66664 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AG16 

Endangered and Threatened Wildlife 

and Plants; Listing Gila Chub as 

Endangered With Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), list the Gila 

chub (Gila intermedia) as endangered 

with critical habitat under the 

Endangered Species Act of 1973, as 

amended (Act). Gila chub were 

historically found throughout the Gila 

River basin in southern Arizona, 

southwestern New Mexico, and 

northeastern Sonora, Mexico. The Gila 

chub has been reduced in numbers and 

distribution in the majority of its 

historical range (Minckley 1973; 

Weedman et al. 1996). Where it is still 

present, populations are often small, 

fragmented, and at risk from known and 

potential threats and from random 

events such as drought, flood events, 

and wildfire. The primary threats to Gila 

chub include predation by and 

competition with nonnative organisms, 

including fish in the family 

Centrarchidae (Micropterus spp., 

Lepomis spp.), other fish species, 

bullfrogs (Rana catesbeiana), and 

crayfish (Orconectes virilis), and habitat 

degradation from surface water 

diversions and ground water 

withdrawals. Secondary threats include 

habitat alteration, destruction, and 

fragmentation resulting from numerous 

factors that are discussed in this final 

rule. The current status of the Gila chub 

is much degraded from historical levels. 

The species exists as a few, small 

isolated, populations. The small size of 

these populations, and their degree of 

fragmentation and isolation, cause them 

to be highly susceptible to threats. We 

believe that due to the current reduced 

status of the Gila chub and the severity 

of threats, including nonnative species 

predation and habitat destruction, the 

Gila chub is likely to become extinct 

throughout all or a significant portion of 

its range. This final rule will implement 

the Federal protection and recovery 

provisions of the Act for this species. 

We are also designating approximately 

160.3 river miles (mi) (258.1 kilometers 

(km)) of critical habitat located in Grant 

County, New Mexico, and Yavapai, Gila, 

Greenlee, Graham, Cochise, Santa Cruz, 

Pima, and Pinal Counties in Arizona. 

DATES: This final rule is effective 

December 2, 2005. 

ADDRESSES: Supporting documentation 

for this rulemaking is available for 

public inspection, by appointment, 

during normal business hours at the 

U.S. Fish and Wildlife Service, Arizona 

Ecological Services Field Office, 2321 

West Royal Palm Road, Suite 103, 

Phoenix, AZ 85021–4951. The final 

rule, economic analysis, environmental 

assessment, and more detailed color 

maps of critical habitat are also 

available online at http://www.fws.gov/ 

arizonaes/. GIS files of the critical 

habitat maps are also available online at 

http://criticalhabitat.fws.gov/. 

FOR FURTHER INFORMATION CONTACT: 

Steven L. Spangle, Field Supervisor, 

Arizona Ecological Services Field Office 

(telephone, 602–242–0210; facsimile, 

602–242–2513). 

SUPPLEMENTARY INFORMATION: This final 

rule lists the Gila chub as endangered 

and designates critical habitat. 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 470 species or 38 percent of the 

1,253 listed species in the United States 

under the jurisdiction of the Service 

have designated critical habitat. 

We address the habitat needs of all 

1,253 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, and the section 10 incidental 

take permit process. The Service 

believes that it is these measures that 

may make the difference between 

extinction and survival for many 

species. 

We note, however, that two courts 

found our definition of adverse 

modification to be invalid (March 15, 

2001, decision of the United States 

Court Appeals for the Fifth Circuit, 

Sierra Club v. U.S. Fish and Wildlife 

Service, et al., F.3d 434 and the August 

6, 2004, Ninth Circuit judicial opinion, 

Gifford Pinchot Task Force, et al. v. 

United States Fish and Wildlife Service). 

On December 9, 2004, the Director 

issued guidance to be used in making 

section 7 adverse modification 

determinations. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66665 

proposals due to the risks associated 

with noncompliance with judicially 

imposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides little additional protection to 

listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). None 

of these costs result in any benefit to the 

species that is not already afforded by 

the protections of the Act enumerated 

earlier, and they directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to this final 

listing and critical habitat rule. For more 

information on biology of the Gila chub, 

refer to the August 9, 2002, proposed 

rule (67 FR 51948). However, some of 

the information presented in the 

proposed rule is discussed below in this 

final rule, where appropriate, such as 

the summary of factors affecting the 

species. 

Description and taxonomy. The Gila 

chub is a member of the minnow family 

Cyprinidae. The Gila chub is smallfinned, deep-bodied, chubby (chunky), 

and darkly colored. Adult males average 

about 150 millimeters (mm) (6 inches 

(in)) in total length; females can exceed 

200 mm (8 in). Scales are coarse, thick, 

and broadly overlapped, and radiate out 

from the base (Minckley 1973; 

Weedman et al. 1996). 

Baird and Girard (1854:28) published 

a description of the Gila chub, as Gila 

gibbosa, based on the type specimen 

collected in 1851 from the Santa Cruz 

River. For nomenclature reasons, the 

name was changed by Girard to Tigoma 

intermedia in 1856, working with 

specimens from the San Pedro River. 

Despite that and other name changes, 

the Gila chub has been recognized as a 

distinct species since the 1850s, with 

the exception of a short period in the 

mid-1900s when it was placed as a 

subspecies of Gila robusta (Miller 1945). 

For the past 30 years, Gila intermedia 

has been recognized as a full monotypic 

species, separate from the polytypic 

species Gila robusta, both currently 

accepted as valid species (Nelson et al. 

2004). Minckley and DeMarais (2000) 

described a new species within the Gila 

River Basin, Gila nigra. It is similar to 

Gila intermedia in that it is another 

headwater-type chub, whereas Gila 

robusta is more often found in the 

mainstems of the major rivers within the 

Gila River Basin. Gila intermedia is the 

only species being addressed in this 

rule. 

Distribution and Habitat. Historically, 

Gila chub have been recorded in 

approximately 43 rivers, streams, and 

spring-fed tributaries throughout the 

Gila River basin in southwestern New 

Mexico, central and southeastern 

Arizona, and northern Sonora, Mexico 

(Miller and Lowe 1967; Minckley 1973; 

Rinne 1976; DeMarais 1986; Bestgen 

and Propst 1989). Several populations 

may have originally had basin-wide 

distributions (e.g., Babocomari River 

and Santa Cruz River). 

Gila chub commonly inhabit pools in 

smaller streams, springs, and cienegas (a 

desert wetland), and can survive in 

small artificial impoundments, such as 

man made ponds (Miller 1946; 

Minckley 1973; Rinne 1975). Gila chub 

are highly secretive, preferring quiet, 

deeper waters, especially pools, or 

remaining near cover including 

terrestrial vegetation, boulders, and 

fallen logs (Minckley 1973). 

Riparian and aquatic communities 

across the southwest have been 

degraded or destroyed by human 

activities (Hastings 1959; Hastings and 

Turner 1965; Henderickson and 

Minckley 1984; Tellman et al. 1997). 

Humans have affected southwestern 

riparian systems over a period of several 

thousand years. Before the 1800s, 

indigenous people and missionaries 

used southern Arizona cienegas and 

riparian areas mostly for subsistence 

enterprises, including woodcutting, 

agriculture (including livestock grazing), 

and food and fiber harvesting. 

Historically, beaver also used riparian 

areas in the Gila River basin almost 

anywhere perennial water and 

appropriate vegetation could be found. 

The activities of beaver are believed to 

have helped promote Gila chub habitat 

by inhibiting erosion and downcutting 

of stream channels (Parker et al. 1985), 

and increasing ponded water behind 

their dams. Beaver were extirpated (i.e. 

lost from a particular area) from a 

majority of their range by the late 1800s 

and are still not abundant or have not 

recolonized areas where they have been 

extirpated and were historically 

common (Hoffmeister 1986). For 

example, beaver were extirpated from 

the Santa Cruz and San Pedro Rivers in 

Arizona. Loss of this large mammal and 

the dams they constructed may have 

contributed to rendering reaches of 

some streams and rivers unsuitable as 

habitat for the Gila chub. 

There was a significant human 

population increase in southern Arizona 

and northern Sonora, Mexico, in the 

early to mid 1800s (Tellman et al. 1997). 

New immigrants substantially increased 

subsistence and commercial livestock 

production and agriculture. By the late 

1800s, many southern Arizona 

watersheds were in poor condition 

primarily due to uncontrolled livestock 

grazing, mining, hay harvesting, timber 

harvesting, and other management 

practices, such as fire suppression 

(Bahre 1991; Humphrey 1985; Martin 

1975). The watershed degradation 

caused by these management practices 

led to widespread erosion and channel 

entrenchment when above-average 

rainfall and flooding occurred in the late 

1800s (Bryan 1925; Martin 1975; 

Hastings and Turner 1980; Dobyns 1981; 

Hendrickson and Minckley 1984; 

Sheridan 1986; Bahre 1991; Webb and 

Betancourt 1992). These events led to 

long-term stream, cienega, and riparian 

habitat degradation throughout southern 

Arizona and northern Mexico. Physical 

evidence of cienega and other riparian 

area alterations can be found in the 

black organic soils of the drainage cut 

banks in places like the San Rafael 

Valley (Hendrickson and Minckley 

1984), and San Pedro River (Hereford 

1993). Although these changes took 

place nearly a century ago, these 

ecosystems have not fully recovered, 

and in some areas may never recover. 

We estimate, based on collection 

records, historical habitat data, the 1996 

Arizona Game and Fish Department 

(AGFD) Gila chub status review 

(Weedman et al. 1996), and information 

in our files documenting currently 

occupied habitat (see Table 1), that the 

Gila chub has been eliminated from 

approximately 85 to 90 percent of its 

formerly occupied habitat. Of 47 known 

populations (see Table 1), 29 are 

considered occupied (i.e., Gila chub 

have been documented within the last 5 

years); 4 of these are newly established 

populations. All 29 populations are 

considered small, isolated, and subject 

to some form of threat; nonnative 

species are present in 27 of the 

populations (Table 1). Weedman (1996) 

categorized the status of the Gila chub 

populations into one of four categories: 

(1) Stable-secure-Gila chubs are 

common, data over the last 5 to 10 years 

show a stable reproducing population, 

no nonnative predatory or competitive 

species are present, no current or future 

land use threats were identified; (2) 

Stable-threatened-Gila chub are 

common to uncommon, potential 

66666 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

threats by nonnatives exist, some 

habitat-altering land and water uses 

were identified, or lack of recruitment 

(i.e., reproduction and survival of 

young) was detected within the 

population; (3) Unstable-threatened—

Gila chub are rare, have limited 

distribution, predatory or competitive 

nonnatives are present, or the habitat is 

modified or threatened; (4) Extirpated 

(i.e., liminated)-Gila chub are no longer 

found within a particular river system. 

These four categories are reflected in the 

following discussion of the current 

status of Gila chub populations 

beginning with the next paragraph, and 

are summarized for each of the currently 

known occupied populations and 

critical habitat areas in Table 1; threat 

information is also summarized for each 

population in Table 1. Of the 29 

currently occupied populations, we 

estimate that 10 can be considered 

stable-threatened and 19 are considered 

unstable-threatened; none are 

considered stable-secure. 

TABLE 1.—GILA CHUB LOCATIONS (MAJOR DRAINAGES IN PARENTHESES) INCLUDING STATUS CLASSIFICATION [BASED ON

WEEDMAN ET AL.1996; S=STABLE, U=UNSTABLE, T=THREATENED, E=EXTIRPATED (SEE DISTRIBUTION AND HABITAT

SECTION)], THREATS (FROM SERVICE FILES), LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION. NO INFORMATION WAS AVAILABLE FOR CURRENT STATUS AND THREATS ON THE BLUE RIVER

Gila Chub Locations Status 

classification Threats 

Last year 

occupancy 

confirmed 

Source 

Critical Habitat Areas 

Area 1: Upper Gila River 

Turkey Creek, NM (Gila River) ........................... UT Fire, grazing, nonnative 

species.

2005 P.C. Marsh, ASU in litt. 

2005. 

Eagle/East Eagle Creek (Gila River) .................. UT Fire, grazing, nonnative 

speices.

2005 Marsh 2005. 

Harden Cienega Creek (San Francisco River) ... ST Fire, grazing, nonnative 

species.

2005 McKell 2005. 

Dix Creek (San Francisco River) ........................ ST Fire, grazing ..................... 2005 McKell 2005. 

Area 2: Middle Gila River Area 

Mineral Creek/Devil’s Canyon (Gila River) ......... UT Fire, grazing, nonnative 

species.

2000 Weedman et al. 2000. 

Area 3: Babocomari River 

O’Donnell Creek (Babocomari River) ................. UT Fire, grazing, nonnative 

species.

2004 Dean Foster, AGFD, in 

litt. 2005. 

Turkey Creek (Babocomari River) ...................... E Fire, grazing, nonnative 

species.

1991 Weedman et al. 1996. 

Area 4: Lower San Pedro River 

Bass Canyon (San Pedro River) ........................ ST Fire ................................... 2003 Bob Rogers, The Nature 

Conservancy (TNC), in 

litt. 2005. 

Hot Springs Canyon (San Pedro River) ............. ST Fire ................................... 2004 Bob Rogers, TNC, in litt. 

2005. 

Redfield Canyon (San Pedro River) ................... ST Fire, grazing, nonnative 

species.

2001 Bob Rogers, TNC, in litt. 

2005. 

Area 5: Lower Santa Cruz 

Cienega Creek (lower, Santa Cruz River) .......... UT Fire, nonnative species, 

water use.

2005 Doug Duncan, in litt. 

Cienega Creek (upper, Santa Cruz River) ......... ST Fire, nonnative species ... 2005 Dean Foster, AGFD, in 

litt. 2005. 

