[Federal Register Volume 87, Number 39 (Monday, February 28, 2022)]
[Rules and Regulations]
[Pages 11188-11220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03703]



[[Page 11187]]

Vol. 87

Monday,

No. 39

February 28, 2022

Part III





 Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Peppered Chub and Designation of Critical Habitat; Final 
Rule

Federal Register / Vol. 87 , No. 39 / Monday, February 28, 2022 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2019-0019; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BD29


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Peppered Chub and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended, for the peppered chub (Macrhybopsis tetranema), a 
freshwater fish species historically found in Colorado, Kansas, New 
Mexico, Oklahoma, and Texas, which is now extirpated from all but six 
percent of its historical range. We also designate critical habitat. In 
total, approximately 872 river miles (1,404 river kilometers) in New 
Mexico, Oklahoma, and Texas fall within the boundaries of the critical 
habitat designation. We are excluding approximately 197 river miles 
(317 river kilometers) of critical habitat in Kansas that was included 
in the proposed critical habitat designation. This rule adds the 
species to the List of Endangered and Threatened Wildlife and extends 
the Act's protections to the peppered chub designated critical habitat.

DATES: This rule is effective March 30, 2022.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/southwest/es/arlingtontexas. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2019-0019.
    The coordinates or plot points or both from which the maps are 
generated are included in the decision file for this critical habitat 
designation and are available at https://www.regulations.gov at Docket 
No. FWS-R2-ES-2019-0019 and at https://www.fws.gov/southwest/es/arlingtontexas. Any additional tools or supporting information that we 
developed for this critical habitat designation will also be available 
at the Service's website set out above and at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, U.S. 
Fish and Wildlife Service, Arlington, Texas, Ecological Services Field 
Office, 2005 Northeast Green Oaks Boulevard, Suite 140, Arlington, TX 
76006; telephone 817-277-1100. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Relay Service at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range). If we 
determine that a species warrants listing, we must list the species 
promptly and designate the species' critical habitat to the maximum 
extent prudent and determinable. We have determined that the peppered 
chub meets the definition of an endangered species; therefore, we are 
listing it as such and finalizing a designation of its critical 
habitat. Both listing a species as an endangered or threatened species 
and designating critical habitat can be completed only by issuing a 
rule through the Administrative Procedure Act rulemaking process.
    What this document does. This rule lists the peppered chub 
(Macrhybopsis tetranema) as an endangered species and designates 872 
river miles (1,404 river kilometers) in three units in Oklahoma, New 
Mexico, and Texas as critical habitat.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    We have determined that habitat degradation and fragmentation 
(Factor A), resulting from altered flow regimes, impoundments, and 
other stream fragmentation, adversely modified geomorphology, decreased 
water quality, and the introduction and proliferation of invasive 
species (aquatic and vegetative), pose the largest risk to the 
viability of the species. Changes in the hydrological regime are 
primarily related to habitat changes: The loss of flowing water, 
instream habitat fragmentation, disconnection of the floodplain, and 
impairment of water quality. The effects of climate change (Factor E) 
may be exacerbating habitat degradation and fragmentation.
    Although habitat degradation and fragmentation are the primary 
stressors to the peppered chub, we present a broader discussion of the 
threats to the species below. Additionally, we found that the existing 
regulatory mechanisms do not adequately reduce or remove the threats 
acting on the species and the threats continue to affect the species 
such that it warrants listing (Factor D). We are aware of no 
conservation efforts at this time that sufficiently reduce or remove 
the identified threats to the species and the threats continue to 
affect the species such that listing is warranted. The Service, States 
(New Mexico and Texas), and academic partners are conducting monitoring 
efforts, and plans for captive propagation efforts are underway, but 
none are finalized yet.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, 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 protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat. 
The Secretary may exclude an area from critical habitat if she 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such areas as part of critical habitat, unless she 
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.

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Previous Federal Actions

    Please refer to the proposed listing and critical habitat rule (85 
FR 77108) for the peppered chub published on December 1, 2020, for a 
detailed description of previous Federal actions concerning this 
species.

Summary of Changes From the Proposed Rule

    We reviewed the comments related to our proposed listing 
determination and critical habitat for the peppered chub (see Summary 
of Comments and Recommendations, below), completed our analysis of 
areas considered for exclusion under section 4(b)(2) of the Act, 
reviewed our analysis of the physical or biological features essential 
to the long-term conservation of the peppered chub, and finalized the 
economic analysis of the designation. This final rule incorporates 
changes from our 2020 proposed listing and critical habitat rule (85 FR 
77108; December 1, 2020) based on the comments that we received and 
have responded to in this document and considers efforts to conserve 
the peppered chub.
    Specifically, during the public comment period for the proposed 
rule, we received a request to exclude critical habitat from the State 
of Kansas because of an ongoing effort to include peppered chub in a 
candidate conservation agreement with assurances (CCAA) and a safe 
harbor agreement (SHA). The Kansas Aquatic Species Conservation 
Agreement: A Programmatic Safe Harbor Agreement and Candidate 
Conservation Agreement with Assurances for Fourteen Aquatic Species in 
Kansas (Agreement) was completed on December 15, 2021. The conservation 
efforts that will be undertaken because of the Agreement, and 
subsequent benefit to the species, outweigh the benefits of including 
these areas in the critical habitat designation. Based on our analysis, 
which incorporates the value of the Agreement, we are excluding Unit 3 
and a portion of Unit 4 in Kansas, a net decrease of 196 river miles 
(rmi) from the proposed rule (table 3, below). More information can be 
found below in the Exclusions section.

Summary of Comments and Recommendations

    In the proposed rule published on December 1, 2020 (85 FR 77108), 
we requested that all interested parties submit written comments on the 
proposal by February 1, 2021. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
USA Today on December 3, 2020. We did not receive any requests for a 
public hearing.
    During the comment period on the proposed listing and critical 
habitat rule, we received approximately 22 written comment letters. All 
substantive information received during the comment period has either 
been incorporated directly into this final determination or addressed 
in our responses below.

Peer Reviewer Comments

    As discussed in Supporting Documents above, we received comments 
from one peer reviewer. We reviewed all comments we received from the 
peer reviewer for substantive issues and new information regarding the 
information contained in the species status assessment (SSA report). 
The peer reviewer generally concurred with our methods and conclusions, 
and provided additional information, clarifications, and suggestions 
that improved the SSA report.

Comments From States

    (1) Comment: Multiple State agency and industry commenters did not 
support designating unoccupied critical habitat within those States. 
Several indicated their view that the proposed unoccupied units would 
not support peppered chubs in their current conditions.
    Our response: Section 3(5)(A) of the Act defines critical habitat 
as (i) the specific areas within the geographical area occupied by the 
species, at the time it is listed, 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 
protections; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
by the Secretary that such areas are essential for the conservation of 
the species. Unoccupied areas designated as critical habitat are not 
limited to areas that could support a self-sustaining population in 
their current condition but rather must contain at least one of the 
physical or biological features (PBFs) determined by the Secretary to 
be essential for the conservation of the species (50 CFR 424.12).
    The areas that we have identified as critical habitat that are 
unoccupied contain at least one of the PBFs required by the peppered 
chub and are essential for the conservation of the species. The areas 
are more fully described below in the individual unit descriptions. 
Establishing healthy populations in these two currently unoccupied 
units (Unit 2 and Unit 4) would increase the resiliency, 
representation, and redundancy--and therefore, the viability--of the 
species. If established, each unoccupied unit contributes ecological 
diversity (representation) or guards against catastrophic events 
(redundancy) or both.
    (2) Comment: A State and multiple public commenters stated that 
designation of both occupied and unoccupied critical habitat would 
discourage private landowners from allowing access for monitoring and 
habitat restoration, as well as participating in reintroduction 
efforts.
    Our response: According to section 4(a)(3)(A) of the Act, the 
Secretary of the Interior shall, to the maximum extent prudent and 
determinable, concurrently with making a determination that a species 
is an endangered species or a threatened species, designate critical 
habitat for that species. As directed by the Act, we proposed as 
critical habitat those areas occupied by the species at the time of 
listing and that contain the physical or biological features essential 
for the conservation of the species, which may require special 
management considerations or protection. The Act does not provide for 
any distinction between land ownerships in those areas that meet the 
definition of critical habitat.
    When prudent, the Service is required to designate critical habitat 
under the Act. The Act does not authorize the Service to regulate 
private actions on private lands or confiscate private property as a 
result of critical habitat designation. Designation of critical habitat 
does not affect land ownership, or establish any closures, or 
restrictions on use of or access to the designated areas. 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.
    The designation of critical habitat has little effect on private 
lands. This designation provides protection under section 7 of the Act 
and requires only Federal agencies to consult with the Service and 
ensure that any action they authorize, fund, or carry out is not likely 
to result in the destruction or adverse modification of critical 
habitat. Because of this, we hope that we can continue our partnerships 
with local landowners within the historical range of the

[[Page 11190]]

peppered chub and move collaboratively towards recovery of the species.
    (3) Comment: Several commenters stated that the designation of 
critical habitat is unnecessary because it would not provide any 
additional benefit to the species, and that existing regulatory 
mechanisms and habitat restoration efforts (e.g., the Arkansas River 
Shiner Management plan) are adequate for the conservation of the 
species.
    Our response: The Service is not relieved of its statutory 
obligation to designate critical habitat based on the contention that 
it will not provide additional conservation benefit. In Ctr. for 
Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), 
the court held that the Act does not direct us to designate critical 
habitat only in those areas where ``additional'' special management 
considerations or protection is needed. See also Cape Hatteras Access 
Preservation Alliance v. U.S. Dept. of Interior, 731 F.Supp.2d (D.D.C. 
2010). If any area provides the PBFs essential to the conservation of 
the species, even if that area is already well managed or protected, 
that area may still qualify as critical habitat under the statutory 
definition.
    The Canadian River Municipal Water Authority's Arkansas River 
Shiner Management Plan aims to maintain minimum flows and control 
invasive vegetative (e.g., saltcedar) encroachment in the South 
Canadian River upstream of Lake Meredith in Texas to Logan, New Mexico. 
Although we commend the Canadian River Municipal Water Authority and 
its partners for investing time, effort, and funding for conservation 
on the Canadian River, the habitat conservation efforts for Arkansas 
River shiner to date have not resulted in an improvement of the status 
of the peppered chub. In identifying critical habitat for peppered 
chub, we identified those areas that meet the definition of critical 
habitat under section 3(5)(A) of the Act. Although management actions 
for one listed species may overlap other species' habitat or be 
mutually beneficial to multiple listed species, our analysis indicates 
that habitat conditions such as adequate stream flow and appropriate 
stream geomorphology have continued to decline from the condition 
needed to conserve the peppered chub. As a result, we conclude that 
this conservation plan, in its current form, is not sufficient to 
reduce the threats to the last population of peppered chub. Even with 
this conservation plan in place, the current resiliency of the Upper 
South Canadian River Resiliency Unit is in low condition.
    (4) Comment: Several commenters took issue with the SSA report not 
being peer reviewed at the time of the publication of the proposed 
rule. One commenter stated that the proposed rule format does not 
comply with the ESA and applicable implementing regulations in relying 
on an SSA that is not peer reviewed. The commenter cites the Service's 
peer review policy (59 FR 34270; July 1, 1994) and section II of the 
Office of Management and Budget's (OMB) December 16, 2004, Final 
Information Quality Bulletin for Peer Review (revised June 2012), which 
both require agencies to conduct peer review on influential scientific 
information prior to dissemination.
    Our response: Section II of the OMB December 16, 2004, Final 
Information Quality Bulletin for Peer Review requires each agency to 
subject influential scientific information to peer review prior to 
dissemination. The document further requires that, for dissemination of 
influential scientific information, agencies have broad discretion in 
determining what type of peer review is appropriate and what procedures 
should be employed to select appropriate reviewers. The Service follows 
its peer review policy (59 FR 34270), also referenced by the commenter. 
Section A(1)(a) of the peer review policy states that the Service will 
solicit the expert opinions of three appropriate and independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to the taxonomy, population models, and supportive 
biological and ecological information for species under consideration 
for listing. The policy does not state that the peer review must occur 
prior to the comment period for a proposed listing nor that the Service 
is required to receive responses from peer reviewers prior to the 
comment period provided for the proposed listing.
    The Service actively sought peer review of the SSA and proposed 
rule as required by both the Final Information Quality Bulletin for 
Peer Review and the Service's peer review policy. We solicited peer 
review from nine independent peer reviewers on December 4, 2020. Since 
publication of the proposed rule, we solicited peer review a second 
time and received a response from one peer reviewer. Per the peer 
review policy, we summarize the peer review we received here in the 
Peer Reviewer Comments section.
    (5) Comment: One commenter stated that current restoration efforts, 
which depend on Federal funding, include the treatment of nonnative 
invasive species, mastication of standing dead invasive species, 
installation of riparian fencing where necessary, and maintenance of 
previously treated areas. Due to the dependence on Federal funding, any 
successful restoration efforts would be delayed and constrained by the 
consultation requirements imposed by the peppered chub's listing and 
critical habitat designation.
    Our response: The Act states that the Secretary shall make 
determinations required by subsection (a)(1) of the Act solely on the 
basis of the best scientific and commercial data available to her after 
conducting a review of the status of the species. Listing decisions are 
not dependent on possible funding delays caused by new consultation 
requirements imposed by the listing. However, critical habitat 
designations do consider the economic impacts including section 7 
consultations. We conducted an economics analysis that found that there 
was likely to be no significant economic impact from this designation 
of critical habitat and that the additional costs are expected to be 
due to the additional incremental administrative costs from the 
consultation process in considering adverse modification of the 
critical habitat (IEc 2019, Section 6).
    Additionally, as stated below in the Available Conservation 
Measures section, following publication of this final rule, funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the States of Colorado, 
Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal 
funds to implement management actions that promote the protection or 
recovery of the peppered chub.
    (6) Comment: Several States and one industry commenter raised 
concerns about how the listing and designation of critical habitat will 
affect deliveries of water from reservoirs and groundwater pumping for 
municipal use and agriculture, and the potential regulatory and 
financial burdens of the proposed action on water delivery and use.
    Our response: Additional information about how we conducted our 
economic analysis, and how we incorporated water delivery and use, can 
be found in our screening memo (IEC 2019, entire) and our incremental 
effects memo (Service 2019, entire). The designation of critical 
habitat would not impose any such regulatory or financial burdens on 
non-Federal actions such as those indicated, where no Federal nexus

