the subheading of Water Withdrawals, 

which details the potential impacts 

associated with diversions and water 

withdrawals. In addition, climate 

change and drought are compounding 

the impacts of water withdrawals on 

these species. 

(58) Comment: The Service has failed 

to acknowledge the causes for portions 

of the rivers, streams, and tributaries 

indicated on the maps as critical habitat 

periodically drying up. Human 

population, human use, livestock and 

wildlife populations and water 

diversion do not account for this 

phenomenon. According to the 

Northern Arizona University Forestry 

Department, the reason for reduced 

water flow is due to in excess of 300 

percent greater tree density today, 

compared to presettlement. The Service 

should examine the relationship 

between tree density and water 

reduction, and should specify amount of 

water flow reduction due to tree density 

vs. other potential causes. The Service 

should further specify how designation 

of critical habitat would address the 

reduction of tree density issue. 

Our Response: No literature citations 

were provided with this comment, and 

we were unable to locate any literature 

relevant to this comment. Please note 

that a critical habitat designation is not 

the process through which we rule out 

habitat suitability due to threats, nor is 

it the process through which we 

conduct research as suggested in the 

comment. 

(59) Comment: The Service has failed 

to provide justification for the critical 

habitat designations due to human use 

of resources, including agriculture, 

mining, road building, residential 

development, and recreation. The 

Service should specify how these uses 

contribute to habitat loss and stream 

degradation. 

Our Response: Please see the section 

on Summary of Factors Affecting the 

Species. This section addresses these, as 

well as other natural and human use 

impacts to the species. 

(60) Comment: We received several 

comments indicating that we failed to 

look at the benefits of grazing to fish or 

wrongfully assumed that livestock 

grazing is harmful to spikedace and 

loach minnow and their habitat. In some 

instances, commenters noted that the 

work of Rinne and Medina should be 

included within our review. 

Our Response: Please see the response 

to comment 51 above regarding use of 

the best scientific and commercial 

information available. The discussion 

on livestock grazing cites many studies 

and authors on the topic of livestock 

grazing, and we have added a citation 

from Medina et al. (2005). We have 

reviewed additional work by Rinne 

(Rinne 1999b) and considered the 

information in this literature. We 

believe the discussion on livestock 

grazing and impacts to fish provides a 

thorough discussion on this topic. 

(61) Comment: Nonnative fish are the 

biggest problem for spikedace and loach 

minnow, and this is a threat that 

requires removal of the nonnatives and 

construction of barriers to prevent their 

spread, neither of which is facilitated by 

designation of critical habitat. 

Our Response: The purpose of 

designating critical habitat is not to 

remove threats for the species, but is 

instead to identify those areas that are 

essential to the conservation of the 

species. While designation of critical 

habitat does not remove the threat from 

nonnative species, it does identify those 

areas that are critical to the conservation 

of the species, which allows land 

managers and others to prevent further 

degradation in areas critical to the 

species’ conservation 

(62) Comment: The current threat to 

spikedace and loach minnow from 

nonnative fish in the Gila River and 

Mangas Creek where they pass through 

FMC lands is greatly overstated. 

Our Response: The discussion of 

Mangas Creek and the Gila River 

encompasses landowners other than 

FMC, and there are additional 

management considerations for these 

areas. We have updated the information 

for Mangas Creek. 

(63) Comment: Road impacts to the 

species would be dealt with through 

section 7, and, therefore, designating 

critical habitat would not address this 

issue. 

Our Response: This comment is 

incorrect. First, critical habitat 

designation is not the process through 

which we rule out habitat suitability 

due to threats, but the process through 

which we identify habitat that provides 

for one or more of the life-history 

functions of the species. Second, should 

future road projects have impacts on 

critical habitat, section 7 would be the 

process used to identify and minimize 

those threats, as appropriate. In areas 

where the species are not currently 

present, but that are designated as 

critical habitat, it would be the nexus 

between the project and critical habitat 

which would lead to section 7 

consultation under the Act, assuming 

the action was either Federally funded, 

permitted, or carried out. 

(64) Comment: Recreation is listed as 

a threat for the Gila River. No recreation 

occurs in the Cliff-Gila Valley. 

Our Response: Our list of potential 

impacts to spikedace and loach minnow 

for the Gila River encompassed more 

than the Cliff-Gila Valley, including 

lands managed by the USFS, and we 

conclude the original assessment is 

correct. 

(65) Comment: Occupancy by 

spikedace and loach minnow in Eagle 

Creek for only brief periods of time 

indicates that they suggest fish may 

have been placed there via bait bucket 

transfer. 

Our Response: We have no evidence 

of bait bucket transfer, or any reasons to 

believe that such a transfer occurred. 

Marsh et al. 1990 (p. 112) provide a 

discussion on the likely cause for the 

sporadic records of spikedace and loach 

minnow in Eagle Creek, concluding it 

likely that the species were missed in 

some survey efforts while detected in 

others due to their tendency to expand 

and contract spatially in response to 

natural variations in their habitat. We 

further note that portions of Eagle Creek 

are not readily accessible, and are not 

regularly surveyed, so that the species 

could have been missed, yet present, 

during some of the survey efforts. 

Finally, we note that there are other 

gaps in the survey record for other 

streams. These gaps may be due to a 

lack of survey efforts, or to lack of 

detection during survey effort. For 

example, on the Verde River, spikedace 

were not detected from 1950 to 1975 

(ASU 2002). 

(66) Comment: The lower San 

Francisco is not occupied, with nearest 

detections 20 miles upstream, in the 

vicinity of Apache-Sitgreaves National 

Forests boundary. 

Our Response: The San Francisco 

River, as a system, was classified as 

occupied at listing, and the designation 

reflects this. 

(67) Comment: Both Eagle Creek and 

the San Francisco River have nonnatives 

and are not occupied by either 

spikedace or loach minnow. Neither can 

therefore be considered essential to the 

conservation of the species. 

Our Response: We agree that both 

Eagle Creek and the San Francisco River 

have nonnative aquatic species; 

however, this alone does not preclude 

them from being considered for critical 

habitat designation. Further, as noted in 

the proposed rule, we consider Eagle 

Creek to be occupied by both species, 

while the San Francisco River is 

occupied by loach minnow and the site 

of a reintroduction effort for spikedace. 

(68) Comment: The presence of a large 

nonnative fish population and refugia 

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that allow nonnative fish to persist and 

repopulate portions of proposed critical 

habitat on Eagle Creek and the lower 

reach of the San Francisco River 

following significant flood events make 

these streams unsuitable for both 

spikedace and loach minnow. Absent a 

comprehensive management plan 

agreed to by affected parties, the 

complex land ownership patterns and 

current uses of lower Eagle Creek and 

the lower San Francisco River 

substantially compromise the logistics 

and practicability of achieving adequate 

control of nonnative fish required to 

make the segment of these rivers 

suitable for spikedace and loach 

minnow. 

Our Response: Critical habitat 

designation is not the process through 

which we rule out habitat suitability 

due to threats, but the process through 

which we identify habitat that provides 

for one or more of the life-history 

functions of the species. As defined in 

section 3(5)(A) of the Act, critical 

habitat means (i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, on which are found 

those physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection. During the designation 

process, the Service identifies threats to 

the best of our ability where they exist. 

Identification of a threat within an area 

does not mean that that area is no longer 

suitable, rather that special management 

or protections may be required. The 

need to address a particular threat, such 

as nonnative fishes, in a portion of the 

critical habitat designation may or may 

not arise in the future. Further, 

describing both the areas that support 

PBFs and the threats to those areas 

assists resource managers in their 

conservation planning efforts for 

threatened and endangered species like 

spikedace and loach minnow. 

(69) Comment: Eagle Creek is listed as 

perennial, and this is incorrect. 

Our Response: We have modified the 

description of Eagle Creek to indicate 

that the stream is largely a perennial 

system. 

(70) Comment: We received 

comments that additional studies were 

needed, including a study of the future 

impacts of increased vegetation near the 

San Pedro River on the ability of 

groundwater to reach the river, and on 

pebble counts or other substrate 

evaluations of spikedace and loach 

minnow critical habitat. 

Our Response: The Service makes 

every attempt to use the best scientific 

and commercial information available 

when evaluating areas to be included 

within critical habitat; however, the 

critical habitat designation process does 

not undertake studies of the kind 

recommended. 

(71) Comment: Fossil Creek is the 

only stream on the Tonto National 

Forest that is occupied by loach 

minnow. Translocations for spikedace 

appear to be unsuccessful. Inclusion of 

Fossil Creek as critical habitat for 

spikedace may be premature. 

Our Response: We recognize that 

Fossil Creek is a translocation site for 

both spikedace and loach minnow. We 

are designating Fossil Creek as a 2a 

stream, indicating that it could serve as 

an extension of habitat in the unit, as 

existing habitat is insufficient to recover 

the species. Please note the updated 

language regarding the potential success 

of the spikedace reintroduction effort in 

the section below on Summary of 

Changes from Proposed Rule. In 

addition, please see our response at 

Comment 18 to a similar question. 

(72) Comment: The statement ‘‘the 

majority of historical native habitat’’ is 

overbroad and unclear as it applies to 

the Gila River in New Mexico. Also, this 

statement is incorrect, as it pertains to 

the Gila River in New Mexico, and the 

activities described have not, nor do 

they threaten destruction, modification, 

or curtailment of the loach minnow or 

spikedace habitat or range in New 

Mexico. Within New Mexico, the Gila 

River has not been altered significantly 

since the time of listing in 1986. The 

middle, east, and west forks of the Gila 

all lay within the Gila National Forest 

and watershed conditions have 

improved in these areas. 

Our Response: This statement is 

found at the beginning of the discussion 

at Factor A, the Present or Threatened 

Destruction, Modification, or 

Curtailment of Habitat or Range, and 

applies to the species rangewide, not to 

the Gila River in New Mexico 

specifically. As noted elsewhere in the 

proposed rule, we estimate the present 

range of spikedace to be approximately 

10 percent of its historical range, while 

that of loach minnow is estimated to be 

15 to 20 percent of its historical range. 

While watershed conditions may have 

improved within the Gila National 

Forest, there are still threats in those 

areas, including wildfires, residual 

impacts of livestock grazing, and 

competition with and predation by 

nonnative species. 

(73) Comment: Additional data 

should be supplied to support the 

conclusion that declines of native fish 

species appear linked to increases in 

nonnative fishes. The Service cites data 

with a 28-year gap, which is not good 

science because the periodicity cannot 

be used to establish a reasonable trend. 

Our Response: This comment 

addresses the information found in the 

proposed rule under the discussion at 

Factor C for Predation. Please also see 

the information on competition under 

Factor E on Nonnative Fishes, which 

provides additional citations. 

(74) Comment: Portions of the 

proposed critical habitat in Units 6, 7, 

and 8 overlap sections of river currently 

occupied by Gila trout. The designations 

appear to create a conflict in 

management objectives; for example, 

adult Gila trout potentially prey on 

juvenile spikedace and loach minnow. 

The dynamics of this potential fish 

community are not yet clearly 

understood. 

Our Response: We would agree that 

the dynamics of the interactions 

between Gila trout and spikedace and 

loach minnow may not yet be fully 

understood. However, this does not 

eliminate the possibility of the three 

species occurring in the same stream. 

For example, both Gila trout and 

spikedace are known to occur in the 

Verde River. 

(75) Comment: Spikedace were found 

in the Middle Fork Gila River in 2008 

and 2010. 

Our Response: In response to this 

question, we have updated our 

information on the Middle Fork Gila 

River to reflect that spikedace were 

found in the Middle Fork Gila River in 

these years (Propst et al. 2009, p. 10; 

Gilbert 2011 pers. comm.). 

(76) Comment: Propst et al. (2008) 

determined that the primary driver 

affecting native fish in the Upper Gila 

River and San Francisco River 

catchments was long-term discharge, 

with nonnative fish exacerbating the 

effects of low discharges. In the water 

withdrawal section, it should be noted 

that both existing and potential water 

withdrawals are one of the primary 

threats to spikedace and loach minnow. 

Long-term reductions of instream flow 

have been shown to negatively affect 

both species. 

Our Response: In response to this and 

other comments, we have incorporated 

information from Propst et al. (2008) 

within the Flow Regime, Nonnative 

Fishes, and Connectivity discussion 

under Factor E above. 

(77) Comment: A settlement 

agreement regarding pumping wells in 

the Big Chino Valley was effected 

between the Salt River Project and the 

towns of Prescott and Prescott Valley in 

2010. This agreement will allow the 

withdrawal of approximately 2.5 billion 

gallons of water/year from the Big Chino 

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Valley aquifer, and could seriously 

impact surface flow in the upper Verde 

River. Implementation of this proposal 

lends credence to the need for uplisting 

to endangered of spikedace. 

Our Response: We have added 

information and citations regarding the 

Agreement in Principle signed between 

Salt River Project, Prescott, and Prescott 

Valley indicating that they have agreed 

to try to move forward without litigation 

in the development of the Big Chino 

project. 

(78) Comment: Some of the language 

under the Nonnative Fishes subheading 

of Factor E appears to discount the 

detrimental effect of larger nonnative 

species, e.g., green sunfish, smallmouth 

bass, flathead catfish, and others, all of 

which are highly predacious on 

spikedace and loach minnow. 

Our Response: This language has been 

modified to indicate the specific 

problems associated with small and 

large nonnative fish species. 

(79) Comment: Many of the 

descriptions of PBFs essential for 

spikedace and loach minnow are vague 

and undefined. They provide little 

detail as to their exact meaning. While 

this may be a result of the relative lack 

of research and knowledge of the 

species, it should also encourage the 

Service to advocate more applied 

investigations on the species in order to 

better understand their requirements. 

Our Response: We acknowledge that 

additional research would be valuable; 

however, the discussion under the 

subheading of PBFs presents the best 

information currently available for the 

species. 

(80) Comment: In addition to fishes, 

nonnative species that also affect 

spikedace and loach minnow include 

parasites, crayfish, mollusks, and 

probably others. 

Our Response: We have modified the 

language under the subheading of 

Nonnative Aquatic Species to reflect 

this. Information regarding other 

nonnative aquatic species is found 

under Factor C. 

(81) Comment: Although the concern 

for livestock grazing as a threat has 

lessened, the threat still remains. 

Livestock permittees on the National 

Forest lands continually request 

livestock access to riparian areas that 

were closed for resource protection. 

Also many of the areas proposed for 

critical habitat are not currently 

protected from livestock, either by 

structures or in their allotment 

management plans. Additionally, 

disturbance of soil and vegetation in 

upper watersheds will continually 

increase sedimentation in drainages. 

Our Response: We include a 

discussion of the impacts of livestock 

grazing within Factor A of the rule. We 

note that adverse effects to species such 

as spikedace and loach minnow are 

decreasing, due to improved 

management on Federal lands (Service 

1997c, pp. 121–129, 137–141; Service 

2001, pp. 50–67), largely due to 

discontinuing grazing in the riparian 

and stream corridors. However, we also 

note that livestock grazing within 

watersheds where spikedace and loach 

minnow and their habitats are located 

continues to cause adverse effects. 

Following finalization of the critical 

habitat designations, existing 

consultations on livestock allotment 

management plans may require 

additional consultation. 

(82) Comment: The recovery 

objectives for spikedace and loach 

minnow in the current recovery plans is 

delisting through protection of existing 

populations and restoration of 

populations into historical habitats. The 

downlisting and delisting criteria 

expressed in the proposed rule make no 

mention of the existing natural 

populations or their habitats. Assuring 

recovery and long-term conservation of 

existing natural populations should be 

the primary emphasis in any down- or 

delisting proposal. 

Our Response: In response to this 

comment, we have amended the 

language to indicate that, in addition to 

increasing the number of occupied 

streams, there will be a continued 

protection of existing populations and 

habitat. This was implied in the text of 

the proposed rule, but we have clarified 

the language to place more emphasis on 

protection of existing populations and 

habitats. 

(83) Comment: The Service should 

include bridges, diversion structures, 

and other structures in the designations. 

Although they lack the PBFs, it is often 

these structures that cause the most 

degradation, and including them would 

provide impetus to management 

agencies to modify their detrimental 

features in order to reduce effects on the 

species during both normal and 

extraordinary maintenance. 

Our Response: Generally, areas 

without PBFs cannot be considered 

essential to the conservation of the 

species. However, it should be noted 

that, should one of these features 

require maintenance, the Service would 

evaluate potential up and downstream 

effects from such an action, assuming it 

has a Federal nexus. 

(84) Comment: Current occupation of 

Fossil Creek and San Francisco should 

be uncertain. 

Our Response: We agree, and have 

modified the table to reflect this for all 

translocated or reintroduced 

populations. 

(85) Comment: Critical habitat in 

Fossil Creek should be extended 

upstream to Fossil Springs. Both 

spikedace and loach minnow have been 

translocated into Fossil Creek between 

the springs and downstream to Irving. 

Fossil Creek is considered recovery 

habitat for loach minnow and 

spikedace, but the habitat is threatened 

by recreational development and 

degraded by excessive human use. 

Fossil Creek was designated a Wild and 

Scenic River in 2010. 

Our Response: Please see the response 

to comment 7, as well as the discussion 

below on Summary of Changes from 

Proposed Rule. 

(86) Comment: It is unclear why West 

Clear Creek was excluded from critical 

habitat. The lower 7.2 miles of West 

Clear Creek was included in the 2000 

designation. 

Our Response: We are including the 

lower 10.9 km (6.8 mi) of West Clear 

Creek for spikedace only, as there are no 

known records for loach minnow from 

this stream. 

(87) Comment: We do not agree that 

Tonto Creek, Rye Creek, and Greenback 

Creek should be excluded from critical 

habitat. Loach minnow and spikedace 

typically co-occurred historically. The 

lack of records of loach minnow from 

Tonto Creek was more likely an artifact 

of incomplete sampling, rather than lack 

of occurrence. We believe that Tonto 

Creek does have suitable habitat for 

loach minnow and is worthy of 

inclusion. 

Our Response: Please see the response 

to comment 8 above. 

(88) Comment: We question why West 

Fork Black River was excluded from 

critical habitat. The lower 6.4 miles was 

included in the 2000 designation. 

Our Response: We have included 

within the designation 19.1 km (11.9 

mi) of the East Fork Black River, 7.1 km 

(4.4 mi) of the North Fork East Fork 

Black River, 3.4 km (2.1 mi) of Coyote 

Creek, and 2.3 km (1.4 mi) of Boneyard 

Creek. There are no known records from 

the West Fork Black River. East Fork 

Black River is directly connected to the 

North Fork East Fork Black River, where 

loach minnow have been detected, 

whereas the West Fork Black River is 

not directly connected, and therefore 

does not provide an extension of habitat 

(i.e., is not a 2a stream) for loach 

minnow in this complex. 

(89) Comment: Threats along the Gila 

River include water withdrawal, stream 

channelization, water quality 

degradation, roads and bridges, and 

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livestock grazing, as well as the spread 

of nonnative species and climate 

variability and change, especially 

drought. 

Our Response: This issue has been 

addressed within the rule. Please see the 

discussion under Unit 8 for special 

management considerations, as well as 

the information on climate change and 

nonnative species. 

(90) Comment: The proposed rule 

notes that grazing may cause increased 

erosion and deposition and increased 

sediment loads from livestock, but 

nowhere in the proposed rule does the 

document acknowledge the Chitty flood 

of July 2007 from Chitty Creek that 

changed the entire area and affected 

East Eagle and Eagle Creek. The Chitty, 

Hot Air, and Eagle wildfires have 

occurred since 2007. The Clifton Range 

District under the Mogollon Rim is 

prone to large lightning strikes and has 

no prescribed burns scheduled; 

therefore, the potential of another 

wildfire is evident and large-scale 

erosion occurring, making East Eagle 

and Eagle Creek not suitable for 

spikedace and loach minnow as stable 

habitat. 

Our Response: We have added 

information regarding wildfires to the 

discussion for Eagle Creek. Eagle Creek 

continues to support one or more of the 

PBFs for spikedace and loach minnow, 

and we therefore believe it is reasonable 

to include Eagle Creek within the 

designation. East Eagle Creek was not 

included at the proposed rule stage, and 

is not included in the final rule for 

either species. 

(91) Comment: The proposed rule 

states that open stock tanks contain 

nonnative aquatic species, which is not 

documented on East Eagle or Mud 

Springs allotment, and in fact all stock 

tanks go dry a minimum of once each 

year. 

Our Response: The discussion on 

nonnative species and stock tanks is 

under the general discussion for 

livestock grazing, and is not attributed 

to Eagle Creek, or the East Eagle or Mud 

Springs allotments. 

(92) Comment: The crayfish 

population is the only increasing 

aquatic life on Eagle Creek. Numerous 

studies over the last 10 years show no 

increase in native fish. A proposed rule 

change is not the solution. 

Our Response: We have included 

discussions on the presence of 

nonnative aquatic species and potential 

impacts to spikedace and loach 

minnow; however, critical habitat 

designation is not the process through 

which we rule out habitat suitability 

due to threats, but the process through 

which we identify habitat that provides 

for one or more of the life-history 

functions of the species. Please see 

additional discussion on this point at 

comment 66. 

(93) Comment: Eagle Creek has two 

year-round stream crossings and a third 

seasonal crossing, and all are on private 

land. There are private land holdings 

from Honeymoon Campground south on 

Eagle Creek. In addition, there are 

Upper Eagle Creek Watershed 

Association Management plans. For 

these reasons, Eagle Creek should be 

exempt from critical habitat. 

Our Response: Critical habitat 

designation does not impose restrictions 

on private lands unless Federal funds, 

permits, or activities are involved. 

Federal agencies that undertake, fund, 

or permit activities that may affect 

critical habitat are required to consult 

with the Service to ensure that such 

actions do not adversely modify or 

destroy designated critical habitat. 

There will likely be minimal, if any, 

impact to private land holdings along 

Eagle Creek from the critical habitat 

designation, unless a Federal nexus 

exists, as described above. Appropriate 

exclusions along Eagle Creek have been 

made for the San Carlos Apache Tribe 

and FMC. With respect to the Upper 

Eagle Creek Watershed Association 

Management Plans, no such 

management plan was submitted to the 

Service for consideration during this 

rulemaking. 

(94) Comment: Eagle Creek should be 

excluded as neither species has been 

seen there in more than 10 years. 

Our Response: We refer the reader 

back to the ruleset used in determining 

which areas would be included as 

critical habitat, and to the definitions of 

occupancy within the rule. Eagle Creek 

was occupied at listing by both species, 

and is classified as a 1a stream under 

the ruleset, as it continues to provide 

suitable habitat for the species. 

(95) Comment: The Upper Eagle Creek 

Watershed Association is participating 

in the Ranch Heritage alliance and has 

worked for the last two years with the 

National Riparian Service Team to 

develop plans, methods, and monitoring 

protocols to develop habitat for 

numerous species. This new method 

should be encouraged and the Greenlee 

County Rivers and tributaries should be 

excluded from the critical habitat 

designations for loach minnow and 

spikedace to give the management plans 

an opportunity to succeed. The past 

plan of just fencing the riparian areas 

has not been a total success, and a more 

positive approach of collaboration is 

recommended. 

Our Response: We agree that 

collaboration is a positive approach to 

recovering threatened and endangered 

species. At this time, however, we have 

not received a complete management 

plan from the Upper Eagle Creek 

Watershed Association and, therefore 

cannot exclude this area from the 

designations. 

(96) Comment: There were several 

comments referring to the unsuitability 

of the San Pedro River as critical 

habitat, especially because of the 

nonnative fishes and problems with 

pollution in the upstream portions of 

the river, which is in Mexico. 

Our Response: The Service is aware of 

the challenges posed by nonnative 

aquatic species in the San Pedro River, 

particularly given that a suitable barrier 

site has not been found at this time. 

However, we have determined that 

inclusion of the San Pedro River may 

impact operations at Fort Huachuca 

critical to national security. Therefore, 

we are excluding the San Pedro River as 

critical habitat for the two species. See 

the Exclusion discussion in the text. 

(97) Comment: Does the Service have 

any information regarding possible 

causes of the spikedace decline in New 

Mexico and the magnitude of the 

decline? 

Our Response: The proposed and final 

rules contain a complete five-factor 

analysis, which describes threats to the 

species and presents the best available 

scientific information. 

(98) Comment: Proposed critical 

habitat creates a conflict in management 

objectives between spikedace and loach 

minnow and Gila trout. 

Our Response: There is some overlap 

in the species’ distribution; however, 

designation of critical habitat would 

lead to protection of the stream habitat 

in which all three species occur, and we 

do not believe there will be conflicts in 

management. 