Mattie Canyon (Santa Cruz River) ...................... UT Fire, grazing, nonnative 

species.

2005 Jeff Simms, BLM, in litt. 

2005. 

Empire Gulch (Santa Cruz River) ....................... UT Fire, grazing, .................... 2001 (67 FR 51948). 

Sabino Canyon (Santa Cruz River) .................... UT Fire, nonnative species ... 2005 Service files. 

Area 6: Verde River 

Walker Creek (Verde River) ................................ ST Fire, grazing, nonnative 

species.

2005 Service files. 

Red Tank Draw (Verder River) ........................... UT Fire, grazing, nonnative 

species.

2005 Service data. 

Spring Creek (Verde River) ................................ ST Fire, grazing, nonnative 

species, residential development, water use.

2005 Service files. 

Williamson Valley Wash (Verde River) ............... UT Nonnative species residential development, 

water use.

2003 Bill Leibfried, in litt. 2005. 

Area 7: Agua Fria 

Little Sycamore Creek (Agua Fria River) ............ ST Fire, grazing, nonnative 

species.

2003 A .Silas, FS, pers. comm. 

2005. 

Sycamore Creek (Agua Fria River) .................... UT Fire, grazing, nonnative 

species.

2005 Hedwall et al. 2005. 

Indian Creek (Agua Fria River) ........................... UT Fire, grazing, nonnative 

species.

2005 J. Voeltz, AGFD in litt. 

2005. 

Silver Creek (Agua Fria River) ............................ UT Fire, grazing, nonnative 

species.

2005 D. Weedman, AGFD in 

litt. 2005. 

Larry Creek (Agua Fria River) ............................ ST Fire, grazing ..................... 2003 Service files. 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66667 

TABLE 1.—GILA CHUB LOCATIONS (MAJOR DRAINAGES IN PARENTHESES) INCLUDING STATUS CLASSIFICATION [BASED ON

WEEDMAN ET AL.1996; S=STABLE, U=UNSTABLE, T=THREATENED, E=EXTIRPATED (SEE DISTRIBUTION AND HABITAT

SECTION)], THREATS (FROM SERVICE FILES), LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION. NO INFORMATION WAS AVAILABLE FOR CURRENT STATUS AND THREATS ON THE BLUE RIVER—

Continued 

Gila Chub Locations Status 

classification Threats 

Last year 

occupancy 

confirmed 

Source 

Lousy Canyon (Agua Fria River) ........................ ST Fire, grazing ..................... 2005 Service files. 

Locations Not in Critical Habitat Areas 

Bonita Creek (Gila River) ........................................... ST Fire, grazing, recreatoin, 

roads, water use, nonnative species.

2005 Heidi Blasius, BLM, pers. 

com. 2005. 

Blue River (Gila River) ............................................... No information No information ................. 2000 Weedman et al. (1996) 

Minckley and DeMarais 

(2000). 

Romero Canyon (Santa Cruz River) .......................... UT Introduced Fire, nonnative species ... 2005 AGFD 2005a. 

Bear Canyon (Santa Cruz River) ............................... UT Introduced Fire, nonnative species ... 2005 AGFD 2005a. 

Sheehy Spring (Santa Cruz River) ............................ UT Fire, nonnative species ... 2005 D. Foster, AGFD, in litt. 

2005. 

Babocomari River at T4 Spring (San Pedro River) ... UT Fire, nonnative psecies ... 2005 D. Foster, AGFD, in litt. 

2005. 

Double R Canyon (San Pedro River) ........................ UT Fire ................................... 2003 Bob Rogers, TNC, in litt. 

2005. 

Wildcat Canyon (San Pedro River) ............................ UT Fire ................................... 2003 Bob Rogers, TNC, in litt. 

2005. 

Post Canyon (Babocomari River) .............................. E Fire, grazing, nonnative 

species.

1989 Weedman et al. 1996. 

Arroyo La Cieneguita, Mexico (San Pedro River) ..... E Fire, grazing, nonnative 

species.

1990 Varela-Romero et al. 

1992. 

Los Fresnos River, Mexico (San Pedro River) .......... E Fire, grazing, nonnaative 

species.

1990 Varela-Romero et al. 

1992. 

Localities Where the Gila chub is Believed Extirpated 

Aqua Fria River .......................................................... .......................................... 1966 Weedman et al. 1996. 

Big Chino Wash (Verde River) ................................... .......................................... 1950 Weedman et al. 1996. 

Birmingham Pond (Santa Cruz River) ....................... .......................................... 1943 Weedman et al. 1996. 

Cave Creek/Seven Springs Wash (Salt River) .......... .......................................... 1978 Weedman et al. 1996. 

Fish Creek (Salt River) ............................................... .......................................... 1965 Weedman et al. 1996. 

Monkey Spring (Santa Cruz River) ............................ .......................................... 1968 Weedman et al. 1996.

Queen Creek (Gila River) .......................................... .......................................... 1938 Weedman et al. 1996. 

Arnett Creek (Gila River) ............................................ .......................................... 1945 Weedman et al. 1996. 

San Pedro .................................................................. .......................................... 1912 Weedman et al. 1996. 

San Simon River ........................................................ .......................................... 1939 Weedman et al. 1996. 

Santa Cruz River ........................................................ .......................................... 1977 Weedman et al. 1996. 

Haunted Canyon (Salt River) ..................................... .......................................... 1959 University of Michigan 

Museum of Zoology 

[UMMZ] collection 

record 176179. 

In New Mexico, Gila chub likely 

inhabited numerous tributaries of the 

Gila River basin historically. These 

include Apache Creek, Catron County; 

Duck Creek, Grant County; San 

Francisco River, Catron County; San 

Simon Cienega, Hidalgo County; and 

Turkey Creek, Grant County (Rinne 

1969, 1976; Hubbard et al. 1979; Bestgen 

and Propst 1989; Sublette et al. 1990; 

Propst 1999). All of these populations 

are now extirpated (Bestgen and Propst 

1989), with the exception of Turkey 

Creek (Propst 1999; P. C. Marsh, 

Arizona State University [ASU] in litt. 

2005). We consider Turkey Creek 

unstable-threatened because the 

population was recently decimated by 

wildfire, and nonnative species are 

present (B. Thompson, New Mexico 

Game and Fish Department [NMGF], in 

litt. 2005). 

In Arizona, Gila chub are known to 

have occupied portions of the Salt, 

Verde, Santa Cruz, San Pedro, San 

Carlos, San Simon, San Francisco, and 

Agua Fria drainages in addition to 

smaller tributaries of the mainstem Gila 

River. Small remnant populations 

remain in most of these drainages with 

the exception of the Salt and San Simon 

Rivers, where all known populations 

have been extirpated (Weedman et al. 

1996; Propst 1999). 

In the Verde River basin, Walker and 

Spring creeks, located in Yavapai 

County, chub populations are 

considered stable-threatened 

populations; the population in 

Williamson Valley Wash, also in 

Yavapai County, is considered unstablethreatened. The Santa Cruz River has 

five tributaries with extant populations 

of Gila chub, which include Bear, 

Romero, and Sabino canyons (Pima 

County) that were established this year 

(these are considered unstablethreatened); Sheehy Spring (Santa Cruz 

66668 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

County) has an unstable-threatened 

population (Arizona Game and Fish 

Department [AGFD] 2005a); and Cienega 

Creek (Pima and Santa Cruz Counties) 

has a stable-threatened population of 

Gila chub. The San Pedro River Basin 

has four extant, stable-threatened 

populations: Bass, Hot Springs, and 

Redfield canyons (Graham and Pima 

Counties), and O’Donnell Canyon (Santa 

Cruz County; B. Rogers, The Nature 

Conservancy (TNC), in litt. 2005; D. 

Foster, AGFD in litt. 2005). There is an 

unstable-threatened population of Gila 

chub at T4 Spring in the Babocomari 

River (Santa Cruz and Cochise Counties; 

D. Duncan, U.S. Fish and Wildlife 

Service in litt. 2003). The San Carlos 

River and the Blue River are tributaries 

to the Gila River (Gila and Graham 

Counties) on San Carlos Apache tribal 

lands. We are aware that Gila chub are 

extant on the Reservation, but we do not 

have information to document the status 

of Gila chub in those drainages. 

The San Francisco River has two 

tributaries with extant populations, Dix 

Creek in Greenlee County, Arizona, and 

Harden Cienega in Greenlee County, 

Arizona, and Grant County, New 

Mexico. Based on surveys in June 2005, 

these populations appear to be doing 

well and can be characterized as stablethreatened (McKell 2005). The Agua 

Fria River has two tributaries with 

stable-threatened populations, Silver 

and Sycamore creeks (Yavapai County), 

as well as two unstable-threatened 

populations in Little Sycamore Creek 

and Indian Creek (Yavapai County) 

(Weedman et al. 1996; A. Silas, U.S. 

Forest Service [FS], pers. comm. 2005). 

In addition, there are two introduced 

populations in the Agua Fria River, 

Larry Creek and Lousy Canyon (Yavapai 

County); both appear to be stablethreatened based on recent surveys. 

Populations of all of the Aqua Fria 

populations may have been affected by 

wildfires that occurred in summer 2005 

(Knowles et al. 2005). Two tributaries of 

the Gila River in Arizona have extant 

populations of Gila chub: Eagle Creek 

(Graham and Greenlee Counties) has an 

unstable-threatened population, and 

Bonita Creek (Graham County) has a 

stable-threatened population (Weedman 

et al. 1996; Marsh 2005; H. Blasius, 

Bureau of Land Management (BLM), in 

litt. 2005). 

In Mexico, Gila chub historically 

occupied significant portions of the 

Santa Cruz and San Pedro river basins. 

The current known distribution of Gila 

chub in Mexico has been reduced to two 

small spring areas, Cienega los Fresnos 

and Cienega la Cienegita, adjacent to the 

Arroyo los Fresnos (tributary of the San 

Pedro River), within 1.2 mi (2 km) of the 

Arizona-Mexico border (Varela-Romero 

et al. 1992). No Gila chub remain in the 

Mexican portion of the Santa Cruz River 

basin (Weedman et al. 1996). 

Establishment of new populations of 

Gila chub has been attempted in six 

sites in Arizona; five sites remain 

extant. Lousy Canyon and Larry Creek 

(Yavapai County) are tributaries to the 

Agua Fria River that were stocked with 

200 Gila chub from Silver Creek on July 

6, 1995. Recent surveys indicate that 

these populations are doing well, with 

good recruitment. Gardner Canyon 

(Cochise County) was stocked with 150 

Gila chub from Turkey Creek (Santa 

Cruz County) in July 1988. Follow up 

surveys in May 1995 did not detect Gila 

chub in Gardner Canyon; 2005 surveys 

also did not detect the species (AGFD 

2005a). In May 2005, Gila chub that 

were salvaged from Sabino Canyon 

during the Aspen fire in 2003 were 

returned to Sabino Canyon and 

introduced into two other streams in the 

Santa Catalina Mountains: 

approximately 350 Gila chub were 

stocked into Sabino Canyon, 120 into 

Romero Canyon, and 85 into Bear 

Canyon (all in Pima County; AGFD 

2005a). The status information 

presented above is summarized in Table 

1. 

Previous Federal Actions 

For more information on previous 

Federal actions concerning the Gila 

chub, refer to the proposed rule to list 

the Gila chub as endangered with 

critical habitat published in the Federal 

Register on August 9, 2002 (67 FR 

51948). On May 18, 2004, the Center for 

Biological Diversity filed a complaint 

against the Department of the Interior 

because the Service had not published 

a final rule for the Gila chub in a timely 

manner. On August 3, 2004, the United 

States District Court of Arizona ordered 

that we, via a stipulated settlement 

agreement, submit for publication to the 

Federal Register, a final rule by October 

21, 2005 (Center for Biological Diversity 

v. Norton, No. CV 04–2061 TUC CRP). 

On August 31, 2005 (70 FR 51732), we 

published a notice to reopen the public 

comment period on the August 9, 2002, 

proposed rule for 30 days and announce 

the availability of the draft economic 

analysis, draft environmental 

assessment, and hearing dates for the 

proposed listing and critical habitat 

designation for the Gila chub. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed listing and 

designation of critical habitat for the 

Gila chub on August 9, 2002 (67 FR 

51948), and in our notice to reopen the 

comment period (August 31, 2005; 70 

FR 51732). We also contacted 

appropriate Federal, State, and local 

agencies; scientific organizations; and 

other interested parties and invited 

them to comment on the proposed rule. 

We also requested information 

pertaining to any actions that affect the 

Gila chub, its current status, 

distribution, and threats, and the status 

of nonnative fishes in the historical 

range of Gila chub. We requested this 

information in order to make a final 

listing determination based on the best 

available scientific and commercial 

data. We published newspaper notices 

inviting public comment and 

announcing the public hearings in the 

following newspapers in Arizona and 

New Mexico: Albuquerque Tribune, 

Albuquerque Journal, the Arizona 

Republic, Daily Courier (Prescott), Santa 

Fe New Mexican, Silver City Daily 

Press, Sierra Vista Herald, Tucson 

Citizen, Arizona Daily Star (Tucson), the 

Bulletin (Sonoita), Eastern Arizona 

Courier (Safford), the Verde 

Independent, Camp Verde Bugle, and 

the Copper Country News (Globe). On 

September 13, 14, and 15, 2005, we held 

public hearings in Silver City, New 

Mexico; Safford, Arizona; and Camp 

Verde, Arizona, respectively, to solicit 

comments on the proposed rule. 