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exists. Groundwater pumping that does not occur on Federal lands would 
not be subject to regulation under section 7, so long as there is no 
Federal nexus. Further, no reservoirs and dams occur within the 
designated critical habitat units and would only be subject to section 
7 consultation if there is a Federal nexus and an upstream dam may 
adversely modify the critical habitat designation. Additionally, when 
there is a Federal nexus, under section 7 of the Act when evaluating 
the effects on critical habitat, we consider impacts from ongoing State 
water management operations that are not within the agencies' 
discretion to modify to be part of the baseline of an effects analysis. 
Service policy states that section 7 consultation should result in 
measures that minimize the impacts of incidental take to the extent 
reasonable and prudent (Endangered Species Consultation Handbook, 4-50 
(March 1998)). They should be developed in coordination with the action 
agency and applicant, if any, to ensure that the measures are 
reasonable, that they cause only minor changes to the project, and that 
they are within the legal authority and jurisdiction of the agency or 
applicant to carry out. Therefore, they must be implementable under the 
legal regimes that apply in the situation being analyzed.
    (7) Comment: Several commenters state that introducing section 
10(j) experimental populations within the unoccupied critical habitat 
units stand a greater chance of making significant progress toward 
recovery of the species than does continued regulation of critical 
habitat and potential associated litigation.
    Our response: The Service has determined that the areas being 
designated as unoccupied critical habitat units are essential for the 
conservation of the species. Therefore, they meet the Act's definition 
of critical habitat and should be designated as such. Further, we find 
that section 10(j) experimental population would not provide for the 
protection for the habitat within these areas that we have determined 
is needed for the conservation of the species.
    (8) Comment: Two commenters raised concerns that the use of 
relative abundance as presented lacked scientific rigor and is being 
inappropriately interpreted. The commenters argued that conducting a 
trend analysis with relative abundance data provides weak evidence of 
one species' resiliency. Further, it is potentially misleading because 
it is affected by changes in abundance of other species in the catch, 
which may have no bearing on the status of the target species.
    Our response: Using relative abundance (also referred to as percent 
composition) to infer species abundance is not appropriate and would be 
misleading, as it is inherently driven by the abundance of other 
species. Although measures of absolute abundance and densities would 
have provided additional useful metrics for our resiliency analysis, 
the analysis was not possible due to data limitations. Instead, we 
calculated relative abundance to standardize the data (Anderson et al. 
1995, p. 315; Brewer et al. 2007, p. 328; Perkin and Gido 2011, p. 
373). As discussed in our SSA report, we assessed relative abundance 
``as one means to evaluate potential shifts in fish community 
structure'' (not overall abundance), which is well established in the 
literature (Mendelson and Jennings 1992, entire; Weaver and Garman 
1994, pp. 163, 166; Bonner and Wilde 2000, pp. 192-194; Onorato et al. 
2000, pp. 142, 145-152). Potential change in community structure is one 
important indicator of ecosystem change and has implications for 
species resiliency within that system. We also examined two relative 
abundance metrics (Baseline Condition and Trend Analysis), but only the 
former was included as a metric for assessing peppered chub resiliency. 
Due to limited data for peppered chub, we determined that the quasi-
Poisson regression that we used for trend analysis (which does account 
for variability in the data) was not appropriate for that species.
    Regarding the comment that the use of relative abundance data alone 
provides weak evidence of population resiliency, we agree. One should 
not draw conclusions from this measure alone assessing the resiliency 
of a population. As provided in our SSA, resiliency analyses for 
peppered chub considered eight metrics: Three examining population 
demographics and five examining habitat/flow metrics.
    (9) Comment: One commenter noted that the SSA considered the decade 
with the highest capture ratios (1990s; 95 percent) to be the baseline 
condition and deemed ``good'' condition to be within 20 percent of that 
scenario. The commenter argued that capture ratios in no other decade 
approach 95 percent, suggesting that this may be an anomalously high 
number rather than a true baseline.
    Our response: We evaluated the overall resiliency of each 
population of peppered chub using eight different metrics, one of those 
metrics was the capture ratio. Our capture ratio assessment was based 
on approximately 70 years of survey data, including 555 unique survey 
events. We separated the analysis by decade to evaluate differences 
over time, while still providing adequate number of surveys (per 
decade) to determine an ``optimal'' reference condition for this 
population resiliency metric. The decade referenced by the commenter 
included a total of 185 surveys spanning a ten-year period. Given the 
large number of surveys and relatively long span of time (particularly 
for a species that spawns annually), it is our determination that this 
decade serves as a reasonable representation of optimal capture ratios 
for a peppered chub population. We should also note that using the next 
best decade (2000s) as our optimal reference condition would still have 
resulted in a `fair' resiliency score for this metric. Our database 
indicates a total of 185 fish collection surveys in the 1990s from the 
Upper South Canadian River between Ute Reservoir and Lake Meredith, of 
which 176 surveys collected at least one peppered chub, resulting in a 
capture ratio of 95 percent. This compares to the 2000s, at which time 
142 of 189 surveys (75 percent) collected peppered chub, and the 2010s 
during which the survey results were 48 of 101 (48 percent). Two 
variables that could artificially inflate the likelihood of capturing a 
peppered chub, thus affecting capture ratios, are greater survey effort 
and/or surveying locations more likely to have peppered chub. Neither 
of these two variables apply to the 1990s surveys. The total number of 
fish collected per site, on average, was greater in both the 2000s and 
2010s, indicating effort in those decades was greater than in the 
1990s. Additionally, the geographical distribution of surveys was 
relatively similar among decades, indicating that the higher ratios in 
the 1990s were not artificially driven by surveying sites more likely 
to have peppered chub. Based on information from our survey database, 
capture ratios of 95 percent in the 1990s correctly represent peppered 
chub presence at that time.
    (10) Comment: One commenter stated that the proposed rule overly 
relies on the SSA for an evaluation of species threats under each of 
the five listing factors, and neither the proposed rule nor SSA 
provides a systematic factor-by-factor evaluation of threats. The SSA 
is not intended to evaluate the identified threats for a species under 
each of the five listing factors, as is done in a 12-month finding and 
proposed rule under section 4(a)(1) of the Act. The commenter argues 
that the Service has failed to provide the most fundamental

[[Page 11192]]

evaluation of the listing factors from the 12-month findings, as 
provided in section 4(a)(1) of the ESA.
    Our response: Under section 4(a)(1) of the Act, the Service may 
determine that a species is an endangered or threatened species based 
on any of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We are also required to consider any 
conservation measures made by any State or foreign nation regarding the 
species. The Service provided the evaluation of the listing factors in 
the proposed rule in The basis for our action section and the 
Determination of Peppered Chub Status section (85 FR 77108; December 1, 
2020).
    Using the SSA framework results in a biological risk assessment, 
the SSA report, which is designed to aid decisionmakers who must use 
the best available scientific information to make policy-guided 
decisions. The SSA informs, but is not, the decision. Using the 
conservation biology principles of representation, resiliency, 
redundancy, the SSA provides a scientifically rigorous characterization 
of species status that focuses on the likelihood that the species will 
sustain populations within in the wild beyond a biologically meaningful 
timeframe, its level of viability, along with key uncertainties in that 
characterization.
    The Determination of Peppered Chub Status section clearly 
articulates how we arrived at our determination for an endangered 
status using the five factors from section 4 of the Act (16 U.S.C. 
1533).
    (11) Comment: One commenter asserted that the proposed rule relies 
on a paradigm that the peppered chub eggs and larvae need high water to 
keep the propagules suspended with subsequent return of fish to natal 
areas, tens or hundreds of miles upstream. The commenter argues that 
this paradigm ignores an alternative paradigm that the semi-buoyant 
eggs and larvae were historically retained near natal areas in 
laterally expansive floodplains and are now transported downstream 
because of a contemporary narrow and entrenched river channel. The 
commenter states that, in focusing on the perceived need to keep the 
propagules afloat with high water, the Service fails to recognize that, 
historically, most propagules probably did not drift longitudinally 
downstream but laterally into inundated floodplains and returned to the 
main channel with receding water levels.
    Our response: The proposed rule and SSA report recognize the 
potential utility of wetted floodplain habitats to support larval 
nursery habitat for peppered chub. The semi-buoyant eggs of peppered 
chub remain suspended in water until hatching, and thereby require 
currents to maintain suspension in the water column until sufficient 
development to a free-swimming stage (Bottrell et al 1964, p. 398; 
Robison and Buchanan 1988 p. 183; Wilde et al. 2000, p. 107). In more 
lentic habitats, eggs may be deposited on sediment and covered, leading 
to lack of oxygen and suffocation. This requirement for flows of some 
velocity does not necessarily translate to a need for ``high water'' in 
all natal areas. However, discharges of likely increased magnitude 
would be required for inundation of floodplains to serve as nursery 
habitats. Restored floodplains and managed river flows have potential 
to benefit peppered chub habitats. However, in recent history, there is 
often less water in the system and because of this water less 
frequently reaches the floodplain.
    Because the floodplains are less available for the reproduction of 
peppered chub, compared to historical conditions, river length is now 
more important for successful reproduction. The proposed rule and SSA 
use reach length as an indicator of habitat condition, since fish can 
successfully reproduce given adequate uninterrupted stream length as 
well. Sufficient reach length is needed to allow the time necessary for 
development of eggs and larvae floating downstream until they reach a 
motile, free-swimming stage. Larval fish may require strong currents to 
keep them suspended until they are capable of horizontal movement and 
are strong enough to leave the main channel. Physical barriers are 
likely unpassable by egg and larval fishes, and adults passing 
downstream remain isolated and unable to move downstream. This 
situation results in progressive impacts over time from upstream to 
downstream. Longer reach lengths may not be necessary to meet the needs 
of an individual peppered chub within its short lifetime. By 
facilitating reproduction and population growth, these unfragmented 
river segments guard against extirpation, and increase species 
resiliency. We are unaware of any data/information to conclude that a 
wetted floodplain in close proximity to natal areas would have the 
velocities to keep eggs buoyant for the appropriate amount of time 
necessary for fry development.
    (12) Comment: One commenter notes the discrepancies among 
definitions of proposed critical habitat for peppered chub (up to 
bankfull) and existing definitions of critical habitat for Arkansas 
River shiner (300 feet on each side of the river channel at bankfull) 
and the sharpnose and smalleye shiners (areas beyond the bankfull river 
channel by 98 feet on each side). The commenter recommends that these 
discrepancies be better explained and justified, as areas above 
bankfull discharge are important to provide food sources and are 
subject to encroachment by saltcedar and other invasive vegetation that 
translate into impacts on river geomorphology, instream habitat for 
imperiled fishes, and stream flows.
    Our response: Adjacent upland or terrestrial areas that are not 
below the ordinary bankfull (or high-water line) are not included in 
designated critical habitat. However, we would anticipate conducting 
section 7 consultations with Federal agencies for projects on Federal 
lands or for projects with a Federal nexus if a project had indirect 
impacts to the peppered chub's critical habitat or on the species 
itself. In general, activities in riparian areas should be conducted in 
such a manner as to protect adjacent streams. See Physical or 
Biological Features Essential to the Conservation of the Species 
(below). Where a landowner 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 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.

Public Comments

    (13) Comment: One commenter stated that oil and gas activity is 
widespread and designation of unoccupied critical habitat would impose 
unnecessarily significant costs without providing measurable, probable 
benefits for the protection of the species. These costs may preclude or 
render economically impractical oil and gas activities preventing 
private landowners from developing their minerals. Another commenter 
was concerned that the Service had not clearly delineated in the 
proposed rule to what extent, in the geographic areas occupied by the 
species, that livestock production might be subject to a section 9 
enforcement and what economic impact such a critical habitat 
designation might have.

[[Page 11193]]

    Our response: The designation of critical habitat would not impose 
any such regulatory or financial burdens on non-Federal actions for 
private landowners such as those indicated, so long as there was no 
Federal nexus. If there is a Federal nexus and the action of the 
Federal agency may affect the species or its critical habitat 
designation, then the Federal agency would need to consult with the 
Service. We do identify oil and gas exploration and extraction 
activities as an activity that may require consultation to avoid 
adversely modifying critical habitat, under section 7(a)(2) of the Act 
and if there is a Federal nexus. If during consultation with a Federal 
agency, the Service finds that an activity is likely to adversely 
modify a critical habitat designation, the Service will work with the 
Federal agency to identify reasonable and prudent alternatives. 
Livestock production and exploration and extraction were taken into 
consideration during our economic analysis. For each unit, we found 
that there would be a non-significant incremental administrative cost 
from the designation to the Service and the Action agencies (IEc 2019, 
pg. 2). For further information, the full economic screening analysis 
can be viewed on https://www.regulations.gov.
    Section 9 of the Act covers prohibited acts as they relate to 
endangered species. The actions outlined in section 9 of the Act are 
prohibited after the effective date of this rule (see DATES, above). 
However, in the Available Conservation Measures section (below), we 
identify activities that are unlikely to result in a violation of 
section 9, if these activities are carried out in accordance with 
existing regulations and permit requirements. In that list we include, 
normal livestock grazing and other standard ranching activities within 
riparian zones that do not destroy or significantly degrade peppered 
chub habitat. We had also included this in the proposed rule as well 
(85 FR 77108).
    (14) Comment: One commenter noted that the proposed rule suggests 
the Act would allow normal livestock grazing and other standard 
ranching activities within riparian zones that do not destroy or 
significantly degrade peppered chub habitat. However, the proposed rule 
does not identify what livestock activities would not constitute normal 
livestock grazing.
    Our response: We are not able to provide an exhaustive list of what 
activities would and would not constitute normal livestock grazing. 
However, activities that do not result in a violation of section 9 of 
the Act and are not subject to a Federal nexus would not be subject to 
section 11 (penalties and enforcement) of the Act. Based on our section 
7 consultation experience within the historical range of peppered chub 
and because we contacted Federal agencies during our economics analysis 
and they did not comment on an increase in consultation for grazing 
(while they did anticipate increases in consultations for other 
activities; IEc 2019, entire), we anticipate consultations to be rare 
for grazing and ranching activities. We encourage all local landowners 
with questions specific to their property or project to contact their 
local Ecological Services Field Office. A list of field offices and 
their contact information can be found at: https://www.fws.gov/ecological-services/map/directory.html.
    (15) Comment: One commenter stated that the economic impact 
analysis does not discuss what impact the proposed critical habitat 
designation would have on Confined Animal Feeding Operations that 
discharge under Clean Water Act section 402 permits. Typically, each 
feedyard with over 1,000 head of cattle will have and maintain a 
National Pollution Discharge Elimination System (NPDES) permit under 
section 402 of the Clean Water Act. These permits are subject to 
renewal every 5 years. Under the proposed rule, feedyards with NPDES 
permits in the river basins where critical habitat is being proposed 
would likely be required to undergo a section 7 consultation.
    Our response: We considered animal feeding operations in our 
incremental effects memo (IEM) (IEM 2019, p. 9). Additionally, 
pollutant discharge and consultations with the Environmental Protection 
Agency were covered in the screening analysis that would cover the 
activity mentioned by the commenter (IEc 2019, pp. 7 & 8). The 
screening analysis found that the rule is unlikely to meet the 
threshold for an economically significant rule, with regard to costs 
(IEc 2019, pg. 2). Both documents can be found at: https://www.regulations.gov; Docket No. FWS-R2-ES-2019-0019.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the Arkansas River shiner (Notropis girardi) and the peppered chub. The 
SSA team was composed of Service biologists, in consultation with other 
species experts. The SSA report represents a compilation of the best 
scientific and commercial data available concerning the status of these 
species, including the impacts of past, present, and future factors 
(both negative and beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we sought peer review of the SSA report. 
We sent the SSA report to nine independent peer reviewers during two 
separate peer review requests and received one response. We solicited 
peer review a second time because we received no responses to our first 
request. The purpose of peer review is to ensure that our listing 
determinations and critical habitat designations are based on 
scientifically sound data, assumptions, and analyses. The peer reviewer 
who responded has expertise in the biology, habitat, and threats to 
several broadcast-spawning fish species. The Service also sent the SSA 
report to 21 partners, including scientists with expertise in peppered 
chub threats and habitat, for review. We received review from eight 
partners (Colorado Parks and Wildlife, New Mexico Game and Fish, Texas 
Parks and Wildlife, two individuals from Oklahoma Department of 
Wildlife Conservation, and three individuals from universities in 
Oklahoma). Information received from the peer reviewer and partners is 
incorporated into this final rule and informed our determination. We 
also considered all comments and information received from the public 
during the comment period.