(99) Comment: The Fish and Wildlife 

Service has stated that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

The proposed designation of the 

Redfield Canyon stream segment as 

critical habitat (CH) is based upon 

inaccurate information and would have 

no beneficial effect on the survival of 

the spikedace or loach minnow. In 

representing all private landowners 

along this segment and having the most 

firsthand and long-term knowledge of 

the area, we request that this segment be 

removed from consideration. 

Our Response: Redfield Canyon is 

currently the site of a species 

translocation effort and it provides 

suitable habitat for the species. 

However, in response to information 

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received during the comment period, we 

have revised the designation within 

Redfield Canyon, and reduced the area 

to be designated as critical habitat to 6.5 

km (4.0 miles) from the confluence with 

Sycamore Canyon downstream to the 

barrier constructed at Township 11 

South, Range 19 East, section 36. 

(100) Comment: Within the DEA for 

the designation you state: ‘‘Conservation 

actions that might be performed for a 

variety of fish species include, but are 

not limited to (7) application of 

chemicals to eradicate fishes, etc.’’ The 

chemical rotenone is most often used for 

this purpose. The Bureau of 

Reclamation (BOR) has recently 

acquired state lands along Redfield 

Canyon where the fish were 

translocated in 2007. BOR intends to 

construct a fish barrier in the Canyon to 

prevent nonnative fish from threatening 

the translocated fish. Generally 

following such a construction project 

rotenone is used to ensure that the area 

above the dam is clean of nonnatives. It 

is likely that rotenone will be used in 

Redfield Canyon and this is not 

reviewed or even mentioned in the 

DEA, which is in error given that the 

Arizona Game and Fish heavily depend 

upon this tool for managing native fish 

populations especially for threatened 

and endangered species. Analysis of this 

action should be included in the DEA 

and the effects it will have on local 

drinking water. 

Our Response: For Redfield Canyon, 

nonnative aquatic species are limited to 

green sunfish, which are being 

mechanically removed. There are no 

plans to use rotenone in Redfield 

Canyon. 

(101) Comment: The proposed rule 

and the environmental assessment lack 

specific discussions for each segment 

regarding how the unoccupied segment 

is ‘‘essential for the conservation of the 

species.’’ Both documents describe 

conditions in each segment that may be 

favorable to the species but do not 

explain how the Service determined 

that the unoccupied segment was 

essential. In addition, there is no 

discussion regarding the conservation 

value of unoccupied segments. 

Our Response: We refer the 

commenter to the ruleset, as well as 

Table 6 within the proposed rule. For 

each stream, we indicated which 

portion of the ruleset was met. For 

example, the San Pedro is listed in 

Table 6 as a ‘‘1a’’ stream, and from the 

ruleset, this indicates that this stream 

was occupied at listing, and has 

sufficient PBFs to support life-history 

functions essential for the conservation 

of the species. The PBFs present in any 

stream segment are listed in the unit 

descriptions for each stream. 

The conservation value of unoccupied 

segments is in their ability to allow the 

species to expand from their current 

distribution until recovery is reached. 

As noted in the rule, both species 

currently occur in a small percentage of 

their historical range, and cannot be 

recovered in place. 

(102) Comment: How the Service 

expects success when they are only 

going to try to manage ‘‘a portion of the 

Blue River’’ and ‘‘a small portion of 

Bonita Creek’’ for native fish is 

confusing. We don’t know the location 

of the proposed fish barrier on the Blue 

River but we do know that the failed 

fish barrier that is being fixed on Bonita 

Creek is almost at the confluence with 

the Gila River. That means that all the 

fish above the fish barrier for over 14 

miles will mix. 

Our Response: At this time, the only 

portion of the Blue River that may be 

mechanically treated for nonnative 

fishes are a few larger pools near where 

the barrier construction will take place, 

in the lower portions of the Blue River. 

For Bonita Creek, chemical renovation 

occurred in an approximately 2-mile 

stretch of the river. Both of these areas 

are limited in scope. 

(103) Comment: The Service has 

relied on ephemeral reference points to 

describe critical habitat areas and is in 

violation of 50 CFR 424.12(c). 

Our Response: The ephemeral 

reference point referred to is the use of 

the bankfull stage in describing critical 

habitat. Bankfull stage is described in 

the section Criteria Used to Identify 

Critical Habitat. It is not an ephemeral 

feature, in other words, it does not 

disappear. It can always be determined 

and delineated for any stream we have 

designated as critical habitat. We 

acknowledge that the bankfull stage of 

any given stream may change depending 

on the magnitude of a flood event, but 

it is a definable and standard 

measurement for stream systems. 

(104) Comment: The precise areas 

proposed as critical habitat are 

improperly described, and their location 

and impacts on land and water uses are 

uncertain. The proposed critical habitat 

includes developed areas and 

improperly relies on post-designation 

exclusion criteria. 

Our Response: As noted within the 

proposed rule, the scale of the maps we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. 

However, any such lands inadvertently 

left inside critical habitat boundaries 

shown on the maps of this final rule are 

considered excluded by text in the rule 

and are not designated as critical 

habitat. Should Federal action occur 

involving these lands it will not trigger 

section 7 consultation with respect to 

critical habitat and the requirement of 

no adverse modification unless the 

specific action would affect the PBFs in 

the adjacent critical habitat. 

(105) Comment: The PBFs must be 

present before land is eligible to be 

designated as critical habitat. The 

Service cannot designate land that does 

not contain the PBFs, and then rely on 

exclusion criteria and subsequent 

Section 7(a)(2) consultations to filter out 

land that should not have been included 

in the designation. 

Our Response: Each of the areas 

within the critical habitat designation 

contain one or more of the PBFs, and do 

not use exclusions or a section 7 

consultation to filter out land after the 

listing action is complete. In fact, 

exclusions are developed before the 

listing is completed, and are based on 

several factors, which can be found in 

the ‘‘Exclusions’’ section of the rule. 

Section 7 is used to analyze the impacts 

of actions on PBFs present within a 

given area. 

(106) Comments: There were several 

comments regarding discrepancies in 

stream miles proposed for critical 

habitat, especially in the draft economic 

and environmental analyses. 

Our Response: We have revisited all 

of the mileage to ensure that it is 

accurate in this final rule. The final 

environmental and economic analyses 

will reflect the correct mileages. 

(107) Comment: One commenter 

noted that, with respect to translocation 

or reintroduction sites for the species, 

the Service indicated that monitoring 

will be conducted at each of these sites 

to determine if populations ultimately 

become established at these new 

locations. The fish were translocated in 

2007, yet there is no information 

included within the DEA or the Federal 

Register notice that describes the 

monitoring that has been done in these 

locations or gives the results of this 

monitoring. It is stated that the areas of 

Hot Springs and Redfield Canyon have 

been augmented. It is unknown to the 

public whether this augmentation was 

because the fish are not surviving or if 

the action was to increase what has been 

established. The need for augmentation 

is questionable if the fish are 

established, and if they are not 

surviving, it needs to be analyzed in this 

document so as to better determine 

whether the PFBs at this location are 

accurately analyzed. This information is 

critical to making the designation of 

critical habitat. 

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Our Response: Information is 

provided in the rule regarding the 

translocation and reintroduction efforts, 

monitoring, and augmentation. Please 

see comment 18 regarding the 

appropriateness of including 

reintroduction and translocation sites 

within the critical habitat designation. 

(108) Comments: We received several 

comments regarding the adequacy of the 

information cited in discussions on 

livestock grazing. Some commenters 

also indicated that we should be using 

Minckley (In Stromberg and Tellman 

2009) regarding the discussion on 

livestock grazing, and that the citations 

used were either dated or focused on 

salmonid species. 

Our Response: Minckley (In 

Stromberg and Tellman 2009) did not 

focus on grazing. Minckley does 

indicate that threats from nonnative fish 

are the primary concern for native fish, 

which the Service acknowledges. 

However, we complete a five-factor 

analysis, looking at all potential 

concerns. With respect to literature by 

Rinne, we have reviewed this 

information and are familiar with the 

position that Rinne has taken regarding 

grazing and its benefits to native fishes. 

Resource management agencies 

continue to cite Platts 1990, which 

focuses not on salmonids, but the effects 

of grazing on stream habitats (See 

Cowley 2002, Guidelines for 

Establishing Allowable Levels of 

Streambank Alteration, Howery et al. 

2000, A Summary of Livestock Grazing 

Systems Used on Rangelands in the 

Western United States and Canada, or 

the USFS Web site at www.fs.fed.us/r5/ 

snfpa/final-seis/biological-documents, 

which all continue to cite Platts 1990). 

(109) Comment: Item Number 7 in the 

Service’s October 27, 2010, Question 

and Answer document reads: ‘‘What 

sort of actions would continue to be 

allowed within areas designated as 

critical habitat? The Service’s response 

to the question was, in part, ‘‘We 

believe, based on best available 

information, that the following actions 

will not result in a violation of the ESA: 

Release, diversion, or withdrawal of 

water from or near spikedace or loach 

minnow habitat in a manner that (1) 

DOES NOT displace or result in 

desiccation or death of eggs, larvae, or 

adults, (2) DOES NOT result in 

disruption of perennial flows, (3) DOES 

NOT disrupt spawning activities * * * 

and (4) DOES NOT alter vegetation 

(emphasis added).’’ How does anyone 

divert or withdraw water from the Gila 

River where fish are or may be present, 

without violating one or more of the 

‘‘DOES NOTS’’ listed? 

Our Response: Throughout the range 

of spikedace and loach minnow, 

numerous diversion structures are 

present, including in systems such as 

the Gila River, Blue River, and Verde 

River. These areas continue to divert 

water, and fish continue to persist, 

indicating that such diversions can take 

place. We anticipate that, should any 

new diversions be constructed, they 

would operate in a similar fashion. 

(110) Comment: One commenter 

suggested that we discuss the pending 

decisions associated with the New 

Mexico Interstate Stream Commission’s 

(SC) approval of 21 projects on the Gila 

River that could qualify to become part 

of the New Mexico Unit of the CAP 

approved in the AWSA. 

Our Response: The AWSA provides 

for New Mexico water users to deplete 

140,000 acre-feet of additional water 

from the Gila Basin in any 10-year 

period. The settlement also provides the 

ability to divert that water without 

complaint from downstream pre-1968 

water rights in Arizona. New Mexico 

will receive $66 million to $128 million 

in non reimbursable Federal funding. 

The ISC Funds may be used to cover 

costs of an actual water supply project, 

planning, environmental mitigation, or 

restoration activities associated with or 

necessary for the project, and may be 

used on 1 or more of 21 alternative 

projects ranging from Gila National 

Forest San Francisco River Diversion/ 

Ditch improvements to a regional water 

supply project (the Deming Diversion 

Project). It is not known how the funds 

will be spent, or which potential 

alternative(s) may be chosen. In 

addition, the AWSA mandates that the 

ISC make the final determination of 

contracts for water and allocation of 

funding and provide notice to the 

Secretary of the Interior by December 

31, 2014. New Mexico ISC must make 

any final determination during an open, 

public meeting, and only after 

consultation with the Gila San 

Francisco Water Commission, the 

citizens of southwestern New Mexico, 

and other affected interests. Due to the 

timeline associated with this project, as 

well as the uncertainties in how funding 

will be spent, and which potential 

alternative or alternatives will be 

chosen, The Service is unable to 

determine the outcome of this process at 

this time. 

(111) Comment: The draft 

environmental assessment states that 

quality fish habitat is intrinsically 

linked to the quality of the existing 

adjacent upland habitat that provides 

key habitat components (e.g., large 

woody debris) crucial for fish species. 

Spikedace and loach minnows do not 

need large woody debris. 

Our Response: We note that large 

wood is an important factor to analyze 

in assessing riparian ecosystem health; 

however, we are not aware of any data 

at this time that illustrates what amount 

of large woody debris within a system 

would constitute ideal conditions for 

spikedace and loach minnow. Should 

such information be developed in the 

future, it would be another useful factor 

in evaluating river system health and 

habitat suitability for spikedace and 

loach minnow. However, we are 

removing this language from the draft 

environmental assessment at this time. 

(112) Comment: The proposed loach 

minnow critical habitat in Apache 

County is made up of reaches of the East 

Fork of the Black River. The entire East 

Fork of the Black River and the upland 

watershed was burnt in the recent 

Wallow Fire. The effects of the Wallow 

Fire will adversely impact any existing 

loach minnow populations and greatly 

alter the habitat for this fish as 

sediments are washed into the Black 

River following the fire. There is a high 

probability that the reaches of the Black 

River in Apache County, which are 

being proposed for loach minnow 

critical habitat, will no longer support 

the species and remain uninhabitable by 

loach minnow for a considerable length 

of time. The Apache County Board of 

Supervisors feels the Service should 

reconsider their decision to propose the 

reaches of the Black River in Apache 

County as loach minnow critical habitat 

until it can be determined that these 

reaches of stream contain any of the 

PBFs of the loach minnow. The 

management required in order to again 

support the loach minnow in the Black 

River may well be beyond what can be 

reasonably accomplished under a 

critical habitat designation. 

Our Response: Portions of Units Two 

(Black River Complex) and Seven (Blue 

River Complex) of the critical habitat 

designation fall within the Wallow Fire 

perimeter. While all of Unit Two is 

within the Wallow Fire burn perimeter, 

most of the area designated as critical 

habitat falls within areas that 

experienced either no or low burn 

severity. The North Fork East Fork Black 

River falls within an unburned area 

inside the perimeter of the fire, as does 

most of Boneyard Creek. The majority of 

East Fork Black River falls within an 

area that experienced low burn severity, 

but does cross a few areas that were 

either unburned or burned at moderate 

burn severity. Coyote Creek is in an area 

almost entirely burned at low severity. 

Within Unit 7, the majority of Campbell 

Blue Creek is within unburned or low 

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burn severity areas; however, 

approximately 2.4 km (1.5 mi) of the 

upper end of Campbell Blue Creek is 

within moderate and high burn severity. 

The Wallow Fire stopped just west of 

the Blue River, but came within 

approximately 0.3 km (0.2 mi) of the 

River. 

The impacts from fire on fish and 

their habitat are described in greater 

detail within the discussion of threats. 

While the fire itself may not have 

reached high severity in proximity to 

the areas designated as critical habitat, 

the following ash and sediment that can 

be displaced from within the watershed 

into the streams is of primary concern. 

During the monsoon, which began 

before the fire was extinguished, ash 

and sediment entered Campbell Blue 

Creek and the Blue River. In the Blue 

River, ash and sediment travelled as far 

downstream as the San Francisco River, 

resulting in fish kills (Blasius, 2011, 

pers. comm.). Fish surveys completed 

during the fall of 2011 found reduced 

numbers of loach minnow (Adelsberger 

et al. 2011, p. 1). It is important to note 

however, that these areas, while 

temporarily affected by the ash and 

sediment resulting from the fire, are not 

permanently altered. We anticipate that 

they will continue to support loach 

minnow, albeit at reduced levels, and 

that, given sufficient time, they will 

recover sufficiently to provide habitat 

for loach minnow in Unit 2 and both 

spikedace and loach minnow in Unit 7. 

(113) Comment: More than a century 

of stream and riparian habitat abuses 

does not indicate some happy 

coexistence between the livestock 

industry and conserving and recovering 

these two imperiled cyprinids that are 

facing extinctions largely from habitat 

alterations and fragmentation. There are 

clear and serious conflicts between 

domestic livestock grazing and 

conserving and fully recovering 

endangered spikedace and loach 

minnows throughout their historic 

ranges in the Gila River Basin of 

Arizona, New Mexico, and Northern 

Mexico. 

Our Response: As noted in the threats 

analysis within the document, the 

Service recognizes that there are 

impacts from livestock grazing on 

riparian and stream systems and the 

species that depend on them. As also 

noted in the threats analysis, we believe 

that progress has been made with 

grazing management, but that legacy 

effects of past improper livestock 

grazing persist. At this time, we believe 

that progress has been made within the 

range of spikedace and loach minnow. 

However, because not all conflicts 

between grazing and fish have been 

eliminated, there is still a discussion on 

the types of impacts that can occur. 

(114) Comment: We strongly support 

additional mileage and acreage of 

designated critical habitat for proposed 

endangered spikedace and loach 

minnow, but oppose the omission of 

much of the historic, unoccupied 

habitats necessary for not only the 

conservation, but the successful full 

recovery at a natural rate, without 

retardation, of these imperiled 

Southwestern cyprinids, and the 

eventual delisting of these species from 

the Act. While the Service proposes 

occupied habitat of an additional 14.2 

miles of the San Francisco River and 

19.5 miles of Bear Creek in New Mexico 

for the proposed endangered loach 

minnow critical habitat designations, it 

freely admits in the Federal Register 

Notice (at page 61332) to the fatal 

omission of stream reaches that connect 

occupied habitat for both imperiled 

cyprinids. We strongly disagree with the 

Service proposed critical habitat 

designation rule for omitting connecting 

reaches that would allow genetic 

exchanges between dwindling 

populations and pockets of individual 

spikedace and loach minnows—which 

do not constitute viable, sustainable 

populations—as well as other historic 

unoccupied habitats that may be crucial 

for the survival and full recovery of the 

two fishes. This blatant oversight 

ignores the basic precepts of modern 

conservation biology and the accepted 

science of conservation genetics needed 

to sustain viable populations of rare and 

declining species like the spikedace and 

loach minnow. 

Our Response: As noted in the NOA 

(76 FR 61330), we were unable to 

identify additional areas within the 

historical range of the species that 

currently have sufficient habitat 

parameters to serve as connective 

corridors between occupied and 

unoccupied habitat. As also stated in 

the NOA, we believe that both loach 

minnow and spikedace conservation 

will require genetic exchange between 

the remaining populations to allow for 

genetic variation, which is important for 

species’ fitness and adaptive capability. 

Our inability to identify unoccupied 

streams that would provide connections 

between occupied areas is a result of the 

highly degraded condition of 

unoccupied habitat and the uncertainty 

of stream corridor restoration potential. 

We anticipate that we will further 

address the issue of restoration of 

genetic exchange in our revised 

Recovery Plan. A Spikedace and Loach 

Minnow Recovery Team has been 

formed, and will be meeting in early 

2012. 

(115) Comment: We urge the Service 

to reevaluate the proposed 300-foot 

riparian strips and to consider them 

only as a minimum with wider riparian 

buffers required for larger stream 

reaches like the mainstem San Francisco 

River and Gila River. A similar 

approach is incorporated in the 

PACFISH/INFISH extant consultations 

in the interior Pacific Northwest, like 

the Land and Resource Management 

Plans Biological Opinion, which the 

Service issued for bull trout and other 

native fishes and the National Marine 

Fisheries Service issued for ESA-listed 

anadromous salmonids. In these 

consultations and agreements, while the 

minimum standard for a Riparian 

Conservation Area or Riparian Habitat 

Conservation Area (RHCA) is set, there 

are additional science-based criteria for 

increasing the area or breadth of the 

designated critical habitat surrounding 

critical stream reaches based on the 

stream order or size of the reach, and 

how the riparian ecosystems actually 

function. For an example, you should 

examine the designated critical habitat 

rule for the threatened Snake River 

spring/summer Chinook salmon. In that 

Designated Critical Habitat Final Rule, 

smaller tributaries are protected with 

the minimum RHCA, while larger rivers 

like the Salmon River or Snake River, 

maintain much broader RHCAs to 

conserve ecological functionality of the 

designated critical habitats and help 

ensure to maintain sustainable, viable 

populations and Distinct Population 

Segments or Evolutionarily Significant 

Units (or ‘‘species’’ under the Act). 

Our Response: As stated in the 2007 

Federal Register notice designating 

critical habitat, we selected the 300-foot 

lateral extent, rather than some other 

delineation, for three reasons: (1) The 

biological integrity and natural 

dynamics of the river system are 

maintained within this area (i.e., the 

floodplain and its riparian vegetation 

provide space for natural flooding 

patterns and latitude for necessary 

natural channel adjustments to maintain 

appropriate channel morphology and 

geometry, store water for slow release to 

maintain base flows, provide protected 

side channels and other protected areas, 

and allow the river to meander within 

its main channel in response to large 

flow events); (2) conservation of the 

adjacent riparian area also helps provide 

nutrient recharge and protection from 

sediment and pollutants; and (3) 

vegetated lateral zones are widely 

recognized as providing a variety of 

aquatic habitat functions and values 

(e.g., aquatic habitat for fish and other 

aquatic organisms, moderation of water 

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temperature changes, and detritus for 

aquatic food webs) and help improve or 

maintain local water quality (see U.S. 

Army Corps of Engineers’ final notice 

concerning Issuance and Modification 

of Nationwide Permits, March 9, 2000, 

65 FR 12818–12899). 

(116) Comment: We urge the Service 

to expand the proposed critical habitat 

designation rules to encompass 

upstream stream reaches and riparian 

habitats, whether they are occupied, 

historic but currently unoccupied, or 

even historically unoccupied stream/ 

riparian reaches that are upstream of 

designated critical habitats and/or 

spikedace and/or loach minnows. As a 

broadly accepted scientific principle 

that is at the heart of watershed science, 

hydrology, and stream ecology, what 

happens upstream in a watershed, 

including adverse effects like 

dewatering, accelerated bank and 

upland erosion, and subsequent 

increases in siltation and turbidity of 

streams like that associated with 

domestic livestock grazing, logging, road 

encroachment, and poorly regulated offroad vehicle use, has significant adverse 

effects downstream on listed fishes and/ 

or their designated critical habitats. 

Our Response: Some areas have been 

expanded as described in the notice of 

availability and in this document; other 

areas have been reduced. Federal 

actions that may affect critical habitat 

will be evaluated under section 7 of the 

Act, regardless of in which portion of 

the watershed those actions occur. 

(117) Comment: While it is not as 

intuitive to consider upstream reaches 

and watersheds as part of the designated 

critical habitats and section 7 

consultations, the Service also needs to 

include downstream reaches if the goal 

is conservation, and full recovery 

without retardation of the natural rates. 

As explained eloquently by Dave 

Rosgen in his 1996 book, Applied River 

Morphology, by other stream 

hydrologists and watershed scientists, 

and from our extensive experiences 

examining stream channel alterations 

across the West caused by domestic 

livestock grazing, restrictive culverts, 

and other habitat threats, what happens 

downstream can certainly affect 

upstream reaches in stream and riparian 

ecosystems, particularly in the Arid 

West. Fluvial morphological actions like 

downcutting, headcutting, stream 

widening, stream channel filling with 

increased sediment loads, and the 

simplification of stream channel 

morphology with the accompanying 

disconnection of impacted streams with 

their natural floodplains, not only 

adversely affects the impacted reaches 

and downstream riparian and stream 

habitats, but also can result in upstream 

bank sloughing, riparian vegetation 

collapse, alluvial water declines, stream 

channel straightening, steepening, and 

water velocity increase. These actions 

just feed the cycle and accelerate the 

habitat destabilization and degradation, 

to the detriment of the dependent fish 

populations like spikedace and loach 

minnows in the Gila River Basin of 

Arizona, New Mexico, and Northern 

Mexico. 

Our Response: The Service is aware of 

the information provided in Rosgen’s 

book titled Applied River Morphology, 

which is, in fact, cited within the rule. 

Under section 7 of the Act, the Service 

evaluates impacts to the species and 

their habitat and ecological needs based 

on the best information available, 

regardless of where those impacts 

originate. 

(118) Comment: The Service should 

be conducting section 7 consultations 

with the USFS, BLM, Bureau of Indian 

Affairs, and others to conserve and 

recover endangered spikedace and loach 

minnow populations, prevent non 

exempted section 9 take of individual 

fishes, prevent the adverse modification 

of designated critical habitats, and 

closely examine if proposed Federal 

actions may retard the natural rates of 

recovery of these two Southwestern 

cyprinids. These consultations should 

occur in upland, riparian, and aquatic 

ecosystems in the Gila River Basin, 

whether the Federal actions are within 

occupied or unoccupied designated 

critical habitat or they are upstream of 

them. We remind the Service that it can 

expand the action areas presented to it 

in an action agency’s biological 

assessment and as such, section 7 

consultations are not restricted to the 

footprint of the proposed project or 

action or even to the property 

boundaries of lands managed by a 

Federal agency like the USFS, BLM, or 

the Service. Likewise, the Service, 

according to its own Section 7 

Consultation Handbook, is not 

restrained by the action agency’s effects 

determinations and in meeting the spirit 

and intent of the Act, should always err 

towards the conservation of listed 

species and their protected habitats, 

especially endangered species, which by 

their nature, are facing potential 

extinctions, by replacing the 

determinations with their own, stricter 

effects determinations for species, 

designated critical habitats, and 

recoveries. 

Our Response: We agree that the 

‘‘action area’’ of a project refers to all 

areas to be affected directly or indirectly 

by the Federal action and not merely the 

immediate area involved in the action, 

as defined in 50 CFR 402.02. 