During the first comment period that 

opened on August 9, 2002, and closed 

on October 9, 2002, we received 97 

pieces of correspondence (e-mails, 

letters, and faxes). Of these, we received 

5 comments from Federal agencies, 1 

from a State representative, and 91 from 

organizations or individuals. Thirty-one 

of the comments were requests for 

public hearings of which 26 concerned 

Willow Creek. During the second 

comment period that opened on August 

31, 2005, and closed on September 30, 

2005, we received 29 comments. Of 

these latter comments, 6 were from peer 

reviewers, 1 from another nation, 2 from 

Federal agencies, 3 from State agencies, 

and 17 from organizations or 

individuals. 

Of the written comments received 

during the first comment period, 40 

supported, 17 were opposed, and 44 

included comments or information but 

did not express support for or 

opposition to the proposed listing and 

critical habitat designation. Of the 

written comments received during the 

second comment period, 18 supported, 

0 were opposed, and 10 included 

comments or information but did not 

express support for or opposition to the 

proposed listing and critical habitat 

designation. We received a number of 

comments concerning Willow Creek in 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66669 

Catron County, New Mexico. Willow 

Creek is neither occupied nor historical 

habitat for Gila chub and was not part 

of the proposed critical habitat 

determination. In addition, there are no 

plans to establish a population of Gila 

chub in Willow Creek. Therefore, these 

comments will not be addressed further. 

All substantive information written and 

verbal, provided during the public 

comment periods, either has been 

incorporated directly into this final 

determination or is addressed below. 

We also wish to recognize that the 

Mexican Federal Government 

commented on the proposed rule; the 

Director de Conservacı ́on de la Vida 

Silvestre, Secretario de Medio Ambiente 

y Recursos Naturales, did not provide 

specific comment, but generally 

supported the listing. Similar comments 

are grouped together by issue. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from eight knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles, and that represented Federal 

agencies, State agencies, university 

researchers, and private consultants. We 

received responses from six of the peer 

reviewers; two of these were from State 

biologists via the Arizona and New 

Mexico Game and Fish Departments and 

were not specifically identified as peer 

review, and are addressed below as 

‘‘State Comments.’’ Five of the six peer 

reviewers, including both State wildlife 

agencies, concurred with our methods 

and conclusions, supported our 

determination that the species is 

endangered, and provided additional 

information, clarifications, and 

suggestions to improve the final critical 

habitat rule. A sixth peer reviewer 

suggested that we may have 

overestimated the extinction threat to 

Gila chub, and recommended that we 

consider listing the species as 

threatened. Peer reviewer comments are 

addressed in the following summary 

and incorporated into the final rule as 

appropriate. 

Peer Reviewer Comments 

(1) Comment: Limiting critical habitat 

to only those areas that are occupied 

will not achieve the purposes of the Act 

and satisfy the definition of critical 

habitat, particularly when the proposed 

rule states that stabilization of the Gila 

chub at its present population level and 

distribution will not achieve 

conservation. Critical habitat should be 

expanded to include unoccupied areas 

that provide connectivity between 

populations to allow gene flow and 

repopulation of formerly occupied 

suitable habitat. 

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

Act defines critical habitat as the 

specific areas within the geographical 

area occupied by the species on which 

are found those physical and biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection. In our 

critical habitat designation, we use the 

provisions outlined in section 3(5)(A) of 

the Act to evaluate those specific areas 

that contain the features that are 

essential to the conservation of the 

species and that may require special 

management considerations or 

protections. Critical habitat designation 

for the Gila chub includes many areas 

of known occupancy that have features 

that are essential to the conservation of 

the species, as well as one unoccupied 

area that we consider essential to the 

conservation of the Gila chub because of 

its connection with or proximity to 

known occupied areas. This is 

discussed in further detail in the 

‘‘Justification for Including Unoccupied 

Areas’’ section below. We believe we 

have considered and applied to this 

designation the best available scientific 

information regarding the Gila chub. 

Thus, while not all areas important for 

potential Gila chub recovery were 

proposed as critical habitat, we believe 

this designation defines those areas that 

are essential. We also acknowledge that 

critical habitat can contribute to the 

overall recovery strategy for a listed 

species, but does not, by itself, achieve 

recovery. We encourage Federal and 

State agencies, Tribal governments, 

municipalities, private groups, and 

landowners to work with us as we 

develop a recovery plan for the Gila 

chub and to continue to work towards 

establishing additional populations and 

aid in the recovery of the species. As 

discussed in this rule, even if an area is 

not designated as critical habitat, it does 

not mean that area is not important for 

Gila chub recovery. 

(2) Comment: Listing the Gila chub 

may not be supported because the 

Service’s assertion that the Gila chub 

has lost 85–90 percent of its habitat is 

based on the assumptions that the Gila 

chub was distributed throughout 

contiguous river reaches containing 

suitable habitat, that status information 

indicates that 60 percent of the 

currently known populations are stable 

or secure, and that data necessary to 

determine status (i.e. quantitative 

abundance estimates and accurate 

historical records) for Gila chub are 

lacking. The Service should consider 

that the species may better meet the 

definition of threatened. 

Our Response: We disagree and refer 

to the ‘‘Background’’ section above for 

detailed information on our estimate of 

habitat loss. We also note that in some 

cases, entire rivers that were habitat for 

Gila chub have largely disappeared or 

been so degraded they no longer support 

the species (e.g., the Santa Cruz and San 

Pedro Rivers; Weedman et al. 1996; 

Tellman et al. 1997). The Gila chub has 

been eliminated from 12 streams (see 

Table 1). Sabino Creek would have been 

lost due to wildfire had it not been 

salvaged by Service, AGFD, and the FS 

in 2003, and three additional 

populations were salvaged this year in 

response to wildfires; the status of these 

populations post-fire has not yet been 

ascertained. Only two populations are 

free from nonnative species, and all 

populations are small and isolated and 

thus at risk (Fagan et al. 2002). The past 

decline, current threats, and status of 

Gila chub are well documented and 

reflected in this final rule. 

(3) Comment: Conservation actions 

since the proposed rule was published 

have been insufficient to improve the 

status of the species to the point it is no 

longer endangered or threatened, 

indicating that existing regulatory 

protections, including concerted efforts 

by the States to conserve the Gila chub, 

are not sufficient to prevent its 

extinction. 

Our Response: We agree that the 

status of the Gila chub has not improved 

since the publication of the proposed 

rule, despite efforts to conserve the 

species. However, we value the 

cooperative conservation partnerships 

that have been formed between Federal 

and State agencies, municipalities, and 

the public to work to improve the status 

of the Gila chub, and we recognize that 

the decline of the species occurred over 

a number of years and that it would be 

difficult to address all threats facing the 

species in the short amount of time 

since the proposed listing. We will 

continue to pursue such partnerships 

and conservation projects involving the 

Gila chub following this final rule and 

as we develop a recovery plan. In 

‘‘Inadequacy of Existing Regulatory 

Mechanisms’’ (Factor D) below, we 

discuss existing regulatory mechanisms 

as they relate to the protection being 

afforded to the Gila chub. 

(4) Comment: Listing the Gila chub 

will alienate stakeholders that otherwise 

would have been amenable to 

conserving the species because the Act 

is so restrictive. Conservation 

agreements between the various 

66670 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

stakeholders would be a more effective 

method to conserve the Gila chub. 

Our Response: As discussed above, 

we agree that cooperative conservation 

utilizing partnerships between Federal 

and State agencies, municipalities, and 

the public is a good approach to 

conservation, and we have pursued 

such partnerships on numerous projects 

involving the Gila chub and will 

continue these partnerships after this 

final rule to list the chub as endangered 

is effective. However, we are required to 

list a species as endangered if we 

determine that the species is likely to 

become extinct throughout all or a 

significant portion of its range. After 

evaluating the current status of the 

species and threats to extant 

populations in the five factor analysis 

below, we have determined that the Gila 

chub is endangered. 

(5) Comment: The Service needs to 

provide a more explicit explanation of 

the primary constituent elements (PCEs) 

that exist in each segment of critical 

habitat. 

Our Response: All of the areas that we 

have designated as critical habitat have 

one or more of the PCEs. We have 

provided in our area descriptions 

(below), those primary constituent 

elements that are present in each of the 

critical habitat areas. 

(6) Comment: The confusing 

taxonomic history of the Gila chub has 

led to errors in the Service’s estimation 

of its current and former range. The 

Service has thus likely overstated the 

species’ historic range, inflated the 

degree to which the species has 

declined, and thus exaggerated its need 

for listing. 

Our Response: Gila intermedia is part 

of the Gila robusta species complex that 

includes six other taxa: G.cypha, G. 

elegans, G. nigra, G. robusta, G. r. 

jordani, and Gila seminuda (Gerber et 

al. 2001); all of these species have 

experienced declines and face similar 

threats. The evolution of the species in 

the complex is novel in some respects, 

and research on the complex has led to 

insight about the various ways in which 

speciation occurs (Gerber et al. 2001; 

Minckley and DeMarais 2000). 

However, we have found that the 

taxonomy of the Gila chub has come to 

be well understood (Minckley and 

DeMarais 2000), and that Gila chub as 

a species is valid and qualifies as a 

taxon that may be listed under the Act 

(50 CFR 424.02(k)). As Minckley and 

DeMarais (2000) illustrate, the three 

forms of Gila represent distinct species 

that have consistently and repeatedly 

been identified in the same streams; 

based on this work, we are confident of 

our evaluation of the status of the 

species, its formerly occupied range, 

and its current distribution. Our 

consideration of Gila chub with regard 

to its status and consideration for listing 

has evolved as more information has 

become available regarding its biology, 

status, and threats, which is reflected in 

this final rule. We note that the status 

of the Gila chub has appreciably 

declined over the last 25 years, and we 

have information to document new 

threats facing the species, such as 

frequent catastrophic fires, also noted by 

both AGFD and NMGF in their 

comments on the proposed rule (B. 

Broschied, AGFD, in litt. 2005; B. 

Thompson, NMGF, in litt. 2005). 

(7) Comment: Since the Gila chub 

resembles closely related taxa (i.e., the 

roundtail and headwater chubs), its 

listing will cause substantial 

enforcement problems for enforcing 

‘‘take.’’ This could potentially cause 

significant economic impact to 

stakeholders, especially if the Service 

lists these other forms under similarity 

of appearance as defined in Section 4(e) 

of the Act. This problem is confounded 

because these forms also apparently 

interbreed. 

Our Response: Although the Gila, 

roundtail, and headwater chubs are 

closely related and appear similar, we 

find no need for listing the latter two 

under similarity of appearance for 

several reasons. The primary reason is 

that these species occur in 

geographically separate places. As 

Minckley and DeMarais (2001) stated, 

‘‘persistent parapatry [geographic 

separation] of morphologically 

distinguishable robusta, intermedia, and 

nigra [roundtail, Gila, and headwater 

chubs], has been documented, 

confirmed, and reconfirmed by 

collections since the 1920s * * * In no 

instance was any two of the three caught 

at the same locality.’’ Because roundtail 

chub is considered a sport fish in 

Arizona, we have considered 

unintended harvest of Gila chub as a 

potential threat to the species under our 

five factor analysis below. We do not 

believe this represents a significant 

threat to Gila chub because AGFD 

prohibits the collection of Gila chub 

without a permit, and allows possession 

of only 1 roundtail chub over 13 inches 

in total length (AGFD 2005c). Gila chub 

do not achieve this size, thus the 

existing AGFD regulations adequately 

protect Gila chub from this threat. 

Although the headwater chub is thought 

to be of hybrid origin from hybridization 

of related chubs in geologically recent 

times (Minckley and DeMarais 2001), 

we know of no evidence that the current 

three forms hybridize in nature. 

(8) Comment: Listing the Gila chub 

may not be the most effective method 

for removing threats; the States have 

primary authority over regulating all 

non-listed aquatic organisms, including 

nonnative species, a primary threat to 

the Gila chub. 

Our Response: We realize that there 

are existing authorities which could and 

often do provide protection for the Gila 

chub, and the States have been and will 

continue to be a key partner in the 

conservation of the Gila chub. However, 

we have determined that the protection 

afforded by existing regulatory 

mechanisms is insufficient to preclude 

the listing of the Gila chub (see 

Inadequacy of Existing Regulatory 

Mechanisms (Factor D) below). 

General Comments Issue 1: Biological 

Concerns 

(9) Comment: The lateral extent of 

critical habitat should be expanded to 

include the 100-year floodplain or entire 

watersheds. 

Our Response: Critical habitat 

includes the stream channels within the 

identified stream reaches defined by 

upstream and downstream boundaries, 

as well as areas within these reaches 

potentially inundated during high flow 

events. Critical habitat also includes the 

area of bankfull width plus 300-feet on 

either side of the banks. The bankfull 

width is the width of the stream or river 

at bankfull discharge, i.e., the flow at 

which water begins to leave the channel 

and move into the floodplain (Rosgen 

1996). Bankfull discharge, while a 

function of the size of the stream, is a 

fairly consistent feature related to the 

formation, maintenance, and 

dimensions of the stream channel 

(Rosgen 1996). This 300-foot width 

defines the lateral extent of those areas 

that contain the features that are 

essential to the species’ conservation. 

We determined the 300-foot lateral 

extent for several reasons. First, the 

implementing regulations of the Act 

require that critical habitat be defined 

by reference points and lines as found 

on standard topographic maps of the 

area (50 CFR 424.12). Although we 

considered using the 100-year 

floodplain, as defined by the Federal 

Emergency Management Agency 

(FEMA), we found that it was not 

included on standard topographic maps, 

and the information was not readily 

available from FEMA or from the U.S. 