I. Final Listing Determination

Background

    A full description of the species and its habitat can be found in 
chapter 2 of the SSA report. The peppered chub was historically known 
throughout the Arkansas River basin in Colorado, Kansas, New Mexico, 
Oklahoma, and Texas. Peppered chub were typically found in main 
channels of wide, shallow, sandy-bottomed rivers. The species prefers 
shallow channels where currents flow over clean fine sand, and, 
generally, adults avoid calm waters and silted stream bottoms. Peppered 
chub have adapted to tolerate the adverse conditions of the drought-
prone prairie streams that they inhabit. The peppered chub is a small 
cyprinid minnow with a fusiform (tapering at both ends) body shape 
rapidly tapering to a conical head. It has a nearly transparent slender 
body with dark dots scattered on its back. Generally, adult fish reach 
a maximum length of 3 inches (in) (77 millimeters (mm)) and do not live 
beyond 2 years.
    Gilbert first described the peppered chub in 1886 (pp. 208-209). 
Prior to Eisenhour's 1999 dissertation

[[Page 11194]]

(published 2004), the peppered chub was classified as one of six 
subspecies within the Macrhybopsis aestivalis (commonly: Speckled chub) 
complex. Eisenhour examined morphometrics (measurements of external 
shape), meristics (counts of features of fish), pigmentation, and 
tuberculation across the range of the complex. He concluded that the 
results supported the recognition of five individual species, including 
Macrhybopsis tetranema, or peppered chub. The American Fisheries 
Society also accepts the species as the peppered chub (Page et al. 
2013, p. 28).
    Habitat for the peppered chub historically consisted of the main 
channels of wide, shallow, sandy-bottomed rivers and larger streams of 
the Arkansas River basin, with a noted preference for river segments 
nearer the headwaters, as compared to other Macrhybopsis in the 
Arkansas River basin. Adults prefer shallow channels where currents 
flow over clean fine sand and generally avoid calm waters and silted 
river bottoms. Peppered chub have key adaptations that enable them to 
tolerate the adverse conditions of the drought-prone prairie rivers 
that they inhabit, including a relatively high capacity to endure 
elevated temperatures and low dissolved oxygen concentrations. They 
also appear to be often associated with turbid waters.
    Peppered chub are members of a reproductive guild that broadcast-
spawn semibuoyant eggs, which remain suspended in the water column by 
the current until hatching. This reproductive strategy appears to be an 
adaptation to highly variable environments where stream flows are 
unpredictable and suspended sediment deposition can cover eggs laid in 
nests or crevices. Without continuous stream flow of sufficient 
distance, eggs sink to the bottom where they may be covered with silt 
and suffocate due to the lack of oxygen. In addition to adequate stream 
discharge, an appropriate reach length is also needed to allow the time 
necessary for egg and larval development into a motile, free-swimming 
stage. After hatching, flowing water provides the extended development 
time needed by larval fish. Larval fish may require strong currents to 
keep them suspended in the water column until they are capable of 
horizontal movement and until the fish are strong enough to leave the 
main channel.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species. The 
Act defines an ``endangered species'' as a species that is in danger of 
extinction throughout all or a significant portion of its range, and a 
``threatened species'' as a species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether any species is an endangered species or a threatened species 
because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be listed as an endangered or 
threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket

[[Page 11195]]

FWS-R2-ES-2019-0019 on https://www.regulations.gov.
    To assess peppered chub viability, we used the three conservation 
biology principles of resiliency, redundancy, and representation 
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the 
ability of the species to withstand environmental and demographic 
stochasticity (for example, wet or dry, warm, or cold years), 
redundancy supports the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation supports the ability of the species to adapt over 
time to long-term changes in the environment (for example, climate 
changes). In general, the more resilient and redundant a species is and 
the more representation it has, the more likely it is to sustain 
populations over time, even under changing environmental conditions. 
Using these principles, we identified the species' ecological 
requirements for survival and reproduction at the individual, 
population, and species levels, and described the beneficial and risk 
factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. For a more detailed 
description, refer to the SSA report (Service 2022, entire) and the 
proposed rule (85 FR 77108; December 1, 2020).

Summary of Analysis

    A full description of our analysis (analytical methods, threats, 
current condition, and future condition for the peppered chub can be 
found in the SSA report (Service 2022); below, we present a summary of 
the results of the SSA.
    The peppered chub is a small cyprinid minnow once widespread and 
common in the western portion of the Arkansas River basin in Kansas, 
New Mexico, Oklahoma, Arkansas, and Texas.
    Habitat historically consisted of the main channels of wide, 
shallow, sandy bottomed rivers and larger streams of the Arkansas River 
basin, with peppered chubs appearing more adapted for headwater areas. 
Adults prefer shallow channels where currents flow over clean fine 
sand, and generally avoid calm waters and silted stream bottoms. 
Peppered chub have adapted to tolerate the adverse conditions of the 
drought-prone prairie streams they inhabit, including a high capacity 
to endure elevated temperatures and low dissolved oxygen 
concentrations.
    Peppered chub are members of a reproductive guild that broadcast 
spawns semibuoyant eggs, which are kept suspended until hatching in 
flowing water. This reproductive strategy appears to be an adaptation 
to highly variable environments where stream flows are unpredictable 
and suspended sediments and shifting sand can cover eggs laid in nests 
or crevices. Without stream flow, eggs sink to the bottom where they 
may be covered with silt and die. After hatching, adequate stream 
length likewise provides the extended flow time needed by larval fish 
which may require strong currents to keep them suspended in the water 
column until they are capable of horizontal movement and strong enough 
to leave the main channel. Channel complexity is also correlated with 
stream length resulting in slower transport rates in streams with wider 
and more braided channel morphology which allow more time for 
developing eggs and larva to reach their free-swimming stage.
    The peppered chub historically inhabited numerous rivers of the 
Arkansas River basin and, without the presence of dams or other 
structures, it is likely that individuals within populations exhibited 
some level of genetic exchange among these rivers. To analyze 
population-level resiliency, we divided the range of the peppered chub 
into five ``resiliency units'' or populations (we use those terms 
interchangeably in this document) (see figure below; we do not include 
the Lower Arkansas River in the resiliency units for the SSA for the 
peppered chub because that portion of the watershed is not part of the 
current or historical range of the species). We described population 
resiliency and assessed representation and redundancy among these 
units. However, to assess conditions within each resiliency unit at a 
somewhat finer scale, we subdivided each resiliency unit into multiple 
subunits. This downscaling allows us to compare differences in 
conditions within a given resiliency unit and to understand the drivers 
affecting current condition (see the SSA report for further details).

[[Page 11196]]

[GRAPHIC] [TIFF OMITTED] TR28FE22.000

    Maintaining representation in the form of genetic or ecological 
diversity is important to maintain the peppered chub's capacity to 
adapt to future environmental changes. The peppered chub must retain 
populations throughout its range to maintain the overall potential 
genetic and life-history attributes that can buffer the species' 
response to environmental changes over time. We define redundancy for 
the peppered chub as multiple, sufficiently resilient populations 
distributed throughout the species' historical range. Thus, multiple, 
adequately resilient populations, coupled with a relatively broad 
distribution, contribute to species-level viability.

Risk Factors for Peppered Chub

    Stressors affecting the viability of the peppered chub include 
altered flow regimes (Factor A), impoundments and other stream 
fragmentation (Factor A), modified geomorphology (Factor A), decreased 
water quality (Factor A), and the introduction of invasive species 
(Factors A and C). The source of many of these stressors is the 
construction of dams and their impoundments (a body of water confined 
within an enclosure) which, in most cases, has drastically altered the 
natural flow regime and fragmented habitat. For example, a U.S. 
Geological Survey (USGS) stream gage on the Canadian River (near 
Amarillo, Texas) in the Lower South Canadian River resiliency unit has 
had a 69 percent decline in mean hydroperiod from pre-impoundment to 
post-impoundment, and the mean daily discharge (post-impoundment) is 
markedly lower (68 percent decline) since the completion of the 
reservoir. For a detailed description of the risk factors for peppered 
chub, see chapter 3 of the SSA report (Service 2022, pp. 22-38), below 
is only a summary of the risk factors.
Altered Flow Regimes
    Peppered chub need a combination of varying flows (timing, 
duration, and magnitude) to support viable populations and maintain 
suitable habitat. Low flow periods (including isolated pooling) can 
impair or eliminate appropriate habitat for the species, and while 
adult peppered chub are adapted to and can typically survive these 
events for a short time, populations that regularly experience these 
conditions face compromised reproductive success and may not persist. 
Flow regime alterations that we considered during the SSA process 
include dams and their associated impoundments, the effects dams have 
on the natural flow regime, surface and groundwater extraction, and the 
effect of climate change on precipitation and drought.
Stream Fragmentation
    Dams often fragment aquatic habitat and create impassable physical 
barriers to fish movement. Juvenile and adult peppered chub would 
likely be capable of passing downstream through small fish barriers 
such as weirs (low dams built to raise the level of water upstream), 
low-water crossings, and natural or manmade falls. However, no life 
stage of peppered chub is likely capable of successfully passing 
downstream through most reservoirs large enough to act as water supply 
or hydroelectric sources. Likewise, due to the small size and limited 
swimming ability of the peppered chub, upstream movement of adults 
(during spawning) would likely be prohibited by any impoundments 
(regardless of type or function), weirs, falls, pipeline reinforcements 
structures, and some low-water crossings.
    It is unlikely that egg and larval stages of peppered chub are 
capable of passing over a fish barrier. When fish (typically adults 
only) pass downstream of a smaller barrier, they remain isolated below 
the barrier and are unable to return to spawning areas upstream. This 
often results in incremental and progressive extirpation from an 
upstream to downstream direction (Perkin and Gido 2011, p. 374). 
Because of its need for flowing water to reproduce, peppered chub have 
been

[[Page 11197]]

eliminated from shorter (generally less than 136 mi) reaches and 
typically persist only in river segments that are above a minimum 
threshold (Perkin and Gido 2011, p. 374). In addition, the blocking of 
movement of adult fish limits their ability to seek suitable habitat in 
more perennial, headwater reaches during drought conditions.
Modified Geomorphology
    Decreases in stream flows in the South Canadian River have 
contributed to the decline or loss of wide, shallow sand-bed river 
channels that are characteristic of peppered chub habitat. Impoundments 
often reduce the magnitude and frequency of high flows, leading to bank 
stabilization and channel narrowing; alter streambank riparian 
communities; restrict downstream transport of nutrients that support 
ecosystem development; and alter river substrate (Poff et al. 1997, pp. 
773-777; Mammoliti 2002, pp. 223-224). Impoundments also alter 
streamflow by reducing the availability or timing of water, leading to 
more frequent low-flow conditions, channel drying, pool isolation, and 
vegetative encroachment into the river channel. Reduction in flows 
reduces the peppered chub's reproductive success and decreases 
population resiliency.
    Additional alteration of historical physical habitat occurs when 
dams release sediment-starved water that alters the composition and 
distribution of the bed substrate. River and stream water velocity 
slows rapidly where water enters the standing water of reservoirs, 
resulting in the settlement of suspended sediment within the reservoir 
(Poff et al. 1997, p. 773). The resulting release of low turbidity, 
high-velocity water from dams scours the downstream reaches, causing 
the channel to incise and become further isolated from its natural 
floodplain. Further, such dam releases remove sand and gravel substrate 
preferred by the peppered chub. Decreased turbidity provides a 
competitive advantage to fishes that are not as well adapted to the 
naturally turbid water. When water is released from a main channel 
reservoir, fish species adapted to naturally turbid conditions of the 
South Canadian River, such as the peppered chub, are displaced by fish 
with competitive advantage in less turbid conditions, resulting in a 
reduction in available habitat and increased predation (Bonner and 
Wilde 2002, pp. 1205-1206), thereby negatively influencing species 
distribution and abundance.
Degraded Water Quality
    Suitable water quality is necessary for a healthy aquatic 
community. Water quality may become impaired through direct 
contamination or the alteration of freshwater chemistry. Contaminants 
enter the environment through both point and nonpoint sources including 
spills, industrial pathways, municipal effluents, and agricultural 
runoff. These sources may contribute organic compounds, heavy metals, 
pesticides, herbicides, and a wide variety of newly emerging 
contaminants to the aquatic environment. An additional type of water 
quality impairment is the alteration of water quality parameters such 
as dissolved oxygen, temperature, and salinity levels. Dissolved oxygen 
levels may be reduced due to increased nutrient levels (i.e., nitrogen 
and phosphorous) from agricultural runoff or wastewater effluent 
(eutrophication). Increased water temperature from more frequent low-
flow/drought conditions and climate change can also exacerbate low 
dissolved oxygen levels, particularly when low-flow conditions strand 
fish in isolated pools. Similarly, fish stranded in isolated pools can 
be subjected to naturally concentrated salinity. Additionally, many 
freshwater systems and shallow aquifers have become increasingly saline 
due to salinized water recharge (Hoagstrom 2009, p. 35). This effect 
largely stems from irrigation return flows that have flushed 
accumulated salts from irrigated lands back into the system.
    Chloride concentrations have been increasing in the upper South 
Canadian River (Service 2022, p. 127). Additionally, arsenic levels in 
many of the rivers within the historical range of the peppered chub are 
above the Environmental Protection Agency's established levels for 
human health for the consumption of organisms but not above levels 
designed to protect freshwater aquatic communities. Arsenic levels have 
increased over time in the Cimarron River to the point that golden 
shiners (Notemigonus crysoleucas) exhibited avoidance behavior even 
though concentrations were below a toxic level (Hartwell et al. 1989, 
p. 452). It is a reasonable presumption that peppered chub would also 
demonstrate avoidance behavior at similar concentrations of arsenic, 
causing peppered chub distribution and movements to be disrupted, 
possibly further fragmenting or reducing the amount of available stream 
length necessary for all life stages.
Introduction of Invasive Species
    The alteration of the hydrologic regime and geomorphology of rivers 
resulting from impoundments can cause the proliferation of larger, 
piscivorous fish not normally associated with unimpounded prairie 
rivers. This fish community conversion is exacerbated by the transfer 
or stocking of game species in areas that have undergone hydrologic 
regime or geomorphologic alterations. These species may include 
smallmouth bass (Micropterus dolomieu), largemouth bass (Micropterus 
salmoides salmoides), Florida largemouth bass (Micropterus salmoides 
floridanus), striped bass (Morone saxatilis), and channel catfish 
(Ictalurus punctatus) (Howell and Mauk 2011, pp. 11-12), which may prey 
upon peppered chubs. In a system similar to the Arkansas River Basin, 
eighteen fish species were introduced or immigrated into the Solomon 
River basin following impoundment and increased competition from these 
nonnative species may have contributed to the decline of native fish 
species (Eberle et al. 2002, p. 182, 188). While peppered chub declines 
throughout the species' range cannot be fully attributed to predation 
by invasive fishes, a shifting fish community (to more lentic (still 
water) adapted species) throughout the Lower South Canadian River has 
coincided with the extirpation of the peppered chub throughout this 
lower basin. The Upper South Canadian River (between Ute Reservoir and 
Lake Meredith) is an exception, where the natural fish community is 
still mostly intact (Service 2022, pp. 66-68).