(119) Comment: In the arid West, 

including in the Gila River of Arizona 

and New Mexico, as well as Northern 

Mexico, water diversions and artificial 

impoundments are prized for 

agricultural production, livestock 

watering, and domestic water supplies. 

Often, the diversion structures are not 

properly screened or designed to 

prevent impingement (i.e., fish get stuck 

on the screens or filters, if there are any, 

or entrainment such that fish get caught 

in water conveyance pipes and ditches 

and may end up stranded in dewatered 

structures), allow fish passage upstream 

and downstream, or completely dewater 

occupied reaches of stream or 

disconnect isolated populations. The 

Service must ensure that Federally 

funded, permitted, and/or designed 

water diversion works are not lethally or 

non lethally taking listed spikedace and 

loach minnow in the Gila River Basin. 

Additionally, we expect the Service to 

enforce the Act and fully prosecute 

water users taking spikedace and loach 

minnow without exemptions under a 

biologically sound and legal incidental 

take statement or habitat conservation 

plan under section 10 of the Act. 

Our Response: Section 9 of the Act 

prohibits actions including, but are not 

limited to, take (i.e., harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or attempt to engage 

in such activity) for all listed species. 

(120) Comment: While we recognize 

that the Service views western water 

law and individual water rights as a 

states issue, the Federal government 

does have some significant influence on 

modifying the diversion, conveyance, 

storage, and use of western waters 

diverted from watersheds like the Gila 

River Basin, including through section 7 

consultations with Federal action 

agencies that are permitting, designing 

or funding such activities, whether they 

are on Federal public, military 

reservations, tribal lands, or state or 

private lands. For example, many 

diversions originate on Federal lands 

managed by the USFS or BLM and 

include conveyances and rights-of-way 

that cross public lands or are used, as 

in the case of livestock water, in 

troughs, tanks, and artificial ponds, 

actually on Federal lands. There is 

precedent for having Federal action 

agencies like the USFS condition how 

water is diverted and conveyed across 

Federal lands even if the water rights 

are held by private or corporate entities. 

For example, the Salmon-Challis 

National Forest and Sawtooth National 

Forest in Idaho have entered into a legal 

settlement agreement with Western 

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Watershed Project to condition 

diversions and conveyances in the 

Salmon River Basin to the benefit of 

listed anadromous salmonids and bull 

trout. The USFS has also executed a 

programmatic biological assessment for 

lockable head gates, measuring devices, 

and fish screens and has completed 

formal consultation with the Service 

and National Marine Fisheries Service. 

We strongly encourage the Service to 

lead the way with a similar effort in the 

water-limited Gila River Basin with its 

BLM, USFS, military and tribal 

consultation problems. 

Our Response: A recovery team is 

being established to develop on-theground strategies to conserve these two 

species. 

(121) Comment: It is alarming to note 

how the Service has carefully dissected 

the occupied and historic unoccupied 

reaches of the loach minnow and 

spikedace in their proposed critical 

habitat rule just to avoid existing water 

diversion structures. This 

‘‘gerrymandering’’ of the proposed 

riparian and stream reaches goes well 

beyond the precepts of broadly accepted 

conservation biology and should be 

eliminated from the Final Rule. 

Our Response: We acknowledge the 

absence of connective corridors in the 

proposed designation. We continue to 

believe that both loach minnow and 

spikedace conservation will require 

genetic exchange between the remaining 

populations. However, the designation 

was not developed with existing water 

diversion structures as a focal point. 

Instead, we developed a ruleset, which 

was applied across the historical ranges 

of the two species. Many of the stream 

segments included, such as the Verde 

River, Blue River, Eagle Creek, and Gila 

River, have existing diversion structures 

within the designated area. 

(122) Comment: Endangered species 

should not be subject to section 4 

permits with States like Arizona and 

New Mexico and the tribal governments 

for angling, fish stocking, and possibly 

stock assessments and research/ 

experiments. The Service has expressed 

that endangered spikedace and loach 

minnow face real threats from 

predation, competition, and 

transmission of disease and parasites by 

nonnative species, some of which are 

managed by fish and game agencies as 

game or sport fishes. In most cases, 

through Dingell-Johnson Federal funds 

administered by the Service, states like 

Arizona and New Mexico operate sport 

fisheries including stocking of 

nonnative predators, lethal and 

nonlethal take associated with angling, 

fisheries inventories and research, and 

hatchery programs. These actions 

should be considered and, if continued, 

be subject to section 7 consultations to 

protect spikedace and loach minnow 

and their designated critical habitats. 

Our Response: Federal funding of the 

Urban Stocking Program in Arizona was 

completed in 2011. The consultation 

resulted in a Statewide conservation 

program for native fishes while 

continuing sport fish stocking and 

management in designated streams. 

(123) Comment: The Service should 

be carefully assessing the environmental 

risks to individuals and critical habitats 

of spikedace and loach minnow with 

the types, amounts, seasons, and 

methods of chemical control of pests 

and weeds. In the case of the USFS, 

BLM, Bureau of Indian Affairs, military, 

and the Service’s wildlife refuges, 

environmental risk analyses scaled 

down for endangered fishes to the No 

Observed Effects Levels (‘‘NOELs’’) are 

necessary as are consultations and new 

labeling that restricts the uses of 

accepted chemicals and surfactants (and 

other carriers and adjutants) to protect 

spikedace and loach minnows. Special 

care is needed within the 300 ± ft 

riparian buffers, but effectiveness and 

implementation monitoring as well as 

water quality testing is needed to 

prevent unwanted extirpations or even 

extinctions. 

Our Response: The Service has a long 

history of conducting section 7 

consultations on a wide variety of 

pesticide and herbicide treatments, 

weed control, and related topics. 

(124) Comment: Simply adding some 

34 miles of streams to the designated 

critical habitats is insufficient when 

some 80 to 90 percent of the historical 

range is adversely modified and/or 

vacant. These meager actions on behalf 

of spikedace and loach minnow will not 

stem the slippery slope towards 

extinctions for these native desert 

stream fishes, especially with a 

significant portion of the two species’ 

ranges altered or vacated. 

Our Response: We are not certain 

where the figure of 34 additional miles 

came from in this comment. With this 

designation, we are increasing the 

overall mileage by 305 km (188 mi), 

compared to the 2007 designation. 

General Comments Issue 2: Legal or 

Policy Concerns 

(125) Comment: The Service needs to 

complete a regulatory flexibility 

analysis. 

Our Response: Compliance with the 

Regulatory Flexibility Act is part of this 

final rule, and can be found under the 

subheading of ‘‘Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.)’’. 

(126) Comment: The use of only one 

PBF in determining suitability is 

inadequate. If an area cannot support a 

viable population, then by definition it 

cannot be critical habitat. 

Our Response: In accordance with 

section 3(5)(A)(i) and 4(b)(1)(A) of the 

Act and regulations at 50 CFR 453.12, in 

determining which areas within the 

geographical area occupied at the time 

of listing to designate as critical habitat, 

we consider the physical and biological 

features essential to the conservation of 

the species and which may require 

special management considerations or 

protection. In our final critical habitat 

designations, we did not include any 

occupied areas that contained only one 

PBF. All of the areas occupied at the 

time of listing for both species, or each 

individual species, contain more than 

one PBF, as described in the unit 

descriptions. 

(127) Comment: Please explain why 

the word ‘‘only’’ is in the phrase ‘‘* * * 

be included only if those features may 

require special management 

considerations or protection.’’ The word 

‘‘only’’ is not in section 3 of the Act (see 

page 66496, 1st column, item (II). It 

appears that this proposed rule is trying 

to narrow the scope of what can be 

included in critical habitat (i.e., make 

policy). 

Our Response: We agree with the 

commenter that the language in the 

proposed rule was incorrect. We have 

inserted the following language in the 

final rule: ‘‘For inclusion in a critical 

habitat designation, the habitat within 

the geographical area occupied by the 

species at the time it was listed must 

contain physical and biological features 

which are essential to the conservation 

of the species and which may require 

special management considerations or 

protection.’’ 

(128) Comment: The Service received 

several requests for an extension of the 

comment period. 

Our Response: We believe the two 

comment periods allowed for adequate 

opportunity for public comment. A total 

of 90 days was provided for document 

review and the public to submit 

comments. In addition, a public hearing 

was scheduled on October 17, 2011, as 

another venue for comment submission. 

(129) Comment: The Nation supports 

the Service’s proposal to exclude those 

lands located within the exterior 

boundaries of the Yavapai-Apache 

Reservation from the final critical 

habitat designation under section 4(b)(2) 

of the Act, as the benefit of such 

exclusion outweighs the benefits of 

designating these lands as critical 

habitat, and such exclusion will not 

result in the extinction of the species. 

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Our Response: Within the proposed 

rule, we identified areas that we would 

consider for exclusion, including those 

of the Yavapai-Apache Reservation. 

Please see the Exclusions section for the 

analysis on the benefits of inclusion and 

exclusion for this area. 

(130) Comment: There were several 

comments regarding the proposed 

exclusions in the proposed rule and that 

our rationale was not clear in 

determining which areas were proposed 

for exclusion. FWS should provide 

support for all exclusion 

determinations. 

Our Response: We may exclude an 

area from designated critical habitat 

based on economic impacts, impacts on 

national security, or any other relevant 

impacts. In addition, we can consider 

exclusion of areas covered by other 

management plans or agreements such 

as habitat conservation plans which 

provide equal or better protection than 

would be gained from a critical habitat 

designation. In considering whether to 

exclude a particular area from the 

designation, we must identify the 

benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. See the discussion in the 

exclusions section of the final rule for 

further details. 

(131) Comment: Fort Huachuca is 

requesting that a national security 

analysis in compliance with section 

4(b)(2) be performed in consultation 

with the fort. In addition, the fort would 

like to continue dialogue beyond 

November 3, 2011, on the issues that 

have been raised in both letters 

regarding the national security impacts 

and the lack of justification for critical 

habitat designation in Unit 3. 

Our Response: We conducted an 

exclusion analysis based on a comment 

in which national security issues were 

raised by Fort Huachuca following 

closure of the second comment period. 

In this final rule, the San Pedro River 

has been excluded from the designation 

because the benefits of exclusion 

outweigh the benefits of inclusion based 

on potential impacts to national 

security. Refer to the discussion in the 

Exclusions section for further details. 

(132) Comment: The Service is not 

following their own regulations, policies 

and guidelines by allowing a long list of 

major Federal actions, such as fish 

recovery projects carried out under the 

Central Arizona Project (CAP) Biological 

Opinion, and the proposed spikedace 

and loach minnow critical habitat 

designation, to occur without NEPA 

analysis. 

Our Response: While actions taken 

under the CAP Fund Transfer Program 

do benefit spikedace and loach minnow, 

these are projects that are largely 

derived from the section 7 process. 

While ideally, recovery actions and 

critical habitat designation support one 

another to achieve recovery and 

delisting of the species, critical habitat 

designation is independent of these 

types of management actions. Had the 

Bureau of Reclamation and the Service 

decided for example, not to complete 

recovery actions on Bonita Creek or Hot 

Springs Canyon with barrier 

construction and translocations of the 

two species, we would still be 

designating critical habitat. These 

actions are therefore independent of one 

another and require separate NEPA 

analysis. 

(133) Comment: The way the Service 

implements consultations, the 

designation of critical habitat does 

impose universal rules and restrictions 

on land use. It does automatically 

trigger consultation with Service for 

modifications and results in prohibiting 

and altering certain land uses and water 

development activities. An example is 

the Upper San Pedro River where the 

habitat is unoccupied. With designated 

critical habitat there is a universal rule 

and restriction that any activity within 

300 feet of the river cannot adversely 

modify critical habitat. This 

automatically prohibits a land owner 

from creating a tilapia farm, alfalfa farm, 

alpaca ranch, livestock corral or 

otherwise lawful activity within 300 feet 

of the river. This is a universal blanket 

rule in critical habitat. To state 

otherwise is disingenuous. 

Our Response: It should be noted that 

adverse modification is rarely reached. 

Designation of critical habitat does not 

prohibit projects, but should an action 

be proposed, permitted, or funded by a 

Federal agency, section 7 consultation 

may be required. The purpose of section 

7 consultation is to provide 

minimization measures that reduce the 

impacts to listed species or their critical 

habitat. There are no automatic 

prohibitions to activities under the ESA. 

(134) Comment: The term ‘‘sufficient 

conservation measures’’ is used three 

times in the Environmental Assessment. 

The subsequent EIS needs to detail the 

measures deemed sufficient so that the 

costs and benefits of excluding areas 

due to economic, national security, and 

other needs can be assessed. 

Our Response: Please see the 

Exclusions section of this document, 

which describes the process that the 

Service uses to determine if exclusions 

are warranted. Generally, the process 

weighs whether the benefits of 

exclusion outweigh the benefits of 

inclusion. In the case of a management 

plan that details conservation measures, 

the Service would consider 

conservation measures sufficient if they 

would lead to conservation that meets 

or exceeds what we would anticipate 

occurring through designation of critical 

habitat. 

(135) Comment: An issue was raised 

regarding large floods in the streams 

proposed for critical habitat and if the 

designation would make it more 

difficult to complete repair work since 

some funding will be from Federal 

agencies. 

Our Response: Flooding, along with 

other activities, often does involve a 

Federal nexus that might trigger a 

section 7 consultation. Should flooding 

occur, Federal assistance may be used 

through programs such as the Natural 

Resource Conservation Service’s 

Emergency Watershed Protection 

Program, which has been used in the 

past to provide assistance to landowners 

in protecting their property from flood 

damage. The Service has established 

emergency consultation procedures that 

allow for this type of Federal action to 

move forward quickly, with emphasis 

on protection of human life and 

property. 

(136) Comment: The designation of 

critical habitat for these species is an 

attempt by the Service to gain additional 

control over the use of public and 

private land and resources. 

Our Response: Critical habitat 

identifies geographic areas that contain 

features essential for the conservation of 

a threatened or endangered species and 

that may require special management 

considerations. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Critical habitat 

designation does not impose restrictions 

on private lands unless Federal funds, 

permits or activities are involved. 

Federal agencies that undertake, fund, 

or permit activities that may affect 

critical habitat are required to consult 

with the Service to ensure that such 

actions do not adversely modify or 

destroy designated critical habitat. 

Requirements for consultation on 

critical habitat do not apply to entirely 

private actions on private lands. Critical 

habitat designations apply only to 

Federal lands, or federally funded or 

permitted activities on non federal 

lands. Activities on private or State 

lands that are funded, permitted, or 

carried out by a Federal agency, such as 

a permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act, will be subject to the 

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section 7 consultation process with the 

Service if those actions may affect 

critical habitat or a listed species. 

(137) Comment: One commenter 

noted that the development of 

conservation agreements with agencies 

and private landowners to gain similar 

protection to that afforded by 

designation of critical habitat would 

preclude the need to designate critical 

habitat but that, as no such efforts were 

under way across the species’ range 

during the 2010 proposed rule 

development, the Service rejected an 

alternative to accept conservation 

agreements in lieu of critical habitat 

designation. The commenter noted that 

conservation agreements would allow 

the Service to save money by putting a 

large part of the conservation burden on 

agencies and landowners, and that it 

may have been premature for the 

Service to reject this alternative. There 

may be potential for better results than 

through designation. Specifically, the 

AWSA offers opportunity to easily 

improve habitat for the loach minnow 

and spikedace. 

Our Response: We agree that the use 

of conservation agreements may, in 

some instances, provide a conservation 

benefit equal to or greater than the 

designation of critical habitat. However, 

at the time that the critical habitat 

designation was proposed and 

subsequently finalized, no such 

conservation agreements were under 

way or in place. The Service has a courtdetermined deadline for designation of 

critical habitat. While we considered 

those conservation agreements that are 

under way, we are not able to delay the 

designation of critical habitat until such 

agreements are developed, and we are 

not able to exclude areas from critical 

habitat based on conservation 

agreements that might be developed in 

the future. 

(138) Comment: In the past the 

Service has published information 

which states that designation of critical 

habitat provides little additional 

protection to species (69 FR 53182). The 

information states that in 30 years of 

implementing the Act, the Service has 

found that the designation of statutory 

critical habitat provides little additional 

protection to most listed species, while 

consuming significant amounts of 

available conservation resources. 

Additionally, we have also found that 

comparable conservation can be 

achieved by implementation of laws and 

regulations obviating the need for 

critical habitat. This statement supports 

the preparation of an EIS. 

Our Response: The Service has 

changed how it evaluates the value of 

critical habitat due to guidance 

provided by the Ninth Circuit Court. 

Formal consultation under section 7 of 

the Act concludes with a biological 

opinion issued by the Service on 

whether the proposed Federal action is 

likely to jeopardize the continued 

existence of a listed species or to 

destroy or adversely modify critical 

habitat (50 CFR 402.14[h]). In 2004, the 

Ninth Circuit Court determined through 

Gifford Pinchot Task Force et al. v. 

United States Fish and Wildlife Service 

(2004) that, while the jeopardy standard 

concerns the survival of a species or its 

risk of extinction, the adverse 

modification standard concerns the 

value of critical habitat for the recovery, 

or eventual delisting, of a species. As 

pointed out in the Ninth Circuit 

decision, survival of a species and 

recovery (or conservation) of a species 

are distinct concepts in the ESA. 

Implementation of the two standards, 

therefore, involves separate and distinct 

analyses based on these concepts. 

In light of the Gifford Pinchot 

decision, the Service no longer relies on 

the regulatory definition of ‘‘destruction 

or adverse modification’’ of critical 

habitat at 50 CFR 402.02. Instead, the 

Service relies on the statutory 

provisions of the ESA to complete the 

analysis with respect to critical habitat. 

The potential for destruction or adverse 

modification of critical habitat by a 

Federal action is assessed under the 

statutory provisions of the ESA by 

determining whether the effects of the 

implementation of the proposed Federal 

action would allow the affected critical 

habitat to remain functional (or retain 

those PBFs that relate to the ability of 

the area to periodically support the 

species) to serve its intended 

conservation role for the species (75 FR 

66519). This analysis provides the basis 

for determining the significance of 

anticipated effects of the proposed 

federal action on critical habitat. The 

threshold for destruction or adverse 

modification is evaluated in the context 

of whether the critical habitat would 

remain functional to serve the intended 

conservation role for the species. The 

direction provided by the Ninth Circuit 

Decision in Gifford Pinchot has changed 

the way the Service is analyzing the 

value of critical habitat. 

(139) Comment: Under Section 7 ESA 

consultations, FWS should urge the 

reinitiation of extant consultations, 

including programmatic consultations, 

with the uplisted statuses of spikedace 

and loach minnow in mind as well as 

the expanded designated critical 

habitats. This includes the 18 BLM 

domestic livestock grazing allotments in 

the mid-Gila River Basin. 

Our Response: Reinitiation of 

consultation is required if a new species 

or critical habitat designation may be 

affected by an identified Federal action. 

Any consultations for projects that are 

within the proposed critical habitat 

designation may need to be reinitiated 

to evaluate impacts on the critical 

habitat. However, it should be noted 

that the 2007 critical habitat designation 

remains in place until the 2012 

designation is published, and many 

projects went through consultation 

under the 2007 designation. For projects 

that have been developed in the interim, 

preliminary consultation is under way 

in many areas. 

(140) Comment: It is our 

understanding that FMC has not 

submitted a draft management plan for 

spikedace and loach minnow 

conservation on reaches of the San 

Francisco and Gila Rivers and Eagle 

Creek. Without management plans, 

FMC’s contention that these stream 

reaches and their spikedace and loach 

minnow populations do not require 

special management is invalid. If FMC 

does submit management plans in 

support of a request for exclusion of 

their lands from the critical habitat, 

please send us copies for our 

information and review. 

Our Response: Freeport-McMoRan 

developed two management plans. One 

plan addressees Eagle Creek and the San 

Francisco River in Arizona, while the 

other addresses the Gila River, Bear 

Creek, and Mangas Creek in New 

Mexico. A description of the 

management plans and our decision 

regarding exclusions can be found in the 

‘‘Exclusions’’ section of the final rule. 

The management plans themselves are 

available on http://www.regulations.gov 

for public viewing. 

(141) Comment: An earlier 

management plan by Phelps-Dodge 

(acquired by FMC) used to support the 

exclusion of their lands along the upper 

Gila River in the 2007 final critical 

habitat rule was vague and completely 

inadequate. It was primarily a study 

plan for the USFS’s Rocky Mountain 

Research Station. This study plan 

received strong criticism from within 

the USFS and those comments were 

made available to the Service. We 

submitted a critical review of the 

Phelps-Dodge/Rocky Mountain 

Research Station management/study 

plan in a letter of October 14, 2006, to 

the Service. In our letter we also 

commented on the inadequacy of a 

similarly vague and insubstantial 

Phelps-Dodge management plan for 

Eagle Creek. Neither of these two 

defective plans should be considered in 

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this revision of the critical habitat, both 

are inadequate and out-of-date. 

Our Response: Freeport-McMoRan 

provided updated management plans 

during the second comment period. The 

revised plans provide for the 

commitment of significant additional 

resources for construction of barriers to 

limit movement of nonnative fish into 

spikedace and loach minnow habitat, 

monitoring, and other conservation 

actions. 

(142) Comment: In April 2007 the 

Service informed us they do not believe 

the 2003 Policy for Evaluation of 

Conservation Efforts When Making 

Listing Decisions (PECE) applies to 

critical habitat designations and so will 

not conform to it when assessing the 

quality and sustainability of 

management plans submitted in seeking 

critical habitat exclusions. The PECE is 

a strong and well constructed policy for 

assessing the value to species from 

proposed private conservation efforts, 

and regardless of whether or not it can 

be legally required, we urge the Service 

to use PECE in its analysis of 

management or conservation plans 

submitted in support of requested 

exclusions from critical habitat 

designation for spikedace and loach 

minnow. An analysis using PECE 

guidelines, and made available to the 

public, would be a worthwhile and 

informative method for documenting 

the Service’s rationale and process for 

critical habitat exclusion decisions. 

Our Response: The PECE Policy 

identifies criteria we use in determining 

whether formalized conservation efforts 

that have yet to be implemented or to 

show effectiveness contribute to making 

listing a species as threatened or 

endangered unnecessary. We believe 

that a recovery plan is the appropriate 

vehicle to provide guidance on actions 

necessary to delist a species. 

(143) Comment: For the reasons set 

forth here and as explained in (a) prior 

filings with the Service by the Nation; 

and (b) in face-to-face meetings and 

other communications with the Service 

(all of which are incorporated in full 

here by reference), it remains the 

Nation’s position that the Secretary of 

the Interior lacks legal authority to 

designate critical habitat on the Nation’s 

lands. (See written comments of the 

Yavapai-Apache Nation, dated February 

16, 2006, February 21, 2006, February 

26, 2006, July 6, 2006, and December 27, 

2010 specifically addressing prior and 

current proposals by the Service to 

designate critical habitat for the 

spikedace and loach minnow on the 

Yavapai-Apache Reservation.) 

Our Response: We understand that it 

is the Tribe’s position that a designation 

of critical habitat on its lands 

improperly infringes upon its Tribal 

sovereignty and the right to selfgovernment. In recognition of the 

Nation’s sovereignty, our working 

relationship with the Tribe, and the 

management efforts taken by the 

Yavapai-Apache Nation on their tribal 

lands that benefit spikedace and loach 

minnow, all proposed critical habitat 

has been removed from the final rule. 

General Comments Issue 3: Economic 

Analysis Concerns 

(144) Comment: There were several 

comments concerning the effects of the 

critical habitat designation on the 

operation of Ft. Huachuca, especially 

the economic costs and cumulative 

effects. 

Our Response: The economic effects 

were analyzed in the draft economic 

analysis, however, the San Pedro River 

has been excluded based on national 

security issues related to the operation 

of Ft. Huachuca. See our discussion in 

the Exclusion section of this text. 

(145) Comment: The cumulative 

impact of the endangered species 

program combined with critical habitat 

designations in Arizona and New 

Mexico over the last 9 years has been 

severe. More than a one-third reduction 

in the number of USFS permittees and 

a 33.8 percent reduction in the number 

of animal unit months occurred (AUMs) 

in the period 2000 to 2009. This 

information is from the USFS, Annual 

Grazing Statistical Reports. 

Our Response: We agree with the 

commenter that the comparison of 2000 

(USDA 2000, p. 31) to 2009 (USDA 

2011, p. 33–34) data indicates an overall 

reduction in the number of permittees, 

head months (HMs), and animal unit 

months. However, these documents 

report the figures cited in the comment, 

without stating any conclusions as to 

the cause of the decline between 2000 

to 2009, so it would be in error to 

conclude that the cumulative impact of 

the endangered species program and 

critical habitat designations in Arizona 

and New Mexico have led to this 

decline. 