Army Corps of Engineers for the areas 

designating critical habitat. We suspect 

this is related to the remoteness of 

various stream reaches. Therefore, we 

selected the 300-foot lateral extent, 

rather than some other delineation, for 

three biological reasons: (1) The 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66671 

biological integrity and natural 

dynamics of the river system are 

maintained within this area (i.e., the 

floodplain and its riparian vegetation 

provide space for natural flooding 

patterns and latitude for necessary 

natural channel adjustments to maintain 

appropriate channel morphology and 

geometry, store water for slow release to 

maintain base flows, provide protected 

side channels and other protected areas, 

and allow the river to meander within 

its main channel in response to large 

flow events); (2) conservation of the 

adjacent riparian area also helps provide 

essential nutrient recharge and 

protection from sediment and 

pollutants; and (3) vegetated lateral 

zones are widely recognized as 

providing a variety of aquatic habitat 

functions and values (e.g., aquatic 

habitat for fish and other aquatic 

organisms, moderation of water 

temperature changes, and detritus for 

aquatic food webs) and help improve or 

maintain local water quality (see U.S. 

Army Corps of Engineers’ final notice 

concerning Issuance and Modification 

of Nationwide Permits, March 9, 2000, 

65 FR 12818–12899). Please see the 

section entitled ‘‘Critical Habitat’’ below 

for more information. 

(10) Comment: Using a 300-foot 

distance from bankfull width as a lateral 

extent of critical habitat captures areas 

in some segments that are outside the 

floodplain, and thus should not be 

considered essential to Gila chub. 

Our Response: In the proposed rule, 

critical habitat segments were proposed 

to include ‘‘the stream channels within 

the identified stream reaches and areas 

within these reaches potentially 

inundated during high flow events.’’

Our intent is to capture areas that 

correspond to the 100-year floodplain. 

We determined that the 300 foot 

distance from the bankfull width was 

the best method to define this area. As 

described elsewhere in this rule, we 

find that all the critical habitat areas 

contain sufficient PCEs to provide for 

one or more of the life history functions 

of the Gila chub. We have also refined 

the designation, based upon comments 

received, to define more precisely the 

boundaries of the critical habitat 

designation. 

(11) Comment: Critical habitat should 

be expanded to include additional 

occupied habitat in Indian Creek, Little 

Sycamore Creek, Sycamore Creek, and 

Bonita Creek; critical habitat in Spring 

Creek should be contracted to exclude 

unsuitable habitat at both ends. 

Our Response: We have slightly 

adjusted a number of the critical habitat 

stream segments, both to correct errors 

and to better capture areas of occupied 

habitat that contain the features that are 

essential to the conservation of the 

species. Also, Bonita Creek, Blue River, 

and portions of Spring and Cienega 

creeks have been excluded from the 

designation pursuant to 4(b)(2) of the 

Act. 

(12) Comment: Birds or other native 

predators may be a threat, as opposed to 

anthropogenic (man made) causes. 

Our Response: Although a number of 

piscivorous birds occur throughout the 

range of the Gila chub, such as the great 

blue heron (Ardea herodias) and belted 

kingfisher (Ceryle alcyon), we found no 

information to support bird predation as 

a significant threat to Gila chub. Bird 

predation can, however, be a significant 

concern at fish hatcheries (U.S.D.A. 

Animal Plant Health Inspection Service 

1997), where fish are concentrated in 

ponds or raceways, and thus may be a 

consideration in recovery actions for 

Gila chub that require use of such 

facilities. 

(13) Comment: Gila chub is a member 

of a species assemblage in the genus 

Gila along with six other species, all of 

which warrant listing as endangered 

under the Act. 

Our Response: We are aware that Gila 

intermedia is part of a species complex. 

We also note that for taxonomically 

complex groups that warrant 

conservation, species-based approaches 

may be inadequate, and new approaches 

that conserve evolutionary processes 

that generate taxonomic biodiversity 

may be a preferable conservation 

strategy (Ennos et al. 2005). However, 

all of the fishes of the Gila robusta 

species complex are currently listed as 

endangered under the Act, with the 

exception of G. nigra and G. robusta 

(U.S. Fish and Wildlife Service 2005a). 

With regard to these two unlisted 

species, we published a positive 90-day 

finding on a petition to list a distinct 

population segment of G. robusta in the 

lower Colorado River basin, and to list 

G. nigra throughout its range, on July 12, 

2005 (70 FR 39981). G. robusta is also 

part of a multistate conservation 

agreement that addresses conservation 

of the species throughout its range (Utah 

Department of Natural Resources 2004). 

(14) Comment: The threats to Gila 

chub are largely unsubstantiated; much 

of the literature is overly general in 

nature and is not site- or speciesspecific, and thus the listing of Gila 

chub is not warranted. 

Our Response: The threats to Gila 

chub are well documented (see 

‘‘Summary of Factors Affecting the 

Species’’ section below). The current 

status of the species is that it has been 

eliminated from approximately 85 to 90 

percent of its formerly occupied habitat 

as a direct result of these threats 

(Weedman et al. 1996), and it currently 

exists as a collection of very small, 

isolated, and highly fragmented 

populations (Weedman et al. 1996; 

Service files presented in Table 1). In 

some cases, such as Sheehy Spring, a 

population exists in a habitat not much 

larger than a common backyard 

swimming pool. Because of this, the 

species is much more susceptible to 

threats such as predation and 

competition from nonnative species 

(Dudley and Matter 2000), habitat 

destruction from various land use 

practices (Weedman et al. 1996), 

stochastic events such as wildfire 

(Knowles et al. 2005), and an increased 

risk of extinction due the high degree of 

fragmentation of the remaining 

populations (Fagan et al. 2000). 

Although some of our citations are not 

specific to these species or the 

geographic area, the citations offer 

evidence that certain threats exist 

because similar examples have been 

documented elsewhere, and based on 

biological principles and effects 

observed in other fishes, we can draw 

reasonable conclusions about what we 

would expect to happen to this species 

were it not listed. 

(15) Comment: The critical habitat 

designation is overly broad because it 

includes areas that are unoccupied and 

that have not been shown to be essential 

to the conservation of the species. Eagle, 

Turkey, Post, and Little Sycamore 

creeks are not occupied and so should 

not be included in critical habitat 

without a justification that these areas 

are essential to the conservation of the 

species. Critical habitat areas are not 

recovery areas, and critical habitat does 

not, in itself, lead to recovery of a 

species. 

Our Response: Gila chub were 

documented in Eagle Creek in 2005 

(Marsh 2005), and in Little Sycamore 

Creek in 2005 (A. Silas, FS, pers. comm. 

2005). In this final rule, all of the critical 

habitat areas have been documented as 

occupied by Gila chub within the last 5 

years, with the exception of one: Turkey 

Creek (AZ). Gila chub were last detected 

in Turkey Creek in 1991. This tributary 

is connected to O’Donnell Creek, which 

was documented as occupied in 2004 

(D. Foster, AGFD, in litt. 2005), and 

while we believe this stream can be 

recolonized naturally by Gila chub in 

high water years, we are also working 

with the AGFD to reestablish Gila chub 

in this stream. Turkey Creek contains 

sufficient PCEs to provide for one or 

more of the life history functions of the 

Gila chub. We provide further 

information on our determination that 

this area is essential to the conservation 

66672 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

of the species, pursuant to the definition 

in section 3(5)(A)(ii) of the Act, in the 

‘‘Justification for Including Unoccupied 

Areas’’ section below. We are not 

including Post Canyon in the final 

designation (see the ‘‘Summary of 

Changes’’ section below). 

(16) Comment: The term ‘‘banks’’

needs to be defined in the description 

of critical habitat. 

Our Response: As mentioned in 

response to comment 9 and 10 above, 

and discussed in the ‘‘Critical Habitat’’

discussion below, we defined ‘‘bank’’ to 

mean the line at which the stream is at 

‘‘bankfull’’ discharge, as defined by 

Rosgen (1996), i.e., the flow at which 

water begins to leave the channel and 

move into the floodplain. While a 

function of the size of the stream, 

bankfull width is a consistent feature 

related to the formation, maintenance, 

and dimensions of the stream channel. 

Bankfull discharge is a quantifiable 

measure that is essential to classifying 

streams, to reducing variability in 

diagnosing stream impairment, and to 

determining management objectives for 

a given stream reach (Rosgen 1996). 

(17) Comment: The Central Arizona 

Project (CAP) canal does not result in 

the transfer of nonnative species into 

the Gila River Basin. 

Our Response: There is a large body 

of research to support the contention 

that the CAP is a potential vector for 

nonnative aquatic species (U.S. Fish and 

Wildlife Service 2001a). Additionally, 

one nonnative species has been 

documented to have entered the Gila 

River Basin through the canal: striped 

bass (Morone saxatalis); another, pacu 

(Piaractus brachypomus) has invaded 

the Gila River Basin, potentially through 

the CAP; and numerous nonnative 

species appear to have increased their 

range within the Gila River Basin via the 

canal (U.S. Fish and Wildlife Service 

1999a, 1999b, 2001a, 2001b). 

We completed a section 7 

consultation with the Bureau of 

Reclamation (Reclamation) on the 

effects of the CAP, and the resulting 

biological opinion addressed the 

transfer of nonnative species into the 

Gila River drainage (U.S. Fish and 

Wildlife Service 2001b). Recognizing 

the potential of the CAP to transfer 

nonnative species into the Gila River 

Basin and threaten listed native fish 

populations, Reclamation proposed to 

build a number of fish barriers to protect 

native fish populations in the Gila River 

Basin as a conservation measure. 

Building a concrete barrier on the lower 

segments of tributary streams is thought 

to prevent nonnative fish species from 

moving upstream, which protects the 

native fish populations above the barrier 

while allowing downstream passage of 

native fish. Future planned barriers 

include one on Bonita Creek, which is 

occupied by the Gila chub. 

(18) Comment: The rule does not 

make clear what specific conservation 

actions would be necessary in proposed 

reaches of critical habitat to improve 

them to desired conditions for Gila 

chub. 

Our Response: All of the stream 

reaches included in the critical habitat 

designation contain sufficient PCEs to 

provide for one or more of the life 

history functions of the Gila chub and 

all but one area is considered occupied 

by Gila chub. During the development 

of a recovery plan for the Gila chub, 

specific voluntary actions will be 

identified to reach recovery, including 

measures to help maintain and improve 

habitat conditions for the Gila chub. For 

example, some measures may include 

restoring a natural flow regime, 

maintaining or establishing bank 

stability, providing instream cover such 

as downed logs and undercut banks, 

and maintaining healthy riparian 

vegetation and good water quality 

conditions (i.e. temperature, pH, few 

contaminants, low turbidity, adequate 

levels of dissolved oxygen). 

(19) Comment: What factual scientific 

data is available to verify that Gila chub 

was native to the Verde River? 

Our Response: Gila chub were first 

reported as being collected from the 

Verde River Basin in 1890 at Chino, 

Arizona (Weedman et al. 1996). 

Collection records since that time 

include the following streams in the 

basin, some of which are still occupied 

by the species (see ‘‘Background’’

section above): Big Chino Wash, Oak 

Creek, Spring Creek, Walker Creek, Red 

Tank Draw, and Williamson Valley 

Wash (Weedman et al. 1996). 

(20) Comment: It is unclear how 

designating critical habitat will ensure 

that these areas will be suitable for 

future introductions of Gila chub. 

Our Response: Designating critical 

habitat serves to identify the areas that 

contain the features that are essential to 

the conservation of the species, thus 

alerting Federal agencies to consider the 

species’ conservation in design and 

implementation of the agencies’

management actions. Designating 

critical habitat likewise provides 

guidance to non-Federal landowners on 

why these areas need special 

management and protection, as well as 

what activities are, or are not, likely to 

adversely affect critical habitat, see 

‘‘Section 7’’ section below. Also, section 

4(f) of the Act (16 U.S.C. 1533(f)) 

requires the preparation of a recovery 

plan for each listed species. Recovery 

plans provide guidance on what actions, 

including habitat maintenance and 

restoration, are necessary to recover a 

species. Designation of critical habitat 

can play an important role in providing 

a summary of the scientific knowledge 

of the habitat needs of a species. 

Likewise, designation of critical habitat 

helps the recovery process by providing 

information on how actions might 

impact the habitat of the species and 

information that can be used to develop 

a recovery plan. 

(21) Comment: The proposed rule 

does not present sufficient evidence to 

conclude that the fish in Bonita Creek 

are Gila chub. 

Our Response: The population of Gila 

in Bonita Creek is recognized as Gila 

chub as described by Weedman et al. 

(1996) and Minckley and DeMarais 

(2000). 

(22) Comment: The primary threat to 

Gila chub in Bonita Creek is nonnative 

aquatic species. The wells and 

infiltration gallery operated by the City 

of Safford on Bonita Creek create a 

barrier to the upstream migration of 

nonnative species, protecting Gila chub, 

and should probably be enhanced. The 

city’s activities likely are the reason a 

population of Gila chub persists in 

Bonita Creek. 

Our Response: We agree. While the 

city’s diversion of water does eliminate 

some stream habitat for the Gila chub, 

the barrier it creates to the upstream 

movement of a host of nonnative fishes 

from the mainstem Gila River is a 

conservation benefit to the species, and 

has likely contributed to the long-term 

persistence of the Bonita Creek 

population. We are working with 

Reclamation to create a physical barrier 

in Bonita Creek to provide long-term 

protection to Bontia Creek from 

invasion of nonnative fishes located 

downstream of this chub population. 

(23) Comment: Disconnected reaches 

such as Mineral Creek do not support 

the purported goal that critical habitat 

provides connecting habitats between 

populations of Gila chub that are 

separated from each other. 

Our Response: As stated in our 

proposed rule (August 9, 2002; 67 FR 

51948), connectivity is one of several 

important considerations in selecting 

areas included in this critical habitat 

designation. Also included are factors 

specific to each river system, such as 

presence of the PCEs, protection of 

genetic diversity, and representation of 

major portions of the species’ historical 

range. 