Synergistic Effects

    Many of the above-summarized risk factors may act synergistically 
or additively on the peppered chub. The combined impact of multiple 
stressors is likely more harmful than a single stressor acting alone. 
For example, resiliency of the peppered chub (in the Upper South 
Canadian River resiliency unit) is considered low due to river 
impoundment in combination with other stressors acting synergistically. 
The river is unimpeded for 179 river miles (288 river kilometers), 
which translates to a fair condition (see table 1, below). However, our 
flood frequency analysis in the Upper South Canadian River resiliency 
unit shows a decline to a level of null to fair, meaning flood events 
have significantly declined compared to historical conditions. As a 
result, the river channel has narrowed dramatically in many areas, 
resulting in unfavorable habitat for the peppered chub and a poor 
condition category for

[[Page 11198]]

this habitat metric. This condition limits the access to and formation 
of new habitat necessary for egg/larval retention and nursery. The 
hydroperiod (a comparison between pre-impoundment and post-impoundment 
discharge) has changed so that discharge is in a null (greater than 90 
percent decrease in discharge) to fair condition for peppered chub. 
Lastly, the low-flow conditions in the stretch are in a poor to fair 
condition, meaning that low-flow days are common or increasing and some 
areas are vulnerable to drying in drought years, which could affect the 
length of unimpeded river and lead to additional channel narrowing. For 
a full explanation of our habitat factor analysis, see chapter 4 of the 
SSA report.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Current Condition of Peppered Chub

    Our analysis of current condition of the peppered chub is based on 
numerous scientific publications from species experts who concluded 
that by the year 2000, the peppered chub had significantly declined and 
was isolated to the Ninnescah River in Kansas and the South Canadian 
River between Ute Reservoir in New Mexico and Lake Meredith in the 
Texas panhandle (Luttrell et al. 1999, p. 983; Eisenhour 1999, p. 975; 
Eisenhour 2004; Service 2022, pp. 53-57). More recently, we assessed 
the current condition using survey efforts from 1,826 collections (from 
2013 to 2017) with only 38 of those (2 percent) containing the peppered 
chub. Extensive recent survey efforts show that the peppered chub 
distribution is currently limited to the South Canadian River between 
Ute Reservoir in New Mexico and Lake Meredith in the Texas panhandle, 
which represents 6 percent of its historical range. The capture ratio 
in the Upper South Canadian River dropped to 45 percent, and peppered 
chubs were not collected in the Ninnescah River during this time.
    Historically, the peppered chub was known from five populations 
found in Colorado, Kansas, New Mexico, Oklahoma, and Texas. Several 
factors were responsible for the extirpation or abundance decline of 
the peppered chub in each of the resiliency units, as more fully set 
forth in the SSA report. However, habitat degradation and fragmentation 
has been primarily a result of water diversion and impoundments (i.e., 
dams). Thus, the single remaining population (Upper South Canadian 
River) has low resiliency (see table 1, below).
    We consider the peppered chub to have limited representation in the 
form of genetic and ecological diversity because only a single 
functioning population remains. Extirpated populations of peppered chub 
contained genetic and morphological variation that have been lost. The 
peppered chub has ``considerable stocks of genetic diversity'' within 
this single population; however, the species lacks the representation 
of species with multiple populations occurring across varying 
landscapes (Osborne 2017, p. 9). Despite restrictions of its range due 
to impoundments and other habitat alterations, and a decline in 
abundance, it is possible that genetic variation is sufficient to allow 
for survival in the naturally occurring conditions of the arid prairie 
stream environments in which the species evolved. However, it is 
unknown if this species has the genetic variability or the time 
required to adapt to continuing habitat and flow alterations.
    To assess resiliency within each unit, we analyzed capture ratios, 
probability of capture trends, and relative abundance (demographic 
factors). We also analyzed habitat factors that were determined to have 
the most influence on the species: Stream fragment length, channel 
narrowing, flood frequency, hydroperiod (changes to the annual 
hydrograph most relevant to the species' lifecycle), and low flow 
conditions (habitat/flow factors). See table 1, below. Overall 
condition rankings for each resiliency unit were determined by 
combining the three demographic factors and five habitat/flow factors. 
For a more detailed description of the condition categories, see 
chapter 4 in the SSA report.

                                                                        Table 1--Current Resiliency of the Peppered Chub
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Demographic factors                                                      Habitat factors *
                               ------------------------------------------------------------------------------------------------------------------------------------------------      Current
          Population                               Probability of       Relative       Stream fragment       Channel                                                               resiliency
                                  Capture ratio     capture trend       abundance          length           narrowing      Flood frequency     Hydroperiod        Low flow
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Arkansas (includes        [Oslash] **.....  [Oslash]........  [Oslash]........  Fair............  Fair to Good....  Poor and Good...  Poor and Good...  Poor and Good...  [Oslash].
 Ninnescah and Salt Fork).
Cimarron......................  [Oslash]........  [Oslash]........  [Oslash]........  Good............  Null to Good....  Null and Fair...  Poor and Fair...  Poor and Good...  [Oslash].
North Canadian................  [Oslash]........  [Oslash]........  [Oslash]........  Fair............  Null............  Null to Good....  Poor to Fair....  Poor to Good....  [Oslash].
Lower South Canadian..........  [Oslash]........  [Oslash]........  [Oslash]........  Good............  Null to Good....  Poor to Fair....  Poor to Fair....  Fair and Good...  [Oslash].
Upper South Canadian..........  Fair............  Good............  Poor............  Fair............  Poor............  Null to Fair....  Null to Fair....  Poor to Fair....  Low.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* The habitat factors are presented as gradients (to) or multiple conditions (and) per population. Because of the great lengths of the stream stretches, the habitat quality can vary widely
  throughout the unit. (See the SSA report for further information.)
** The [Oslash] symbol means null (having or associated with the value zero).

    Because the peppered chub has been extirpated from all but one 
resiliency unit, it has a higher risk of extinction from a catastrophic 
event, due to a lack of redundancy across its range, compared to 
historical conditions. See the SSA report for the complete current 
condition analysis for the peppered chub (Service 2022).

[[Page 11199]]

Future Condition of Peppered Chub

    As part of the SSA, we also developed multiple future condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by the peppered chub. Our scenarios 
included a continuation of existing trends scenario and a water 
conservation with flow trends stabilizing scenario, which incorporated 
the current risk factors continuing the same trajectory that they are 
on now. These future scenarios project conditions that are worse for 
the peppered chub than the current condition or the water conservation 
with flow trends stabilizing scenario. Because we determined that the 
current condition of the peppered chub is consistent with an endangered 
species (see Determination of Peppered Chub Status, below), we are not 
presenting the results of the other future scenarios in this final 
rule. The other projected scenarios would also be endangered, as they 
forecast conditions that are the same or more at risk of extinction 
than the current condition. Please refer to the SSA report (Service 
2022) for the full analysis of future scenarios.

Conservation Efforts and Regulatory Mechanisms

    Since we proposed to list the peppered chub as endangered, The 
Kansas Aquatic Species Conservation Agreement: A Programmatic Safe 
Harbor Agreement and Candidate Conservation Agreement with Assurances 
for Fourteen Aquatic Species in Kansas (Agreement) was completed and 
includes the peppered chub. Further information about the agreement can 
be found in the Exclusions section below. The area of the range that is 
covered by the Agreement is currently unoccupied; therefore, the 
Agreement does not change our conclusions in the SSA report or the 
determination of status, outlined below.
    This species is listed as endangered in Kansas and protected under 
the authority of the State's Nongame and Endangered Species 
Conservation Act of 1975. The Kansas Department of Wildlife, Parks and 
Tourism (KDWPT) finalized a recovery plan for the peppered chub in May 
2005. The recovery plan outlines specific strategies and methods to 
recover and delist the peppered chub in Kansas. The recovery plan also 
includes designated critical habitat as required for endangered species 
conservation and recovery. Kansas Administrative Regulations (K.A.R.) 
115-15-3 provides for review and a permit system for any alterations to 
the critical habitat administered by KDWPT Ecological Services Section.
    The peppered chub has been listed as threatened in New Mexico since 
1978 under the Wildlife Conservation Act (WCA). The State Game 
Commission is authorized and directed to establish such regulations as 
it may deem necessary to carry out all the provisions and purposes of 
the WCA. The WCA prohibits any person to take, possess, transport, 
export, process, sell or offer for sale, or ship the peppered chub, 
within the State of New Mexico.
    The species is listed as threatened in Texas and protected under 
Texas Parks and Wildlife Department (TPWD) Code. Under chapter 67 of 
this Code, Texas Parks and Wildlife Commission is authorized to 
establish any limits on the taking, possession, propagation, 
transportation, importation, exportation, sale, or offering for sale of 
nongame fish or wildlife that TPWD considers necessary to manage the 
species. TPWD designation of the peppered chub as a threatened species 
prohibits take of the species.
    As discussed in the proposed rule, the Canadian River Municipal 
Water Authority (in conjunction with several partners) has a management 
plan in place for the Arkansas River shiner, a similar species that 
shares many of the same life-history characteristics and habitat 
requirements as the peppered chub. However, the management plan 
includes no conservation efforts specific to the peppered chub.
    Efforts are underway to begin a captive propagation program at the 
Kansas Aquatic Biodiversity Center and at the Tishomingo National Fish 
Hatchery in Oklahoma. However, these efforts are early in development 
and have not yet yielded improvements to the status of the species.
    Approximately 95 percent of the adjacent land within the historical 
range of the peppered chub is private land. Except for those management 
activities included above, during the comment period for the proposed 
rule, we were not made aware of other conservation plans or management 
activities that are in place with private landowners that are specific 
to the peppered chub.
    Despite the existing regulatory mechanisms and conservation efforts 
described above, the identified stressors continue to act on the 
species such that listing is warranted.

Determination of Peppered Chub Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species that is in danger of extinction throughout all or a significant 
portion of its range and a ``threatened species'' as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of endangered 
species or threatened species because of any of the following factors: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) Overutilization for commercial, 
recreational, scientific, or educational purposes; (C) Disease or 
predation; (D) The inadequacy of existing regulatory mechanisms; or (E) 
Other natural or manmade factors affecting its continued existence.
    The peppered chub faces threats from altered flow regimes (e.g., 
dams and impoundments, groundwater extraction, and climate change 
effects on precipitation) (Factors A and E), stream fragmentation 
(Factor A), modified geomorphology (Factor A), poor water quality 
(Factor A), and introduction and proliferation of invasive species 
(Factors A and C). Because peppered chub rarely live beyond 2 years, 
the risk of species extinction from 2 (or more) successive years of low 
flow or drought conditions is high. These threats are currently acting 
on the peppered chub, and we expect them to continue or worsen into the 
future. We found no evidence of population- or species-level impacts 
from overutilization for commercial, recreational, scientific, or 
educational purposes (Factor B). In our analysis of the factors 
affecting the peppered chub, we found that despite the existing 
regulatory mechanisms and conservation efforts, the threats continue to 
affect the species such that listing is warranted (Factor D).
    The range of the peppered chub once included Colorado, Kansas, New 
Mexico, Oklahoma, and Texas, with populations in several streams and 
rivers. The peppered chub is now confined to a single population in the 
upper portion of the South Canadian River in Texas and New Mexico, 
which represents approximately 6 percent of the species' historical 
range. The one remaining population has declined from an average of 
approximately 14 percent relative abundance (a component of 
biodiversity) historically, to a current relative abundance of under 2 
percent, meaning the fish community structure has shifted significantly 
from its baseline condition. Explained in detail in the SSA report, the 
fish community

[[Page 11200]]

in this population is shifting away from its historical state, the 
peppered chub is becoming less common compared to other species in the 
community, and the species richness of the community is declining 
(Service 2022, pp. 63-68). This population has low resiliency, meaning 
that the population has a low probability of remaining extant and 
withstanding periodic or stochastic disturbances under its current 
condition. Representation has been reduced with the complete 
extirpation of populations in all but one resiliency unit and a range 
reduction of approximately 94 percent from its historical distribution. 
Species-level genetic and ecological diversity has been lost over time, 
as populations have become extirpated. Redundancy has declined 
dramatically because the peppered chub remains on the landscape in only 
one population. As such, the peppered chub is at greater risk of 
extinction due to a catastrophic event when compared to historical 
conditions.

Status Throughout All of Its Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
and the cumulative effect of the threats under the section 4(a)(1) 
factors to peppered chub. We find that the species' resiliency, 
representation, and redundancy are at levels that put the species at 
risk of extinction throughout its range. Thus, we conclude that the 
peppered chub meets the definition of an endangered species because it 
is in danger of extinction throughout all of its range. We find that a 
threatened species status is not appropriate for the peppered chub 
because it is currently at risk of extinction, based on the threats and 
their current impacts on the species and the resulting current 
condition of the species.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the peppered chub is in danger of 
extinction throughout all of its range and accordingly did not 
undertake an analysis of any significant portions of its range. Because 
the peppered chub warrants listing as endangered throughout all of its 
range, our determination is consistent with the decision in Center for 
Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), 
in which the court vacated the aspect of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37578; July 1, 2014) that provided the 
Services do not undertake an analysis of significant portions of a 
species' range if the species warrants listing as threatened throughout 
all of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the peppered chub meets the definition of an 
endangered species. Therefore, we are listing the peppered chub as an 
endangered species in accordance with sections 3(6) and 4(a)(1) of the 
Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(http://www.fws.gov/endangered), or from our Arlington, Texas, 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Following publication of this final rule, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the States of Colorado, 
Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal 
funds to implement management actions that promote the protection or 
recovery of the peppered chub. Information on our grant programs that 
are available to aid species recovery can be found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for the peppered chub. Additionally, we invite you to 
submit

[[Page 11201]]

any new information on this species whenever it becomes available and 
any information you may have for recovery planning purposes (see FOR 
FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any endangered or threatened species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Service, U.S. Forest 
Service, Bureau of Land Management, and National Park Service; issuance 
of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the 
U.S. Army Corps of Engineers; and construction and maintenance of roads 
or highways by the Federal Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a final listing 
on proposed and ongoing activities within the range of a listed 
species. Based on the best available information, the following actions 
are unlikely to result in a violation of section 9, if these activities 
are carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive:
    (1) Authorized taking of peppered chub in accordance with a permit 
issued by us pursuant to section 10 of the Act or with the terms of an 
incidental take statement pursuant to section 7 of the Act, or 
possessing specimens of this species that were collected prior to the 
effective date of this final regulation adding this species to the List 
of Endangered and Threatened Wildlife (see DATES).
    (2) Normal, lawful recreational activities such as hiking, trail 
rides, camping, boating, hunting, and fishing, provided unused bait 
fish are not released back into the water.
    (3) Normal livestock grazing and other standard ranching activities 
within riparian zones that do not destroy or significantly degrade 
peppered chub habitat.
    (4) Routine implementation and maintenance of agricultural 
conservation practices specifically designed to minimize erosion of 
cropland (e.g., terraces, dikes, grassed waterways, and conservation 
tillage).
    (5) Existing discharges into waters supporting the peppered chub, 
provided these activities are carried out in accordance with existing 
regulations and permit requirements (e.g., activities subject to 
sections 402, 404, and 405 of the Clean Water Act), and improvements to 
existing irrigation, livestock, and domestic well structures, such as 
renovations, repairs, or replacement.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized handling, collecting, possessing, selling, 
delivering, carrying, or transporting of the peppered chub, including 
interstate transportation across State lines and import or export 
across international boundaries.
    (2) Capture, survey, or collection of peppered chub specimens 
without a permit from the Service under section 10(a)(1)(A) of the Act.
    (3) Introduction of nonnative fish species that compete or 
hybridize with, displace, or prey upon peppered chub.
    (4) Unauthorized destruction or alteration of peppered chub habitat 
by dredging, channelization, impoundment, diversion, recreational 
vehicle operation within the stream channel, sand or gravel removal, or 
other activities that result in the destruction or significant 
degradation of channel stability, streamflow/water quantity, substrate 
composition, and water quality used by the species for foraging, cover, 
and spawning.
    (5) Unauthorized discharges (including violation of discharge 
permits), spills, or dumping of toxic chemicals, silt, household waste, 
or other pollutants (e.g., sewage, oil and gasoline, heavy metals) into 
surface or ground waters or their adjoining riparian areas that 
support/sustain peppered chub.
    (6) Applications of pesticides, herbicides, fungicides, and other 
chemicals, including fertilizers, in violation of label restrictions.
    (7) Withdrawal of surface or ground waters to the point at which 
baseflows in water courses (e.g., creeks, streams, rivers) occupied by 
the peppered chub diminish and habitat becomes unsuitable for the 
species.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Arlington, 
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

II. Critical Habitat

Background

    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

[[Page 11202]]