(146) Comment: We challenge the 

validity of the draft environmental 

assessment especially with its proposed 

exclusions of Federal lands managed by 

agencies like the USFS or BLM, just 

because they have paper plans in place 

that one would expect to protect 

designated critical habitat and promote 

the conservation and recovery of listed 

species like spikedace and loach 

minnow that are facing potential 

extinctions. Using the grazing allotment 

examples with which we are most 

familiar, paper Land and Resource 

Management Plans and Resource 

Management Plans do not guarantee the 

necessary protections and recovery 

under the Act for these two imperiled 

fish species. In fact, our field and legal 

work have proven how weak the paper 

promises are and how important 

enforcement of the Act and legal actions 

are for just conserving what remains of 

the 10 to 20 percent of the occupied 

habitats for the two cyprinids in the 

lands. By eliminating those from the 

final critical habitat rules, the Service 

will undermine the conservation and 

recovery without retardation of the 

natural rates of loach minnow and 

spikedace. 

Our Response: At this time, we are 

not excluding Federal lands from the 

designation of spikedace and loach 

minnow critical habitat and are not 

including any Land and Resource 

Management Plans or Resource 

Management Plans as the means for any 

exclusions. Our rationale for excluding 

tribal and military lands are provided 

within the Exclusions section of this 

rule. 

(147) Comment: The Communities 

have existing rights to groundwater and 

surface water within the Upper Verde 

River Watershed. Additionally, the 

Communities have invested in the 

development of additional water rights 

owned by the City of Prescott in the 

City’s Big Chino Water Ranch in order 

to preserve and enhance the economic 

viability of the region. 

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

Act requires the Secretary to designate 

critical habitat based on the best 

scientific data available after taking into 

consideration the economic impact, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

(148) Comment: Participation in the 

National Resource Conservation Service 

(NRCS) program may be impacted by 

the critical habitat designation due to 

time delay impacts on NRCS activities, 

including those under the 

Environmental Quality Incentives 

Program (EQIP) that would require 

section 7 consultation. Also, NRCS 

programs might be affected because 

farmers could refuse federal funding to 

avoid a federal nexus that would require 

section 7 consultation. 

Our Response: Exhibits ES–1 and ES– 

2 in the Economic Analysis recognize 

the potential for impacts to participation 

in NRCS funding and programs. 

However, considerable uncertainty 

exists surrounding the effect of critical 

habitat designation on the level of 

participation in the NRCS and other 

Federal programs. At this time, we are 

unaware of any instances where critical 

habitat designation has resulted in 

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delays to NRCS project implementation. 

Therefore, these impacts are not 

quantified. Section 3.6 of the final 

economic analysis does, however, 

discuss potential impacts of critical 

habitat on NRCS programs in more 

detail, including the potential for 

reduced farmer participation in these 

programs. Further, it should be noted 

that the Service and NRCS completed a 

programmatic consultation in 2011 

which will facilitate the review of EQIP 

projects. 

(149) Comment: The number of wells 

in the Virden Valley area of the Gila 

River is underestimated because the 

analysis only considers wells within 

critical habitat areas. 

Our Response: The geographic scope 

of the final economic analysis was 

estimated using information provided in 

the proposed rule, in which the Service 

states that critical habitat designation 

extends 300 feet to either side of a 

stream’s bank full width. While it is 

certainly possible that wells outside of 

this area draw water from critical 

habitat reaches, those particular wells 

were not easily identified. It should be 

noted that because groundwater 

withdrawals frequently do not involve a 

Federal nexus, groundwater issues have 

rarely been addressed through section 7 

consultations in the past. The analysis 

therefore reports the number of 

groundwater wells in proposed critical 

habitat areas, but does not assign a cost 

associated with potential impacts to 

these wells. 

(150) Comment: In the economic 

analysis for the critical habitat 

designation, the Service uses faulty 

logic by comparing projected dollar 

costs to the public weighed against 

projected biological benefits of 

protecting habitat for the endangered 

species. This is performed under the 

specious argument that conserving and 

recovering endangered and threatened 

species should not be reduced to dollars 

and cents. While this appears noble, it 

places portions of designated critical 

habitat at the great risk of being 

excluded for economic reasons, even 

when some of the economic costs can be 

countered with local or regional 

economic benefits. The Service totally 

ignores these benefits and weighs the 

full weight of the costs for their 

economic exclusion decisions. 

Our Response: Section 2.3.3 of the 

final economic analysis recognizes that 

‘‘the published economics literature has 

documented that social welfare benefits 

can result from the conservation and 

recovery of endangered and threatened 

species. In its guidance for 

implementing Executive Order 12866, 

the OMB acknowledges that it may not 

be feasible to monetize, or even 

quantify, the benefits of environmental 

regulations due to either an absence of 

defensible, relevant studies or a lack of 

resources on the implementing agency’s 

part to conduct new research. Rather 

than rely on economic measures, the 

Service believes that the direct benefits 

of the proposed rule are best expressed 

in biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking. Critical habitat designation 

may also generate ancillary benefits. 

Critical habitat aids in the conservation 

of species specifically by protecting the 

primary constituent elements on which 

the species depends. To this end, 

critical habitat designation can result in 

maintenance of particular 

environmental conditions that may 

generate other social benefits aside from 

the preservation of the species. That is, 

management actions undertaken to 

conserve a species or habitat may have 

coincident, positive social welfare 

implications, such as increased 

recreational opportunities in a region. 

While they are not the primary purpose 

of critical habitat, these ancillary 

benefits may result in gains in 

employment, output, or income that 

may offset the direct, negative impacts 

to a region’s economy resulting from 

actions to conserve a species or its 

habitat.’’ Section 11 qualitatively 

describes coincident benefits of the 

designation on water quality, stream 

flow levels, property values, and 

aesthetic and educational benefits. The 

Service considers these benefits while 

weighing the benefits of inclusion 

against the benefits of exclusion before 

excluding any area from the 

designation. 

(151) Comment: Commenters 

recommend that the authors of the 

spikedace and loach minnow economic 

analysis and environmental analysis 

documents cite Dr. Rinne’s publications 

that describe the increase in predatory 

nonnative fish and the disappearance of 

native fish on the Verde River after 

removal of livestock. 

Our Response: Section 2.3.3 of the 

final economic analysis recognizes that 

‘‘the published economics literature has 

documented that social welfare benefits 

can result from the conservation and 

recovery of endangered and threatened 

species. In its guidance for 

implementing Executive Order 12866, 

the OMB acknowledges that it may not 

be feasible to monetize, or even 

quantify, the benefits of environmental 

regulations due to either an absence of 

defensible, relevant studies or a lack of 

resources on the implementing agency’s 

part to conduct new research. Rather 

than rely on economic measures, the 

Service believes that the direct benefits 

of the proposed rule are best expressed 

in biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking. Critical habitat designation 

may also generate ancillary benefits. 

Critical habitat aids in the conservation 

of species specifically by protecting the 

primary constituent elements on which 

the species depends. To this end, 

critical habitat designation can result in 

maintenance of particular 

environmental conditions that may 

generate other social benefits aside from 

the preservation of the species. That is, 

management actions undertaken to 

conserve a species or habitat may have 

coincident, positive social welfare 

implications, such as increased 

recreational opportunities in a region. 

While they are not the primary purpose 

of critical habitat, these ancillary 

benefits may result in gains in 

employment, output, or income that 

may offset the direct, negative impacts 

to a region’s economy resulting from 

actions to conserve a species or its 

habitat.’’ Section 11 qualitatively 

describes coincident benefits of the 

designation on water quality, stream 

flow levels, property values, and 

aesthetic and educational benefits. The 

Service considers these benefits while 

weighing the benefits of inclusion 

against the benefits of exclusion before 

excluding any area from the 

designation. 

(152) Comment: The commenter 

believes that economic benefits at the 

local, regional, and national levels exist, 

but are not included in the draft 

Economic Analysis. 

Our Response: As stated in Section 

2.3.3 of the final economic analysis, 

‘‘Critical habitat aids in the conservation 

of species specifically by protecting the 

primary constituent elements on which 

the species depends. To this end, 

critical habitat designation can result in 

maintenance of particular 

environmental conditions that may 

generate other social benefits aside from 

the preservation of the species. That is, 

management actions undertaken to 

conserve a species or habitat may have 

coincident, positive social welfare 

implications, such as increased 

recreational opportunities in a region. 

While they are not the primary purpose 

of critical habitat, these ancillary 

benefits may result in gains in 

employment, output, or income that 

may offset the direct, negative impacts 

to a region’s economy resulting from 

actions to conserve a species or its 

habitat.’’ 

(153) Comment: Rather than applying 

the ‘but for’ test for some of the 

projected costs, the costs attributed to 

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the designation of critical habitat for 

spikedace and loach minnow should be 

independent of other costs that would 

exist, whether there is designated 

critical habitat or not for spikedace and 

loach minnow. In other words, the 

coextensive framework used in the draft 

Economic Analysis is inappropriate. 

Our Response: The estimation of 

incremental impacts is consistent with 

direction provided by the Office of 

Management and Budget to Federal 

agencies for the estimation of the costs 

and benefits of Federal regulations (see 

Office of Management and Budget, 

Circular A–4, 2003). It is also consistent 

with several recent court decisions, 

including Cape Hatteras Access 

Preservation Alliance v. U.S. 

Department of the Interior, 344 F. Supp. 

2d 108 (D.D.C.) and Center for Biological 

Diversity v. U.S. Bureau of Land 

Management, 422 F. Supp. 2d 1115 

(N.D. Cal. 2006). Those decisions found 

that estimation of incremental impacts 

stemming solely from the designation is 

proper. However, in order to address the 

divergent opinions of the courts and 

provide the most complete information 

to decision-makers, this economic 

analysis reports both the baseline 

impacts of protections afforded 

spikedace and loach minnow absent 

critical habitat designation; and the 

estimated incremental impacts 

precipitated specifically by the 

designation of critical habitat for the 

species. Summed, these two types of 

impacts comprise the fully co-extensive 

impacts of conservation in areas 

considered for critical habitat 

designation. 

(154) Comment: The Economic 

Analysis and Environmental 

Assessment should cite Dr. Rinne’s 

publications that describe the increase 

in predatory nonnative fish and the 

disappearance of native fish on the 

Verde River after removal of livestock. 

Our Response: Section 4.1 of the final 

economic analysis now recognizes that 

studies by J. N. Rinne have suggested 

that current management has been 

successful at mitigating the negative 

effects of grazing on riparian habitat, 

that further limitation of grazing may 

create conditions conducive to nonnative species, and that fencing could be 

detrimental to riparian species. 

(155) Comment: Each addition of a 

species and/or critical habitat area takes 

its toll on the economic viability of 

ranching and this cumulative impact 

was not discussed in the critical habitat 

documents. A single additional 

restriction or requirement that decreases 

the profitability of an operation could be 

the one that causes the operator to go 

out of business. 

Our Response: This concern is now 

reflected in Section 3 and Appendix A 

of the FEA. 

(156) Comment: The NRCS agency is 

the best agency to provide current and 

accurate actual costs of conservation 

practices. The Economic Analysis states 

that the cost of fencing ranges from 

$1,690 to $16,900 per river mile of fence 

construction. NRCS costs, which are 

updated yearly to be as close to actual 

as possible, estimates the cost of fence 

construction at $3.05 per foot for level 

ground to $4.30 per foot for rough 

county and $5.75 per foot for rough 

county where materials must be packed 

in. This would make the cost of fence 

building to range from $16,104 to 

$30,360. The articles by Miller 1961, 

Platts 1990, Belsky 1999 referenced in 

the draft Economic Analysis are not the 

best commercially available 

information. 

Our Response: In response to two 

public comments, the final economic 

analysis now incorporates updated 

fence construction and maintenance 

cost estimates, maintained and updated 

by NRCS for 2012. In Section 4.3.1 of 

the final economic analysis, fencing 

costs are estimated to range from $8,940 

per mile fenced to $14,500 per mile 

fenced, with annual fence maintenance 

costs ranging from $179 to $725 per 

mile of fencing. 

(157) Comment: The use of 2002 

census data in the draft Economic 

Analysis and the draft Environmental 

Assessment is not compliant with 

requirements to use the best scientific 

and commercial data available. The 

Economic Analysis and Environmental 

Assessment need to be updated to use 

2011 data. 

Our Response: The final economic 

analysis and final environmental 

assessment now incorporate 2010 

census data where possible throughout 

the report to more accurately estimate 

the magnitude and distribution of 

economic impacts. 

(158) Comment: The draft Economic 

Analysis does not consider impacts to 

grazing related to the necessity for water 

in all livestock operations. 

Our Response: As shown in Exhibit 

4–3 of the final economic analysis, the 

Service has historically recommended 

that off-river water systems be used to 

supply water to cattle where possible, 

but has not disallowed watering areas. 

(159) Comment: The designation of 

critical habitat for spikedace and loach 

minnow could possibly be the ‘‘final 

straw’’ for what Department of Defense 

is willing to spend on Fort Huachuca’s 

support of the Act and it is significant 

as a cumulative impact. If one more 

element of critical habitat is added over 

and above the current cost of all the 

other management actions for 

endangered species the Fort is 

financing, it could be the factor that 

triggers the Fort to reduce its missions 

or close the Fort and move all the 

missions to other locations. 

Our Response: The final economic 

analysis now recognizes the 

commenters concern in Section 3.5. In 

addition, please note that the San Pedro 

River has been removed from the 

designation. Additional detail is 

provided in the ‘‘Exclusions’’ section 

above. 

(160) Comment: The commenter 

believes the draft Economic Analysis 

fails to consider three classes of small 

entities defined by the Small Business 

Administration as: businesses with an 

average income under $750,000, cities 

and towns with a population under 

50,000 and local governments such as 

school districts. 

Our Response: In the final economic 

analysis, Appendix A, Section A.1.2, 

details the types of small entities 

included in the analysis, and includes 

those categories of small entities 

identified in the comment. The analysis, 

as described in Exhibit A–1, considers 

small businesses on the basis of the Risk 

Management Association’s Small 

Business Size Standards, including, for 

some industries, businesses with 

revenues under $750,000. In addition, 

Appendix A states, ‘‘Section 601(5) of 

the Regulatory Flexibility Act defines 

small governmental jurisdictions as 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts with a population of 

less than 50,000. Special districts may 

include those servicing irrigation, ports, 

parks and recreation, sanitation, 

drainage, soil and water conservation, 

road assessment, etc.’’ 

(161) Comment: The Economic 

Analysis needs to consider impacts to 

operations falling into numerous NAICS 

codes: 111940 Hay Farming; 112111 

Beef Cattle Ranching and Farming; 

112112 Cattle Feedlots; 112120 Dairy 

Cattle and Milk Production; 112210 Hog 

and Pig Farming; 112410 Sheep 

Farming; 112920 Horses and Other 

Equine Production; 113110 Timber 

Tract Operations; 113210 Forest 

Nurseries and Gathering of Forest 

Products; 113310 Logging; 114210 

Hunting and Trapping; 115112 Soil 

Preparation, Planting, and Cultivating; 

115113 Crop Harvesting, Primarily by 

Machine; 115114 Postharvest Crop 

Activities (except Cotton Ginning); 

115115 Farm Labor Contractors and 

Crew Leaders; 115116 Farm 

Management Services; 115210 Support 

Activities for Animal Production; 

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115310 Support Activities for Forestry; 

etc. 

Our Response: Exhibit A–1 lists the 

NAICS codes used to identify 

potentially affected small entities in the 

industries most likely to incur impacts 

related to the critical habitat 

designation. The final economic 

analysis considers nine NAICS 

classifications in agricultural, ranching, 

and development sectors, including Hay 

Farming (111940) and Beef Cattle 

Ranching and Farming (112111). It is 

not clear why the commenter expects 

impacts to the remaining sectors listed. 

(162) Comment: The commenter 

claims the economic analysis is flawed 

because it failed to coordinate 

development of the Proposed Rule 

changes with local government. 

Our Response: As noted in Section 

7.3, the analytic approach to the 

Economic Analysis is explained. Based 

on projected growth rates, the analysis 

identified counties that were likely to 

undergo high levels of development and 

were thus most likely to incur impacts 

to residential and commercial 

development activities. Based on this 

process, a subset of county and local 

government planning offices that were 

likely to incur costs to development was 

contacted. Due to time constraints, 

every county and local government 

could not be contacted. 

(163) Comment: Appendix A 

recognizes that there will be economic 

impacts to small entities but 

underestimates the impacts due to the 

omission, throughout both the draft 

Environmental Assessment and the draft 

Economic Analysis, of not taking into 

account the potential restrictions to 

groundwater extraction and use in areas 

outside the actual critical habitat 

designation corridor. Similarly, the draft 

Economic Analysis and draft 

Environmental Assessment generally 

fail to address water and land uses 

outside the proposed critical habitat, 

focusing instead on impacts occurring 

within the proposed critical habitat—a 

corridor that extends 300 feet from each 

side of the stream edge at ‘‘bank full 

discharge.’’ As a consequence, the full 

range of impacts has not been 

considered. 

Our Response: As noted in comment 

149 above, the geographic scope of the 

final economic analysis was estimated 

using information provided in the 

Proposed Rule, in which the Service 

states that critical habitat designation 

extends 300 feet to either side of a 

stream’s bank full width. However, the 

analysis is not limited to assessing 

impacts derived from activities 

occurring inside that area. For example, 

Section 5 of the final economic analysis 

focuses on mining activities which are 

not located in proposed critical habitat 

areas. The potential for impacts to 

groundwater users is discussed 

qualitatively. 

(164) Comment: Because of differing 

court rulings in the Ninth and Tenth 

Circuit Courts, the Service must perform 

a full analysis of all of the economic 

impacts of the critical habitat designated 

in New Mexico, regardless of whether 

an impact is co-extensive with the 

species’ listing, while for critical habitat 

proposed in Arizona, the Service may 

use the baseline approach. However, the 

different approaches adopted by the two 

circuits are relevant only where 

currently occupied areas are designated 

as critical habitat. In the absence of 

recent records of occupancy, the area 

should be treated as unoccupied and all 

impacts attributed to the designation. 

Our Response: As stated in Section 2 

of the final economic analysis, in order 

to address the divergent opinions of the 

courts and provide the most complete 

information to decision-makers, this 

economic analysis reports both the 

baseline impacts of protections afforded 

the two species absent critical habitat 

designation; and the estimated 

incremental impacts precipitated 

specifically by the designation of critical 

habitat for the species. When summed, 

these two types of impacts comprise the 

fully co-extensive impacts of 

conservation in areas considered for 

critical habitat designation. 

(165) Comment: The draft economic 

analysis erroneously used an 

incremental impact approach for critical 

habitat proposed in New Mexico. 

Our Response: Please see the 

comment above regarding use of the 

incremental versus baseline approaches 

for critical habitat designated in New 

Mexico. 

(166) Comment: Smallmouth bass, 

along with channel catfish, are the 

primary sport fish in Eagle Creek, as 

well as other streams proposed as 

critical habitat, including the lower San 

Francisco River and the Verde River and 

its tributaries. The draft Economic 

Analysis fails to address the economic 

impacts of removing these warmwater 

sportfish, which in many locations are 

the primary sportfish. 

Our Response: Section 6.3 of the final 

economic analysis states ‘‘non-native 

fish species that could potentially 

impact spikedace and loach minnow 

include catfish, largemouth bass, 

smallmouth bass, green sunfish, brown 

trout, rainbow trout, and red shiner. 

Possible recovery actions include the 

installation of fish barriers, increased 

monitoring, and non-native fish 

removal.’’ The AGFD identified planned 

or ongoing non-native fish removal 

activity on the Verde River, as noted in 

Exhibit 6–7, amounting to a one-time 

cost of $150,000 to $200,000 in 

undiscounted dollars between 2016 and 

2031, with the possibility of an 

additional one-time cost of $50,000 

(undiscounted) for follow-up activity 

over that period. However, neither the 

AGFD nor the NMDGF identified nonnative fish removal activity as being 

planned on Eagle Creek or the lower San 

Francisco River. 

(167) Comment: The volumes of water 

used at Morenci are so significant that 

sufficient quantities of substitute water 

sources may be impossible to obtain. 

The DEA should be revised to reflect the 

costs of restricting or preventing mining 

production and limiting expansion 

capabilities. 

Our Response: Section 5 of the final 

economic analysis is focused 

exclusively on a discussion of potential 

impacts to the mining industry, and 

specifically focuses on facilities owned 

by FMC. The discussion includes data 

supplied by the commenters on the 

scope and scale of potential impacts to 

those operations. Information received 

as part of the comment above provided 

a value of potential lost water rights and 

associated replacement costs based. 

While we do not disagree that, should 

the water be lost to mining activities, 

such costs could occur, there remains 

considerable uncertainty as to the 

likelihood of such events. Nonetheless, 

the final economic analysis includes 

estimates of the cost of replacing water 

sources in Section 5 of the analysis, to 

provide additional context for 

understanding the potential magnitude 

of impacts, should they occur. 

(168) Comment: The draft Economic 

Analysis does not address the impacts 

of critical habitat on water supplies for 

the communities of Morenci and 

Clifton. 

Our Response: The final economic 

analysis now acknowledges this concern 

in Section 5. 

(169) Comment: The critical habitat 

designation threatens rights of the Town 

of Sierra Vista, Cochise County, and the 

Coalition of New Mexico Counties to 

surface and groundwater. 

Our Response: Impacts to municipal 

water use are discussed qualitatively in 

Section 3 of the final economic analysis. 

Considerable uncertainty surrounds the 

specific quantity of water, if any, that 

Service would request to be conserved 

for spikedace and loach minnow as part 

of a section 7 consultation. As such, this 

analysis does not quantify the 

probability or extent to which water use 

would need to be curtailed or modified 

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to remedy impacts on spikedace and 

loach minnow. 

(170) Comment: The draft Economic 

Analysis states that 29 percent of the 

land in critical habitat is privately 

owned. This is a significant amount of 

private land, especially when you 

consider how little streamside acreage 

there is within the arid states of Arizona 

and New Mexico. For many purposes, 

land adjacent to flowing water is the 

most valuable land in the arid west. The 

draft Economic Analysis understates 

impacts to development on streamside 

land. 

Our Response: As stated in Section 7 

of the final economic analysis, potential 

modifications to development projects 

related to spikedace and loach minnow 

conservation activities depend on the 

scope of spikedace and loach minnow 

conservation activities, pre-existing land 

use and regulatory controls in the 

region, and the nature of regional land 

and real estate markets. In this case, 

consultations on development activities 

have been rare (one to date). In addition, 

riparian development buffers already 

exist in many areas, and some 

developments may not require any 

Federal permits. Further, the Service 

does not expect that conservation efforts 

related to future development activities 

in critical habitat areas are likely. The 

analysis nonetheless includes an 

estimate that assumes that all private 

parcels in the Verde unit are required to 

conduct conservation efforts for 

spikedace and loach minnow. Separate 

from that, Section 11 of the final 

economic analysis describes published 

studies that have examined increased 

property values associated with stream 

habitat. For example, Colby and Wishart 

estimated the value to property arising 

from proximity to open space provided 

by streambeds, arroyos, and dry washes 

in the city of Tucson, Arizona. The 

authors found that existence of 

permanent easements and other policies 

to protect these areas increased the 

property values of homes within onehalf mile of the streambed by an average 

of five percent. However, compliance 

costs for development projects are not 

anticipated to be higher for streamside 

homes than in other areas. 

(171) Comment: There are potential 

mathematical errors in the calculation of 

impacts. In the Executive Summary, it 

states that ‘‘Incremental impacts are 

estimated to be $2.20 million to $8.79 

million over twenty years ($194,000 to 

$776,000 annually) using a real rate of 

seven percent, or $2.77 million to $11.2 

million over 20 years ($181,000 to 

$728,000 annually) using a real rate of 

three percent.’’ However, $194,000 × 20 

years = $3.88 million (not $2.2 million); 

776,000 × 20 years = $15.52 million (not 

$8.79 million); $181,000 × 20 years = 

$3.62 million (not $2.77 million) and 

$728,000 × 20 = $14.56 million (not 

$11.2 million). Taking into account the 

3 and 7 percent analysis does not fix 

this error. 

Our Response: The Economic 

Analysis presents economic impacts 

that may be incurred in different time 

periods in present value terms and 

annualized terms. As described, 

annualized values are calculated to 

provide comparison of impacts across 

activities with varying forecast periods 

and distribution over time. For this 

analysis, activities employ a forecast 

period of 20 years. The discrepancies 

identified by the commenter appear to 

be related to the commenter’s 

assumptions that reported costs are 

annual costs, rather than annualized 

costs. 

(172) Comment: The draft Economic 

Analysis does not consider the costs of 

developing alternate water sources, 

reductions in the number of cattle the 

operator can run, or additional 

consultant and meeting costs for grazing 

activities. 

Our Response: Based on a review of 

the consultation history, the economic 

analysis determined that the Service is 

not likely to request restrictions or 

reductions on water use for grazing 

activities during section 7 consultation. 