(24) Comment: The lower segment of 

Cienega Creek proposed as critical 

habitat and also defined in the August 

31, 2005, notice (70 FR 51732) does not 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66673 

contain the PCEs to support Gila chub, 

and the Service has incorrectly stated 

that this segment is entirely countyowned. Portions of this segment are 

privately owned, there are sand and 

gravel mining operations that do not 

contain the PCEs to support the species, 

and the segment is unoccupied by the 

species. 

Our Response: Gila chub were 

collected in lower Cienega Creek in 

2002 (AGFD Heritage Data Management 

System) and documented in this critical 

habitat segment in 2005 (see Table 1), 

and we have found that the segment 

does contain the PCEs necessary to 

support the species. Sand and gravel 

mines do not contain the PCEs for the 

Gila chub and are not considered to be 

critical habitat. We have corrected the 

land ownership information to reflect 

the private ownership of parcels within 

this segment, and we have excluded 

privately owned lands in Cienega Creek 

due to the potential economic impacts 

identified in our economic analysis (see 

‘‘Exclusions Under Section 4(b)(2) of the 

Act’’ section below). 

General Comments Issue 2: Procedural 

and Legal Compliance 

(25) Comment: Designation of critical 

habitat and species reintroductions will 

lead to undue restrictions on private 

landowners, and will negatively impact 

residents of nearby local communities. 

For example, designating critical habitat 

in Spring Creek would adversely affect 

the nearby community by interfering 

with road and bridge maintenance, 

flood damage repair, groundwater 

withdrawal for municipal use, treated 

effluent discharge to the creek from the 

community, and the recreational 

opportunities of nearby residents. 

Our Response: In general, private 

landowners are not affected by critical 

habitat. Critical habitat directly affects 

only Federal actions. Pursuant to 

section 7 of the Act, Federal agencies 

ensure that actions they fund, authorize, 

or carry out do not destroy or adversely 

modify critical habitat. Individuals, 

organizations, States, local and Tribal 

governments, and other non-Federal 

entities are only affected by the 

designation of critical habitat if their 

actions occur on Federal land; require a 

Federal permit, license, or other 

authorization; or involve Federal 

funding (see ‘‘Effect of Critical Habitat 

Designation’’ section below). While 

many of the actions mentioned in the 

comment would involve a Federal 

action agency, and may trigger a section 

7 consultation because Spring Creek is 

currently occupied, there is also a 

requirement to consult under section 7 

for affects to the listed species alone, 

regardless of whether critical habitat is 

designated. We have also analyzed the 

impact of designating critical habitat on 

small entities, including small 

communities, in our draft 

environmental assessment and draft 

economic analysis. Based on these 

analyses, we have concluded that, 

although the designation of critical 

habitat will result in measurable social 

and economic effects to small 

communities, these will not be 

significant. We have also excluded 

privately owned lands in Spring Creek 

and in Cienega Creek due to potential 

economic impacts as identified in our 

economic analysis (see ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’

section below). 

(26) Comment: The Gila chub 

provides no sport fish opportunity and 

is of no economic value, so why should 

we protect it? 

Our Response: Congress has decided 

that any species threatened with 

extinction should be protected, without 

regard to economic value of the species 

or economic impact of the designation. 

(27) Comment: Adding Gila chub to 

the endangered species list will deprive 

citizens of their right to vital water 

supplies. 

Our Response: Listing the Gila chub 

under the Act requires that Federal 

agencies consult with the Service on 

activities involving Federal funding, a 

Federal permit, Federal authorization, 

or other Federal actions. Formal 

consultation (under section 7 of the Act) 

is required when activities are likely to 

adversely affect the Gila chub or its 

designated critical habitat. Additionally, 

private citizens are prohibited from 

engaging in any activity that would 

result in ‘‘take’’ of a listed species (see 

the ‘‘Available Conservation Measures’’

section below for further information). 

Landowners may obtain a permit to 

‘‘take’’ Gila chub incidental to otherwise 

lawful activities, such as withdrawing 

water from a stream, through a 

10(a)(1)(B) permit and Habitat 

Conservation Plan. We note also that 

surface water flow within the Gila River 

basin is fully appropriated and subject 

to ongoing adjudication (U.S. Fish and 

Wildlife Service 2005b). The Arizona 

Department of Water Resources 

regulates surface water withdrawal via 

the Public Water Code, a law that 

provides that a person must apply for 

and obtain a permit in order to 

appropriate surface water. Groundwater 

pumping also has limited regulation 

under the Arizona Groundwater Code. 

However, the legal relationship between 

groundwater and surface water has not 

been established in Arizona. The New 

Mexico Office of the State Engineer 

administers groundwater and surface 

water rights in New Mexico. The New 

Mexico State Engineer’s approval is 

required for almost every use of water 

in New Mexico. For example, 

permission is needed to make a new 

appropriation, drill a well, divert 

surface water, or change the place or 

purpose of use of an existing water 

right. Thus, any new claims on surface 

water or groundwater water in either 

State would also be subject to the 

permitting authority of these respective 

agencies. 

(28) Comment: The Service has failed 

to make a 12-month finding on the Gila 

chub, violating the Act. 

Our Response: A 12-month finding 

may be published concurrently within a 

proposed rule (50 CFR 424.14(b)(3)(ii)). 

The proposed rule for the Gila chub 

published in the Federal Register on 

August 9, 2002, constituted our 12- 

month finding (67 FR 51948). 

(29) Comment: The Service needs to 

provide a more explicit explanation of 

the PCEs that exist in each segment of 

critical habitat. 

Our Response: All of the areas that we 

have designated as critical habitat have 

one or more of the primary constituent 

elements. We have described in our area 

descriptions below those primary 

constituent elements present in each of 

the critical habitat areas. 

(30) Comment: Areas proposed as 

critical habitat already have adequate 

management and protection. The 

Service should consider excluding these 

areas, and should also consider possible 

exclusions of Bonita Creek given the 

economic importance to the City of 

Safford and nearby communities. 

Our Response: In our critical habitat 

designation we use the provisions 

outlined in section 3(5)(A) of the Act to 

evaluate those specific areas defined by 

the features essential to the conservation 

of the species that may require special 

management considerations or 

protections. In our proposed rule 

(August 9, 2002; 67 FR 51948), we 

excluded Sheehy Spring in the San 

Rafael Valley and Wildcat and Double R 

canyons on the Muleshoe Preserve 

because these lands were managed 

under a conservation easement held by 

The Nature Conservancy and managed 

under the Muleshoe Ecosystem 

Management Plan, respectively (see 

‘‘Exclusions Under Section 4(b)(2) of the 

Act’’ section below). Additionally, we 

have excluded the Blue River and part 

of Bonita Creek on lands of the San 

Carlos Apache Tribe from the 

designation of critical habitat for the 

Gila chub pursuant to section 4(b)(2) of 

the Act as discussed below (see 

‘‘Exclusions Under Section 4(b)(2) of the 

66674 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

Act’’ section below). The San Carlos 

Apache Tribe has completed a fisheries 

management plan that includes the Gila 

chub and provides special management 

for this species. We have also formed a 

partnership with the City of Safford, 

BLM, and Reclamation to manage lands 

on Bonita Creek downstream of the San 

Carlos Apache Tribe. Based on this 

partnership, we have excluded Bonita 

Creek downstream of San Carlos Apache 

lands pursuant to section 4(b)(2) of the 

Act as discussed below (see ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’

section below). 

(31) Comment: The Service has not 

used the best scientific and commercial 

data available; for example, Weedman 

(1996) makes no mention of Mineral 

Creek, and the Service’s proposed rule 

has only a vague reference to a survey 

in 2000 that found Gila chub but not in 

the reach identified as critical habitat. 

Our Response: With regard to 

presence/absence information, we use 

peer-reviewed literature, collection 

records, unpublished reports, or 

personal communications with qualified 

field biologists. In this case, we have 

several pieces of information to support 

the occupancy of Mineral Creek by Gila 

chub. Gila chub were first collected 

from Mineral Creek in 1993 by the 

AGFD (AGFD Native Fish Database), 

although this was not reported by 

Weedman et al. (1996). Gila chub were 

first reported from Mineral Creek in 

peer-reviewed literature in 2000 

(Minckley and DeMarais 2000). The 

AGFD again surveyed Mineral Creek in 

2000 and reported collecting Gila chub 

(Weedman 2000). 

(32) Comment: There is not enough 

information available to determine Gila 

chub critical habitat. 

Our Response: While we acknowledge 

that there are gaps in our understanding 

of the biology of the species, we have 

sufficient information to identify those 

geographic areas occupied by the 

species that contain the features 

essential to the species and require 

special management considerations or 

protection. 

(33) Comment: It is unclear if the 

proposed listing of Gila chub as 

endangered is regional in nature or 

confined to those areas of critical 

habitat. 

Our Response: The listing of the Gila 

chub is rangewide; thus upon the 

effective date of this rulemaking Gila 

chub will be considered endangered 

wherever found (See table in the 

‘‘Regulation Promulgation’’ section 

below). Areas designated as critical 

habitat in this final rule represent a 

subset of the entire range of the species 

(see Table 1 below). 

(34) Comment: The proposed 

designation does not provide adequate 

information about the population in 

Spring Creek, and specifically the 

threats to this population. Thus listing 

in Spring Creek is not justified. 

Our Response: When we consider a 

taxon for listing, unless we are 

considering a distinct population 

segment, we list the entire taxon, not 

individual populations. With respect to 

Spring Creek, this tributary was 

surveyed in 2005 on Forest Service 

lands in the middle of the area, and Gila 

chub were found to be abundant with 

multiple year classes represented, 

indicating good recruitment. The threats 

to the species are addressed below in 

the ‘‘Summary of Factors Affecting the 

Species’’ section. 

(35) Comment: The Service has 

designated critical habitat on tribal land 

in areas where the Service admits it 

does not have current status 

information, and yet the Service has 

excluded other areas on private land 

due to a lack of information. 

Our Response: We have excluded 

lands of the San Carlos Apache Tribe 

from the designation pursuant to section 

4(b)(2) of the Act (see ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’

section below). The San Carlos Apache 

Tribal lands were the only tribal lands 

involved in this final designation. 

(36) Comment: The Service knew in 

1983 that the Gila chub warranted 

listing, despite gaps in available 

information. The 19-year delay resulted 

in its status declining further, but 

represents a good example that existing 

regulatory protections are inadequate. 

Our Response: We did first consider 

conservation of the Gila chub in 1982 

when the species was listed as a 

category 1 candidate species (see 

‘‘Previous Federal Actions’’ from the 

proposed rule, August 9, 2002, 67 FR 

51948). We agree that we lacked much 

of the information we now have on the 

species, including a status review 

conducted by the AGFD (Weedman et 

al. 1996). We also agree that the status 

since that time has deteriorated, 

reflecting the severity of the threats to 

the species, including the lack of 

protection afforded by other forms of 

regulation (see ‘‘Inadequacy of Existing 

Regulatory Mechanisms’’ section 

below). 

(37) Comment: The State of Arizona 

has initiated no actions to assess the 

status of or protect this species. 

Our Response: We disagree. The 

AGFD assisted the BLM with the 

establishment of Gila chub in Lousy 

Canyon and Larry Creek in 1995. The 

AGFD initiated the establishment of 

Gila chub into Romero and Bear 

Canyons concurrent with the 

reestablishment of Gila chub that were 

salvaged from the Aspen Fire into 

Sabino Canyon. AGFD has initiated 

several other reestablishment efforts of 

Gila chub in the Santa Cruz and San 

Pedro river basins that will likely take 

place in 2005 or 2006. 

The Gila chub is considered a 

Wildlife of Special Concern in Arizona 

(AGFD 2005b), although this provides 

no regulatory protection. Arizona Game 

and Fish Commission Order 41 

prohibits collection of, or fishing for, 

Gila chub in Arizona, except where 

such collection is authorized by special 

permit (AGFD 2005c). The AGFD does 

regulate the use of live bait and has 

restricted use of live bait in most of the 

Gila River system in Arizona (AGFD 

2005c), which helps to reduce the 

number of nonnative species released 

into the Gila chub’s habitat. 

(38) Comment: The Service has not 

provided a ‘‘takings analysis.’’

Our Response: We conducted a 

takings analysis at the time of the 

proposed rule and as part of this final 

rule. The takings implications 

assessment concludes that the 

designation of critical habitat for the 

Gila chub does not pose significant 

takings implications. 

(39) Comment: The Service should 

have evaluated existing conservation 

efforts under its Policy for Evaluation of 

Conservation Efforts (PECE) when 

making Listing Decisions. 

Our Response: Throughout this final 

rule, we have discussed ongoing 

conservation efforts of various agencies, 

and we have evaluated how these efforts 

have affected the status of and threats to 

the Gila chub with regard to listing. Our 

PECE policy refers to formalized efforts 

that are directed at conservation of a 

species. We are aware of no such efforts 

for the Gila chub; further, recent and 

ongoing actions to conserve the species 

have resulted in some success, but have 

been unable to improve the status of the 

Gila chub since the proposed rule. 

(40) Comment: The Service should 

not designate critical habitat in Lousy 

Canyon and Larry Creek because these 

were relatively recent introductions of 

the species and extending the protection 

of critical habitat to these systems may 

not be supported because they may not 

have the PCEs necessary to support the 

long-term persistence of the Gila chub. 

Our Response: Gila chub were 

introduced into Lousy Canyon and 

Larry Creek in 1995. Since that time, 

these streams have been surveyed for 

fishes on a frequent basis, and Gila chub 

have consistently been documented, 

and are thriving, despite drought and 

wildfire events that threatened other 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66675 

nearby populations of Gila chub. We 

believe that because Gila chub have 

persisted, and thrived, for 10 years in 

these systems, both these streams 

contain the PCEs necessary to support 

Gila chub. However, these stream 

segments are very small, isolated, and 

threatened by livestock grazing and the 

potential for wildfire. Given this 

information, we have found that Lousy 

Canyon and Larry Creek meet our 

definition of critical habitat because 

they have the physical and biological 

features essential to the conservation of 

the species, and require special 

management consideration. 

