11188 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

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. 

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/arlington

texas. 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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Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 11189 

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 


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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-byfactor 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 


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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. 


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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/ecologicalservices/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 


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(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, sandybottomed 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, freeswimming 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 speciesspecific 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 


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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 droughtprone 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 freeswimming 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). 


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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 postimpoundment, 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 


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,_ __ _, Species Status Assessment 

Texas 

Resiliency Units r········"·-

100 150 200 J Mile 

i\fasouri 

Figure-Map depicting resiliency units (excluding Lower Arkansas River) for the 

Peppered Chub Species Status Assessment. 
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 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, highvelocity 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 


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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

Population 

Demographic factors Habitat factors * 

Current 

Capture resiliency 

ratio 

Probability 

of capture 

trend 

Relative 

abundance 

Stream 

fragment 

length 

Channel 

narrowing 

Flood 

frequency Hydroperiod Low flow 

Upper Arkansas (includes Ninnescah and 

Salt Fork).

; ** .......... ; ............. ; ............. Fair .......... Fair to 

Good.

Poor and 

Good.

Poor and 

Good.

Poor and 

Good.

;. 

Cimarron ...................................................... ; ............. ; ............. ; ............. Good ....... Null to 

Good.

Null and 

Fair.

Poor and Fair Poor and 

Good.

;. 

North Canadian ........................................... ; ............. ; ............. ; ............. Fair .......... Null .......... Null to 

Good.

Poor to Fair ... Poor to 

Good.

;. 

Lower South Canadian ................................ ; ............. ; ............. ; ............. Good ....... Null to 

Good.

Poor to 

Fair.

Poor to Fair ... Fair and 

Good.

;. 

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 ; 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). 


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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 


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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, selfsustaining, 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 nonFederal 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 


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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 


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(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 nonFederal 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) 


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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 lifehistory 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 earlysuccessional 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 lifehistory 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 (°F) (36.8 

degrees Celsius (°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 


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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 offroad 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 


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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

Critical habitat unit Land ownership by type 

Size of unit in 

river miles 

(kilometers) 

Occupied? 

1. Upper South Canadian River ................................. Federal; State; Private; Other ..................................... 197 (317) Yes. 

2. Lower South Canadian River ................................. Federal; Tribal; Private; Other .................................... 400 (644) No. 


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TABLE 2—FINAL CRITICAL HABITAT UNITS FOR PEPPERED CHUB—Continued 

Critical habitat unit Land ownership by type 

Size of unit in 

river miles 

(kilometers) 

Occupied? 

4. Cimarron River ........................................................ Federal; Tribal; State; Private; Other ......................... 275 (443) No. 

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 selfsustaining 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’ 


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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 


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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 


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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 


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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, communityinterest, 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. 


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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 habitat unit 

Proposed 

critical 

habitat 

(rmi (rkm)) 

Area excluded 

(rmi (rkm)) 

Final critical 

habitat 

(rmi (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 nonFederal 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 nonFederal 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 enhancementof-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). NonFederal 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 


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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/mountainprairie/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 nonfederally 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 nonFederal 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 


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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-byproject 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 nonFederal 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. 


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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 nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

will significantly or uniquely affect 

small governments because 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. 


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

Texas/. 

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 


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11216 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

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 

■ 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. 

■ 2. In § 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: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

FISHES

* * * * * * * 

Chub, peppered ............. Macrhybopsis tetranema Wherever found ............ E 87 FR [INSERT FEDERAL REGISTER PAGE 

WHERE THE DOCUMENT BEGINS]; 2/28/ 

2022; 50 CFR 17.95(e).CH

* * * * * * * 

■ 3. In § 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: 

§ 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 °F (36.8 °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. 


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

(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: 


khammond on DSKJM1Z7X2PROD with RULES2ER28FE22.001</GPH>

Figure 1 to Peppered Chub (Macrhybopsis tetranema) paragraph (5) 

Critical Habitat for the Peppered Chub 

Unit overview 

El 

~ 

1 ~---------------------I 

I I 

I 

Unit 11 : Upper South 

Cuadian River 

I I 

1 Unit.2· 

,Canadian -, ...... '"- I 

\ . ..,, I 

·-.._._--..""\o:~.,_,,r---·l,, 

0 0 50 

0 50 100 Km 

",.•..J, 

100 Mi 

• c._""" 

4· :•Cimarro - - - - - - - - -

. .._. .. "' ~~dt ReqJ? 

1._ •• ,"l.., ~ 

-critical Habitat El Cities 

----- Rivers 

mlakes 

= Interstates 

~ : :• State Boundaries 
11218 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

(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: 


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Figure 2 to Peppered Chub (Macrhybopsis tetranema) paragraph (6)(ii) 

ruon 

Harding 

Quay 

Critical Habitat for the Peppered Chub 

Unit 1 - Upper South Canadian River 

I 

I 

0~ 

tH fl> 

~ -~----------+--------+------+--------< :::E•w :r: F 

w• 

ZI I Hartley 

Deaf Smith 

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0 10 20Mi 

I I I 

0 10 20Km 

Moore 

-,..;:~'!-~.:;;"'..,,"":..::._ 

Hutchinson dJ 

____ ,..,...,,.,_,;,,J'"-

Carson 

Annstrong 

-critical Habitat = Interstates 

----- Rivers 

fflL.akes 

• ■ ■ 

.,. • -■ State Boundaries 

D County Boundaries 
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 11219 

(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: 


khammond on DSKJM1Z7X2PROD with RULES2ER28FE22.003</GPH>

Figure 3 to Peppered Chub (Macrhybopsis tetranema) paragraph (7)(ii) 

••• ■• ■ •••• 

I 

I 

Critical Habitat for the Peppered Chub 

Unit 2 - Lower South Canadian River 

0 - Critical Habitat = Interstates 

0 10 20Mi El Cities ~ •. •: state Boundaries 

h-r ----- Rivers D County Boundaries 

0 1020Km 
11220 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

* * * * * 

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 


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Figure 4 to Peppered Chub (Macrhybopsis tetranema) paragraph (8)(ii) 

Comanche 

Englewood 

Harper 

Woodward 

Critical Habitat for the Peppered Chub 

Unit 4 - Cimarron River 

Barber '. '%. -~ 'P 

'· '-~ ... -... ..••.........•.. 

s 

' 

KANSAS 

·······r·· oKuroMi· 

Woods Alfalfa L 

Unit 4 - Cimarron Riv_e_r-----i-------ir--"'------.. 

8 - Critical Habitat ~: :• state Boundaries 

----- Rivers D County Boundaries 

0 10 20Mi 

I II 

0 10 20Km 

~ Lakes = Interstates 

G Cities