Therefore, water use impacts are not 

expected for grazing operations. It 

would be helpful if we can show that 

the consultation allowed watering areas 

too, since I think the issue is not having 

access to the water itself due to fencing. 

(173) Comment: The cost of fish 

barrier installation used in the draft 

Economic Analysis is too low. The cost 

of building a fish barrier is between 

$800,000 and $1 million. 

Our Response: Fish barrier costs are 

given in Exhibit 6–6 of the analysis. 

Undiscounted fish barrier costs range 

from $1 million on the low end to $10 

million of the high end. These costs 

have been confirmed with Bureau of 

Reclamation officials responsible for 

fish barrier installation in Arizona and 

New Mexico. 

(174) Comment: Transportation costs 

are too low and the economic analysts 

should consult with the affected 

entities. 

Our Response: Section 9 of the final 

economic analysis reports costs 

associated with transportation projects 

that were estimated by the Arizona 

Department of Transportation related to 

a consultation for an endangered fish 

species. 

(175) Comment: The fire management 

costs in the draft Economic Analysis are 

too low. 

Our Response: Based on information 

received during the comment period, we 

have adjusted estimated impacts to fire 

management activities to include costs 

related to the 2011 Coronado Fire. The 

analysis estimates three total fire 

management activities throughout all of 

the critical habitat designation, one in 

Unit 3. Impacts to fire management are 

presented in Section 10.3. Impacts are 

estimated at $14,200 over the next 20 

years ($1,250 on an annualized basis). 

(176) Comment: The draft economic 

analysis should use more up-to-date 

administrative cost figures than the 

2002 dollar figures from across the 

country. The cost figures used should be 

based on a review of consulting records 

from Arizona and New Mexico from 

2010 through 2011. 

Our Response: The draft Economic 

Analysis provided an incorrect citation 

in Exhibit 2–3. Data from the ‘‘Federal 

Government Schedule Rates, Office of 

Personnel Management’’ is from 2011, 

not 2008. The draft Economic Analysis 

and underlying cost models 

incorporated the most recent estimates 

of administrative effort during section 7 

consultation, based on data from the 

Federal Government Schedule Rates, 

Office of Personnel Management, 2011, 

and a review of consultation records 

from several Service field offices across 

the country conducted in 2002. This 

citation error has been corrected in the 

final economic analysis. 

(177) Comment: The commenter 

believes the administrative costs are too 

low. 

Our Response: The commenter did 

not provide a basis for assuming the 

administrative costs estimated in this 

report are too low. 

(178) Comment: The statement that 

the Service ‘‘anticipates requesting few 

additional changes’’ is nebulous. 

Our Response: The commenter did 

not provide a basis for questioning the 

Service’s statements. 

(179) Comment: The Federal Register 

and the draft Economic Analysis give 

different total impacts estimates for 

incremental and coextensive costs. 

Our Response: The information 

printed in the revised Proposed Rule 

and Notice of Availability released by 

the Federal Register on October 4, 2011 

represents an error. The costs reported 

in the draft Economic Analysis posted 

to www.regulations.gov are correct. 

(180) Comment: In Exhibit ES–1, the 

draft Economic Analysis underestimates 

or avoids stating the true impacts due to 

designation of the San Pedro River. 

Cochise County and the City of Sierra 

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Vista cannot withstand an impact of 

$3,240,000. An EIS is necessary to 

analyze the economic impacts of the 

proposed designation. 

Our Response: Exhibits ES–1 and 

ES–2 summarize the expected 

administrative costs and project 

modification impacts developed in the 

analysis. These costs are detailed in 

Chapter 3 of the final economic 

analysis. 

(181) Comment: The Service has 

failed to provide the requisite analysis 

required by law prior to designating 

critical habitat. This is evidenced by the 

fact that the spikedace and loach 

minnow economic analysis was done by 

IEc, the same firm that performed the 

cactus ferruginous pygmy-owl economic 

analysis. 

Our Response: As described in detail 

in Section 2.1 of the final economic 

analysis, the analysis adheres to OMB 

Circular A–4 guidelines for providing 

assessments of the social costs and 

benefits of proposed regulatory actions. 

Also, in response to relevant rulings in 

both the U.S. Ninth and Tenth District 

Court of Appeals, in order to address the 

divergent opinions of the courts with 

respect to NEPA, and in order to 

provide the most complete information 

to decision-makers, this economic 

analysis reports both the baseline 

impacts of protections afforded the four 

invertebrates absent critical habitat 

designation and the estimated 

incremental impacts precipitated 

specifically by the designation of critical 

habitat for the species. Summed, these 

two types of impacts comprise the fully 

co-extensive impacts of conservation in 

areas considered for critical habitat 

designation. 

(182) Comments: One section 7 

consultation for a development project 

occurred in Yavapai County and 

considered potential impacts to the 

spikedace, loach minnow and the 

southwestern willow flycatcher on the 

lower Verde River. The Homestead 

Project consultation recommended the 

following conservation measures: 

Fencing; producing educational 

materials for homeowners; conducting 

scientific studies over 20 years; 

surveying and monitoring over 20 years; 

and off-setting mitigation (habitat setasides). To ensure that the action would 

not adversely affect the spikedace and 

loach minnow, the following measures 

were added: developing a recreation and 

habitat monitoring plan; monitoring 

effects of recreation on habitat; 

implementing measures to ensure that 

habitat and streambanks are not 

degraded; reducing risk of exotic species 

reintroduction through educational 

programs, prohibiting backyard ponds, 

and prohibiting fishing and in-stream 

recreation in the 25-acre Conservation 

Area on the property; improving human 

barriers to entrance to the river area and 

preventing trespass; and increasing 

fence maintenance. The developer for 

this project stated that 95 percent of 

costs to accommodate threatened and 

endangered species stemmed from 

southwestern willow flycatcher needs, 

and that total costs to implement 

conservation measures would have been 

$4.4 million to $4.8 million. However, 

the Service states that this project did 

not go forward, and that the property 

has since been sold. Many 

developments do not go forward due to 

these types of onerous government 

restrictions that often add enormous 

costs, yet provide little benefit to the 

species. The true economic costs of the 

proposed critical habitat designation 

include the cost of foregone 

development opportunities because the 

developers and their consultants do not 

even have to ask the Service what the 

development restrictions will be. 

Instead, they choose to avoid the entire 

costly process of consultation with the 

Service. 

Our Response: Section 7 of the final 

economic analysis addresses impacts to 

development activities. As discussed in 

that section, the analysis utilizes a range 

of assumptions to estimate the potential 

impact of critical habitat on 

development activities in these areas. 

Individual single-family home 

development has rarely been subject to 

consultation or habitat conservation 

planning requirements in Arizona. As 

noted in the comment, only one 

development has undergone a formal 

section 7 consultation related to 

development activities and impacts to 

multiple species, including spikedace 

and loach minnow, in the past, and this 

development was never, so no actual 

cost information is available. 

A number of existing baseline 

requirements prohibit development in 

floodplain areas, which limits the 

likelihood of developments within the 

critical habitat designation. In addition 

to the rarity of consultations in the past, 

potential for baseline protections, as 

well as the potential lack of a Federal 

permit requirement for some 

development projects, the Service does 

not expect that conservation efforts 

related to future development activities 

in critical habitat areas are likely to 

occur. As a result, the low end scenario 

assumes that no future consultations or 

conservation efforts on development 

will occur related to spikedace and 

loach minnow over the next 20 years. 

However, because it is not certain that 

no consultations or conservation efforts 

for spikedace and loach minnow will 

occur related to development activities, 

the analysis also considers a high end 

scenario, where proposed critical 

habitat areas will be built out at a rate 

that is proportional to the county-wide 

housing unit growth rate within the next 

20 years. To the extent that developers 

avoid critical habitat areas, this effect 

would be considered a stigma effect and 

is recognized in the analysis. 

(183) Comment: Census data is 

compromised in areas of low population 

density due to Privacy Act 

considerations. In these areas the 

disclosure of economic activities by 

individuals and businesses would entail 

disclosing identifiable personal 

information. Such data needs to be 

determined by on-the-ground surveying 

to produce reliable information on 

potential impacts. To do anything less 

will result in failure to disclose impacts 

on the most vulnerable segments of the 

economy. 

Our Response: The final economic 

analysis includes, to the extent possible, 

data sources that represent the most 

accurate population and demographic 

data publicly available. Performing an 

on-the-ground survey of undisclosed 

personal business is outside the scope of 

the final economic analysis. 

(184) Comment: There is a total 

omission of the affected counties and 

other local government road and bridge 

maintenance and construction impacts. 

Had the Service properly contacted the 

affected counties and other local 

governments, they could have obtained 

numerous impacts that are not 

catalogued by the state departments of 

transportation. The failure to obtain and 

analyze these impacts renders this 

section deficient. 

Our Response: As stated in the final 

economic analysis, county road and 

bridge construction and maintenance 

projects often require state Department 

of Transportation involvement on some 

level. Due to Federal funds accepted by 

most state Departments of 

Transportation, county road and bridge 

construction activity can be subject to a 

Federal nexus. The Arizona Department 

of Transportation and the New Mexico 

Department of Transportation were 

contacted and responded with 

information on all county and state road 

and bridge construction projects that 

required state Department of 

Transportation involvement. All county 

and state road construction projects that 

may potentially require section 7 

consultation were captured in these 

communications and are presented in 

Section 9 of the final economic analysis. 

Those projects that do not require 

Department of Transportation 

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involvement lack a Federal nexus and 

would not be subject to section 7 

consultation, and thus are not 

anticipated to incur costs associated 

with this rule. 

(185) Comments: The draft Economic 

Analysis at Section 8–4 makes note of 

the fact that the Bureau of Indian Affairs 

provides technical assistance to the 

Tribes on forest-management planning 

and oversees a variety of programs on 

tribal lands. While the purpose of this 

statement is not made clear by the 

Service, any suggestion that the BIA 

presently has or will in the future have 

sufficient funding and/or programs to 

‘‘offset’’ the increased administrative 

and other costs resulting from the 

designation of critical habitat on tribal 

lands such as the Yavapai-Apache 

Reservation is misplaced. In truth, 

federal funding for tribal programs and 

programs for technical assistance within 

the BIA are increasingly threatened in 

today’s tough economic and budget 

climate. The Service simply cannot rely 

on the BIA as a means to potentially 

‘‘mitigate’’ for the increased costs that 

the Nation will suffer if critical habitat 

is designated on the Nations lands. 

Our Response: The draft Economic 

Analysis did not intend to imply that 

BIA involvement would mitigate costs 

to the Tribes, only that BIA involvement 

could potentially provide a Federal 

nexus for projects associated with BIA 

programs. This has been clarified in 

Section 8 of the final economic analysis. 

(186) Comment: The draft 

environmental assessment states that 

‘‘As a result the Fort has reduced its 

water usage from 3,300 acre–feet per 

year (20 years ago) to 1,142 acre–feet 

currently.’’ There is a difference 

between water usage and groundwater 

pumping volume. The values used in 

this sentence are groundwater pumping 

rather than water usage. This statement 

is inaccurate and needs to be revised. 

Our Response: The language in the 

final economic analysis has been 

revised to reflect this comment. 

(187) Comment: The Federal Register 

and DEA give different total impacts 

estimates for incremental and 

coextensive costs. 

Our Response: The information 

printed in the proposed rule and NOA 

released by the Federal Register on 

October 4, 2011, represents an error. 

The costs reported in the draft economic 

analysis posted to http:// 

www.regulations.gov are correct. Total 

incremental impacts for all of the above 

activities are estimated to be $2.29 to 

$47.2 million over 20 years ($202,000 to 

$4.16 million annually) using a real rate 

of seven percent. The final draft 

economic analysis values were $2.20 

million to $8.79 million over twenty 

years ($194,000 to $776,000 annually) 

using a real rate of seven percent. 

General Comments Issue 4: National 

Environmental Policy Act Concerns 

(188) Comment: The mission of the 

Service is to conserve, protect and 

enhance fish, wildlife, plants and their 

habitats for the continuing benefit of the 

American people. This mission will 

work much better when done with full 

disclosure of agency analysis processes 

as is called for by NEPA. FWS should 

consider the impacts of their actions on 

the local citizens and should give due 

weight to feedback from those who will 

bear the direct burden of FWS actions. 

Our Response: The Service has made 

available a draft economic analysis and 

a draft environmental assessment which 

considered the impacts of the critical 

habitat designation on local citizens. In 

addition, we completed two comment 

periods totaling 90 days, which 

included an open house and public 

hearing, during which comments were 

submitted by the public. The comment 

and response section of this document 

provides the feedback requested. 

(189) Comment: There were several 

comments on the inadequacy of the 

draft environmental assessment, 

especially in respect to making a 

determination of negligible to minor 

impacts on the environment. 

Our Response: We determined 

through the NEPA process that the 

overall effects of this action are 

insignificant. An EIS is required only if 

we find that the proposed action is 

expected to have a significant impact on 

the human environment. The completed 

studies, evaluations, and public 

outreach conducted by the Service have 

not identified impacts resulting from the 

proposed designation of critical habitat 

that are clearly significant. The Service 

has afforded substantial public input 

and involvement, with two comment 

periods and a public hearing. Based on 

our analysis and comments received 

from the public, we prepared a final EA 

and made a Finding of No Significant 

Impact (FONSI), negating the need for a 

preparation of an EIS. We have 

determined that our EA is consistent 

with the spirit and intent of NEPA. The 

final EA, FONSI, and final economic 

analysis provide our rationale for 

determining that critical habitat 

designation would not have a significant 

effect on the human environment. Those 

documents are available for public 

review (see ADDRESSES) 

(190) Comment: A commenter 

requested that the actual size or distance 

of stream proposed as critical habitat be 

clarified. The information in the 

October 4, 2011, Federal Register 

notice, draft environmental assessment 

and draft economic analysis caused 

some confusion. 

Our Response: Because fishes occupy 

stream habitat, we have determined that 

it is more appropriate to quantify the 

delineation in terms of stream miles 

rather than total acres. All mileage 

figures throughout the rule and in the 

tables have been checked for 

consistency and adjusted where 

necessary. In addition, see the 

discussion on lateral extent of the 

stream in the Criteria Used to Identify 

Critical Habitat section. 

(191) Comment: Several comments 

asked why different alternatives were 

not evaluated in the environmental and 

economic analyses, including the 1994 

critical habitat designation (with and 

without appropriate exclusions), 

evaluating only river and streams that 

are currently occupied, and, an 

alternative that evaluates the 

designation of critical habitat in light of 

the Service’s policy of supporting and 

enhancing recreational fishing 

opportunities with the designation of 

critical habitat. 

Our Response: Critical habitat is 

defined in section 3 of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

We do not believe the area 

encompassed by the 1994 designation 

would include areas essential for the 

conservation of the species. In addition, 

if we were to limit critical habitat to the 

257 km (159 mi) in the 1994 

designation, any impacts to that limited 

amount of area would be much more 

difficult to minimize or offset, and the 

likelihood of reaching the adverse 

modification threshold would be 

substantially increased. Also, the goal 

for management of spikedace and loach 

minnow is to recover the two species so 

that they may be removed from the 

endangered species list, and recovery 

would not be possible within the 

confines of the limited area included in 

1994. Finally, the Service is charged 

with using the best scientific and 

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commercial information available. New 

information has been gained about the 

species, their habitat requirements, and 

distribution, and the use of the 1994 

rule would not reflect this information. 

In addition, for a species that is 

currently limited to 10 to 20 percent of 

its range, recovery in the remaining 

occupied areas is impractical. Areas 

outside of the currently occupied areas 

will be needed to recover both species, 

and we have included these areas as 

essential to the conservation of the 

species. 

Finally, with respect to conflicts with 

sportfishing opportunities, the Service 

is currently completing a sportfish 

stocking consultation that addresses 

management for native fish and 

sportfish. In addition, the Service 

coordinates closely with the Arizona 

Game and Fish Department on 

management of native fishes and 

sportfish. 

(192) Comment: Hidalgo County 

officials and residents were not aware of 

the status of the critical habitat proposal 

until March of this year. We need to 

point out that the only published 

newspaper in Hidalgo County, the 

Hidalgo County Herald, was not 

included in the Service’s contacts for 

publishing the notices. 

Our Response: The Hidalgo County 

Herald was included in our notification 

list, and Hidalgo County officials are 

included in our interested parties 

mailing list. We believe the two 

comment periods allowed for adequate 

opportunity for public comment. A total 

of 90 days was provided for document 

review and for the public to submit 

comments. In addition, a public hearing 

was scheduled on October 17, 2001, as 

another venue for comment submission. 

(193) Comment: The first paragraph of 

the discussion of Alternative A in the 

draft environmental assessment 

indicates that the current critical habitat 

designation includes an increase of up 

to 239 miles of designated critical 

habitat over the 2007 designation of 522 

miles, and then states that addition 

would result in a small but unknown 

number of new or reinstated 

consultations and that the economic 

analysis projects at a similar rate and in 

similar units as the past. Considering 

the addition of 239 miles is 

approximately a 45 percent increase in 

habitat designation, the impacts are 

being understated. In addition, 

unoccupied habitat does not currently 

require consultation. 

Our Response: The overall 

designation does include an increase in 

total mileage over that designated in 

2007. The Service cannot predict the 

number of consultations that will occur 

as that number is dictated by as-yetundefined projects that will occur 

within critical habitat and that have a 

Federal nexus. Therefore, we have made 

the best predictions possible based on 

existing information, which is the level 

of section 7 consultation that has 

occurred in the past. 

(194) Comment: The use of 

introduction of nonnative predators and 

prolonged periods of low or no stream 

flow as catastrophic events in the draft 

environmental assessments ensures 100 

percent chance of a ‘‘catastrophic event’’ 

as there is continued stocking of 

nonnative fish by State fish and wildlife 

agencies and because every year there 

are widespread and common 

‘‘prolonged periods of low or no stream 

flow’’ along large portions of the Upper 

San Pedro River and a number of other 

stream and river segments proposed for 

critical habitat. 

Our Response: The language in this 

comment comes from the ‘‘Need for the 

Action’’ section of the draft 

environmental assessment. Taken in 

context, the information in this section 

highlights the fact that habitat loss or 

alteration has occurred in the past, and 

that additional losses or further 

restrictions in the species’ distributions 

increases their vulnerability to a variety 

of threats. The intent of this section was 

not to highlight any one threat or 

management concern, but to provide 

background information on the need for 

the critical habitat designation. 

(195) Comment: To state that the 

impact of excluding an area due to 

economic, national security, or other 

needs would depend on issues not 

addressed in the environmental 

assessment is an admission that the 

environmental assessment is 

inadequate. The EA never analyzes 

conservation measures at Fort Huachuca 

or anywhere else except Ttribal and 

FMC lands. These facts continue to 

support the argument that all the major 

decisions were made before the 

environmental assessment was written. 

The EA is a post-decision document, in 

violation of NEPA. 

Our Response: The draft 

environmental assessment was 

completed following the publication of 

the proposed rule, but prior to the 

development of a final rule for critical 

habitat. Comment letters, including 

management plans, can be accepted up 

through the closing of the second 

comment period, which follows the 

publication of the draft environmental 

assessment. Therefore, there is no 

possible way for the draft environmental 

assessment to address conservation 

measures, as its publication preceded 

receipt of comments and management 

plans detailing those conservation 

measures. The final rule describes 

several exclusion decisions that were 

made, including one for Fort Huachuca, 

following closure of the second 

comment period and review of all 

materials received. 

(196) Comment: The word 

‘‘unknown’’ was used at least 26 times 

in relation to impacts, which triggers an 

EIS. The primary purpose of preparing 

an environmental assessment under 

NEPA is to determine whether a 

proposed action would have significant 

impacts on the human environment. If 

significant impacts may result from a 

proposed action, then an EIS is required 

(40 CFR 1502.3). Whether a proposed 

action exceeds a threshold of 

significance is determined by analyzing 

the context and the intensity of the 

proposed action (40 CFR 1508.27). 

Under Council of Environmental 

Quality (CEQ) regulations, which are 

responsible for ensuring compliance 

with NEPA, intensity is determined by 

considering 10 criteria (CFR 40 

1508.27[b]) including ‘‘the degree to 

which the proposed action would 

impose unique, unknown, or uncertain 

risks (emphasis added).’’ The proposed 

alternatives in the EA would impose at 

least 26 ‘‘unknown’’ risks including the 

risk of compromising national security 

by taking money away from the War on 

Global Terrorism. An EIS is required 

under 40 CFR 1508.27. 

Our Response: If some of the impacts 

will occur in the future, the Federal 

agency still has an obligation to 

consider reasonably foreseeable future 

impacts. 40 CFR 1508.7 defines 

‘‘cumulative impact’’ as the impact on 

the environment which results from the 

incremental impact of the action when 

added to other past, present, and 

reasonably foreseeable future actions 

regardless of what agency (Federal or 

non-Federal) or person undertakes such 

other actions (Custer County Action 

Ass’n v. Garvey, 256 F.3d 1024 (10th 

Cir. 2001)). The record of decision must 

contain a ‘‘useful analysis of the 

cumulative impacts of past, present, and 

future projects,’’ which requires 

‘‘discussion of how [future] projects 

together with the proposed project will 

affect [the environment] (Muckleshoot 

Indian Tribe v. U.S. Forest Serv., 177 

F.3d 800, 810 (9th Cir. 1999)).’’ 

Nevertheless, NEPA does not require 

the government to do the impractical 

(Kleppe v. Sierra Club, 427 U.S. 390, 

1976). Determining the environmental 

impacts of reasonably foreseeable 

actions does not mean that the Federal 

agency has to wait to make its decision 

on the current project until the details 

of other foreseeable actions are known 

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(Kleppe v. Sierra Club, id.; Inland 

Empire Public Lands Council v. U.S. 

Forest Service, 88 F.3d 754 (9th Cir. 

1996). If a future action is foreseeable 

but not imminent and its details are not 

yet known, the Federal agency is not 

required to wait until the details of the 

other action are known before 

proceeding (Kleppe v. Sierra Club, 

supra). When further investigation 

would provide no definitive information 

to resolve the issues during the time 

frame for the decision on the project, 

further investigation in an EIS is not 

required (Kleppe v. Sierra Club, 427 

U.S. 390 (1976); Neighbors of Cuddy 

Mountain v. United States Forest Serv., 

137 F.3d 1372, 1380 (9th Cir. 1998)). 

(197) Comment: We strongly 

challenge the adequacy of the draft 

environmental assessment, especially in 

how it glosses over the serious and 

significant adverse effects to loach 

minnow and spikedace populations and 

adverse modifications to critical habitats 

that the livestock industry has imposed 

after a century of devastation and stream 

and riparian ecosystem destruction in 

the Gila River Basin. 

Our Response: The proposed rule and 

final rule acknowledge the significant 

impact grazing has had on many 

watersheds in the West. We also 

acknowledge significant improvements 

on Federal lands due to restrictions in 

riparian and stream corridors and other 

management practices. 

(198) Comment: The draft 

environmental assessment (and where 

relevant, draft economic analysis) fails, 

among other things, to accurately 

characterize (and therefore consider) (a) 

the substantive protections that already 

exist on the Yavapai-Apache 

Reservation for the spikedace and loach 

minnow; (b) the nature of surface water 

rights within the Verde River Subbasin, 

including the Federal reserved water 

rights that are held by the United States 

of America in trust for the Nation; and 

(c) the adverse impacts that the 

designation will have on the Nation’s 

ability to preserve itself in its permanent 

tribal homeland as outlined by the 

Nation in prior comments and 

discussions with the Service on this 

matter. 

Our Response: We appreciate the 

concerns of the Tribe and have excluded 

all lands of the Yavapai-Apache Nation 

in consideration of impacts to the Tribe, 

their sovereign nation status, existing 

management practices, and ongoing 

relationship with the Service. The 

Exclusions section of the final rule 

details our rationale for the exclusion. 

(199) Comment: Furthermore, the 

draft environmental assessment fails to 

discuss (or even reference) those 

portions of the Nation’s recent written 

comments submitted to the Service on 

December 27, 2010, which summarize 

the steps that the Nation has taken since 

enactment of Tribal Resolution No. 46– 

2006, to provide continuing protection 

for the habitat within the Verde River 

Conservation Corridor. See Draft EA at 

141 (referencing only the Nation’s 

comments from 2006 relative to the 

Verde River Conservation Corridor and 

ignoring recent comments updating the 

Service on this matter). 

Our Response: The purpose of the 

draft environmental assessment is to 

reflect the impacts of the decision, as 

made by the Service, of the critical 

habitat designation. The Service does 

not make decisions on exclusions until 

both comment periods have been 

closed, in order to ensure that all parties 

have an opportunity to provide relevant 

information. Therefore, at the time the 

draft environmental assessment was 

published, the Service had not yet 

decided that the Yavapai-Apache Nation 

lands would be excluded from the 

designation. The comments regarding 

the steps the Nation has taken are most 

relevant to the Service’s decision, which 

is then ultimately reflected in the draft 

environmental assessment. 