    (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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely, by vagrant individuals). Additionally, our regulations 
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of 
designating critical habitat only, as the abiotic and biotic setting 
that currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a 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 ensure, 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 also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must 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 (PBFs) (1) which are essential 
to the conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those PBFs that are essential 
to the conservation of the species (such as space, food, cover, and 
protected habitat). In identifying those PBFs that occur in specific 
occupied areas, we focus on the specific features that are essential to 
support the life-history needs of the species, including, but not 
limited to, water characteristics, soil type, geological features, 
prey, vegetation, symbiotic species, or other features. A feature may 
be a single habitat characteristic or a more complex combination of 
habitat characteristics. Features may include habitat characteristics 
that support ephemeral or dynamic habitat conditions. Features may also 
be expressed in terms relating to principles of conservation biology, 
such as patch size, distribution distances, and connectivity.
    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. The implementing regulations at 50 CFR 424.12(b)(2) further 
delineate unoccupied critical habitat by setting out three specific 
parameters: (1) When designating critical habitat, the Secretary will 
first evaluate areas occupied by the species; (2) the Secretary will 
only consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species; and (3) for an 
unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those PBFs essential to the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific 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 from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; 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; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, 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 needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2)

[[Page 11203]]

regulatory protections afforded by the requirement in section 7(a)(2) 
of the Act for Federal agencies to ensure their actions are not likely 
to jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
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 the 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, or 
other species conservation planning efforts if new information 
available at the time of those planning efforts calls for a different 
outcome.
    In our SSA report and the proposed listing determination for the 
peppered chub, we determined that the present or threatened 
destruction, modification, or curtailment of habitat or range is a 
threat to the peppered chub and that those threats in some way can be 
addressed by section 7(a)(2) consultation measures. Accordingly, such a 
designation could be beneficial to the species. Therefore, because none 
of the circumstances enumerated in our regulations at 50 CFR 
424.12(a)(1) has been met and because there are no other circumstances 
the Secretary has identified for which this designation of critical 
habitat would be not prudent, we have determined that the designation 
of critical habitat is prudent for the peppered chub. We have also 
reviewed the available information pertaining to the biological needs 
of the species and habitat characteristics where the species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the peppered chub.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions.
    Features may also be expressed in terms relating to principles of 
conservation biology, such as patch size, distribution distances, and 
connectivity. For example, physical features essential to the 
conservation of the species might include gravel of a particular size 
required for spawning, alkaline soil for seed germination, protective 
cover for migration, or susceptibility to flooding or fire that 
maintains necessary early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or a particular level of nonnative species consistent with 
conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    We have analyzed: (1) The PBFs that are essential to the 
conservation of the species and which may require special management 
considerations or protection under the Act; (2) the criteria used to 
define the areas occupied at the time of listing for the species; and 
(3) the criteria used to identify critical habitat boundaries or 
unoccupied habitat suitable for designation. Any comments received on 
the proposed rule were taken into account when this analysis was 
undertaken to revise PBFs where necessary. Based on public comment we 
did not need to revise PBFs, identification criteria for the species, 
or where the PBFs exist on the landscape to determine the geographic 
extent of each critical habitat unit.

Summary of Essential Physical or Biological Features

    We derive the specific PBFs essential to the conservation of 
peppered chub from studies of the species' habitat, ecology, and life 
history as described below. Additional information can be found in the 
SSA report (Service 2022, entire) and the discussion in the ``Summary 
of Essential Physical or Biological Features'' section of the preamble 
to the proposed rule (85 FR 77108; December 1, 2020).
    We have determined that the following PBFs are essential to the 
conservation of peppered chub:
    PBF 1: Unobstructed river segments greater than 127 river miles 
(rmi) (205 river kilometers (rkm)) in length that are characterized by 
a complex braided channel and substrates of predominantly sand, with 
some patches of silt, gravel, and cobble.
    PBF 2: Flowing water with adequate depths to support all life 
stages and episodes of elevated discharge to facilitate successful 
reproduction, channel and floodplain maintenance, and sediment 
transportation.
    PBF 3: Water of sufficient quality to support survival and 
reproduction, which includes, but is not limited to, the following 
conditions:
    (i) Water temperatures generally less than 98.2 degrees Fahrenheit 
([deg]F) (36.8 degrees Celsius ([deg]C));
    (ii) Dissolved oxygen concentrations generally greater than 3.7 
parts per million (ppm);
    (iii) Conductivity generally less than 16.2 millisiemens per 
centimeter (mS/cm);
    (iv) pH generally ranging from 5.6 to 9.0; and
    (v) Sufficiently low petroleum and other pollutant concentrations 
such that reproduction and/or growth is not impaired.
    PBF 4: Native riparian vegetation capable of maintaining river 
water quality, providing a terrestrial prey base, and maintaining a 
healthy riparian ecosystem.
    PBF 5: A level of predatory or competitive, native or nonnative 
fish present such that any peppered chub population's resiliency is not 
affected.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the

[[Page 11204]]

species at the time of listing contain features which are essential to 
the conservation of the species and which may require special 
management considerations or protection. The features essential to the 
conservation of the peppered chub may require special management 
considerations or protections to reduce the following threats: (1) 
Altered flow regimes, including (but not limited to) dams and 
impoundments and groundwater extraction; (2) stream fragmentation; (3) 
modified geomorphology; (4) poor water quality; (5) impacts from 
introduction of invasive species (fish and vegetation) and the 
introduction of native competitors for sport fishing; and (6) other 
stressors including (but not limited to) gravel mining and dredging, 
commercial bait fish harvesting, and off-road vehicle use.
    Management activities that could ameliorate these threats include, 
but are not limited to: Development of groundwater conservation 
strategies; removal of impoundments or creation of fish passage, 
development of water release strategies for reservoirs; minimization of 
in-channel work from utility or road projects; maintenance of bank 
stability and revegetation of impacted areas; incorporation of 
integrated pest management strategies (for saltcedar (Tamarix spp.) and 
other invasive plants); and development of best management practices to 
reduce pollutant discharges and to develop water conservation measures 
that reduce the need for water diversions.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are designating critical 
habitat in areas within the geographical area occupied by the species 
at the time of listing. We also are designating specific areas outside 
the geographical area occupied by the species because we have 
determined that a designation limited to occupied areas would be 
inadequate to ensure the conservation of the species.
    Designation of occupied areas alone is inadequate for conservation 
of the species because the current distribution of the species is much 
reduced from its historical range. We anticipate that recovery will 
require continued protection of the existing population and its 
habitat, as well as reintroduction of peppered chub into historically 
occupied areas, ensuring there are adequate numbers in stable 
populations and that these populations occur over a wide geographic 
area. This strategy will help to ensure that catastrophic events, such 
as the effects of drought, are unlikely to simultaneously affect all 
known populations. For these reasons, we are reasonably certain that 
these unoccupied areas will contribute to the conservation of the 
species. Moreover, both of the unoccupied areas that we are designating 
as critical habitat contain one or more of the PBFs required by the 
peppered chub and fall within the regulatory definition of ``habitat'' 
at 50 CFR 424.02. Additionally, rangewide recovery considerations, such 
as maintaining existing genetic diversity and striving for 
representation of all major portions of the species' current range, 
were considered in formulating this critical habitat designation.
    Sources of data for this critical habitat designation include 
multiple databases maintained by Arkansas Game and Fish Commission; 
Fishes of Texas; Colorado Parks and Wildlife Department; Kansas 
Department of Wildlife, Parks and Tourism; New Mexico Department of 
Game and Fish; New Mexico Interstate Stream Commission; Oklahoma 
Department of Environmental Quality; Texas Parks and Wildlife 
Department; Oklahoma State University; University of New Mexico Museum 
of Southwestern Biology; and New Mexico Department of Game and Fish, as 
well as numerous survey reports on rivers and streams throughout the 
species' range (see SSA report). We have also reviewed available 
information that pertains to the habitat requirements of this species. 
Sources of information on habitat requirements include studies 
conducted at occupied sites and published in peer-reviewed articles and 
agency reports, and data collected during monitoring efforts.
    Our review of occupied range of the peppered chub is based on 
numerous species experts who concluded that, by the year 2000, the 
peppered chub had significantly declined and was isolated to the South 
Fork Ninnescah River in Kansas and the South Canadian River between Ute 
Reservoir in New Mexico and Lake Meredith in the Texas panhandle 
(Luttrell et al. 1999, entire; Eisenhour 1999, entire; Eisenhour 2004, 
entire). Using data from more than 1,800 fish collections, we define 
``currently occupied'' as river reaches with positive surveys from 2013 
to 2017 (Service 2022, chapter 4). By the year 2013, the peppered chub 
was no longer being observed in the Ninnescah River in Kansas, despite 
extensive survey efforts. The peppered chub continues to be observed in 
surveys in the South Canadian River between the Ute Reservoir and Lake 
Meredith, and this is the only area we considered to be currently 
occupied. We are designating one occupied unit as critical habitat for 
the peppered chub in the upper South Canadian River.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing (Upper South Canadian River; Unit 1), we 
delineated the critical habitat unit boundary using the following 
criteria:
    The one remaining population of peppered chub has a low level of 
resiliency (see table 1, above), and, because of its relatively short 
life cycle (~2 years), a series of back-to-back stochastic events could 
significantly reduce or extirpate the remaining population. The 
peppered chub range has been highly restricted (~6 percent remaining); 
therefore, its adaptive capacity (representation) has been dramatically 
reduced. The significantly reduced range reduces peppered chub exposure 
to ecologically diverse habitats and reduces its ability to adapt to 
changing environments over time.
    A low-resiliency single population provides little redundancy for 
the species, and a single catastrophic event could cause species 
extinction. Consequently, we have determined that occupied areas alone 
are not adequate for the conservation of the species. We evaluated 
whether any unoccupied areas are essential for the conservation of the 
species, and we are designating critical habitat in two units that are 
currently unoccupied. We have determined that each is essential for the 
conservation of the species. Both units have at least one of the PBFs 
essential to the conservation of the species, and we are reasonably 
certain that each will contribute to the conservation of the species. 
Our specific rationale for each unit can be found below in the unit 
descriptions.
    Peppered chub has been completely extirpated from all but a single 
river reach within its historical range. Additionally, the one 
remaining population was found to be in ``low'' condition in our 
resiliency analysis and protecting it alone would not sufficiently 
conserve the species. Additional healthy populations are needed because 
of the inherent threat from environmental stochasticity (such as a 
multiyear drought) and the

[[Page 11205]]

possibility that the species could be extirpated in a relatively short 
period of time, given a 2-year life cycle. Furthermore, a single 
catastrophic event could extirpate the last remaining population, 
resulting in species extinction.
    As a result, additional healthy populations of the peppered chub 
must be established to increase its viability and to recover the 
species. Having at least two sufficiently resilient populations in the 
Canadian River and at least one population in each of the Ninnescah and 
Cimarron Rivers is essential for the conservation of the peppered chub. 
Representation and redundancy have both been dramatically reduced by 
the species' limited current range. Due to the species' constricted 
range, it currently has a limited scope of its historical ecological 
setting and, therefore, has little to no opportunity to adapt to a 
changing environment over time.
    The specific areas in these units encompass the minimum area of the 
species' historical range within the critical habitat designation, 
while still providing ecological diversity so that the species has the 
ability to evolve and adapt over time (representation) and ensure that 
the species has an adequate level of redundancy to guard against future 
catastrophic events.
    These areas also represent the areas within the historical range 
with the best potential for recovery of the species due to their 
current conditions and likely suitability for reintroductions, based on 
uninterrupted stream length, overall habitat condition, and the 
presence of some or all of the PBFs essential to the conservation of 
the species. The unoccupied units that we have selected to designate 
for the peppered chub represent the smallest number of units that could 
be designated while still capturing the widest range of historical 
ecological settings and increasing redundancy. We are finalizing a 
designation with only three units (see table 2, below), because one 
unit from the proposed rule is being excluded based on our analysis 
under section 4(b)(2) of the Act (see Exclusions section below).
    In addition to representation concerns, redundancy has been 
dramatically reduced and must be improved in order for the species to 
maintain viability into the future. The peppered chub was once common 
among several streams throughout the Arkansas River Basin and was 
highly redundant because it existed in many streams across a range. The 
species now occurs in one river segment in a small portion of its 
historical range. The species needs healthy populations distributed 
across its historical range to guard against catastrophic events. The 
two unoccupied units that were selected to capture the species' 
historical ecological settings are also essential to increasing the 
redundancy of the species.
    Accordingly, we designate one unoccupied unit in the Canadian River 
and one unoccupied unit in the Cimarron River. Establishing healthy 
populations in these two currently unoccupied units would increase the 
resiliency, representation, and redundancy (viability) of the species. 
If reintroduced populations become established, each unoccupied unit 
will contribute ecological diversity (representation) or guard against 
catastrophic events (redundancy) or both. As described below in the 
individual unit descriptions, each unit contains one or more of the 
PBFs and is reasonably certain to contribute to the conservation of the 
species and meet the definition of habitat at 50 CFR 424.02.
    See table 2, below for a summary of the critical habitat unit 
boundaries for areas outside the geographic area occupied by the 
species at the time of listing.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack the PBFs 
necessary for peppered chub. 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 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 PBFs in the adjacent critical 
habitat.
    We are designating as critical habitat three critical habitat 
units, totaling approximately 872 rmi (1,404 rkm), one unit of which is 
currently occupied by the peppered chub and two units that are 
unoccupied. All three units are designated based on one or more of the 
PBFs being present to support peppered chub's life-history processes. 
Some units contain all of the identified PBFs and support multiple 
life-history processes. Some units contain only some of the PBFs 
necessary to support the peppered chub's particular use of that 
habitat. We are designating two unoccupied units because we have 
determined that the single occupied area is inadequate to ensure the 
conservation of the species. Therefore, we have also identified and 
designated as critical habitat unoccupied areas that contain one or 
more of the PBFs that are essential to support life-history processes 
of the species and that are essential for the conservation of the 
species.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public on 
https://www.regulations.gov at Docket No. FWS-R2-ES-2019-0019 and on 
our internet site https://www.fws.gov/southwest/es/ArlingtonTexas (see 
FOR FURTHER INFORMATION CONTACT).

Final Critical Habitat Designation

    We are designating three units as critical habitat for peppered 
chub. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for peppered chub. The three areas we designate as critical 
habitat are: (1) Upper South Canadian River, (2) Lower South Canadian 
River, and (4) Cimarron River. Table 2, below shows the critical 
habitat units and the approximate area of each unit.

                             Table 2--Final Critical Habitat Units for Peppered Chub
----------------------------------------------------------------------------------------------------------------
                                                                       Size of unit in
        Critical habitat unit              Land ownership by type        river miles            Occupied?
                                                                         (kilometers)
----------------------------------------------------------------------------------------------------------------
1. Upper South Canadian River........  Federal; State; Private;               197 (317)  Yes.
                                        Other.
2. Lower South Canadian River........  Federal; Tribal; Private;              400 (644)  No.
                                        Other.

[[Page 11206]]

 
4. Cimarron River....................  Federal; Tribal; State;                275 (443)  No.
                                        Private; Other.
                                                                     -------------------------------------------
    Total............................  .............................        872 (1,404)
----------------------------------------------------------------------------------------------------------------
Notes: Area estimates reflect all land within critical habitat unit boundaries. Area sizes may not sum due to
  rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for peppered chub, below.