(41) Comment: The Service cannot 

exclude tribal lands from the 

designation based on the development 

of a fisheries management plan because 

exclusions based on plans that are not 

part of the administrative record is 

improper, and existing case law (Center 

for Biological Diversity v. Norton) 

clearly rejected the Service’s policy of 

solely excluding lands from critical 

habitat designations based on the 

rationale that ‘‘additional special 

management is not required if adequate 

management or protection is in place.’’

Our Response: The San Carlos Apache 

Tribe submitted a Fishery Management 

Plan to us on September 27, 2005, 

during the public comment period on 

the proposed rule. We have determined 

that it is appropriate to exclude critical 

habitat from the San Carlos Apache 

tribal lands as defined under section 

4(b)(2) of the Act. 

General Comments Issue 3: National 

Environmental Policy Act (NEPA) 

Compliance and Economic Analysis 

(42) Comment: The Service has not 

provided a NEPA analysis or economic 

analysis. 

Our Response: We announced the 

availability of a draft NEPA analysis and 

draft economic analysis for the 

proposed designation of critical habitat 

for the Gila chub for public comment on 

August 31, 2005 (70 FR 51732). We have 

finalized these documents, and they are 

available to the public (see ADDRESSES

section above), and online at http:// 

www.fws.gov/arizonaes/. 

(43) Comment: Designation of critical 

habitat will ruin property values. 

Our Response: Critical habitat 

designations do not by themselves 

constitute a burden in terms of Federal 

laws and regulations on private 

landowners carrying out private 

activities. When Federal approval or 

permit is required, or Federal funds are 

involved with a project proposed on 

private property that is likely to 

adversely modify or destroy critical 

habitat, then the critical habitat 

designation imposes Federal regulatory 

compliance obligations that can affect 

private landowners. Absent Federal 

approval, permits, or funding, the 

designation does not affect activities on 

private lands. Based on our economic 

analysis, we have determined that 

economic impacts from the designation 

of Gila chub critical habitat will not 

have a substantial or significant effect 

on small business entities. 

(44) Comment: The proposed rule has 

not evaluated the economic effect of 

critical habitat on the San Carlos 

Apache Tribe as required in section 

4(b)(2). The Service should not 

designate critical habitat on tribal land 

to avoid economic impacts to the tribe. 

Our Response: We have evaluated the 

economic impacts to the San Carlos 

Apache Tribe in our economic analysis, 

which we have made available to the 

public as a draft and final report. The 

final economic analysis is available 

online (http://www.fws.gov/arizonaes/). 

We have excluded the San Carlos 

Apache tribal lands from the 

designation (see the ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section 

below). 

(45) Comment: The draft economic 

analysis provides the costs to be used to 

judge the benefits of exclusion, but fails 

to analyze the benefits of inclusion. One 

commenter stated that economic 

benefits could include tourism to 

healthy riparian systems and water 

quality benefits to communities. 

Our Response: In the context of a 

critical habitat designation, the primary 

purpose of the rulemaking (i.e., the 

direct benefit) is to designate areas in 

need of special management that 

contain the features that are essential to 

the conservation of listed species. 

The designation of critical habitat 

may result in two distinct categories of 

benefits to society: (1) Use; and (2) nonuse benefits. Use benefits are simply the 

social benefits that accrue from the 

physical use of a resource. Visiting 

critical habitat to see endangered 

species in their natural habitat would be 

a primary example. Non-use benefits, in 

contrast, represent welfare gains from 

‘‘just knowing’ that a particular listed 

species’’ natural habitat is being 

specially managed for the survival and 

recovery of that species. Both use and 

non-use benefits may occur 

unaccompanied by any market 

transactions. 

A primary reason for conducting this 

analysis is to provide information 

regarding the economic impacts 

associated with a proposed critical 

habitat designation. Section 4(b)(2) of 

the Act requires the Secretary to 

designate critical habitat based on the 

best scientific data available after taking 

into consideration the economic impact, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. Economic impacts can be both 

positive and negative and by definition, 

are observable through market 

transactions. 

Where data are available, this analysis 

attempts to recognize and measure the 

net economic impact of the proposed 

designation. For example, if the fencing 

of a species’ habitat to restrict motor 

vehicles results in an increase in the 

number of individuals visiting the site 

for wildlife viewing, then the analysis 

would recognize the potential for a 

positive economic impact and attempt 

to quantify the effect (e.g., impacts that 

would be associated with an increase in 

tourism spending by wildlife viewers). 

In this particular instance, however, the 

economic analysis did not identify any 

credible estimates or measures of 

positive economic impacts that could 

offset some of the negative economic 

impacts analyzed earlier in this 

analysis. 

Under Executive Order 12866, OMB 

directs Federal agencies to provide an 

assessment of both the social costs and 

benefits of proposed regulatory actions. 

OMB’s Circular A–4 distinguishes two 

types of economic benefits: direct 

benefits and ancillary benefits. 

Ancillary benefits are defined as 

favorable impacts of a rulemaking that 

are typically unrelated, or secondary, to 

the statutory purpose of the rulemaking. 

In the context of critical habitat, the 

primary purpose of the rulemaking (i.e., 

the direct benefit) is the potential to 

enhance conservation of the species. 

The published economics literature has 

documented that social welfare benefits 

can result from the conservation and 

recovery of endangered and threatened 

species. In its guidance for 

implementing Executive Order 12866, 

OMB acknowledges that it may not be 

feasible to monetize, or even quantify, 

the benefits of environmental 

regulations due to either an absence of 

defensible, relevant studies or a lack of 

resources on the implementing agency’s 

part to conduct new research. Rather 

than rely on economic measures, the 

Service believes that the direct benefits 

of the proposed rule are best expressed 

in biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking. 

(46) Comment: The draft economic 

analysis fails to distinguish costs 

specific to critical habitat designation 

from the costs of listing and other coextensive costs. The draft economic 

analysis includes a variety of costs due 

to factors other than critical habitat, 

66676 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

many of which will occur regardless of 

whether critical habitat is designated. 

Our Response: In conducting 

economic analyses, we are guided by 

the 10th Circuit Court of Appeal’s ruling 

in the New Mexico Cattle Growers 

Association case (248 F.3d at 1285), 

which directed us to consider all 

impacts, ‘‘regardless of whether those 

impacts are attributable co-extensively 

to other causes.’’ As explained in the 

analysis, due to possible overlapping 

regulatory schemes and other reasons, 

there are also some elements of the 

analysis that may overstate some costs. 

(47) Comment: We received questions 

regarding the draft economic analysis 

use of 10 cubic feet per second (cfs) 

streamflow as the minimum 

requirement for Gila chub, stating it is 

likely an overestimate. 

Our Response: Section 4.1 of the draft 

economic analysis states the Service 

believes a conservative approach is to 

assume that the Gila chub requires a 

minimum of 10 cfs of streamflow. 

However, the draft economic analysis 

does not utilize a 10 cfs streamflow 

value to quantify potential impacts to 

water supply, because flow data is 

incomplete in proposed areas, and 

specific water management changes that 

would be necessary to provide required 

flow are not known. Instead, the draft 

economic analysis considers streamflow 

requirements coupled with actual flow 

data for each area to identify areas 

where potential water management 

impacts associated with conservation 

activities for the Gila chub may occur. 

Section 4 of the draft economic analysis 

discusses the value of the water 

resources that are at risk within 

proposed critical habitat areas. 

(48) Comment: The draft economic 

analysis makes a flawed assumption 

that all private entities will voluntarily 

undertake actions to mitigate for Gila 

chub. The draft economic analysis is 

predicated on an assumption that 

private parties will voluntarily 

undertake expensive actions to mitigate 

adverse impacts to Gila chub. 

Our Response: The draft economic 

analysis quantifies the costs of 

conservation efforts that have or may be 

undertaken for the Gila chub to avoid 

adverse impacts on the species or its 

habitat. Some of these actions may 

result from permitting or other Federal 

requirements, while other efforts may be 

undertaken by private actors to avoid 

adverse impacts on the species or its 

habitat. Thus, knowledge that one’s 

actions are taking place within critical 

habitat areas may lead to some changes 

in these activities to avoid adversely 

affecting the species and its habitat. 

(49) Comment: The draft economic 

analysis uses different (and incorrect) 

measures than the proposed rule for 

determining the location of proposed 

critical habitat. The draft economic 

analysis creates a 300-foot buffer from 

the centerline of the stream while the 

proposed critical habitat extends 300 

feet from the bankfull width of the 

stream. 

Our Response: As discussed in 

section 2.1, the draft economic analysis 

approximates the acreage of proposed 

critical habitat by creating a buffer of 

300 feet on either side of the proposed 

critical habitat centerline developed by 

the Service, because geographic data 

depicting the bankfull width of 

proposed stream segments were not 

available. This method was determined 

to be the best approximation of the 

lateral extent of the proposed critical 

habitat designation based on available 

data. We also believe that the difference 

would generally be less than 15 m (50 

ft) and would not be significant to the 

overall analysis. To estimate land 

ownership, geographic data of current 

land ownership was overlaid with 

critical habitat polygons using GIS 

analysis using the 300-foot buffer. 

(50) Comment: The final draft 

economic analysis is based on critical 

habitat as proposed in the August 9, 

2002, proposed rule, rather than the 

August 31, 2005, revised proposed rule. 

As a result some economic impacts that 

are not within the revised critical 

habitat are improperly included as 

economic costs. The description in the 

draft economic analysis of the length of 

the Bonita Creek stream reach appears 

to be taken from the 2002 rule. 

Our Response: The final draft 

economic analysis is based on the 

revised August 31, 2005, proposed rule 

notice (70 FR 51732), using geographic 

data provided to Industrial Economics 

on May 16, 2005. A typographical error 

appeared in section 4.2, which stated 

the length of the proposed length of 

Bonita Creek incorrectly. This error has 

been fixed in the final draft economic 

analysis. 

(51) Comment: The analysis of section 

7 consultation and other 

‘‘administrative’’ costs must segregate 

costs by species instead of attributing all 

costs from multi-species actions to Gila 

chub. 

Our Response: The draft economic 

analysis separates and includes 

administrative costs attributable to the 

Gila chub. If multiple species are 

considered in a consultation, the draft 

economic analysis assumes that the 

costs directly attributable to the Gila 

chub are equal to the costs of a single 

technical assistance or consultation. We 

agree that the cost of consultations that 

consider impacts to multiple species are 

likely to exceed the costs of 

consultations considering a single 

species, and this is taken into account 

in the analysis. 

(52) Comment: New information was 

provided that 245 acres of deeded land 

is proposed to be developed into 102 

residential lots at Spring Creek Ranch. 

Creating a 300-foot wide buffer on either 

side of the creek would eliminate 39 of 

the lots from future development, at a 

current lot value of $600,000. Thus, 

total impacts of critical habitat would be 

$23.4 million (the value of the land lost 

from development multiplied by the 

number of lots). 

Our Response: Information on this 

development was requested in section 7 

of the draft economic analysis. The new 

information provided has been 

incorporated into section 7 of the final 

economic analysis. The project, as 

currently planned, will leave a 40 to 60 

foot buffer from the stream, and will 

position lots outside of the 100-year 

flood plain. If this formation is 

sufficient to prevent impacts on Gila 

chub, then no additional economic 

impacts are anticipated. If, however, 

conservation efforts for the Gila chub 

result in the prohibition of all 

development within 300 feet of the 

bankfull width of the stream, economic 

impacts of up to $23.4 million could 

occur. The final economic analysis 

includes this range of economic impacts 

in section 7 of the analysis. We have 

also excluded privately owned lands in 

Spring Creek due to potential economic 

impacts as identified in our economic 

analysis (see ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ section below). 

(53) Comment: The revised 

boundaries of Cienega Creek include 

property owned by Vail Valley Joint 

Venture private property. Joint 

Venture’s two-acre dam site and 

diversion works are located within the 

proposed critical habitat. The 

replacement cost of 1,121.85 acre-feet of 

water annually would be $8 million to 

$9 million. 

Our Response: The Vail Valley Joint 

Venture site is used to exercise surface 

water rights on Cienega Creek held by 

the Del Lago Golf Club (Club) for turf 

and landscape irrigation. Part of the 

advantage of having this point of 

diversion for the Club is the low costs 

to operate and maintain the operations. 

If a change in water diversions or point 

of diversion were required, economic 

costs could be $8 million to $9 million, 

as estimated by the Club. These 

estimates provided in the public 

comment from Joint Venture and the 

Club are now incorporated into the 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66677 

economic analysis. The likelihood that 

the Club would need to establish a new 

point of diversion or change its water 

diversions is unknown. We have also 

excluded privately owned lands in 

Cienega Creek due to the potential 

economic impacts as identified in our 

economic analysis (see ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’

section below). 

(54) Comment: The potential 

economic impacts of the critical habitat 

designation on the Morenci mine were 

not properly evaluated in the draft 

economic analysis. The Service did not 

properly evaluate the economic impacts 

to the mining industry or evaluate the 

socioeconomic impacts to the 

surrounding communities resulting 

from any negative impacts to mining. 

Our Response: The draft economic 

analysis discussed potential impacts to 

mining activities that were physically 

located within proposed critical habitat 

areas. Based on information provided 

during the public comment period from 

mining interests, the economic analysis 

has been revised to include information 

on potential impacts to the mining 

industry that could occur related to 

water diversions or withdrawals in 

proposed critical habitat for mining 

activities occurring outside of proposed 

critical habitat. 