(200) Comment: In reviewing the 

existing conditions of water resources of 

the Verde River, the draft environmental 

assessment discusses the ‘‘water rights’’ 

of the Salt River Project and other nonIndian users along the River, but fails to 

mention the important fact that the 

Yavapai-Apache Nation, and the United 

States as the trustee for the Nation, also 

hold present and perfected, highpriority water rights to the surface flows 

of the Verde River and its tributaries 

under principles of Federal law. See, 

e.g., Arizona v. California, 373 U.S. 546, 

600 (1963); see also, In Re The General 

Adjudication of All Rights to Use Water 

In the Gila River System and Source, 

201 Ariz. 307, 35 P.3d 68, 71–72 (2001) 

(‘‘Gila V’’). In addition, other tribes, 

including the Fort McDowell Yavapai 

Nation and the Salt River PimaMaricopa Indian Community, hold highpriority water rights to the Verde River, 

yet the draft environmental assessment 

fails to mention this fact as well. 

Our Response: The purpose of the 

draft environmental assessment is to 

reflect the impacts of the decision, as 

made by the Service on the critical 

habitat designation. The final 

environmental assessment will be 

updated where needed, in response to 

the two comment periods. 

(201) Comment: In the 

‘‘Environmental Consequences’’ section 

of the draft environmental assessment 

(3.9.2), the Service concludes, with 

almost no substantive analysis or 

discussion, that the impacts of 

designating critical habitat on the 

Nation’s lands for the spikedace and 

loach minnow under Alternative B 

‘‘would be minor.’’ Draft EA at pp. 145– 

146. The Nation disagrees. 

Our Response: In the final rule, 

Yavapai-Apache lands have been 

excluded from the designation. Both the 

economic analysis and environmental 

assessment have been updated in 

response to these comments. 

(202) Comment: The Service is 

requested to once again review the 

Nation’s prior written and oral 

comments (2006 through 2010) 

regarding the potential designation of 

critical habitat on the Yavapai-Apache 

Reservation and to meaningfully discuss 

these concerns in the final 

environmental analysis (Alternative B) 

and in the final economic analysis. 

Our Response: In the final rule, 

Yavapai-Apache lands have been 

excluded as we determined that the 

Yavapai-Apache Nation’s resolution 

specifically addresses conservation of 

these species, and the benefits of 

exclusion outweighed the benefits of 

inclusion. 

(203) Comment: It must also be noted 

that the draft environmental assessment 

wrongly states that the Tribal lands 

considered for critical habitat 

designation ‘‘are primarily used for 

livestock grazing, fuelwood cutting, 

roads, and recreation.’’ By lumping all 

Tribal lands together in its analysis, the 

draft environmental assessment 

misrepresents how the Yavapai-Apache 

Nation utilizes the lands within the 

Verde River Subbasin that are proposed 

for designation in this instance. These 

lands are used to satisfy the permanent 

tribal homeland needs of the YavapaiApache Nation. It should also be 

pointed out that contrary to the Draft 

EA, these lands are not utilized for 

livestock grazing and they remain 

protected pursuant to tribal law under 

tribal Resolution No. 46–2006. In 

addition, the Nation generally does not 

permit fuelwood cutting within this area 

and the Nation has only one minor 

access road across the River. Although 

the Nation does utilize the Verde River 

to satisfy the recreational needs of its 

tribal members, this does not involve 

large-scale recreational activities. In 

addition, it is important to understand 

the fundamental role that the Verde 

River and its habitat continues to play 

in the traditional, cultural, and religious 

practices of the Nation. Indeed, as the 

Nation has repeatedly explained to the 

Service, the Verde River is intertwined 

with the identity of the Yavapai and 

Apache people, including with regard to 

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certain ceremonial and religious 

practices that are deliberately conducted 

within the Verde River Corridor. None 

of these important points have been 

meaningfully considered in the Draft 

EA. The Nation respectfully requests 

that the Service address as part of the 

final environmental assessment and 

final economic analysis the Nation’s 

previously stated concerns pertaining to 

the myriad of very real and specific 

impacts that are likely to stem from the 

proposed designation on the Nation’s 

lands, which includes impacts on the 

Nations ability to preserve itself in its 

permanent tribal homeland. 

Our Response: Thank you for the 

response. We note that the lands are 

used to satisfy the permanent tribal 

homeland needs of the Yavapai-Apache 

Nation. We further note that the Nation 

does not permit fuelwood cutting within 

certain areas, and that some portion of 

the land is used for certain ceremonial 

and religious practices. 

(204) Comment: The summary for the 

August 26, 2011, draft environmental 

assessment indicates that two additional 

proposed stream segments were added 

for critical habitat designation in some 

places, and that three additional stream 

segments were added in other places 

within the document. The location and 

description of these two or three added 

stream segments are not described in the 

description of the alternatives found in 

Chapter 2 of the DEA. 

Our Response: The Service has made 

changes to five stream segments 

proposed for critical habitat designation 

subsequent to publication of the 

proposed rule. These include: (1) 

Increasing the length of the San 

Francisco River critical habit segment 

for loach minnow only from 112.3 miles 

to 126.5 miles; (2) adding a 19.5-mile 

critical habitat segment of Bear Creek for 

loach minnow only; (3) reducing the 

Redfield Canyon critical habitat segment 

for spikedace and loach minnow from 

14.0 miles to 4.0 miles; (4) reducing the 

Hot Springs Canyon critical habitat 

segment for spikedace and loach 

minnow from 11.8 miles to 5.8 miles; 

and (5) increasing the Fossil Creek 

critical habitat segment for spikedace 

and loach minnow from 4.7 miles to 

13.8 miles. These changes are reflected 

in the final environmental assessment. 

(205) Comment: The Service has 

failed to provide adequate information 

regarding the actual environmental 

impacts of critical habitat designation 

for spikedace and loach minnow. 

Statements in the draft environmental 

assessment explaining the requirements 

of the Act and the rationale for the 

Service to propose and then designate 

critical habitat for the spikedace and 

loach minnow may help the public 

understand the mindset of the Service, 

however they do little to provide 

information concerning the actual 

environmental effects of designating 

critical habitat for the species. The 

Service should revise the draft 

environmental assessment to remove 

much of the explanation language for 

the Act and replace it with analysis of 

the environment effects of designating 

SD/LM critical habitat. As stated in 40 

CFR, Part 1500.1(b), ‘‘Most important, 

NEPA documents must concentrate on 

the issues that are truly significant to 

the action in question, rather than 

amassing needless detail.’’ 

Our Response: The 2011 draft and 

2012 final environmental assessment 

largely follow the format and 

methodology used to prepare the 2006 

final environmental assessment. 

Additional information has been 

provided to the more recent 

environmental assessments, where 

needed, to refine habitat requirements 

(physical and biological features) 

essential to the conservation of the 

species, changes to stream segments 

proposed for critical habitat designation. 

Additional information has also been 

provided, where necessary, with respect 

to the affected environment and 

environmental consequences. The 

conclusions of the environmental 

consequence analysis have not 

substantially changed from the 2006 

final environmental assessment to the 

2012 final environmental assessment. 

(206) Comment: In comparison to 

Alternatives A and B, the No Action 

Alternative includes three stream 

segments not in the 2010 proposed rule. 

These stream segments are now 

considered by the Service to be highly 

degraded and likely not occupied by 

spikedace or loach minnow. The ISC 

would like to know where those 

segments are located, what degradation 

supports removal from listing. 

Our Response: The no action 

alternative is the 2007 final rule. When 

compared to the 2010 proposed rule, the 

no action alternative includes three 

stream segments not included in the 

2010 proposed rule: (1) For spikedace 

only, the middle Gila River from 

Ashurst-Hayden Dam upstream to the 

confluence of the San Pedro River; (2) 

for spikedace only, the lower San Pedro 

River from the confluence with the Gila 

River to the confluence with Aravaipa 

Creek; and (3) for loach minnow only, 

the San Francisco River upstream of the 

confluence with the Tularosa River. The 

Service has re-evaluated the suitability 

of these three stream segments for 

critical habitat designation and now 

considers the middle Gila segment and 

the lower San Pedro segment to no 

longer meet the rule set for spikedace or 

loach minnow critical habitat. For loach 

minnow only, the 22.9 km (14.2 mi) 

segment of the San Francisco River 

segment upstream of the Tularosa River 

confluence is included in the final rule 

for critical habitat designation for loach 

minnow. 

(207) Comment: The Statement in 

Chapter 4 of the draft environmental 

assessment states that the potential 

impacts on the quality of the 

environment are not likely to be highly 

controversial, which is not true, 

especially for the upper San Pedro River 

area. 

Our Response: The Service has 

reviewed the comments submitted by 

Fort Huachuca regarding the potential 

impacts of the designation on national 

security activities conducted (in some 

cases exclusively) at Fort Huachuca and 

determined that the San Pedro River 

should be excluded based on potential 

impacts to national security. 

(208) Comment: Under topics 

dismissed from detailed analysis in the 

draft environmental assessment, the last 

bullet at the bottom of the page on 

Urban quality and design of the built 

environment (1502.16) states that the 

proposed critical habitat segments are 

not located in urban or other built 

environments and would not affect the 

quality of such environments. While 

this is a true with respect to the actual 

critical habitat location, it is misleading 

when considering the location of the 

critical habitat with regard to the City of 

Sierra Vista and Fort Huachuca. Surface 

water flow in the San Pedro River 

includes a component referred to as 

base flow from the regional aquifer 

outside of the potential critical habitat 

designation. This is acknowledged at 

other points in the documents (see the 

top of page 85). Considering the 

possibility of future limitations on 

groundwater uses in these built-up 

areas, the effect on the quality of such 

environments needs to be analyzed as 

part of this environmental assessment. 

Our Response: The Service has 

reviewed the comments submitted by 

Fort Huachuca regarding the potential 

impacts of the designation on national 

security activities conducted (in some 

cases exclusively) at Fort Huachuca and 

determined that the San Pedro River 

should be excluded based on potential 

impacts to national security. There is 

therefore no potential for the potential 

impacts discussed in this comment to 

occur as a result of the final critical 

habitat designation. 

(209) Comment: The draft 

environmental assessment indicates that 

‘‘the stream channel at bank full width, 

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plus 300 feet on either side of bank full 

width * * *’’ This would result in a 

designation of 600 feet lateral distance 

plus the stream channel. Throughout 

this draft environmental assessment the 

critical habitat designation is referred to 

as a 300-foot corridor and not a 600-foot 

corridor. Considering this discrepancy, 

if the analysis was actually done on a 

300-foot width rather than a 600-foot 

width, it would seem that this draft 

environmental assessment would be 

significantly flawed and will need to be 

redone. 

Our Response: The critical habitat 

designation includes the width of the 

stream (which will vary), and 300 feet 

on either side of bankfull width. This 

has been corrected in the final 

environmental assessment. 

(210) Comment: Under alternative B, 

the draft environmental assessment 

states that there is a potential increase 

of 313 miles of designated critical 

habitat from the existing designation of 

522 miles and again states there would 

be a small but unknown increase in 

section 7 consultations. When 

considering this is approximately a 65 

percent increase in the critical habitat 

designation, the impacts are being 

understated. 

Our Response: The increase in 

consultations is anticipated to be small 

based on historical information about 

past consultations. There is potential for 

new consultations not already covered 

by the Act in stream segments currently 

unoccupied by either spikedace or loach 

minnow. 

(211) Comment: The Cumulative 

Impacts section should be revised to 

emphasis on the significance of the 

socioeconomics and water management 

impacts of the listings. 

Our Response: The Service has 

evaluated the potential environmental 

consequences of the proposed critical 

habitat designation for spikedace and 

loach minnow and determined that the 

incremental impact of designating 

additional critical habitat for the 

spikedace and loach minnow when 

added to other past, present, and 

reasonably foreseeable future actions in 

the analysis area would be minor on 

water resources, wetlands and 

floodplains, natural resources, land use 

and management (including livestock 

grazing), wildlife fire management, and 

recreation. Tribal socioeconomics, tribal 

Trust resources, and tribal 

environmental justice may incur 

additional impacts if alternative B is 

selected. Fort Huachuca could also 

incur additional impacts on national 

security activities if alternative B is 

selected. 

(212) Comment: Portions of the 

discussion on the San Pedro River 

center on adversely affecting livestock 

grazing but there is no discussion on the 

impacts associated with Fort Huachuca. 

Our Response: The Service has 

reviewed the comments submitted by 

Fort Huachuca regarding the potential 

impacts of the designation on national 

security activities conducted (in some 

cases exclusively) at Fort Huachuca and 

determined that the San Pedro River 

should be excluded based on potential 

impacts to national security. 

(213) Comment: While the draft 

environmental assessment discusses 

impacts such as drought, current and 

future market trends and fluctuations, 

and supplemental forage availability 

contribute to the cumulative impacts on 

livestock grazing. While the impacts 

from critical habitat designation are 

expected to have generally minor 

adverse effects on current livestock 

grazing conditions, an acknowledgment 

must be given to other factors that 

contribute to the cumulative impacts on 

grazing. Though the draft environmental 

assessment document acknowledges 

cumulative impacts in the above 

statement, it does not analyze them and 

it does not take into consideration that 

it is the incremental addition of species 

after species and critical habitat 

restriction upon critical habitat 

restriction that is killing the livestock 

industry. The cumulative impacts need 

to be identified and quantified. 

Our Response: The 2011 draft and 

2012 final environmental assessment 

largely follow the format and 

methodology used to prepare the 2006 

final environmental assessment. 

Additional information has been 

provided to the more recent 

environmental assessments, where 

needed, to refine habitat requirements 

(physical and biological features) 

essential to the conservation of the 

species, changes to stream segments 

proposed for critical habitat designation. 

Additional information has also been 

provided, where necessary, with respect 

to the affected environment and 

environmental consequences. The 

conclusions of the environmental 

consequence analysis have not 

substantially changed from the 2006 

final environmental assessment to the 

2012 final environmental assessment, 

including the section of text that is 

referred to in the comment. 

(214) Comment: Several commenters 

noted that, in order to be in compliance 

with various case law, policies, or 

regulations including Chapter 1 of 

NEPA, Bennett v. Spear 550 FW 1, the 

Citizens Guide to NEPA (2007); and 

page 16 of the 550 FW 1 and NEPA 

regulations in 40 CFR 1501.6, it is the 

continuing responsibility of the Federal 

government to use all practicable 

means, consistent with other essential 

considerations of national policy, to 

improve and coordinate Federal plans, 

functions, programs, and resources. The 

City of Sierra Vista, Cochise County, 

and affected counties within the 

Coalition respectfully request agency 

coordination. 

Our Response: Local governments 

have been provided with adequate 

opportunity to comment on the 

proposed rule, draft environmental 

assessment, and draft economic 

analysis. As noted at comment 128, we 

believe the two comment periods 

allowed for adequate opportunity for 

public comment. A total of 90 days was 

provided for document review and the 

public to submit comments. In addition, 

an open house and public hearing were 

held on October 17, 2011, providing 

another opportunity for comment 

submission. Per our Regional Solicitor, 

there is no designation for ‘‘Coordinator 

Status.’’ However, in addition to the 

comment period we personally visited 

with these commenters on several 

occasions to ensure that their concerns 

were heard and considered. The Service 

met with representatives of Hidalgo 

County, Grant County, and Catron 

County in March of 2011; Apache 

County, Grant County, Hidalgo County, 

and Catron County in Springerville in 

July 2011; and with the City of Sierra 

Vista, Cochise County, the Hereford 

Natural Resource Conservation District, 

Hidalgo County, and Fort Huachuca in 

November of 2011. We held an 

additional conference call with Fort 

Huachuca in August of 2011. We 

concluded that cooperator status would 

be limited to New Mexico and Arizona 

Game and Fish Departments. Per our 

Regional Solicitor, there is no 

designation for ‘‘Coordinator Status.’’ 

However, in addition to the comment 

period we personally visited with these 

commenters on several occasions to 

ensure that their concerns were heard 

and considered. 

(215) Comment: The Service must use 

the best scientific and commercial 

information available as required by the 

Act and the Data Quality Act of 2000 

(Paperwork Reduction Act (44 U.S.C. 

3501 et seq.), here forth referred to as 

Data Quality Act) standards. Had 

Service employees followed the 

requirements in the laws and 

regulations and used the best scientific 

and commercial information available 

and their internal agency guidelines 

contained in Chapter 1 of NEPA—Policy 

and Responsibilities—550 FW 1, the 

agency would have had the necessary 

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information to properly prepare the 

NEPA document and economic impact 

analysis. 

Our Response: Under the Act, the 

Service must make decisions to 

designate critical habitat on the basis of 

the best available scientific and 

commercial data. When making critical 

habitat decisions, the Service consults 

with experts within and external to the 

Federal government and considers 

studies or data from Federal and state 

agencies, other stakeholders, and the 

general public. Proposed and final rules 

are reviewed by the Service at the field, 

regional, and national level to help 

ensure that the analysis is sound and 

conforms to the ‘‘best available science’’ 

requirement. Additionally, the Service 

also has a policy to ask at least three 

independent scientific experts in a 

relevant field to provide a ‘‘peer review’’ 

of the proposed decisions to ensure that 

best available science is considered. 

When considering a critical habitat 

proposal, the Service is also required to 

consider economic impacts through 

completion of an economic analysis. 

(216) Comment: Impacts to surface 

flows in streams may also result from 

pumping of groundwater wells located 

outside of the proposed 300-foot critical 

habitat corridor. The groundwater– 

surface water interactions of each 

hydrologic system are unique and 

require site-specific analysis to fully 

understand potential interactions and 

impacts. The NEPA process requires 

decisionmakers be informed of impacts. 

It is unclear from the draft 

environmental assessment whether 

groundwater wells outside the 300 foot 

critical habitat boundary will be shut 

down if they are determined to impact 

surface flows. This impact needs to be 

made very clear. Significant economic 

impacts to well owners outside the 300 

foot critical habitat boundary could 

occur if their wells are shut down. An 

Environmental Impact Statement is 

necessary to address this issue. 

Our Response: While potential 

administrative costs and impacts to 

existing infrastructure are relatively 

predictable, potential impacts on water 

use that could result from spikedace and 

loach minnow conservation, 

particularly in areas that are currently 

unoccupied by the species are, in large 

part, uncertain. The majority of past 

consultations on water issues have not 

focused on water availability or water 

quantity issues. Instead, they have 

focused on nonnative species 

reintroduction issues for multiple native 

fish species, diversion repair and bank 

stabilization projects, and occasionally 

proposed water exchanges. To date 

there has been only one known example 

of a Section 7 consultation affecting 

water use and this affected a Federal 

entity (Fort Huachuca). 

(217) Comment: The draft 

environmental assessment indicates that 

channelization of streams for purposes 

of flood control may increase the risk of 

flooding. This statement is confusing to 

the reader and it should be explained 

better or removed from the next version 

of the NEPA document. 

Our Response: We refer the reader to 

page the October 28, 2010, proposed 

rule (page 66487). Language in the 

proposed rule states that sections of 

many Gila Basin Rivers and streams 

have been, and continue to be, 

channelized for flood control, which 

disrupts natural channel dynamics 

(sediment scouring and deposition) and 

promotes the loss of riparian plant 

communities. Various changes to stream 

channels occur through channelization, 

including increases in water velocity in 

the channelized section, subsequent 

increases in rates of erosion, and in 

some instances deposits of sediment in 

downstream reaches that may increase 

the risk of flooding. The final 

environmental assessment has been 

modified to provide clarification on this 

topic. 

(218) Comment: The draft 

environmental assessment indicates that 

the effects on future water management 

activities and water resources from 

critical habitat designation are expected 

to be minor and are not anticipated to 

constrain any proposed water 

management activities because most all 

of the proposed segments are occupied 

by the spikedace and loach minnow. 

The impact of critical habitat 

designation on future water 

management activities was not 

addressed for unoccupied habitat, and 

this is a fatal flaw in the draft 

environmental assessment. The impacts 

to the Upper San Pedro River were not 

addressed because the draft 

environmental assessment is too general 

and fails to take a ‘‘hard look’’ at the 

impacts of designating critical habitat. 

No attempt has been made to analyze 

the full range of impacts resulting from 

the critical habitat designation, 

including water development and use 

outside the critical habitat boundary. 

Instead, impacts on agricultural, 

municipal and industrial water 

development projects are ‘‘unknowable 

at this time,’’ ‘‘cannot be predicted with 

precision’’ and are ‘‘mostly uncertain.’’ 

Similar statements appear throughout 

the document, indicating that the 

Service has failed to take the required 

‘‘hard look’’ at the environmental 

consequences of the proposed 

alternatives. 

Our Response: While potential 

administrative costs and impacts to 

existing infrastructure are relatively 

predictable, potential impacts on water 

use that could result from spikedace and 

loach minnow conservation, 

particularly in areas that are currently 

unoccupied by the species are, in large 

part, uncertain. The majority of past 

consultations on water issues have not 

focused on water availability or water 

quantity issues. Instead, they have 

focused on nonnative species 

reintroduction issues for multiple native 

fish species, diversion repair and bankstabilization-type projects, and 

occasionally proposed water exchanges. 

To date there has been only one known 

example of a Section 7 consultation 

affecting water use and this affected a 

Federal entity (Fort Huachuca). The 

Service has reviewed the comments 

submitted by Fort Huachuca regarding 

the potential impacts of the designation 

on national security activities 

conducted (in some cases exclusively) at 

Fort Huachuca and determined that the 

San Pedro River should be excluded 

based on potential impacts to national 

security. 

(219) Comment: The draft 

environmental assessment notes that 

some required Section 7 conservation 

measures could have minor to moderate 

adverse impacts on water management 

activities (e.g., groundwater pumping, 

surface water diversion, 

channelization). The term ‘‘minor to 

moderate adverse impacts’’ should be 

defined, as water is not a small matter. 

Every impact to water should be 

addressed in an EIS to the extent 

required by law. 

Our Response: The NEPA and related 

supporting regulations require that an 

Environmental Impact Statement be 

prepared and approved when a 

proposed Federal action would cause 

significant impacts. The Service has 

determined through its completion of a 

NEPA environmental assessment that 

the proposed designation of critical 

habitat for spikedace and loach minnow 

would not result in significant impacts. 

This is not to say that there would be 

no impacts to water or other resources, 

but that the impacts are not anticipated 

to be significant based on the Service’s 

analysis. At this time, the Service does 

not believe there is a legitimate basis for 

preparing an environmental impact 

statement. 

(220) Comment: The draft 

environmental assessment states that 

adverse impacts of critical habitat 

designation on livestock grazing, 

however, are expected to be generally 

minor in part because livestock grazing 

operations typically occur on a large 

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scale, and designated critical habitat 

within any one allotment is likely to be 

small; and therefore, few grazing 

allotments are likely to be subject to 

consultation requirements based solely 

on the presence of the spikedace and 

loach minnow designated critical 

habitat. As required by Bennett v. Spear 

(1997), each agency must ensure that the 

Act not be implemented haphazardly, or 

on the basis of speculation or surmise. 

This statement in the draft 

environmental assessment shows a 

complete lack of understanding of 

western livestock grazing operations. 

There is a very limited amount of water 

in the arid west, and the portion of an 

allotment that is most valuable is the 

water source because without water you 

cannot graze livestock. To state that the 

impacts are expected to be generally 

minor because designated critical 

habitat (the water) is likely to be a small 

part of the allotment, is haphazard 

implementation of the Act. 

Our Response: The 2011 draft 

environmental assessment and 2012 

final environmental assessment are 

generally aligned in format and 

methodology with the 2006 final 

environmental assessment. The 

environmental consequence analysis 

has not substantially changed. This 

same text pertaining to livestock grazing 

appeared in the 2006 final 

environmental assessment (see p.72). 

(221) Comment: The draft 

environmental assessment fails to 

distinguish the impact of critical habitat 

in areas that are presently unoccupied 

by spikedace and loach minnows. By 

erroneously assuming that ‘‘most all’’ of 

the proposed critical habitat is currently 

occupied, and will remain occupied 

over the next 20 years, the draft 

environmental assessment overlooks 

significant impacts on land and water 

users. 

Our Response: This text is in error 

and has been updated in the draft 

environmental assessment. However, 

the analysis completed in the draft 

economic analyses and in the draft 

environmental assessment correctly 

reflects occupancy status for the river 

segments within this critical habitat 

designation. 

(222) Comment: There are several 

additional alternatives that are 

consistent with the purpose and need of 

the proposed action and are not too 

remote, speculative or impractical for 

critical review as part of the NEPA 

process. 