Unit 1: Upper South Canadian River, New Mexico and Texas

    Unit 1 consists of approximately 197 river miles (rmi) (317 river 
kilometers (rkm)) comprising a portion of the South Canadian River 
originating below the Ute Dam west of Logan, New Mexico, and extending 
downstream to the delta of Lake Meredith, Texas; and a portion of 
Revuelto Creek originating at the Interstate Highway 40 bridge 
extending downstream to the confluence with the South Canadian River, 
New Mexico. Revuelto Creek is an important source of water and sediment 
for the Upper South Canadian River and is considered occupied. Unit 1 
occurs largely within private land or land described as ``other,'' 
which is land with non-Federal ownership that could not be determined 
but is likely to be Tribal or private.
    Approximately 21 rmi (34 rkm) of adjacent lands are federally owned 
and managed by the National Park Service, and the Bureau of 
Reclamation. In addition, several small segments of public lands occur 
at bridge crossings, road easements, and the like. There are state own 
lands adjacent to approximately 9 rmi (~15 rkm). The remaining lands 
are in private ownership status and are adjacent to approximately 167 
rmi (~268 rkm) of the unit 1 designation.
    This unit possesses those characteristics as described by PBF 1 
(see Physical or Biological Features Essential to the Conservation of 
the Species, above). PBFs 2 and 3 are in degraded condition in this 
unit during some times of the year and are dependent upon water 
releases from Ute Reservoir, precipitation, and groundwater, but these 
PBFs are currently sufficient to maintain self-sustaining populations. 
Water management strategies could enhance PBFs 2 and 3 within this 
unit. Current management to address native riparian vegetation is 
ongoing throughout this unit as it pertains to PBF 4; however, 
additional efforts to improve streamflow and channel morphology/
complexity (removal of flow obstructions, restoration of historical 
channel characteristics, etc.) could further benefit this species. 
Predatory and other fish that may compete with peppered chub are 
present in this unit, but any effect to peppered chub resiliency is 
unclear. Thus, management actions to achieve PBF 5 may be necessary if 
additional information indicates the species' resiliency is affected by 
predation or competition.

Unit 2: Lower South Canadian River, Texas and Oklahoma

    Because we have determined occupied areas alone are not adequate 
for the conservation of the species, we have evaluated whether any 
unoccupied areas are essential for the conservation of the species and 
identified this area as essential for the conservation of the species. 
Unit 2 comprises approximately 400 rmi (644 rkm) consisting of the 
South Canadian River originating at the U.S. 83 bridge north of 
Canadian, Texas, and extending downstream to the U.S. 75 bridge 
northwest of Calvin, Oklahoma. Unit 2 occurs almost entirely within 
land under ``other'' land ownership, as described above under Unit 1. 
Approximately 13 rmi (21 rkm) is managed by the U.S. Army Corps of 
Engineers, and approximately >1 rmi (1 rkm) is held in trust by the 
Bureau of Indian Affairs as Cheyenne-Arapaho Trust Land. In addition, 
several small segments of public land occur at bridge crossings, road 
easements, and the like. Historically, peppered chubs were observed in 
the lower portions of the South Canadian River. Peppered chubs were 
last reported in the South Canadian River resiliency unit in 1999. 
Currently, this river supports other pelagic-spawning prairie fish, 
such as the threatened Arkansas River shiner. This unit has at least 
one of the PBFs essential to the conservation of the species, and we 
are reasonably certain that this unit will contribute to the 
conservation of the species.
    Although it is considered unoccupied, portions of this unit contain 
some or all of the PBFs essential for the conservation of the species 
(see Physical or Biological Features Essential to the Conservation of 
the Species, above.) Unit 2 possesses those characteristics as 
described by PBF 1 and is the longest unfragmented river segment within 
the historical range of the peppered chub. Although we have determined 
that peppered chubs require 127 rmi of unobstructed river characterized 
by a complex braided channel and substrates of predominantly sand, with 
some patches of silt, gravel, and cobble, that is the minimum number of 
river miles required to adequately facilitate reproduction and maintain 
a population, assuming all of the physical habitat requirements exist 
throughout the stretch of river (Service 2022, pp. 32 & 116). In order 
to establish populations, peppered chub need a longer river length that 
will not only adequately facilitate reproduction but also population 
growth (Service 2022, p. 97). Additionally, the required habitat 
factors (from PBF 1) do not exist throughout the entire river segment 
and, because the peppered chub has an approximate 2-year life cycle, 
any additional stream length would guard against extirpation due to 
multiyear droughts.
    PBF 2 is degraded in the upper portion of this unit during some 
times of the year and is dependent upon precipitation and groundwater. 
Based on available data (OWRB 2017, pp. 39-43), PBF 3 is present 
throughout this unit. Current management to address native riparian 
vegetation is ongoing throughout this unit as it pertains to PBF 4; 
however, these management efforts are not specifically directed at 
benefiting the peppered chub, and additional management efforts may be 
necessary. Management actions to control nonnative phreatophytic (deep 
rooted) vegetation upstream and within the upper portion of this unit 
could also improve PBF 2 by reducing evapotranspiration. Predatory and 
other fish that may compete with peppered chub are present in this 
unit, but any effect to peppered chub resiliency is unclear. Thus, 
management actions to achieve PBF 5 may be necessary if additional 
information suggests the species'

[[Page 11207]]

resiliency is affected by predation or competition.
    If a healthy population is established in this unit, it would 
likely be a moderately to highly resilient population due to longer 
stream length compared to other units and would increase the species' 
redundancy by one population. This unit is essential for the 
conservation of the species because it will provide habitat for range 
expansion in portions of known historical habitat that is necessary to 
increase viability of the species by increasing its resiliency, 
redundancy, and representation. A portion (approximately 238.2 rmi 
(383.3 rkm)) of listed Arkansas River shiner critical habitat is 
present in Unit 2.
    For these reasons, we are reasonably certain that this unit will 
contribute to the conservation of the species. Additionally, the need 
for conservation efforts is recognized and is being discussed by our 
conservation partners, and researchers are working on methods for 
restoring and reintroducing the species into unoccupied habitat. The 
State of Oklahoma has identified the peppered chub as a tier III 
species of greatest conservation need (moderate level of conservation 
need) in the Oklahoma Comprehensive Wildlife Conservation Strategy 
(ODWC 2016, p. 399). The State strategy was developed to articulate the 
conservation strategies necessary to conserve their rare and declining 
wildlife species and maintain Oklahoma's rich biological heritage for 
present and future generations (ODWC 2016, p. 3). The strategy 
identifies several general conservation actions that would improve PBFs 
2, 3, and 4 and benefit the peppered chub, if a population were 
established and if the actions were implemented, such as providing 
funding to landowners to restore channel morphology, water 
conservation, coordinating further with the Service, and public 
education (ODWC 2016, pp. 45-46). State and Federal partners have shown 
interest in propagation and reintroduction efforts for the peppered 
chub in this area. As previously mentioned, efforts are underway 
regarding a captive propagation program for peppered chub at the 
Tishomingo National Fish Hatchery in Oklahoma. The State of Kansas, 
Tishomingo National Fish Hatchery, and the Oklahoma Fish and Wildlife 
Conservation Office collaborate regularly on conservation actions.
    The State of Texas also recognizes the peppered chub as a species 
of greatest conservation need and gives the species a rank of S1 (i.e., 
at very high risk of extirpation in the jurisdiction due to very 
restricted range, very few populations or occurrences, very steep 
declines, severe threats, or other factors). Texas is one of only two 
States where the species remains extant. The State has also identified 
the portion of the Canadian River within the boundaries of the State of 
Texas (portions of which are currently occupied and unoccupied areas 
inside this unit) as an ecologically significant stream because it has 
threatened and endangered species/unique communities present (Texas 
Water Development Board (TWDB) 2016, p. 8-2). The Canadian River 
segment in the panhandle of Texas is also significant because of the 
presence of unique, exemplary, or unusually extensive natural 
communities upon which water development projects would have 
significant detrimental effects (TWDB 2016, p. 8-2).

Proposed Unit 3: Arkansas/Ninnescah River, Kansas and Oklahoma

    Proposed Unit 3 comprised approximately 179 rmi (288 rkm) 
consisting of the South Fork Ninnescah River originating at the Highway 
54/400 bridge east of Pratt, Kansas, and extending downstream to the 
River Road Bridge east of Newkirk, Oklahoma. The proposed unit occurs 
almost entirely on land under ``other'' land ownership, as described 
above under Unit 1. A small amount of this unit is publicly owned in 
the form of bridge crossings, road easements, and the like. Peppered 
chub were observed in the Ninnescah River in surveys between the years 
2000 and 2013. We have excluded the entire unit from the final 
designation (see Exclusions, below). A description and map of this unit 
is maintained in the proposed rule for this designation (85 FR 77108).
    Approximately 93 percent of this unit is located in the State of 
Kansas and contains the PBFs essential for the conservation of the 
species. In 2021, the State of Kanas signed The Kansas Aquatic Species 
Conservation Agreement: A Programmatic Safe Harbor Agreement and 
Candidate Conservation Agreement with Assurances for Fourteen Aquatic 
Species in Kansas (Agreement) that includes the peppered chub and 
covers the entire portion of this unit that falls within the boundaries 
of the State of Kansas. Because of the existence of the Agreement, the 
remaining 12 miles (less than seven percent) of the unit in Oklahoma no 
longer meets our criteria for designating critical habitat, we have 
excluded the entire unit from the final critical habitat designation 
(see Exclusions, below).

Unit 4: Cimarron River and Oklahoma

    Because we have determined that occupied areas alone are not 
adequate for the conservation of the species, we evaluated whether any 
unoccupied areas are essential for the conservation of the species and 
identified this area as essential for the conservation of the species. 
Unit 4 comprises approximately 275 rmi (443 rkm) consisting of the 
Cimarron River originating at the border of Kansas and Oklahoma and 
extending downstream to the OK 51 bridge northeast of Oilton, Oklahoma. 
This unit occurs almost entirely on land under ``other'' land 
ownership, as described above under Unit 1. Approximately 0.86 rmi 
(1.38 rkm) is managed by the U.S. Army Corps of Engineers; 
approximately 0.56 rmi (0.91 rkm) is managed by the Bureau of Land 
Management; and approximately 0.94 rmi (1.51 rkm) is held in trust by 
the Bureau of Indian Affairs as Sac and Fox Nation Trust Land and 
Pawnee Trust Land. In addition, small amounts of the unit are publicly 
owned in the form of bridge crossings, road easements, and the like. 
Historically, peppered chubs were observed in the Cimarron River. The 
peppered chub was last observed in the Cimarron River resiliency unit 
in 2011. This unit has at least one of the PBFs essential to the 
conservation of the species, and we are reasonably certain that it will 
contribute to the conservation of the species. Our specific rationale 
for this unit can be found below in this unit description.
    Unit 4 is considered unoccupied; however, portions of this unit 
contain some or all of the PBFs necessary for the conservation of the 
species (see Physical or Biological Features Essential to the 
Conservation of the Species, above.) PBF 1 is present within this unit, 
as described in the Unit 2 description. PBF 2 is degraded in upstream 
portions of this unit during some times of the year (absent during 
elevated drought conditions) and is dependent upon precipitation and 
groundwater. Based on available data, PBF 3 is present throughout this 
unit with the exception of PBF 3(iii) (conductivity generally less than 
16.2 mS/cm) along an approximate 79-mile portion upstream of Waynoka to 
Ames, Oklahoma. Management actions would likely be necessary to reduce 
conductivity in this area (OWRB 2017, pp. 49-56). Current management to 
enhance native riparian vegetation is ongoing throughout this unit as 
it pertains to PBF 4 and involves the removal/control of nonnative 
phreatophytic vegetation such as saltcedar, common reed, etc. 
Management actions to control

[[Page 11208]]

nonnative phreatophytic vegetation upstream and within the upper 
portion of this unit could also improve PBFs 2 and 3 by reducing 
evapotranspiration. Phreatophytic plants such as saltcedar have high 
water consumption (increasing evapotranspiration) and stress aquatic 
habitats by lowering groundwater levels. Predatory and other fish that 
may compete with peppered chub are present in this unit, but any effect 
to peppered chub resiliency is unclear. Thus, management actions to 
achieve PBF 5 may be necessary if additional information indicates the 
species' resiliency is affected by predation or competition.
    As discussed above, peppered chub currently has little to no 
representation and redundancy. If established in this unit, a 
population would increase redundancy by one population, thereby 
guarding against catastrophic events, and would increase the species' 
ecological diversity (representation). This unit is essential for the 
conservation of the species because it will provide habitat for range 
expansion in portions of known historical habitat that is necessary to 
increase viability of the species by increasing its resiliency, 
redundancy, and representation. Critical habitat for the Arkansas River 
shiner is present within a portion (approximately 201.5 rmi (324.30 
rkm)) of Unit 4 and, accordingly, similar conservation activities are 
already ongoing.
    For these reasons, we are reasonably certain that this unit will 
contribute to the conservation of the species. Additionally, the need 
for conservation efforts has been recognized and is being discussed by 
our conservation partners, and methods for restoring and reintroducing 
the species into unoccupied habitat are ongoing. The State of Oklahoma 
has identified the peppered chub as a tier III species of greatest 
conservation need in the Oklahoma Comprehensive Wildlife Conservation 
Strategy (ODWC 2016, p. 399). The Oklahoma strategy was developed to 
articulate the conservation strategies necessary to conserve their rare 
and declining wildlife species and maintain Oklahoma's rich biological 
heritage for present and future generations (ODWC 2016, p. 3). The 
strategy identifies several general conservation actions that would 
improve PBFs 2, 3, and 4 and benefit the peppered chub, if a population 
were established and if the actions were implemented, such as providing 
funding to landowners to restore channel morphology, water 
conservation, coordinating further with the Service, and public 
education (ODWC 2016, pp. 45-46). Also, in Oklahoma, State and Federal 
partners have shown interest in propagation and reintroduction efforts 
for the peppered chub. As previously mentioned, efforts are underway 
regarding a captive propagation program for peppered chub at the 
Tishomingo National Fish Hatchery in Oklahoma.
    It is possible that significant drought conditions in the late 
1980s and early 1990s led to the peppered chub decline and eventual 
extirpation in the Cimarron River (in Unit 4). The current condition of 
the unit, however, is likely to support populations once again (Service 
2022, p. 150). Consequently, the shoal chub (Macrhybobsis hyostoma), a 
species in the same genus as the peppered chub, has reestablished 
populations and continues to persist in the Cimarron River after 
previously experiencing significant declines (Lutrell et al. 1999, pp. 
984-985), demonstrating that this unit would similarly be suitable for 
the peppered chub.
    A relatively small portion of Unit 4 extends into the State of 
Kansas (approximately six percent) and is covered by The Kansas Aquatic 
Species Conservation Agreement: A Programmatic Safe Harbor Agreement 
and Candidate Conservation Agreement with Assurances for Fourteen 
Aquatic Species in Kansas. We have excluded approximately 17 miles (27 
kilometers) of this unit from the final critical habitat designation 
because the benefits of exclusions outweigh the benefits of inclusion 
(see Exclusions, below).

Effects of Critical Habitat Designation

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.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed 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, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
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, and 
are likely to 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 Service 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 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary

[[Page 11209]]

involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law) and, subsequent to the 
previous consultation: (1) If the amount or extent of taking specified 
in the incidental take statement is exceeded; (2) if new information 
reveals effects of the action that may affect listed species or 
critical habitat in a manner or to an extent not previously considered; 
(3) if the identified action is subsequently modified in a manner that 
causes an effect to the listed species or critical habitat that was not 
considered in the biological opinion; or (4) if a new species is listed 
or critical habitat designated that may be affected by the identified 
action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but the regulations also specify 
some exceptions to the requirement to reinitiate consultation on 
specific land management plans after subsequently listing a new species 
or designating new critical habitat. See the regulations for a 
description of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support PBFs essential to the 
conservation of a listed 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 violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Replacement and maintenance of river crossings and bridges;
    (2) Construction, replacement, maintenance, or removal of 
pipelines, or abandonment of pipelines or electrical lines crossing 
streams;
    (3) Park maintenance and authorization of recreational activities 
by the U.S. National Park Service (e.g., permitting recreational off-
road vehicle use at Lake Meredith Recreational Area);
    (4) Operation and maintenance of salinity control programs;
    (5) Dam maintenance, water releases from dams, and flow management 
via dams;
    (6) Water withdrawals and groundwater withdrawals from reservoirs;
    (7) Water development projects (such as new impoundments, 
diversions, or reservoir projects);
    (8) Watershed restoration activities;
    (9) Stream restoration and habitat improvement;
    (10) Stocking of nonnative fish or native fish that compete with 
the peppered chub;
    (11) Oil and gas exploration and extraction; and
    (12) New or expanded development of municipal or agricultural water 
supplies.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) 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 
DoD lands with a completed INRMP within the final critical habitat 
designation.