(55) Comment: The analysis of 

impacts to water development in Bonita 

Creek is based on faulty information 

resulting in illogical and unsupported 

conclusions that mistakenly attribute a 

cost of up to $9.5 million to critical 

habitat designation. Gila chub critical 

habitat would not limit the use of the 

City of Safford’s water rights. 

Our Response: As stated in section 4.2 

of the draft economic analysis, the 

Service could recommend, or the City of 

Safford could decide, that in order to 

prevent take of Gila chub the City must 

completely abandon its Bonita Creek 

infiltration gallery, resulting in a loss of 

available water to the City. Section 4.2 

states that, while this scenario appears 

unlikely, information on this scenario is 

provided in order to understand the 

potential magnitude of impacts should 

it occur. The analysis concludes that, 

while the City could replace any lost 

volume from Bonita Creek sources from 

other active production wells and 

existing back-up wells, abandoning the 

Bonita Creek infiltration gallery could 

result in economic impacts to the City. 

The impact can be viewed in terms of 

a lost capital investment; the loss of an 

inexpensive, reliable, and local, highquality water supply requiring very 

little treatment and transportation; and 

a constraint on the City’s ability to 

flexibly and effectively manage regional 

water supply and demand. As a proxy 

for the value of this economic impact, 

this analysis calculates the cost to the 

City to replace water rights for a volume 

equal to the potential lost volume from 

Bonita Creek, both the currently unused 

volume and the volume of the entire 

water right. Total replacement costs are 

estimated to range from $2.5 million to 

$9.5 million in undiscounted dollars. 

We have excluded Bonita Creek from 

the designation (see ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section 

below). 

(56) Comment: We received questions 

on the inclusion of costs associated with 

Vail Water Company’s Well #5. The 

analysis of water development in 

Cienega Creek assumes occurrence of 

future actions with no supporting data 

to indicate they are reasonably certain to 

occur. 

Our Response: Section 4.2 of the draft 

economic analysis quantifies the 

potential impacts to the Vail Water 

Company’s operations on Cienega 

Creek. Although this well is not 

currently in use, Vail Water Company 

could begin pumping water from the 

well for non-potable uses and could use 

the water for potable use with some 

treatment. Therefore, it is appropriate to 

include replacement costs in the draft 

economic analysis as the potential 

upper bound of cost related to Gila chub 

conservation activities. 

(57) Comment: The assumption that 

economically harvestable timber exists 

in proposed critical habitat areas on 

upper Blue River is unsupportable by 

data. 

Our Response: Section 6.2 of the draft 

economic analysis describes the 

potential impacts of limitations on 

timber harvest to the San Carlos 

Apache. The San Carlos Apache Tribe, 

who owns and manages the proposed 

critical habitat lands on the upper Blue 

River, identified that the area within the 

proposed critical habitat designation 

would be managed for timber harvest 

and production losses would be 

incurred as a result of increasing the 

current riparian timber buffer from 66 

feet to 300 feet. The commenter does not 

provide evidence to dispute the 

statements made by the San Carlos 

Apache. The total value of timber losses 

estimated is $308,000 in undiscounted 

dollars, or $15,400 annually over 20 

years. 

(58) Comment: Restrictions on 

burning on the San Carlos Apache 

Reservation would be contrary to the 

best interests of Gila chub conservation 

and so are unlikely to result from 

critical habitat designation. This cost 

should not be included in the economic 

analysis. 

Our Response: The proposed rule 

identifies prescribed fire as one of the 

activities that may affect the Gila chub 

and require consultation (on Federal 

lands). The draft economic analysis 

does not state that restrictions on 

prescribed burning will occur on the 

San Carlos Apache Reservation. It states 

that if the Tribe were not able to 

perform fire management activities as 

planned, the risk of catastrophic fire on 

Tribal lands could increase. Cost 

estimates are not included for this 

activity. 

(59) Comment: One commenter asked 

if the draft economic analysis factored 

in the costs of eliminating non-native 

game fish and the cost in lost tourism 

of eliminating those non-native game 

fish. 

Our Response: Section 8.3.3 of the 

draft economic analysis summarizes 

potential impacts to recreational 

activities. Based on information 

collected during the development of the 

economic analysis, the Gila chub does 

not occur in popular recreational fishing 

areas. In addition, non-native game fish 

stocking does not occur in any of the 

areas proposed for critical habitat 

designation. Significant economic 

impacts to recreational activities from 

Gila chub conservation activities within 

the proposed critical habitat designation 

are therefore not anticipated. 

(60) Comment: The Service failed to 

evaluate a reasonable range of 

alternatives in its NEPA analysis. 

Our Response: Our environmental 

assessment considered a range of 

proposed alternatives that we believe 

are consistent with intent of NEPA. 

Under NEPA, alternatives are developed 

based upon the purpose and need for 

the project. It is not the purpose or 

intent of an environmental assessment 

to evaluate all possible situations and 

conditions, instead a range of 

alternatives that meet the purpose and 

need for this project were evaluated in 

the environmental assessment. The 

environmental assessment describes in 

section 2.1 how the alternatives were 

defined to meet the purpose and need 

of the project, which is the designation 

of critical habitat for the Gila chub. 

(61) Comment: An environmental 

assessment is not adequate for an action 

of this magnitude; instead an 

environmental impact statement (EIS) is 

required. 

Our Response: Our environmental 

assessment considered a no-action 

alternative and an action alternative and 

discussed the adverse and beneficial 

environmental impacts of each. The 

impacts evaluated in the environmental 

assessment are for those associated with 

the designation of critical habitat above 

66678 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

those impacts due to listing alone. In 

that regard, we determined through the 

environmental assessment that the 

overall environmental effects of this 

action were not significant. An EIS is 

required only if we find that the 

proposed action is expected to have a 

significant impact on the human 

environment. Chapter 4 of the 

environmental assessment provides the 

basis for determining the significance of 

the proposed action and was conducted 

using Council on Environmental Quality 

regulations. Based on our analysis and 

comments received from the public, we 

prepared a final environmental 

assessment and made a Finding of No 

Significant Impact (FONSI), negating the 

need for preparation of an EIS. We 

believe our environmental assessment is 

consistent with the spirit and intent of 

NEPA. The final environmental 

assessment, FONSI, and final economic 

analysis provide our rationale for 

determining that critical habitat 

designation would not have a significant 

effect on the environment. Those 

documents are available for public 

review (see ADDRESSES section). 

(62) Comment: Economic impacts to 

the mining industry and land 

development were not adequately 

evaluated. 

Our Response: We have made 

modifications to the final economic 

analysis to address these concerns. 

(63) Comment: The Service 

improperly concludes critical habitat 

will result in minor and noncontroversial impacts. 

Our Response: We believe the 

incremental impacts of designation of 

critical habitat above listing impacts are 

indeed minor. See also response to 

comment 61 above. 

(64) Comment: The draft 

environmental assessment did not 

consider impacts on groundwater 

withdrawals by the mining industry. 

Our Response: Impacts to 

groundwater withdrawals by the mining 

industry would not be significantly 

greater with critical habitat than the 

impacts due to listing alone. 

(65) Comment: The draft 

environmental assessment fails to 

adequately consider impacts to tribal 

resources and economic impacts due to 

designation of critical habitat on the San 

Carlos Apache lands. 

Our Response: With the exclusion of 

San Carlos Apache lands from critical 

habitat designation, no impacts are 

expected. 

(66) Comment: Environmental justice 

concerns are not adequately considered 

in the NEPA analysis. 

Our Response: We feel environmental 

justice issues were addressed to the 

greatest extent possible. 

(67) Comment: The draft economic 

analysis underestimates the economic 

impacts of designation, as well as the 

impacts on land management activities. 

Our Response: The majority of critical 

habitat is currently occupied by Gila 

chub. Therefore designation of critical 

habitat has only minor impacts beyond 

those of listing alone. 

(68) Comment: The draft economic 

analysis ignores the ‘‘recovery’’ standard 

imposed by previous case law for 

determination of ‘‘adverse 

modification’’ to critical habitat. 

Our Response: We disagree. This 

standard is discussed on page 40 of the 

environmental assessment (Section 

3.2.2.2) and in other sections. 

Comments From States 

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

Secretary shall submit to the State 

agency a written justification for failure 

to adopt regulations consistent with the 

agency’s comments or petition.’’

Comments received from States 

regarding the proposal to designate 

critical habitat for the Gila chub are 

addressed below. We received 

comments from AGFD, NMGF, and the 

New Mexico Interstate Stream 

Commission. As noted above, these 

comments were drafted in part by 

individuals from whom we also 

requested peer review. All three sets of 

comments acknowledged the decline of 

the Gila chub, the threats to the species, 

the need for its protection, and were 

generally supportive of the proposed 

rule. 

(69) State Comment: Mule Creek in 

New Mexico provides the PCEs and 

should be included in the critical 

habitat designation. 

Our Response: Refer to our response 

to comment 1 above. We did not 

consider Mule Creek in our analysis of 

streams to propose for critical habitat 

because Gila chub had never been 

documented in this creek. We agree that 

Mule Creek appears to be suitable 

habitat for the species, and will work 

with New Mexico Game and Fish, and 

other interested stakeholders, to 

potentially introduce Gila chub to this 

stream, if feasible. 

(70) State Comment: Much of the 

habitat occupied by the Gila chub is on 

private land. Designating critical habitat 

on these lands raises the possibility of 

placing unnecessary burdens upon and 

alienating those parties whose 

cooperation is vital for the successful 

implementation of appropriate 

conservation measures. The Service 

should carefully consider the benefits of 

fostering critical working relationships 

between Federal and private entities 

against a potential benefit that might 

occur by designating critical habitat for 

the Gila chub. 

Our Response: In general, private 

landowners are not affected by critical 

habitat. Critical habitat directly affects 

only Federal actions. Pursuant to 

section 7 of the Act, Federal agencies 

ensure that actions they fund, authorize, 

or carry out do not destroy or adversely 

modify critical habitat. Individuals, 

organizations, States, local and Tribal 

governments, and other non-Federal 

entities are only affected by the 

designation of critical habitat if their 

actions occur on Federal land, require a 

Federal permit, license, or other 

authorization, or involve Federal 

funding (see ‘‘Effect of Critical Habitat 

Designation’’). We agree that 

cooperative conservation partnerships 

with private land owners are an 

important element in the conservation 

of the Gila chub and we agree that 

designation of critical habitat can lead 

to lack of cooperation by affected 

landowners. We have pursued such 

partnerships on numerous projects 

involving the Gila chub and will 

continue these partnerships after the 

chub is listed, and we have carefully 

considered the effects of listing and 

critical habitat designation on these 

partnerships. 

(71) State Comment: How will listing 

the Gila chub affect AGFD enforcement 

of sport fishing regulations for the 

roundtail chub? Is the Service 

considering listing other species of chub 

under 4(e)(A) of the Act regarding 

similarity of appearance cases? 

Our Response: Refer to our response 

to comment 7 above. 

Summary of Changes from Proposed 

Rule 

Based upon our review of the public 

comments, the economic analysis, 

environmental assessment, issues 

addressed at the public hearing, and any 

new relevant information that may have 

become available since the publication 

of the proposal, we reevaluated our 

proposed listing and critical habitat 

designation and made changes as 

appropriate. Other than minor 

clarifications and incorporation of 

additional information on the species’

biology, status, and threats, this final 

rule differs from the proposal by the 

following: (1)We excluded lands of the 

San Carlos Tribal Apache Tribe 

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

(see ‘‘Exclusions Under Section 4(b)(2) 

of the Act’’ section below). 

(2) We excluded Bonita Creek 

downstream of San Carlos Apache 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66679 

Tribal lands, pursuant to section 4(b)(2) 

of the Act, based upon a partnership 

with the City of Safford, BLM, and 

Reclamation to manage lands on Bonita 

Creek (see ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ section below). 

(3) We have excluded proposed 

critical habitat on 1.9 mi of the lower 

segment of Cienega Creek and on 1.9 mi 

of Spring Creek, pursuant to section 

4(b)(2) of the Act, due to the potential 

economic impact of designating these 

segments. 

(4) We modified the primary 

constituent elements for the Gila chub 

by adding ‘‘ * * * a high degree of 

streambank stability and healthy, intact 

riparian vegetative community * * *’’

and by broadening the range of water 

temperatures required for spawning to 

more accurately reflect data in our files, 

and providing examples of suitable 

ranges of water quality parameters (see 

‘‘Primary Constituent Elements’’ section 

below). 

(5) We are not including Post Canyon 

in the final designation of critical 

habitat based on recent information 

indicating that it went dry in 2005 and 

thus does not maintain sufficient PCEs 

necessary to support a population of 

Gila chub (AGFD 2005a). We therefore 

no longer believe that it meets the 

definition of critical habitat. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act and regulations 

(50 CFR part 424) promulgated to 

implement the listing provisions of the 

Act set forth the procedures for adding 

species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. A species may be 

determined to be an endangered or 

threatened species due to one or more 

of the five factors described in Section 

4(a)(1). These factors and their 

application to the Gila chub (Gila 

intermedia) are described below. 

Status of Species 

As discussed in further detail above 

in the ‘‘Background’’ section, we 

estimate, based on collection records, 

historical habitat data, the 1996 Arizona 

Game and Fish Department Gila chub 

status review (Weedman et al. 1996), 

and information in our files 

documenting currently occupied habitat 

(see Table 1 above), that the Gila chub 

have been eliminated from 85 to 90 

percent of formerly occupied habitat. 