Our Response: The scope of 

reasonable alternatives to be considered 

is a function of the purpose and need of 

the proposed action. This 

environmental assessment generally 

follows the format and methodology of 

the 2006 final environmental 

assessment used to prepare the 2007 

final rule, including the structure of 

alternatives. In the 2011 draft 

environmental assessment, alternative A 

included a number of stream segments 

being considered by the Service for 

exclusion. Additional stream segments 

have been considered by the Service for 

exclusion under this Alternative based 

on comments received subsequent to 

publication of the 2010 proposed rule, 

2011 draft environmental assessment, 

and 2011 draft economic analysis. 

(223) Comment: To ‘‘occupy’’ to us 

implies perennial, year-round and year 

after year occurrence, and we conclude 

that the Service, in the draft 

environmental assessment, was 

implying the same thing. To use occupy 

for any status other than permanent 

residence is misleading. If occupation is 

intermittent, such should be stated. 

Our Response: Please see the 

discussion under the subheading 

‘‘Occupied Versus Unoccupied Areas in 

the final rule for our definition of 

occupied habitat and a discussion of the 

rationale for that definition. 

(224) Comment: The environmental 

consequence determinations for each of 

the various resource categories that are 

presented throughout the draft 

environmental assessment are not 

environmental consequence 

determinations, but a listing of the 

changes in the Act’s procedural 

requirements that would take place if 

the proposed critical habitat is 

implemented. In each of the 

‘‘Environmental Consequence’’ section 

of the various resource categories there 

is a detailed description of how the 

section 7 consultation processes would 

change if the proposed spikedace and 

loach minnow critical habitat is 

implemented. The various 

‘‘Environmental Consequence’’ sections 

also contain a listing of potential new 

management requirements for each 

resource category. These procedural 

changes and potential new management 

requirements do not give the public any 

idea of what changes will occur to 

ecosystem health or spikedace and 

loach minnow habitat if the proposed 

critical habitat is implemented. At best 

the current environmental consequences 

determinations infer that by 

implementing Service control over the 

management of the federal spikedace 

and loach minnow critical habitat units 

(or lands with a Federal nexus), the 

physical and biological features for the 

spikedace and loach minnow will 

improve to the point that the designated 

critical habitat areas will again 

somehow sustain a population of the 

two species. All of the vague 

environmental consequence language 

only serves to put local citizens on 

notice that the designation of the 

proposed critical habitat could impact 

their use of federal land and the future 

management of their private land, where 

their land is included in a proposed 

critical habitat unit. 

Our Response: The 2011 draft and 

2012 final environmental assessment 

largely follow the format and 

methodology used to prepare the 2006 

final environmental assessment. 

Additional information has been 

provided to the more recent 

environmental assessment, where 

needed, to refine habitat requirements 

(physical and biological features) 

essential to the conservation of the 

species, changes to stream segments 

proposed for critical habitat designation. 

Additional information has also been 

provided, where necessary, with respect 

to the affected environment and 

environmental consequences. The 

conclusions of the environmental 

consequence analysis have not 

substantially changed from the 2006 

final environmental assessment to the 

2012 final environmental assessment. 

(225) Comment: The draft 

environmental assessment contains the 

statement; ‘‘It is not expected, based on 

past consultations in the Southwest that 

designation of critical habitat would 

result in the infringement of any 

existing water rights.’’ This statement 

does not meet the standard of utility and 

objectivity required by the Data Quality 

Act. 

Our Response: We believe the 

statement is accurate based on our past 

experience and section 7 consultation 

history in the southwest. However, if 

the commenter feels that the statement 

is not accurate, there is a defined 

process under the Data Quality Act for 

requesting a correction. The commenter 

can follow the process outlined on our 

Web site: http://www.fws.gov/ 

southwest/science/ 

informationquality.html?region=5 under 

the U.S. Fish and Wildlife Service 

Information Quality Guidelines. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this rule under Executive Order 12866 

(Regulatory Planning and Review). OMB 

bases its determination upon the 

following four criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10905 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 (5 U.S.C. 801 et seq.), whenever an 

agency must publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effects of the rule on small entities 

(small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA amended the RFA to 

require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

In this final rule, we are certifying that 

the critical habitat designations for 

spikedace and loach minnow will not 

have a significant economic impact on 

a substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts on these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., water use and management, 

grazing, mining, species management 

and recreational fishing, development, 

transportation, fire management, and 

tribal activities). We apply the 

‘‘substantial number’’ test individually 

to each industry to determine if 

certification is appropriate. However, 

the SBREFA does not explicitly define 

‘‘substantial number’’ or ‘‘significant 

economic impact.’’ Consequently, to 

assess whether a ‘‘substantial number’’ 

of small entities is affected by these 

designations, this analysis considers the 

relative number of small entities likely 

to be impacted in an area. In some 

circumstances, especially with critical 

habitat designations of limited extent, 

we may aggregate across all industries 

and consider whether the total number 

of small entities affected is substantial. 

In estimating the number of small 

entities potentially affected, we also 

consider whether their activities have 

any Federal involvement. 

Designation of critical habitat only 

affects activities authorized, funded, or 

carried out by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

authorize, fund, or carry out that may 

affect the spikedace or loach minnow. 

Federal agencies also must consult with 

us if their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities (see Application of the 

‘‘Adverse Modification Standard’’ 

section). 

In our final economic analysis of the 

critical habitat designations, we 

evaluated the potential economic effects 

on small business entities resulting from 

conservation actions related to the 

designations of critical habitat for 

spikedace and loach minnow. The 

analysis is based on the estimated 

impacts associated with the rulemaking 

as described in Chapters 3 through 10 

and Appendix A of the analysis and 

evaluates the potential for economic 

impacts related to: (1) Mining; (2) 

Species Management; (3) Tribes; (4) 

Transportation; (5) Fire Management; 

(6) Water Management; and (7) Grazing. 

The final economic analysis indicates 

that incremental impacts are not 

expected to impact small entities for 

mining, species management, tribal, 

transportation, or fire management 

activities. 

The final economic analysis indicates 

that incremental impacts associated 

with water management, grazing, and 

development may potentially be borne 

by small entities. The entities 

potentially affected under water 

management include cotton farming, 

hay farming, cotton ginning, and food 

manufacturing. The potential 

incremental costs to water management 

activities that may be borne by small 

entities are estimated at $125,000 to 

$252,000 on an annualized basis 

(discounted at seven percent) over the 

next 20 years. The final economic 

analysis indicates of the 312 entities in 

this sector, 47 (or 15 percent) that may 

be small entities may be affected. If each 

of them are small and each undergoes 

section 7 consultation, annualized 

impacts per small entity would be 

expected to range from 0.16 to 0.32 

percent of annual revenues. Based on 

our analysis, we have determined that 

there will not be a significant impact to 

small businesses in this sector. 

Grazing entities potentially affected 

by the critical habitat rule include beef 

cattle ranching and farming. The final 

economic analysis indicates of the 147 

entities in this sector, 33 (or 22 percent) 

small entities may be affected. 

Incremental costs to small grazing 

entities are estimated at $20,300 to 

$295,000 on an annualized basis. 

Assuming that all 33 entities were to 

undergo section 7 consultation, and all 

of the entities are small, annualized 

impacts per small entity are expected to 

range from 0.08 to 1.18 percent of 

annual revenues. Based on our analysis, 

we have determined that there will not 

be a significant impact to small 

businesses in this sector. 

Development entities potentially 

affected by the critical habitat 

designations could include new singlefamily housing, new multifamily 

housing construction, new housing 

operative builders, and land 

subdivision. The final economic 

analysis indicates of the 4,673 entities 

in this sector, that four (or 0.9 percent) 

entities could be affected. Incremental 

costs to small development firms are 

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10906 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

estimated to range from $0 to $77,000 

on an annualized basis. Assuming that 

impacts are borne by four small entities 

that undergo section 7 consultation, 

annualized impacts are anticipated to 

range from 0 to 0.30 percent of annual 

revenues. Based on our analysis, we 

have determined that there will not be 

a significant impact to small businesses 

in this sector. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. Information for this analysis 

was gathered from the Small Business 

Administration, stakeholders, and the 

Service. For the above reasons and 

based on currently available 

information, we certify that, if 

promulgated, the designations of critical 

habitat for spikedace and loach minnow 

would not have a significant economic 

impact on a substantial number of small 

business entities. Therefore, regulatory 

flexibility analysis is not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. OMB 

has provided guidance for 

implementing this Executive Order that 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’ 

when compared to not taking the 

regulatory action under consideration. 

The economic analysis finds that none 

of these criteria are relevant to this 

analysis. Thus, based on information in 

the economic analysis, there are no 

expected energy-related impacts 

associated with designations of critical 

habitat for spikedace and loach 

minnow. As such, the designation of 

critical habitat is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action, 

and no Statement of Energy Effects is 

required. 

Unfunded Mandates Reform Act 

(2 U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. By definition, Federal 

agencies are not considered small 

entities, although the activities they 

fund or permit may be proposed or 

carried out by small entities. 

In the past, local county governments 

have indicated a concern in the 

perceived regulatory burden imposed by 

critical habitat designation on 

management issues within the county, 

and particularly in relation to public 

safety issues such as bridge and road 

repair or flood management. These 

counties have indicated that State 

agencies might opt not to complete 

necessary repairs or management 

activities, or would not pursue Federal 

funding to address these issues if such 

actions could trigger a section 7 

consultation. We note that not all 

actions would necessarily trigger section 

7 consultation unless a Federal nexus 

exists. Where a Federal nexus does 

exist, the county or state have options 

to facilitate the section 7 process. 

Programmatic consultations can provide 

the planning agency with a long-term 

ability to affect repairs as needed over 

a specified length of time, without 

repeating the section 7 process. In 

addition, the Service has emergency 

consultation procedures so that any 

management entity can carry out 

necessary actions in which lives or 

property are in danger without first 

completing section 7 consultation. Once 

the emergency is handled, section 7 

consultation can be completed. As such, 

a Small Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with Executive Order 

12630 (Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights), we 

have analyzed the potential takings 

implications of designating critical 

habitat for spikedace and loach minnow 

in a takings implications assessment. 

Critical habitat designation does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. The takings 

implications assessment concludes that 

these designations of critical habitat for 

spikedace and loach minnow do not 

pose significant takings implications for 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10907 

lands within or affected by the 

designations. 

Federalism—Executive Order 13132 

In accordance with Executive Order 

13132 (Federalism), this rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

Arizona and New Mexico. We received 

comments from both States and have 

addressed them in the Summary of 

Comments and Recommendations 

section of the rule. The designations of 

critical habitat in areas currently 

occupied by spikedace and loach 

minnow may impose few additional 

regulatory restrictions to those currently 

in place and, therefore, may have little 

incremental impact on State and local 

governments and their activities. The 

designations may have some benefit to 

these governments in that the areas that 

contain the physical and biological 

features essential to the conservation of 

the species are more clearly defined, 

and the elements of the features of the 

habitat necessary to the conservation of 

the species are specifically identified. 

This information does not alter where 

and what federally sponsored activities 

may occur. However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designations of critical habitat, 

the legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the 

regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of the Order. We are designating 

critical habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

spikedace and loach minnow within the 

designated areas to assist the public in 

understanding the habitat needs of the 

species. 

Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(42 U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the NEPA (42 U.S.C. 4321 

et seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49534). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

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

516 U.S. 1042 (1996)). 

However, when the range of the 

species includes States within the Tenth 

Circuit, such as that of spikedace and 

loach minnow, under the Tenth Circuit 

ruling in Catron County Board of 

Commissioners v. U.S. Fish and Wildlife 

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

we will undertake a NEPA analysis for 

the critical habitat designations and 

notify the public of the availability of 

the draft environmental assessment for 

the critical habitat designations when it 

is finished. 

We performed the NEPA analysis, and 

drafts of the environmental assessment 

were available for public comment on 

October 4, 2011 (76 FR 61330). The final 

environmental assessment has been 

completed and is available for review 

with the publication of this final rule. 

You may obtain a copy of the final 

environmental assessment online at 

http://www.regulations.gov, by mail 

from the Arizona Ecological Services 

Field Office (see ADDRESSES), or by 

visiting our Web site at http:// 

www.fws.gov/southwest/es/Arizona/. 

The final environmental assessment 

included a detailed analysis of the 

potential effects of the critical habitat 

designations on resource categories, 

including: Water resources; wetlands 

and floodplains, natural resources (fish, 

wildlife and plants), land use and 

management, Wildland fire 

management, recreation, 

socioeconomics, tribal trust resources, 

and environmental justice. The scope of 

the effects were primarily limited to 

those activities involving Federal 

actions, because critical habitat 

designation does not have any impact 

on the environment other than through 

the section 7 consultation process under 

the Act which is conducted for Federal 

actions. Private actions that have no 

Federal involvement are not affected by 

critical habitat designation. 

Based on the review and evaluation of 

the information contained in the 

environmental assessment, we 

determined that the designations of 

critical habitat for spikedace and loach 

minnow do not constitute a major 

Federal action having a significant 

impact on the human environment 

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

of NEPA. 

Pursuant to the Council on 

Environmental Quality regulations for 

implementing NEPA, preparation of an 

environmental impact statement is 

required if an action is determined to 

significantly affect the quality of the 

human environment (40 CFR 1502.3). 

Significance is determined by analyzing 

the context and intensity of a proposed 

action (40 CFR 1508.27). Context refers 

to the setting of the proposed action and 

includes consideration of the affected 

region, affected interests, and locality 

(40 CFR 1508.27[a]). The context of both 

short- and long-term effects of critical 

habitat designations are the critical 

habitat units in Apache, Cochise, Gila, 

Graham, Greenlee, Pinal, and Yavapai 

Counties, Arizona, and Catron, Grant, 

and Hidalgo Counties, New Mexico, 

totaling about 1,168 km (726 mi) for 

spikedace, and (742 mi) for loach 

minnow. The effects of critical habitat 

designation at this scale, although longterm, would be small. Intensity refers to 

the severity of an impact and is 

evaluated by considering ten factors 

(40 CFR 1508.27[b]). 

The intensity of potential impacts that 

may result from designations of critical 

habitat for the spikedace and loach 

minnow under the proposed action is 

not anticipated to be significant. This 

conclusion is reached based on the 

following findings in the environmental 

assessment: 

(1) The potential impacts on 

environmental resources may be both 

beneficial and adverse, but would 

generally be minor. 

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10908 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(2) There would be negligible to 

minor impacts on public health or safety 

from designations of critical habitat. 

(3) The increased risks of wildland 

fire or flooding was analyzed and 

determined to be minor. 

(4) Potential impacts from critical 

habitat designations on the quality of 

the environment are unlikely to be 

highly controversial. 

(5) Designation of critical habitat for 

spikedace and loach minnow is not a 

precedent-setting action with significant 

effects. 

(6) Designation of critical habitat 

would not result in significant 

cumulative impacts. 

(7) Designation of critical habitat is 

not likely to affect sites, objects, or 

structures of historical, scientific, or 

cultural significance because Federal 

and State laws enacted to protect and 

preserve those resources would address 

any such potential impacts. 

(8) The critical habitat designations 

would have long-term, beneficial 

impacts for spikedace and loach 

minnow. 

(9) Critical habitat designations would 

not violate any Federal, State, or local 

laws or requirements imposed for the 

protection of the environment. 

The effects of critical habitat 

designations at this scale would be 

insignificant. Therefore, we found that 

the designations will not significantly 

affect the quality of the human 

environment and an environmental 

impact statement is not required. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

For spikedace and loach minnow, 

tribal lands associated with three tribes 

occur within the designations. The 

coordination efforts with the tribes are 

described below, and additional detail 

on the exclusions of each are provided 

above in the Exclusions section. 

Yavapai-Apache Nation—We 

coordinated early with the YavapaiApache Nation on the proposed rule for 

spikedace and loach minnow critical 

habitat. A coordination meeting was 

held in October 2010 to gain a better 

understanding of Tribal positions and 

concerns regarding the designations. We 

have maintained contact with the Tribe 

through letters, phone calls, and emails, 

and have provided the Tribe with notice 

of publication dates of various 

documents. We received comments 

from the Tribe during the first open 

comment period. Their comment letter 

provided a copy of Tribal Resolution 

46–2006, which details the development 

exclusion zone they have created for the 

100-year floodplain of the Verde River, 

where it crosses their lands. In addition, 

in their comment letter, the Tribe 

detailed the actions they have taken in 

the past several years under the 

resolution for protection of the Verde 

River, as noted above in the Exclusions 

section. We have determined that the 

benefits of excluding lands on the 

Yavapai-Apache Nation outweigh the 

benefits of including these areas. 

San Carlos Apache Tribe—The San 

Carlos Apache Tribe submitted 

comments during the second comment 

period. Within their comment letter the 

Tribe notes their adherence to TEK, 

which is an ecosystem-based approach 

to land and species management; their 

2005 Fishery Management Plan; 

development of various codes and 

regulations that benefit the species and/ 

or their habitat; and a commitment to no 

longer stocking nonnative sportfish in 

the Eagle Creek watershed. 

As noted in the Exclusions section 

above, we find that the Tribe’s lands 

should be excluded on the basis of our 

relationship with the Tribe, the goals of 

the FMP, and the information provided 

during the second comment period. The 

Tribe has focused on known areas of 

concern for the species management, 

and has discontinued stocking of 

nonnative fishes in the Bonita and Eagle 

Creek watersheds. The FMP contains 

goals of conserving and enhancing 

native fishes on the Reservation; 

restoring native fishes and their 

habitats; and preventing, minimizing or 

mitigating impacts to native fishes, 

among others. In addition, the Tribe has 

indicated that, through TEK, they 

practice an ecosystem-based approach 

to land and species based management 

and preservation. 

White Mountain Apache Tribe—We 

coordinated early with the White 

Mountain Apache Tribe regarding the 

critical habitat designations. A 

coordination meeting was held in 

October 2010 to gain a better 

understanding of any concerns White 

Mountain Apache Tribe might have 

regarding the upcoming proposed rule 

for spikedace and loach minnow critical 

habitat. Representatives of the White 

Mountain Apache Tribe attended the 

public hearing in October of 2011. We 

subsequently received comments from 

White Mountain Apache Tribe on the 

proposed rule, including the request for 

a 4(b)(2) exclusion and a copy of their 

Loach Minnow Management Plan. Their 

comment letter and management plan 

detail various conservation measures 

that will benefit loach minnow, 

including adoption of various 

ordinances, hiring of key personnel, and 

contingency plans for disaster 

management. 

After reviewing their comment letter 

and management plan, and in 

recognition of our special Tribal 

relationship with White Mountain 

Apache Tribe, we determined that 

benefits of exclusion of the mainstem 

White River and East Fork White River 

outweighed the benefits of including it 

in the designations of critical habitat for 

the species. 

References Cited 

A complete list of all references cited 

is available on the Internet at http:// 

www.regulations.gov and upon request 

from the Arizona Ecological Services 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Author(s) 

The primary authors of this 

rulemaking are the staff members of the 

Arizona Ecological Services Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 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. 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10909 

■ 2. Amend § 17.11(h) by revising the 

entries for ‘‘Minnow, loach’’ and 

‘‘Spikedace’’ under ‘‘Fishes’’ in the List 

of Endangered and Threatened Wildlife 

to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Minnow, loach .......... Tiaroga cobitis ........ U.S.A. (AZ, NM), 

Mexico.

Entire ...................... E 247 17.95(e) NA 

* * * * * * * 

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

Mexico.

Entire ...................... E 236 17.95(e) NA 

* * * * * * * 

■ 3. In § 17.44, remove and reserve 

paragraphs (p) and (q). 

■ 4. In § 17.95, amend paragraph (e) by 

revising the entries for ‘‘Loach Minnow 

(Tiaroga cobitis)’’ and ‘‘Spikedace 

(Meda fulgida),’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Loach Minnow (Tiaroga cobitis) 

(1) Critical habitat units are depicted 

for Apache, Cochise, Gila, Graham, 

Greenlee, Pinal, and Yavapai Counties, 

Arizona, and for Catron, Grant, and 

Hidalgo Counties, New Mexico, on the 

maps below. 

(2) Within these areas, the primary 

constituent elements (PCE) of the 

physical or biological features essential 

to the conservation of loach minnow 

consist of six components: 

(i) Habitat to support all egg, larval, 

juvenile, and adult loach minnow. This 

habitat includes perennial flows with a 

stream depth of generally less than 1 m 

(3.3 ft), and with slow to swift flow 

velocities between 0 and 80 cm per 

second (0.0 and 31.5 in. per second). 

Appropriate microhabitat types include 

pools, runs, riffles, and rapids over 

sand, gravel, cobble, and rubble 

substrates with low or moderate 

amounts of fine sediment and substrate 

embeddedness. Appropriate habitats 

have a low stream gradient of less than 

2.5 percent and are at elevations below 

2,500 m (8,202 ft). Water temperatures 

should be in the general range of 8.0 to 

25.0 °C (46.4 to 77 °F). 

(ii) An abundant aquatic insect food 

base consisting of mayflies, true flies, 

black flies, caddis flies, stoneflies, and 

dragonflies. 

(iii) Streams with no or no more than 

low levels of pollutants. 

(iv) Perennial flows or interrupted 

stream courses that are periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted. 

(v) No nonnative aquatic species, or 

levels of nonnative aquatic species that 

are sufficiently low to allow persistence 

of loach minnow. 

(vi) Streams with a natural, 

unregulated flow regime that allows for 

periodic flooding or, if flows are 

modified or regulated, a flow regime 

that allows for adequate river functions, 

such as flows capable of transporting 

sediments. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. We have determined that all 

designated areas contain at least one 

PCE for loach minnow. 

(4) Critical habitat map units. Data 

layers defining map units were created 

on a base of USGS 7.5′ quadrangles 

along with shapefiles generated by the 

Arizona Land Resource Information 

Service for land ownership, streams, 

counties, and the Public Land Survey 

System. Information on species 

locations was derived from databases 

developed by the Arizona Game and 

Fish Department, the New Mexico 

Department of Game and Fish, and 

Arizona State University. 

(5) Note: Index map follows: 

BILLING CODE 4310–55–P 

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10910 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(6) Unit 1: Verde River Subbasin, 

Yavapai County, Arizona. 

(i) Verde River for approximately 

118.5 km (73.6 mi), extending from the 

confluence with Beaver and Wet Beaver 

Creek in Township 14 North, Range 5 

East, southeast quarter of section 30 

upstream to Sullivan Dam in Township 

17 North, Range 2 West, northwest 

quarter of section 15. This mileage does 

not include the 1.2 km (0.8 mi) 

belonging to the Yavapai-Apache 

Nation, which is excluded from this 

designation. 

(ii) Granite Creek for approximately 

3.2 km (2.0 mi), extending from the 

confluence with the Verde River in 

Township 17 North, Range 2 West, 

northeast quarter of section 14 upstream 

to a spring in Township 17 North, Range 

2 West, southwest quarter of the 

southwest quarter of section 13. 

(iii) Oak Creek for approximately 54.3 

km (33.7 mi), extending from the 

confluence with the Verde River in 

Township 15 North, Range 4 East, 

southeast quarter of section 20 upstream 

to the confluence with an unnamed 

tributary from the south in Township 17 

North, Range 5 East, southeast quarter of 

the northeast quarter of section 24. 

(iv) Beaver Creek and Wet Beaver 

Creek for approximately 33.3 km (20.7 

mi), extending from the confluence with 

the Verde River in Township 14 North, 

Range 5 East, southeast quarter of 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10911 

section 30 upstream to the confluence 

with Casner Canyon in Township 15 

North, Range 6 East, northwest quarter 

of section 23. This mileage does not 

include the 0.2 km (0.1 mi) belonging to 

the Yavapai-Apache Nation, which is 

excluded from this designation. 

(v) Fossil Creek for approximately 

22.2 km (13.8 mi) from its confluence 

with the Verde River at Township 11 

North, Range 6 East, northeast quarter of 

section 25 upstream to the old Fossil 

Diversion Dam site at Township 12 

North, Range 7 East, southeast quarter of 

section 14. 

(vi) Note: Map of Unit 1, Verde River 

Subbasin follows. 


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10912 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(7) Unit 2: Salt River Subbasin, 

Apache and Gila Counties, Arizona. 

(i) East Fork Black River for 

approximately 19.1 km (11.9 mi) from 

the confluence with the West Fork Black 

River at Township 4 North, Range 28 

East, southeast quarter of section 11 

upstream to the confluence with an 

unnamed tributary approximately 0.82 

km (0.51 mi) downstream of the 

Boneyard Creek confluence at Township 

5 North, Range 29 East, northwest 

quarter of Section 5. 