Consideration of Impacts Under 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, 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 discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, 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. We describe below the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.
    On December 18, 2020, we published a final rule in the Federal 
Register (85 FR 82376) revising portions of our regulations pertaining 
to exclusions of critical habitat. These final regulations became 
effective on January 19, 2021, and apply to critical habitat rules for 
which a proposed rule was published after January 19, 2021. 
Consequently, these new regulations do not apply to this final rule.
    The Act affords a great degree of discretion to the Services in 
implementing section 4(b)(2). This discretion is applicable to a number 
of aspects of section 4(b)(2) including whether to enter into the 
discretionary 4(b)(2) exclusion analysis and the weights assigned to 
any particular factor used in the analysis. Most significant is that 
the decision to exclude is always discretionary, as the Act states that 
the Secretaries ``may'' exclude any areas. Under no circumstances is 
exclusion required under the second sentence of section 4(b)(2). There 
is no requirement to exclude, or even to enter into a discretionary 
4(b)(2) exclusion analysis for any particular area identified as 
critical habitat. Accordingly, per our discretion, we have only done a 
full discretionary exclusion analysis when we received clearly 
articulated and reasoned rationale to exclude the area from this 
critical habitat designation.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our draft economic analysis (DEA) of the proposed critical habitat 
designation and related factors (IEc 2019, entire). The analysis, dated 
February 19, 2019, was made available for public review from December 
1, 2020, through February 1, 2021 (85 FR 77108). The DEA addressed 
probable

[[Page 11210]]

economic impacts of critical habitat designation for peppered chub. 
Following the close of the comment period, we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Information relevant to the probable 
incremental economic impacts of the critical habitat designation for 
the peppered chub is summarized below and available in the screening 
analysis for the peppered chub (IEc 2019, entire), available at https://www.regulations.gov.
    The full description of the findings from the DEA are outlined in 
the proposed rule (85 FR 77108; December 1, 2020). No more than 153 
peppered chub consultations (148 informal and 5 formal) are anticipated 
in any given year (IEc 2019, p. 17). Proposed Unit 3 (Arkansas/
Ninnescah River) had the highest potential costs, due in part to the 
fact that there is no overlapping critical habitat designation with the 
Arkansas River shiner in this unit. However, the Service is excluding 
proposed Unit 3 from the final critical habitat designation (see 
Exclusions, below). The estimated incremental costs of the total 
proposed critical habitat designation for the peppered chub in the 
first year was found to be unlikely to exceed $900,000, with proposed 
Unit 3 accounting for $500,000 of the total costs (2018 dollars) (IEc 
2019, p. 17). Therefore, with the exclusion of proposed Unit 3, the 
estimated incremental costs of the total proposed critical habitat 
designation for the peppered chub within the first year is unlikely to 
exceed $400,000. Thus, the annual administrative burden would not reach 
$100 million and, therefore, would not be significant (see Executive 
Order 12866: Regulatory Planning and Review).

Consideration of Impacts on National Security and Homeland Security

    The Service must consider impacts on national security, including 
homeland security, under section 4(a)(3)(B)(i) and on those DoD lands 
or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2) 
requires the Service to consider those impacts whenever it designates 
critical habitat. Accordingly, if DoD, Department of Homeland Security 
(DHS), or another Federal agency has requested exclusion based on an 
assertion of national-security or homeland-security concerns, or we 
have otherwise identified national-security or homeland-security 
impacts from designating particular areas as critical habitat, we 
generally have reason to consider excluding those areas.

Consideration of 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 discussed above. Other relevant impacts may include, but are 
not limited to, impacts to Tribes, States, local governments, public 
health and safety, community interests, the environment (such as 
increased risk of wildfire or pest and invasive species management), 
Federal lands, and conservation plans, agreements, or partnerships. To 
identify other relevant impacts that may affect the exclusion analysis, 
we consider a number of factors, including whether there are permitted 
conservation plans covering the species in the area--such as habitat 
conservation plans (HCPs), safe harbor agreements (SHAs), or candidate 
conservation agreements with assurances (CCAAs)--or whether there are 
non-permitted conservation agreements and partnerships that may be 
impaired by designation of, or exclusion from, critical habitat (see 
Policy Regarding Implementation of Section 4(b)(2) of the Endangered 
Species Act: 81 FR 7226; February 11, 2016). In addition, we look at 
whether Tribal conservation plans or partnerships, Tribal resources, or 
government-to-government relationships of the United States with Tribal 
entities may be affected by the designation. We also consider any 
State, local, public-health, community-interest, environmental, or 
social impacts that might occur because of the designation.

Exclusions

Exclusions Based on Economic Impacts

    The Service considered the economic impacts of the critical habitat 
designation as described above. Based on this information, the 
Secretary has determined not to exercise her discretion to exclude any 
areas from this designation of critical habitat for the peppered chub 
based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    In preparing this rule, we have determined that the lands within 
the designation of critical habitat for peppered chub are not owned or 
managed by DoD or DHS. We also received no requests for exclusion from 
DoD or DHS. Therefore, we anticipate no impact on national security or 
homeland security. Based on this information, the Secretary has 
determined not to exercise her discretion to exclude any areas from 
this designation of critical habitat for the peppered chub based on 
impacts on national security or homeland security.

Exclusions Based on Other Relevant Impacts

    When analyzing other relevant impacts of including a particular 
area in a designation of critical habitat, we weigh those impacts 
relative to the conservation value of the particular area. To determine 
the conservation value of designating a particular area, we consider a 
number of factors, including, but not limited to, the additional 
regulatory benefits that the area would receive due to the protection 
from destruction or adverse modification 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.
    In the case of peppered chub, the benefits of critical habitat 
include public awareness of the presence of peppered chub and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for peppered chub due to protection from 
destruction or adverse modification of critical habitat. Continued 
implementation of an ongoing management plan that provides conservation 
equal to or more than the protections that result from a critical 
habitat designation would reduce those benefits of including that 
specific area in the critical habitat designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion. We consider a variety of factors, including, 
but not limited to, whether the plan is finalized; how it provides for 
the conservation of the essential PBFs; whether there is a reasonable 
expectation that the conservation management strategies and actions 
contained in a management plan will be implemented into the future; 
whether the conservation strategies in the plan are likely to be 
effective; and whether the plan contains a monitoring program or 
adaptive management to ensure that the conservation measures are 
effective and can be adapted in the future in response to new 
information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion.

[[Page 11211]]

If our analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, we then determine whether exclusion would result 
in extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments we received, we evaluated 
whether certain lands in the proposed critical habitat Units 3 and 4 
are appropriate for exclusion from the final designation under section 
4(b)(2) of the Act. This analysis indicates that the benefits of 
excluding lands from the final designation outweigh the benefits of 
designating those lands as critical habitat; thus, the Secretary is 
exercising her discretion to exclude the lands from the final 
designation.
    Based on the existence of private or non-Federal conservation 
plans, as discussed below, we are excluding the following areas under 
section 4(b)(2) of the Act from the final critical habitat designation 
for peppered chub. Table 3, below provides approximate areas (rmi, rkm) 
that meet the definition of critical habitat but which we are excluding 
under section 4(b)(2) of the Act from the final critical habitat 
designation.

                     Table 3--Areas Excluded by Critical Habitat Unit for the Peppered Chub
----------------------------------------------------------------------------------------------------------------
                                                                     Proposed
                                                                     critical      Area excluded  Final critical
                 Proposed critical habitat unit                    habitat (rmi     (rmi (rkm))    habitat (rmi
                                                                      (rkm))                          (rkm))
----------------------------------------------------------------------------------------------------------------
3: Arkansas/Ninnescah River.....................................       179 (288)       179 (288)               0
4: Cimarron River...............................................       292 (470)         17 (27)       275 (443)
----------------------------------------------------------------------------------------------------------------

Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act

    HCPs for incidental take permits under section 10(a)(1)(B) of the 
Act provide for partnerships with non-Federal entities to minimize and 
mitigate impacts to listed species and their habitat. In some cases, 
HCP permittees agree to do more for the conservation of the species and 
their habitats on private lands than designation of critical habitat 
would provide alone. We place great value on the partnerships that are 
developed during the preparation and implementation of HCPs.
    CCAAs and SHAs are voluntary agreements designed to conserve 
candidate and listed species, respectively, on non-Federal lands. In 
exchange for actions that contribute to the conservation of species on 
non-Federal lands, participating property owners are covered by an 
``enhancement of survival'' permit under section 10(a)(1)(A) of the 
Act, which authorizes incidental take of the covered species that may 
result from implementation of conservation actions, specific land uses, 
and, in the case of SHAs, the option to return to a baseline condition 
under the agreements. The Service also provides enrollees assurances 
that we will not impose further land-, water-, or resource-use 
restrictions, or require additional commitments of land, water, or 
finances, beyond those agreed to in the agreements.
    When we undertake a discretionary section 4(b)(2) exclusion 
analysis based on permitted conservation plans such as CCAAs, SHAs, and 
HCPs, we consider the following three factors:
    (i) Whether the permittee is properly implementing the conservation 
plan or agreement;
    (ii) Whether the species for which critical habitat is being 
designated is a covered species in the conservation plan or agreement; 
and
    (iii) Whether the conservation plan or agreement specifically 
addresses the habitat of the species for which critical habitat is 
being designated and meets the conservation needs of the species in the 
planning area. See Policy Regarding Implementation of Section 4(b)(2) 
of the Endangered Species Act: 81 FR 7226; February 11, 2016.
    We have determined that The Kansas Aquatic Species Conservation 
Agreement: A Programmatic Safe Harbor Agreement and Candidate 
Conservation Agreement with Assurances for Fourteen Aquatic Species in 
Kansas (Agreement) fulfills the above criteria, and we are excluding 
non-Federal lands covered by this plan that provide for the 
conservation of peppered chub, as further explained below.

Proposed Units 3 and 4--The Kansas Aquatic Species Conservation 
Agreement: A Programmatic Safe Harbor Agreement and Candidate 
Conservation Agreement With Assurances for Fourteen Aquatic Species in 
Kansas

    In 2021, the Secretary of the Kansas Department of Wildlife, Parks 
and Tourism signed The Kansas Aquatic Species Conservation Agreement: A 
Programmatic Safe Harbor Agreement and Candidate Conservation Agreement 
with Assurances for Fourteen Aquatic Species in Kansas (hereafter, the 
``Agreement''). The Agreement was part of an application for an 
enhancement-of-survival permit under section 10(a)(1)(A) of the Federal 
Endangered Species Act. The Agreement facilitates the introduction, 
reintroduction, augmentation, and translocation of, and conserves the 
habitat of, imperiled native aquatic species in the State of Kansas. 
The Agreement, a programmatic SHA and a CCAA, is between the Kansas 
Department of Wildlife, Parks and Tourism (KDWPT) and the Service, 
collectively, ``the Parties.''
    The Agreement covers all eligible, non-Federal lands in the State 
of Kansas, for all eligible non-Federal landowners who wish to 
participate in the Agreement (Cooperator). Non-Federal lands are those 
lands owned by non-Federal landowners which include, but are not 
limited to, State, Tribal, regional, or local governments; private or 
nonprofit organizations; or private citizens. By entering into this 
Agreement, the Parties are using the Service's SHA and CCAA programs to 
further the conservation of the Nation's fish and wildlife. Both 
components of this Agreement and their associated permits target non-
Federal lands in Kansas, whose owners or land managers are willing to 
engage in habitat management actions to benefit the species covered by 
the Agreement (Covered Species).
    For a Cooperator to obtain an enhancement-of-survival permit under 
the Agreement, the Service must determine that there is a reasonable 
expectation of a net conservation benefit to the Covered Species (50 
CFR 17.32(c)(2)(ii) and (e)(2)(ii)). The duration of the Agreement is 
50 years from its effective date. Each participating landowner, or 
Cooperator, will enroll in the SHA, CCAA, or both, through a Landowner 
Management

[[Page 11212]]

Agreement (Landowner Agreement). Once the Landowner Agreement is 
signed, KDWPT will issue the Cooperator a Certificate of Inclusion 
(COI). The duration of the Landowner Agreements entered into under the 
Agreement and the associated COI will be for the remaining duration of 
the permit unless another time period is agreed upon by the Parties and 
the Cooperator.
    The conservation goals of the Agreement are to increase the 
resiliency, redundancy, and representation of the Covered Species' 
populations through reintroductions and protect, enhance, and expand 
habitat availability (stream bed and banks). Under the Agreement, 
Cooperators will maintain habitat available to the Covered Species and 
will assist with habitat conservation for the remainder of the term of 
the Agreement. Cooperators will facilitate the ability to reintroduce 
and augment populations, and manage enrolled lands, as agreed to in 
their Landowner Agreement, in a manner that maintains existing habitat 
and improves and restores habitat for the Covered Species.
    Expected outcomes of implementing the Agreement include the 
protection, enhancement, and restoration of instream habitat, improved 
water quality, reduced erosion and sedimentation, improved riparian 
habitat, and improved land use practices on enrolled lands during the 
term of the Agreement. The reintroduction activities included in the 
Agreement will increase probability that Covered Species will expand 
their range and survive and recruit new cohorts in reintroduced areas. 
Criteria for eligible landowners with land neighboring peppered chub 
habitat is: ``Mainstem of waterbody where reintroduction occurs 
extending onto adjoining parcels, plus direct tributaries containing 
suitable habitat. Eligible property must support suitable habitat 
(i.e., permanently flowing channels with sandy substrates)'' per the 
Agreement. The Agreement in its entirety can be found at: https://www.fws.gov/mountain-prairie/ea/newsAndReleases.php.
    Benefits of Inclusion--State of Kansas (Proposed Units 3 and 4): 
The principal benefit of including an area in critical habitat 
designation is the requirement of Federal agencies to ensure that 
actions that they fund, authorize, or carry out are not likely to 
result in the destruction or adverse modification of any designated 
critical habitat, which is the regulatory standard of section 7(a)(2) 
of the Act under which consultation is completed. In areas where a 
listed species occurs, Federal agencies must consult with the Service 
on actions that may affect a listed species, and refrain from actions 
that are likely to jeopardize the continued existence of such species. 
The analysis of effects to critical habitat is a separate and different 
analysis from that of the effects to the species. Therefore, the 
difference in outcomes of these two analyses represents the regulatory 
benefit of critical habitat. For some cases, the outcome of these 
analyses will be similar, because effects to habitat will often result 
in effects to the species. However, in this case, peppered chubs do not 
occur in the areas of proposed Units 3 and 4 (unoccupied units) 
considered for exclusion. Critical habitat designation may provide a 
regulatory benefit for the peppered chub on lands covered under the 
Agreement when there is a Federal nexus present for a project that 
might adversely modify critical habitat. However, the areas that were 
considered for exclusion do not contain a large amount of Federal land 
where such a nexus would exist.
    Another possible benefit of including lands in critical habitat is 
public education regarding the potential conservation value of an area 
that may help focus conservation efforts on areas of high conservation 
value for certain species. We consider any information about the 
peppered chub and its habitat that reaches a wide audience, including 
parties engaged in conservation activities, to be valuable. Designation 
of critical habitat would provide educational benefits by informing 
Federal agencies and the public about the presence of listed species 
for all units.
    In summary, we find that the benefits of inclusion of approximately 
196 rmi (315 rkm) in proposed Units 3 and 4 of waterways within the 
State of Kansas are: (1) A regulatory benefit when there is a Federal 
nexus present for a project that might adversely modify critical 
habitat; and (2) educational benefits for the peppered chub and its 
habitat.
    Benefits of Exclusion--State of Kansas (Proposed Units 3 and 4): 
The benefits of excluding 196 rmi (315 rkm) in Kansas waterways under 
the Agreement from the designation of critical habitat for the peppered 
chub are substantial and include: (1) Continuance and strengthening of 
our effective working relationship with private landowners to promote 
voluntary, proactive conservation of the peppered chub and its habitat 
as opposed to reactive regulation; (2) allowance for continued 
meaningful collaboration and cooperation in working toward species 
recovery, including conservation benefits that might not otherwise 
occur; (3) the State of Kansas reviewed the Agreement as a partner in 
development and has ensured required determinations are necessary and 
advisable; (4) the Agreement has a monitoring program to ensure 
conservation measures are effective; and (5) encouragement of 
developing additional conservation easements and other conservation and 
management plans in the future for other federally listed and sensitive 
species.
    Many landowners perceive critical habitat as an unfair and 
unnecessary regulatory burden. According to some, the designation of 
critical habitat on (or adjacent to) private lands may reduce the 
likelihood that landowners will support and carry out conservation 
actions (Main et al. 1999, pp. 1,263-1265; Bean 2002, p. 412). The 
magnitude of this negative outcome is greatly amplified in situations 
where active management measures (such as reintroduction, fire 
management, and control of invasive species) are necessary for species 
conservation (Bean 2002, pp. 412-414). We find that the exclusion of 
this specific area of non-federally owned lands from the critical 
habitat designation for peppered chub can contribute to the species 
recovery and provide a superior level of conservation than critical 
habitat can provide alone. We find that, where consistent with the 
discretion provided by the Act, it is necessary to implement policies 
that provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, entire).
    Additionally, partnerships with non-Federal landowners are vital to 
the conservation of listed species, especially on non-Federal lands; 
therefore, the Service is committed to supporting and encouraging such 
partnerships through the recognition of positive conservation 
contributions. In the case considered here, excluding these areas from 
critical habitat will help foster the partnerships the landowners and 
land managers in question have developed with Federal and State 
agencies and local conservation organizations; will encourage the 
continued implementation of voluntary conservation actions for the 
benefit of the peppered chub and its habitat on these lands; and may 
also serve as a model and aid in fostering future cooperative 
relationships with other parties here and in other locations for the 
benefit of other endangered or threatened species. Therefore, we 
consider the positive effect of excluding from critical habitat areas 
managed by

[[Page 11213]]

active conservation partners to be a significant benefit of exclusion.
    Benefits of Exclusion Outweigh the Benefits of Inclusion--State of 
Kansas, Proposed Units 3 and 4: We evaluated the exclusion of 196 rmi 
(315 rkm) of waterways adjacent to private land within the areas 
covered by the Agreement from our designation of critical habitat, and 
we determined the benefits of excluding these lands outweigh the 
benefits of including them as critical habitat for the peppered chub.
    We conclude that the additional regulatory and educational benefits 
of including these lands as critical habitat are relatively small, 
because of the unlikelihood of a Federal nexus on these private lands. 
These benefits are further reduced by the existence of the Agreement. 
We anticipate that there would be little additional Federal regulatory 
benefit to the taxon on private land because there is a low likelihood 
that those parcels will be negatively affected to any significant 
degree by Federal activities requiring section 7 consultation, and 
ongoing management activities indicate there would be no additional 
requirements pursuant to a consultation that addresses critical 
habitat.
    Furthermore, the potential educational and informational benefits 
of critical habitat designation on areas containing the PBFs essential 
to the conservation of the peppered chub would be minimal, because the 
landowners and land managers under consideration have demonstrated 
their knowledge of the species and its habitat needs in the process of 
developing their partnerships with the Service.
    In contrast, the benefits derived from excluding the areas managed 
by these owners and enhancing our partnership with these landowners and 
land managers is significant. Because voluntary conservation efforts 
for the benefit of listed species on non-Federal lands are so valuable, 
the Service considers the maintenance and encouragement of conservation 
partnerships to be a significant benefit of exclusion. The development 
and maintenance of effective working partnerships with non-Federal 
landowners for the conservation of listed species is particularly 
important in areas such as Kansas, a State with relatively little 
Federal landownership, but many species of conservation concern. 
Excluding these areas from critical habitat will help foster the 
partnerships the landowners and land managers in question have 
developed with Federal and State agencies and local conservation 
organizations, and will encourage the continued implementation of 
voluntary conservation actions for the benefit of the peppered chub and 
its habitat on these lands. The current active conservation efforts on 
some of these areas contribute to our knowledge of the species through 
monitoring and scientific research. In addition, these partnerships not 
only provide a benefit for the conservation of these species, but may 
also serve as a model and aid in fostering future cooperative 
relationships with other parties in this area of Kansas and in other 
locations for the benefit of other endangered or threatened species.
    We find that excluding areas from critical habitat that are 
receiving both long-term conservation and management for the purpose of 
protecting the habitat that supports the peppered chub will preserve 
our partnership with the private landowners in the State of Kansas and 
will encourage future collaboration towards conservation and recovery 
of listed species. The partnership benefits are significant and 
outweigh the small potential regulatory, educational, and ancillary 
benefits of including the land in the final critical habitat 
designation for the peppered chub. Therefore, the Agreement provides 
greater protection of habitat for the peppered chub than could be 
gained through the project-by-project analysis of a critical habitat 
designation.
    Exclusion Will Not Result in Extinction of the Species--State of 
Kansas; Proposed Units 3 and 4: We determined that the exclusion of 196 
rmi (315 rkm) of waterways within the boundaries of the State of Kansas 
covered by the Agreement will not result in extinction of the taxon. 
Protections afforded to the species and its habitat by the Agreement 
provide assurances that the species will not go extinct as a result of 
excluding these lands from the critical habitat designation.
    An important consideration as we evaluate these exclusions and 
their potential effect on the species in question is that critical 
habitat does not carry with it a regulatory requirement to restore or 
actively manage habitat for the benefit of listed species; the 
regulatory effect of critical habitat is only the avoidance of 
destruction or adverse modification of critical habitat should an 
action with a Federal nexus occur. It is, therefore, advantageous for 
the conservation of the species to support the proactive efforts of 
non-Federal landowners who are contributing to the enhancement of 
essential habitat features for listed species through exclusion. The 
jeopardy standard of section 7 of the Act will also provide protection 
in these occupied areas when there is a Federal nexus. Therefore, based 
on the above discussion, the Secretary is exercising her discretion to 
exclude approximately 196 rmi (315 rkm) of waterways from the 
designation of critical habitat for the peppered chub.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
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 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the 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.

[[Page 11214]]

    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; and small businesses (13 CFR 121.201). 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 whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as 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.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate only the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies will be directly 
regulated by this designation. The RFA does not require evaluation of 
the potential impacts to entities not directly regulated. Moreover, 
Federal agencies are not small entities. Therefore, because no small 
entities will be directly regulated by this rulemaking, the Service 
certifies that this critical habitat designation will not have a 
significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis is not required.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Based on this 
information, we affirm our certification that this final critical 
habitat designation will not have a significant economic impact on a 
substantial number of small entities, and a 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. We do not find that this critical habitat designation 
will significantly affect energy supplies, distribution, or use, as the 
areas identified as critical habitat are along riparian corridors in 
mostly remote areas with little energy supply, distribution, or 
infrastructure in place. 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)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because the lands being designated for 
critical habitat are owned by the States of New Mexico, Texas, and 
Oklahoma and the Federal Government (National Park Service, Bureau of 
Land Management, Bureau of Reclamation, and Service). We have 
determined that this rule will not 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.

[[Page 11215]]

Consequently, we have determined that this critical habitat designation 
will not significantly or uniquely affect small government entities. As 
such, a small government agency plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the peppered chub in a takings implications assessment. The 
Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership or establish any closures or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat 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. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed and 
concludes that this designation of critical habitat for the peppered 
chub does not pose significant takings implications for lands within or 
affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of the critical habitat designation with, the 
appropriate State resource agencies. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the State, or on the relationship 
between the Federal Government and the State, or on the distribution of 
powers and responsibilities among the various levels of government. The 
designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the PBFs 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 these State and local 
governments in long-range planning because these local governments no 
longer have to wait for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) will 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 designation 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 Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the physical or biological features essential to the 
conservation of the species. The designated areas of critical habitat 
are presented on maps, and the rule provides several options for the 
interested public to obtain more detailed location information, if 
desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to the OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and 
you are 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 National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). 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 the peppered chub, 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 undertake a NEPA analysis for 
critical habitat designation.
    We performed the NEPA analysis, and the draft environmental 
assessment was made available for public comment on April 21, 2021, on 
the Arlington Ecological Services Field Office website (below). We 
emailed notices to 39 individuals, agencies, organizations, and Tribes 
that were likely to be interested in and/or potentially affected by the 
proposed action. We accepted public comments through May 24, 2021, and 
received comments from the Kansas Farm Bureau, Oklahoma Farm Bureau, 
New Mexico Department of Game and Fish, New Mexico Interstate Stream 
Commission, the Petroleum Alliance of Oklahoma, and the Texas 
Commission on Environmental Quality. The final environmental assessment 
and finding of no significant impact have been completed and are 
available for review with the publication of this final rule. You may 
obtain a copy of the documents online at https://www.regulations.gov, 
by mail from the Arlington, Texas, Ecological Services Field Office 
(see ADDRESSES), or by visiting our website at https://www.fws.gov/southwest/es/ArlingtonTexas/.

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

[[Page 11216]]

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.
    In a letter dated September 7, 2017, we informed the Tribal 
leadership of nine Tribal nations (Pueblo of Cochiti, Pueblo of Isleta, 
Pueblo of Jemez, Pueblo of Tesuque, Pueblo of Zuni, Hopi Tribe, 
Jicarilla Apache Nation, Mescalero Apache Tribe, and the Navajo Nation) 
near or within the range of the peppered chub in the State of New 
Mexico of our intent to conduct a status assessment for the peppered 
chub. In a letter sent October 18, 2017, we informed all Tribal 
entities in the State of Oklahoma of our intent to conduct a status 
assessment. In a letter dated November 6, 2018, we sought the input of 
the Sac and Fox Nation and the Cheyenne and Arapaho Tribes of Oklahoma 
for their input on the potential economic impact of designating 
critical habitat for the peppered chub. We received a response from the 
Sac and Fox Nation providing input for a potential critical habit 
designation and incorporated the information into our screening 
analysis.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team and the Arlington, 
Texas, Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. In Sec.  17.11, amend the table in paragraph (h) by adding an entry 
for ``Chub, peppered'' to the List of Endangered and Threatened 
Wildlife in alphabetical order under FISHES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name       Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                     Fishes
 
                                                  * * * * * * *
Chub, peppered..................  Macrhybopsis         Wherever found....            E   87 FR [INSERT FEDERAL
                                   tetranema.                                             REGISTER PAGE WHERE
                                                                                          THE DOCUMENT BEGINS];
                                                                                          2/28/2022; 50 CFR
                                                                                          17.95(e).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (e) by adding an entry for 
``Peppered Chub (Macrhybopsis tetranema)'' after the entry for ``Owens 
Tui Chub (Gila bicolor snyderi)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Peppered Chub (Macrhybopsis tetranema)
    (1) Critical habitat units are depicted for Quay County, New 
Mexico; Hemphill, Moore, Oldham, and Potter Counties, Texas; and 
Blaine, Caddo, Canadian, Cleveland, Creek, Custer, Dewey, Ellis, Grady, 
Harper, Hughes, Kingfisher, Logan, Major, McClain, Payne, Pontotoc, 
Pottawatomie, Roger Mills, Seminole, Woods, and Woodward Counties, 
Oklahoma, on the maps in this entry. The critical habitat units include 
Units 1, 2, and 4 as Unit 3 was excluded during the rulemaking process.
    (2) Within these areas, the physical or biological features 
essential to the conservation of peppered chub consist of the following 
components:
    (i) Unobstructed river segments greater than 127 river miles (205 
river kilometers) in length that are characterized by a complex braided 
channel and substrates of predominantly sand, with some patches of 
silt, gravel, and cobble.
    (ii) Flowing water with adequate depths to support all life stages 
and episodes of elevated discharge to facilitate successful 
reproduction, channel and floodplain maintenance, and sediment 
transportation.
    (iii) Water of sufficient quality to support survival and 
reproduction, which includes, but is not limited to, the following 
conditions:
    (A) Water temperatures generally less than 98.2 [deg]F (36.8 
[deg]C);
    (B) Dissolved oxygen concentrations generally greater than 3.7 
parts per million (ppm);
    (C) Conductivity generally less than 16.2 millisiemens per 
centimeter (mS/cm);
    (D) pH generally ranging from 5.6 to 9.0; and
    (E) Sufficiently low petroleum and other pollutant concentrations 
such that reproduction and/or growth is not impaired.
    (iv) Native riparian vegetation capable of maintaining river water 
quality, providing a terrestrial prey base, and maintaining a healthy 
riparian ecosystem.
    (v) A level of predatory or competitive, native or nonnative fish 
present such that any peppered chub population's resiliency is not 
affected.
    (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 
March 30, 2022.

[[Page 11217]]

    (4) Data layers defining map units were created using fish 
distribution data provided by State agencies and sourced on the 
FishNet2 online database. Hydrologic data for stream reaches were 
sourced from the U.S. Geological Survey online database. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site at https://www.fws.gov/southwest/es/ArlingtonTexas/ and at https://www.regulations.gov under Docket No. 
FWS-R2-ES-2019-0019 and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TR28FE22.001
    
    (6) Unit 1: Upper South Canadian River, New Mexico and Texas.
    (i) This unit consists of approximately 197.2 river miles (317.3 
river kilometers) of habitat in the South Canadian River from Revuelto 
Creek at Interstate 40 in New Mexico downstream to the inundated 
portion of Lake Meredith in Texas. Unit 1 includes river habitat up to 
bank full height.
    (ii) Map of Unit 1 follows:

[[Page 11218]]

[GRAPHIC] [TIFF OMITTED] TR28FE22.002

    (7) Unit 2: Lower South Canadian River, Texas and Oklahoma.
    (i) This unit consists of approximately 399.9 river miles (643.6 
river kilometers) of unoccupied habitat in the lower portion of the 
South Canadian River from the U.S. 83 bridge north of Canadian, Texas, 
downstream to the U.S. 75 bridge northwest of Calvin, Oklahoma. Unit 2 
includes river habitat up to bank full height.
    (ii) Map of Unit 2 follows:

[[Page 11219]]

[GRAPHIC] [TIFF OMITTED] TR28FE22.003

    (8) Unit 4: Cimarron River, Oklahoma.
    (i) Unit 4 consists of approximately 275.3 river miles (443.1 river 
kilometers) of unoccupied habitat in portions of the Ninnescah River 
and the Arkansas River, originating at the border of Kansas and 
Oklahoma, and extending downstream to OK 51 bridge northeast of Oilton, 
Oklahoma. Unit 4 includes river habitat up to bank full height.
    (ii) Map of Unit 4 follows:

[[Page 11220]]

[GRAPHIC] [TIFF OMITTED] TR28FE22.004

* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-03703 Filed 2-25-22; 8:45 am]
BILLING CODE 4333-15-P