(ii) North Fork East Fork Black River 

for approximately 7.1 km (4.4 mi) of the 

North Fork East Fork Black River 

extending from the confluence with East 

Fork Black River at Township 5 North, 

Range 29 East, northwest quarter of 

section 5 upstream to the confluence 

with an unnamed tributary at Township 

6 North, Range 29 East, center of Section 

30. 

(iii) Boneyard Creek for 

approximately 2.3 km (1.4 mi) 

extending from the confluence with the 

East Fork Black River at Township 5 

North, Range 29 East, SW quarter of 

section 5 upstream to the confluence 

with an unnamed tributary at Township 

6 North, Range 29 East, southeast 

quarter of section 32. 

(iv) Coyote Creek for approximately 

3.4 km (2.1 mi) from the confluence 

with East Fork Black River at Township 

5 North, Range 29 East, northeast 

quarter of section 8 upstream to an 

unnamed confluence at Township 5 

North, Range 29 East, northwest quarter 

of section 10. 

(v) Note: Map of Unit 2, Salt River 

Subbasin follows. 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10913 

(8) Unit 3: San Pedro River Subbasin, 

Cochise, Pinal, and Graham Counties, 

Arizona. 

(i) Aravaipa Creek for approximately 

44.9 km (27.9 mi) extending from the 

confluence with the San Pedro River in 

Township 7 South, Range 16 East, 

center of section 9 upstream to the 

confluence with Stowe Gulch in 

Township 6 South, Range 19 East, 

southeast quarter of the northeast 

quarter of section 35. 

(ii) Deer Creek—3.7 km (2.3 mi) of the 

creek extending from the confluence 

with Aravaipa Creek at Township 6 

South, Range 18 East, section 14 

upstream to the boundary of the 

Aravaipa Wilderness at Township 6 

South, range 19 East, section 18. 

(iii) Turkey Creek—4.3 km (2.7 mi) of 

the creek extending from the confluence 

with Aravaipa Creek at Township 6 

South, Range 19 East, section 19 

upstream to the confluence with Oak 

Grove Canyon at Township 6 South, 

Range 19 east, section 32. 

(iv) Hot Springs Canyon for 

approximately 9.3 km (5.8 mi) 

extending from the confluence with 

Bass Canyon in Township 12 South, 

Range 20 East, northeast quarter of 

section 36 downstream to Township 12 


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10914 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

South, Range 20 East, southeast quarter 

of section 32. 

(v) Redfield Canyon for approximately 

6.5 km (4.0 mi) extending from 

Township 11 South, Range 19 East, 

northeast quarter of section 36 upstream 

to the confluence with Sycamore 

Canyon in Township 11 South, Range 

20 East, northwest quarter of section 28. 

(vi) Bass Canyon for approximately 

5.5 km (3.4 mi) from the confluence 

with Hot Springs Canyon in Township 

12 South, Range 20 East, northeast 

quarter of section 36 upstream to the 

confluence with Pine Canyon in 

Township 12 South, Range 21 East, 

center of section 20. 

(vii) Note: Map of Unit 3, San Pedro 

River Subbasin follows. 

(9) Unit 4: Bonita Creek Subbasin, 

Graham County, Arizona. 

(i) Bonita Creek for approximately 

23.8 km (14.8 mi) from the confluence 

with the Gila River in Township 6 

South, Range 28 East, southeast quarter 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10915 

of section 21 upstream to the confluence 

with Martinez Wash in Township 4 

South, Range 27 East, southeast quarter 

of section 27. 

(ii) Note: Map of Unit 4, Bonita Creek 

Subbasin follows. 

(10) Unit 5: Eagle Creek Subbasin, 

Graham and Greenlee Counties, 

Arizona. 

(i) Eagle Creek for approximately 26.5 

km (16.5 mi) from the FreeportMcMoRan diversion dam at Township 4 

South, Range 28 East, southwest quarter 

of the northwest quarter of section 23 

upstream to the confluence of East Eagle 

Creek in Township 2 North, Range 28 

East, southwest quarter of section 20. 

This mileage does not include 

approximately 21.4 km (13.3 mi) of 

Eagle Creek on lands belonging to 

Freeport-McMoRan, which is excluded 

from this designation. 

(ii) Note: Map of Unit 5, Eagle Creek 

Subbasin follows. 


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10916 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(11) Unit 6: San Francisco River 

Subbasin, Greenlee County, Arizona and 

Catron County, New Mexico. 

(i) San Francisco River for 

approximately 189.5 km (117.7 mi) of 

the San Francisco River extending from 

the confluence with the Gila River in 

Township 5 South, Range 29 East, 

southeast quarter of section 21 upstream 

to the northern boundary of Township 

6 South, Range 19 West, section 2. This 

mileage includes approximately 14.1 km 

(8.8 mi) of the San Francisco River on 

lands belonging to Freeport-McMoRan, 

which is excluded from this 

designation. 

(ii) Tularosa River for approximately 

30.0 km (18.6 mi) from the confluence 

with the San Francisco River at 

Township 7 South, Range 19 West, 

southwest quarter of section 23 

upstream to the town of Cruzville at 

Township 6 South, Range 18 West, 

southern boundary of section 1. 

(iii) Negrito Creek for approximately 

6.8 km (4.2 mi) extending from the 

confluence with the Tularosa River at 

Township 7 South, Range 18 West, 

southwest quarter of the northwest 

quarter of section 19 upstream to the 

confluence with Cerco Canyon at 

Township 7 South, Range 18 West, west 

boundary of section 22. 

(iv) Whitewater Creek for 

approximately 1.9 km (1.2 mi) from the 

confluence with the San Francisco River 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10917 

at Township 11 South, Range 20 West, 

Section 27 upstream to the confluence 

with Little Whitewater Creek at 

Township 11 South, Range 20 West, 

southeast quarter of section 23. 

(v) Note: Map of Unit 6, San Francisco 

River Subbasin follows. 

(12) Unit 7: Blue River Subbasin, 

Greenlee County, Arizona, and Catron 

County, New Mexico. 

(i) Blue River for approximately 81.4 

km (50.6 mi) from the confluence with 

the San Francisco River at Township 2 

South, Range 31 East, southeast quarter 

of section 31 upstream to the confluence 

of Campbell Blue and Dry Blue creeks 

at Township 7 South, Range 21 West, 

southeast quarter of section 6. 

(ii) Campbell Blue Creek for 

approximately 12.4 km (7.7 mi) from the 

confluence of Dry Blue and Campbell 

Blue Creeks at Township 7 South, Range 

21 West, southeast quarter of section 6 

to the confluence with Coleman Canyon 

in Township 4.5 North, Range 31 East, 

southwest quarter of the northeast 

quarter of section 32. 


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10918 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(iii) Little Blue Creek for 

approximately 5.1 km (3.1 mi) from the 

confluence with the Blue River at 

Township 1 South, Range 31 East, 

center of section 5 upstream to the 

mouth of a canyon at Township 1 North, 

Range 31 East, northeast quarter of 

section 29. 

(iv) Pace Creek for approximately 1.2 

km (0.8 mi) from the confluence with 

Dry Blue Creek at Township 6 South, 

Range 21 West, southwest quarter of 

section 28 upstream to a barrier falls at 

Township 6 South, Range 21 West, 

northeast quarter of section 29. 

(v) Frieborn Creek for approximately 

1.8 km (1.1 mi) from the confluence 

with Dry Blue Creek at Township 7 

South, Range 21 West, southwest 

quarter of the northwest quarter of 

section 5 upstream to an unnamed 

tributary flowing from the south in 

Township 7 South, Range 21 West, 

northeast quarter of the southwest 

quarter of section 8. 

(vi) Dry Blue Creek for approximately 

4.7 km (3.0 mi) from the confluence 

with Campbell Blue Creek at Township 

7 South, Range 21 West, southeast 

quarter of Section 6 upstream to the 

confluence with Pace Creek in 

Township 6 South, Range 21 West, 

southwest quarter of section 28. 

(vii) Note: Map of Unit 7, Blue River 

Subbasin follows. 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10919 

(13) Unit 8: Gila River Subbasin, 

Catron, Grant, and Hidalgo Counties, 

New Mexico. 

(i) Gila River for approximately 153.5 

km (95.4 mi) from the confluence with 

Moore Canyon at Township 18 South, 

Range 21 West, southeast quarter of the 

southwest quarter of section 32 

upstream to the confluence of the East 

and West Forks of the Gila River at 

Township 13 South, Range 13 West, 

center of section 8. This mileage does 

not include approximately 11.5 km (7.2 

mi) of the Gila River on lands owned by 

Freeport-McMoRan, which is excluded 

from this designation. 

(ii) West Fork Gila River for 

approximately 13.0 km (8.1 mi) from the 

confluence with the East Fork Gila River 

at Township 13 South, Range 13 West, 

center of Section 8 upstream to the 

confluence with EE Canyon at 

Township 12 South, Range 14 West, east 

boundary of Section 21. 

(iii) Middle Fork Gila River for 

approximately 19.1 km (11.9 mi) of the 

Middle Fork Gila River extending from 

the confluence with West Fork Gila 

River at Township 12 South, Range 14 

West, southwest quarter of section 25 

upstream to the confluence of Brothers 

West Canyon in Township 11 South, 

Range 14 West, northeast quarter of 

section 33. 

(iv) East Fork Gila River for 

approximately 42.1 km (26.2 mi) 

extending from the confluence with 

West Fork Gila River at Township 13 

South, Range 13 West, center of section 

8 upstream to the confluence of Beaver 

and Taylor Creeks in Township 11 

South, Range 12 West, northeast quarter 

of section 17. 

(v) Mangas Creek for approximately 

1.2 km (0.8 mi) extending from 

Township 17 South, Range 17 West, at 

the eastern boundary of section 3 

upstream to the confluence with 

Blacksmith Canyon at Township 17 

South, Range 17 West, northwest 

quarter of section 3. This mileage does 

not include approximately 7.9 km (4.9 

mi) of Mangas Creek on lands belonging 

to Freeport-McMoRan, which are 

excluded from the designation. 

(vi) Bear Creek for approximately 29.5 

km (18.4 mi) extending from Township 

15 South, Range 17 West, eastern 

boundary of section 33 upstream to the 

confluence with Sycamore and North 

Fork Walnut Creek at Township 16 

South, Range 15 West, eastern boundary 

of section 15. This designation does not 

include approximately 1.9 km (1.2 mi) 

of Bear Creek on lands belonging to 

Freeport-McMoRan, which are excluded 

from this designation. 

(vii) Note: Map of Unit 8, Gila River 

Subbasin follows. 

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10920 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10921 

Spikedace (Meda fulgida) 

(1) Critical habitat units are depicted 

for Cochise, Gila, Graham, Greenlee, 

Pinal, and Yavapai Counties, Arizona, 

and for Catron, Grant, and Hidalgo 

Counties, New Mexico, on the maps 

below. 

(2) Within these areas, the primary 

constituent elements (PCE) of the 

physical or biological features essential 

to the conservation of spikedace consist 

of six components: 

(i) Habitat to support all egg, larval, 

juvenile, and adult spikedace. This 

habitat includes perennial flows with a 

stream depth generally less than 1 m 

(3.3 ft), and with slow to swift flow 

velocities between 5 and 80 cm per 

second (1.9 and 31.5 in. per second). 

Appropriate stream microhabitat types 

include glides, runs, riffles, the margins 

of pools and eddies, and backwater 

components over sand, gravel, and 

cobble substrates with low or moderate 

amounts of fine sediment and substrate 

embeddedness. Appropriate habitat will 

have a low gradient of less than 

approximately 1.0 percent, at elevations 

below 2,100 m (6,890 ft). Water 

temperatures should be in the general 

range of 8.0 to 28.0 °C (46.4 to 82.4 °F). 

(ii) An abundant aquatic insect food 

base consisting of mayflies, true flies, 

black flies, caddis flies, stoneflies, and 

dragonflies. 

(iii) Streams with no or no more than 

low levels of pollutants. 

(iv) Perennial flows, or interrupted 

stream courses that are periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted. 

(v) No nonnative aquatic species, or 

levels of nonnative aquatic species that 

are sufficiently low as to allow 

persistence of spikedace. 

(vi) Streams with a natural, 

unregulated flow regime that allows for 

periodic flooding or, if flows are 

modified or regulated, a flow regime 

that allows for adequate river functions, 

such as flows capable of transporting 

sediments. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. We have determined that all 

designated areas contain at least one 

PCE for spikedace. 

(4) Critical habitat map units. Data 

layers defining map units were created 

on a base of USGS 7.5′ quadrangles 

along with shapefiles generated by the 

Arizona Land Resource Information 

Service for land ownership, streams, 

counties, and the Public Land Survey 

System. Information on species 

locations was derived from databases 

developed by the Arizona Game and 

Fish Department, the New Mexico 

Department of Game and Fish, and 

Arizona State University. 

(5) Note: Index map follows: 

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10922 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(6) Unit 1: Verde River Subbasin, 

Yavapai County, Arizona. 

(i) Verde River for approximately 

170.6 km (105.9 mi), extending from the 

confluence with Fossil Creek in 

Township 11 North, Range 6 East, 

northeast quarter of section 25 upstream 

to Sullivan Dam in Township 17 North, 

Range 2 West, northwest quarter of 

section 15. This mileage does not 

include the 1.2 km (0.8 mi) belonging to 

the Yavapai-Apache Nation, which is 

excluded from this designation. Granite 

Creek for approximately 3.2 km (2.0 mi), 

extending from the confluence with the 

Verde River in Township 17 North, 

Range 2 West, northeast quarter section 

14 upstream to a spring in Township 17 

North, Range 2 West, southwest quarter 

of the southwest quarter of section 13. 

(ii) Oak Creek for approximately 54.3 

km (33.7 mi), extending from the 

confluence with the Verde River in 

Township 15 North, Range 4 East, 

southeast quarter section 20 upstream to 

the confluence with an unnamed 

tributary from the south in Township 17 

North, Range 5 East, southeast quarter of 

the northeast quarter of section 24. 

(iii) Beaver Creek/Wet Beaver Creek 

for approximately 33.3 km (20.7 mi), 

extending from the confluence with the 

Verde River in Township 14 North, 

Range 5 East, southeast quarter of 

section 30 upstream to the confluence 

with Casner Canyon in Township 15 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10923 

North, Range 6 East, northwest quarter 

of section 23. This mileage does not 

include the 0.2 km (0.1 mi) belonging to 

the Yavapai-Apache Nation and 

excluded from these designations. 

(iv) West Clear Creek for 

approximately 10.9 km (6.8. mi), 

extending from the confluence with the 

Verde River in Township 13 North, 

Range 5 East, center section 21, 

upstream to the confluence with Black 

Mountain Canyon in Township 13 

North, Range 6 East, southeast quarter of 

section 17. 

(v) Fossil Creek for approximately 

22.2 km (13.8 mi) from its confluence 

with the Verde River at Township 11 

North, Range 6 East, northeast quarter of 

section 25 upstream to the old Fossil 

Diversion Dam site at Township 12 

North, Range 7 East, southeast quarter of 

section 14. 

(vi) Note: Map of Unit 1, Verde River 

Subbasin follows. 


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10924 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(7) Unit 2: Salt River Subbasin, Gila 

County, Arizona. 

(i) Tonto Creek for approximately 47.8 

km (29.7 mi) extending from the 

confluence with Greenback Creek in 

Township 5 North, Range 11 East, 

northwest quarter of section 8 upstream 

to the confluence with Houston Creek in 

Township 9 North, Range 11 East, 

northeast quarter of section 18. 

(ii) Greenback Creek for 

approximately 15.1 km (9.4 mi) from the 

confluence with Tonto Creek in 

Township 5 North, Range 11 East, 

northwest quarter of section 8 upstream 

to Lime Springs in Township 6 North, 

Range 12 East, southwest quarter of 

section 20. 

(iii) Rye Creek for approximately 2.8 

km (1.8 mi) extending from the 

confluence with Tonto Creek in 

Township 8 North, Range 10 East, 

northeast quarter of section 24 upstream 

to the confluence with Brady Canyon in 

Township 8 North, Range 10 East, 

northwest quarter of section 14. 

(iv) Spring Creek for approximately 

27.2 km (16.9 mi) extending from the 

confluence with the Tonto River at 

Township 10 North, Range 11 East, 

southeast quarter of section 36 upstream 

to the confluence with Sevenmile 

Canyon at Township 8 North, Range 13 

East, northern boundary of section 20. 

(v) Rock Creek for approximately 5.8 

km (3.6 mi) extending from the 

confluence with Spring Creek at 

Township 8 North, Range 12 East, 

southeast quarter of section 1 upstream 

to the confluence with Buzzard Roost 

Canyon at Township 8 North, 12 East, 

center of section 24. 

(vi) Note: Map of Unit 2, Salt River 

Subbasin follows. 

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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10925 

(8) Unit 3: San Pedro River Subbasin, 

Cochise, Graham, and Pinal Counties, 

Arizona. 

(i) Aravaipa Creek for approximately 

44.9 km (27.9 mi) extending from the 

confluence with the San Pedro River in 

Township 7 South, Range 16 East, 

center of section 9 upstream to the 

confluence with Stowe Gulch in 

Township 6 South, Range 19 East, 

southeast quarter of the northeast 

quarter of section 35. Deer Creek—3.7 

km (2.3 mi) of the creek extending from 

the confluence with Aravaipa Creek at 

Township 6 South, Range 18 East, 

section 14 upstream to the boundary of 

the Aravaipa Wilderness at Township 6 

South, Range 19 East, section 18. 

(ii) Turkey Creek—4.3 km (2.7 mi) of 

the creek extending from the confluence 

with Aravaipa Creek at Township 6 

South, Range 19 East, section 19 

upstream to the confluence with Oak 

Grove Canyon at Township 6 South, 

Range 19 east, section 32. 

(iii) Hot Springs Canyon for 

approximately 9.3 km (5.8 mi) 

extending from the confluence with 

Bass Canyon in Township 12 South, 

Range 20 East, northeast quarter of 

section 36 downstream to Township 12 

South, Range 20 East, southeast quarter 

of section 32. 

(iv) Redfield Canyon for 

approximately 6.5 km (4.0 mi) 


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10926 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

extending from Township 11 South, 

Range 19 East, northeast quarter of 

section 36 upstream to the confluence 

with Sycamore Canyon in Township 11 

South, Range 20 East, northwest quarter 

of section 28. 

(v) Bass Canyon for approximately 5.5 

km (3.4 mi) from the confluence with 

Hot Springs Canyon in Township 12 

South, Range 20 East, northeast quarter 

of section 36 upstream to the confluence 

with Pine Canyon in Township 12 

South, Range 21 East, center of section 

20. 

(vi) Note: Map of Unit 3, San Pedro 

River Subbasin follows. 

(9) Unit 4: Bonita Creek Subbasin, 

Graham County, Arizona. 

(i) Bonita Creek for approximately 

23.8 km (14.8 mi) from the confluence 

with the Gila River in Township 6 

South, Range 28 East, southeast quarter 

of section 21 upstream to the confluence 

with Martinez Wash in Township 4 

South, Range 27 East, southeast quarter 

of Section 27. 

(ii) Note: Map of Unit 4, Bonita Creek 

Subbasin follows. 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10927 

(10) Unit 5: Eagle Creek Subbasin, 

Graham and Greenlee Counties, 

Arizona. 

(i) Eagle Creek for approximately 26.5 

km (16.5 mi) from the FreeportMcMoRan diversion dam at Township 4 

South, Range 28 East, southwest quarter 

of the northwest quarter of section 23 

upstream to the confluence of East Eagle 

Creek in Township 2 North, Range 28 

East, southwest quarter of section 20. 

This mileage does not include 

approximately 21.4 km (13.3 mi) of 

Eagle Creek on lands belonging to 

Freeport-McMoRan, which is excluded 

from this designation. 

(ii) Note: Map of Unit 5, Eagle Creek 

Subbasin follows. 


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10928 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(11) Unit 6: San Francisco River 

Subbasin, Greenlee County, Arizona, 

and Catron County, New Mexico. 

(i) San Francisco River for 

approximately 166.7 km (103.5 mi) of 

the San Francisco River extending from 

the confluence with the Gila River in 

Arizona in Township 5 South, Range 29 

East, southeast quarter of section 21 

upstream to Township 6 South, Range 

19 West, section 2 in New Mexico. This 

mileage does include approximately 

14.1 km (8.8 mi) of the San Francisco 

River on lands belonging to FreeportMcMoRan, which is excluded from this 

designation. 

(ii) Note: Map of Unit 6, San 

Francisco River Subbasin follows. 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10929 

(12) Unit 7: Blue River Subbasin, 

Greenlee County, Arizona, and Catron 

County, New Mexico. 

(i) Blue River for approximately 81.4 

km (50.6 mi) from the confluence with 

the San Francisco River at Township 

2S., Range 31 East, southeast quarter of 

section 31 upstream to the confluence of 

Campbell Blue and Dry Blue Creeks at 

Township 7 South, Range 21 West, 

southeast quarter of section 6. 

(ii) Campbell Blue Creek for 

approximately 12.4 km (7.7 mi) from the 

confluence of Dry Blue and Campbell 

Blue Creeks at Township 7 South, Range 

21 West, southeast quarter of section 6 

to the confluence with Coleman Canyon 

in Township 4.5 North, Range 31 East, 

southwest quarter of the northeast 

quarter of section 32. 

(iii) Little Blue Creek for 

approximately 5.1 km (3.1 mi) from the 

confluence with the Blue River at 

Township 1 South, Range 31 East, 

center Section 5 upstream to the mouth 

of a canyon at Township 1 North, Range 

31 East, northeast quarter of section 29. 

(iv) Pace Creek for approximately 1.2 

km (0.8 mi) from the confluence with 

Dry Blue Creek at Township 6 South, 

Range 21 West, southwest quarter of 

Section 28 upstream to a barrier falls at 

Township 6 South, Range 21 West, 

northeast quarter of section 29. 


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10930 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

(v) Frieborn Creek for approximately 

1.8 km (1.1 mi) from the confluence 

with Dry Blue Creek at Township 7 

South, Range 21 West, southwest 

quarter of the northwest quarter of 

section 5 upstream to an unnamed 

tributary flowing from the south in 

Township 7 South, Range 21 West, 

northeast quarter of southwest quarter of 

section 8. 

(vi) Dry Blue Creek for approximately 

4.7 km (3.0 mi) from the confluence 

with Campbell Blue Creek at Township 

7 South, Range 21 West, southeast 

quarter of Section 6 upstream to the 

confluence with Pace Creek in 

Township 6 South, Range 21 West, 

southwest quarter of section 28. 

(vii) Note: Map of Unit 7, Blue River 

Subbasin follows. 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10931 

(13) Unit 8: Gila River Subbasin, 

Catron, Grant, and Hidalgo Counties, 

New Mexico. 

(i) Gila River for approximately 153.5 

km (95.4 mi) from the confluence with 

Moore Canyon at Township 18 South, 

Range 21 West, southeast quarter of the 

southwest quarter of section 32 

upstream to the confluence of the East 

and West Forks of the Gila River at 

Township 13 South, Range 13 West, 

center of section 8. This mileage does 

not include approximately 11.5 km (7.2 

mi) of the Gila River on lands owned by 

Freeport-McMoRan, which is excluded 

from this designation. 

(ii) West Fork Gila River for 

approximately 13.0 km (8.1 mi) from the 

confluence with the East Fork Gila River 

at Township 13 South, Range 13 West, 

center of section 8 upstream to the 

confluence with EE Canyon at 

Township 12 South, Range 14 West, east 

boundary of Section 21. 

(iii) Middle Fork Gila River for 

approximately 12.5 km (7.7 mi) of the 

Middle Fork Gila River extending from 

the confluence with West Fork Gila 

River at Township 12 South, Range 14 

West, southwest quarter of section 25 

upstream to the confluence of Big Bear 

Canyon in Township 12 South, Range 

14 West, southwest quarter of section 2. 

(iv) East Fork Gila River for 

approximately 42.1 km (26.2 mi) 

extending from the confluence with 

West Fork Gila River at Township 13 

South, Range 13 West, center of section 

8 upstream to the confluence of Beaver 

and Taylor Creeks in Township 11 

South, Range 12 West, northeast quarter 

of section 17. 

(v) Mangas Creek for approximately 

1.2 km (0.8 mi) extending from 

Township 17 South, Range 17 West, at 

the eastern boundary of section 3 

upstream to the confluence with 

Blacksmith Canyon at Township 17 

South, Range 17 West, northwest 

quarter of section 3. This mileage does 

not include approximately 7.9 km (4.9 

mi) of Mangas Creek on lands belonging 

to Freeport-McMoRan, which are 

excluded from the designation. 

(vi) Note: Map of Unit 8, Gila River 

Subbasin follows. 

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10932 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

* * * * * Dated: February 7, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–3591 Filed 2–22–12; 8:45 am] 

BILLING CODE 4310–55–C 


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