This loss has occurred as a result of the 

introduction and spread of nonnative 

aquatic species that prey on and 

compete with the Gila chub, and habitat 

loss and degradation from a variety of 

actions, described in detail below, most 

notably water use that has led to drying 

of stream channels throughout the range 

of the Gila chub. Additionally, we 

estimate that 90 percent of the Gila 

chub’s currently occupied habitat has 

been degraded, either by the presence of 

nonnative species or land use that 

degrades habitat, such as livestock 

grazing. We believe that, without the 

protection of the Act, the Gila chub is 

likely to go extinct throughout all or a 

significant portion of its range. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Within the historical range of the Gila 

chub, much wetland habitat has been 

destroyed or degraded, and loss of this 

habitat continues today (Minckley and 

Deacon 1991; Tellman et al. 1998; 

Propst 1999). Activities such as 

groundwater pumping, surface water 

diversions, impoundments, dams, 

channelization (straightening of the 

natural watercourse, typically for flood 

control purposes), improperly managed 

livestock grazing, wildfire, agriculture, 

mining, road building, residential 

development, and recreation all 

contribute to riparian and cienega 

habitat loss and degradation in Arizona 

and New Mexico (Minckley and Deacon 

1991; Weedman et al. 1996; Tellman et 

al. 1998; Propst 1999). All of these 

activities are human-caused; thus the 

local and regional effects of these 

activities are expected to increase with 

an increasing human population 

because a larger human population will 

result in more of these kinds of 

activities. As of 2005, Arizona was 

listed as the second fastest in Statewide 

population growth in the nation, and 

from 2000–2003, two Arizona counties 

(Pinal and Yavapai, counties that 

contain about 40 percent of Gila chub 

populations) grew by over 10 percent; 

further, the population of the State of 

Arizona is projected to grow by 109 

percent by the year 2030 (U.S. Census 

Bureau 2005). 

Water withdrawals. Growing water 

demands threaten the existence of 

southern Arizona perennial surface 

water in the Gila Basin, as well as the 

species that depend on it. Groundwater 

pumping has been a major factor in loss 

of surface water in springs, streams, and 

cienegas of Arizona, most notably in the 

Santa Cruz River Basin (Tellman et al. 

1997). Since 1940, groundwater levels 

in Central Arizona have dropped over 

220 feet, with Central Tucson subsiding 

in elevation at least one foot since 1950, 

due to this groundwater withdraw 

(Arizona Water Resources Research 

Center 2005). An example of the 

magnitude of these changes is the Santa 

Cruz River. Historically, the Santa Cruz 

River was occupied by the Gila chub 

throughout the drainage (Weedman et 

al. 1996). Today, the Santa Cruz River 

and its major tributaries in the Tucson 

area flow only in response to flood 

events (Webb and Betancourt 1992), and 

the Gila chub is extirpated (i.e. 

eliminated) in the mainstem Santa Cruz, 

occurring only in several small 

populations in tributaries of the Santa 

Cruz (see Table 1 above). We estimate 

the Gila chub has been eliminated from 

95 percent of its former range in the 

Santa Cruz drainage (Weedman et al. 

1996). 

In addition to historical losses, 

groundwater pumping poses a threat to 

surface flows in the remaining Gila chub 

habitats in Eagle Creek and Cienega 

Creek. Groundwater withdrawal in 

Eagle Creek, primarily for water supply 

for a large open-pit copper mine at 

Morenci, dries portions of the stream. 

Groundwater pumping in the upper 

Cienega Creek drainage supports 

burgeoning ranchette development near 

the town of Sonoita. The city of Prescott 

and towns of Prescott Valley and Chino 

Valley are growing at an average rate of 

over 4 percent per year (U.S. Census 

Bureau 2005), and this growth is mostly 

based on groundwater pumping in the 

Verde River basin. The cities of Prescott 

and Prescott Valley recently purchased 

the JWK Ranch in the headwaters of the 

Verde River, with the intent of drilling 

new wells to supply up to 8,700 acrefeet (AF) of groundwater per year, 

which may have serious adverse effects 

on the mainstem and tributaries of the 

Verde River. 

Increasing population growth in 

Sierra Vista will likely stimulate 

borderland development, with a 

concurrent water demand increase that 

could accelerate riparian area 

destruction and modification, and 

increase threats to plants and animals 

dependent on surface water, including 

the Gila chub. The San Pedro River in 

southern Arizona historically supported 

at least 13 native fish species, including 

Gila chub, but now supports only 2 (The 

Nature Conservancy 2000). One of the 

known factors that have contributed to 

the loss of Gila chub in the San Pedro 

River basin is the pumping of 

groundwater for agriculture and 

municipal uses. Groundwater pumping 

is expected to increase with human 

population growth. In anticipation of 

the growing population, Fort Huachuca 

Military Reservation has filed a claim 

for use of 435 AF per year of tributary 

surface water from the Gila River 

adjudication, in addition to its 

estimated 1,655 AF per year currently 

used (Arizona Department of Water 

66680 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

Resources 1991). Groundwater pumping 

is widely recognized as a threat to the 

San Pedro and Verde Rivers, and the 

wildlife that depend on these rivers 

(McKinnon 2005a). 

Two tributary streams in the Verde 

River Basin are under increasing 

demands for water from surface and 

ground water withdrawal. Williamson 

Valley Wash has experienced a number 

of recent housing developments, and 

more are proposed. Although data are 

lacking, the effects of water withdrawal 

in this area combined with recent 

drought appear to have eliminated most 

of Gila chub habitat in this system (G. 

Price, Long Meadow Ranch Property 

Owners Association, in litt. 2002; L. 

Graser, Arizona Department of Water 

Resources, pers. comm. 2005). Spring 

Creek, a small system with only about 

3 miles of habitat for the Gila chub, is 

the site of a proposed housing 

development that will be approximately 

200 acres in size. The development will 

require three new groundwater wells for 

its water supply; hydrologic studies 

have not yet been completed (J. Himes, 

Himes Consulting, pers. comm. 2005), 

but the effects to surface water in Spring 

Creek could be significant. 

Stream channelization and irrigation. 

Sections of many Gila Basin rivers and 

streams have been and continue to be 

channelized for flood control, which 

disrupts natural channel dynamics and 

promotes the loss of riparian plant 

communities. Channelization changes 

the gradient of the stream above and 

below the channel. It increases 

streamflow in the channelized section, 

which results in increased rates of 

erosion of the stream and its tributaries, 

accompanied by gradual deposits of 

sediment in downstream reaches that 

may increase the risk of flooding 

(Emerson 1971; Simpson 1982). 

Channelization can affect Gila chub 

habitat by reducing its complexity, 

eliminating cover, reducing nutrient 

input, improving habitat for nonnative 

species, changing sediment transport, 

altering substrate size, and reducing the 

length of the stream (and therefore the 

amount of aquatic habitat available) 

(Gorman and Karr 1978; Simpson 1982; 

Schmetterling et al. 2001). 

Channelization will continue to 

contribute to riparian and aquatic 

habitat decline. 

Irrigation directly from stream and 

cienega waters reduces or eliminates 

water in existing fish habitat. Fish can 

be carried into irrigation ditches, where 

they die following desiccation (drying) 

of the irrigation ditch. Irrigation dams 

prevent movement of fish between 

populations, resulting in genetic 

isolation within species; small 

populations are subject to genetic 

threats, such as inbreeding depression 

(reduced health due to elevated levels of 

inbreeding) and genetic drift (a 

reduction in gene flow within the 

species that can increase the probability 

of unhealthy traits; Meffe and Carrol 

1994). 

There are numerous surface water 

diversions in Gila chub habitats, 

including Spring Creek, Walker Creek, 

Mineral Creek, Dix Creek, and Eagle 

Creek. Larger dams may also prevent 

movement of fish between populations 

and dramatically alter the flow regime 

of streams through the impoundment of 

water (Ligon et al. 1995). The Arizona 

Water Settlements Act created 

legislation for the construction of a large 

water project in New Mexico, 

potentially a large dam. However, it is 

unclear at this time if this would effect 

the population of Gila chub in Turkey 

Creek. 

Livestock grazing. Livestock grazing 

can have adverse impacts on Gila chub 

habitat. Poor livestock-grazing 

management is widely believed to have 

been one of the most significant factors 

contributing to regional stream channel 

downcutting (the entrenchment of 

stream channels and creation of arroyos) 

in the late 1800s. Livestock grazing can 

destabilize stream channels and disturb 

riparian ecosystem functions (Herefore 

1992; Tellman et al. 1997). Livestock 

can negatively affect Gila chub habitat 

through removal of riparian vegetation 

(Clary and Webster 1989; Clary and 

Medin 1990; Schulz and Leininger 1990; 

Armour et al. 1991; Fleishner 1994), 

which can result in reduced bank 

stability, fewer pools, and higher water 

temperatures (Meehan 1979; Kauffman 

and Krueger 1984; Swanson et al. 1982; 

Minckley and Rinne 1985; Fleishner 

1994; Belsky et al. 1999). Livestock 

grazing can also cause increased 

sediment in the stream channel, due to 

streambank trampling and riparian 

vegetation loss (Weltz and Wood 1986; 

Waters 1995; Pearce et al. 1998). 

Livestock physically alter streambanks 

through trampling and shearing, leading 

to bank erosion (Platts and Nelson 1989; 

Trimble and Mendel 1995). In 

combination, loss of riparian vegetation 

and bank erosion can alter channel 

morphology, including increased 

erosion and deposition, downcutting, 

and an increased width/depth ratio, all 

of which lead to a loss of pool habitats 

required by the Gila chub, and to loss 

of shallow side and backwater habitats 

used by larval chub (Trimble and 

Mendel 1995; Belsky et al. 1999). 

Livestock grazing administered by 

either the FS or BLM occurs in most of 

the streams and watersheds containing 

Gila chub. We have completed four 

formal conferences on the effects of 

livestock grazing on Gila chub. All four 

conferences found that livestock grazing 

resulted in adverse effects to Gila chub 

and its habitat (U.S. Fish and Wildlife 

Service 2005b), but is not likely to 

jeopardize the species or result in 

destruction or adverse modification of 

critical habitat. 

Mining activities. Mining activities 

were more widespread historically and 

may have constituted a greater threat in 

the past; however, the continued mining 

of sand and gravel, iron, gold, copper, 

or other materials remains a potential 

threat to the habitat of Gila chub. The 

recently proposed Gentry Iron Mine 

may be located within 1.6 km (1.0 mi) 

of two Gila chub populations on the 

Tonto National Forest. The effects of 

proposed mining activities, like the 

Gentry Iron Mine, on these populations 

are uncertain at this time, but may 

include adverse affects to water quality 

and lowered flow rates due to 

dewatering of nearby streams needed for 

mining operations. Sand and gravel 

mining removes riparian vegetation and 

destabilizes streambanks, which results 

in habitat loss for the Gila chub (Brown 

et al. 1998). Sand and gravel mining 

along the Santa Cruz, San Pedro, and 

Babocomari Rivers has had serious 

impacts in the past and continues to 

impact these rivers although at a 

reduced scale. 

As noted above, groundwater 

pumping to support mining operations 

poses a threat to surface flows in the 

remaining Gila chub habitats in Eagle 

Creek from a large open-pit copper mine 

at Morenci which dries portions of the 

stream. 

Roads. Roads have adversely affected 

Gila chub habitat by increasing surface 

runoff and sedimentation, which can 

increase turbidity, reduce primary 

production, and reduce numbers of 

aquatic insects (Burns 1971; Eaglin and 

Hubert 1993). Roads require in-stream 

structures, such as culverts and bridges 

that remove aquatic habitat and can act 

as barriers to fish movement (Barrett et 

al. 1992; Warren and Pardew 1998). All 

of these activities negatively impact Gila 

chub by lowering water quality and by 

reducing the quality and quantity of 

pools, by filling them with sediments, 

reducing the quantity of large woodydebris necessary to form pools, and by 

imposing barriers to movement. The end 

result is deterioration of habitat for the 

Gila chub (Burns 1971; Eaglin and 

Hubert 1993). 

Vehicular use of roads in creek 

bottoms can degrade Gila chub habitat 

and result in Gila chub mortality. Such 

use inhibits riparian plant growth, 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66681 

breaks down banks, causes erosion, 

causes sedimentation, and increases 

turbidity in the stream, particularly 

where vehicles drive through the stream 

(especially immediately downstream of 

the vehicular activity). These effects are 

likely to result in wider and shallower 

stream channels (Armour 1977; Meehan 

1991). This causes progressive 

adjustments in other variables of 

hydraulic geometry and results in 

changes to the configuration of pools, 

runs, riffles, and backwaters; levels of 

fine sediments and substrate 

embeddedness; availability of instream 

cover; and other fish habitat factors in 

the vicinity of vehicle crossings 

(Sullivan et al. 1987; Rosgen 1994). It 

also changes the way in which flood 

flows interact with the stream channel 

and may exacerbate flood damage to 

banks, channel bottoms, and riparian 

vegetation. The breaking down of stream 

banks by vehicles would reduce 

undercut banks and overhanging 

vegetation that chub use as cover. 

Adverse effects of stream 

sedimentation to fish and fish habitat 

have been extensively documented 

(Murphy et al. 1981; Newcombe and 

MacDonald 1991; Barrett 1992). 

Excessive sedimentation may cause 

channel changes that are adverse to the 

Gila chub. Excessive sediment may fill 

backwaters and deep pools used by Gila 

chub, and sediment deposition in the 

main channel may cause a tendency 

toward stream braiding (e.g. the stream 

becomes wider, shallower, and has 

numerous channels as opposed to one 

channel), thus reducing adult chub 

habitat, as well. Excessive sediment may 

smother aquatic insects (Newcombe and 

MacDonald 1991), thereby reducing 

chub food production and availability, 

and related turbidity may reduce the 

chub’s ability to see and capture food 

(Barrett et al. 1992). Fish fry and eggs 

could also be killed or injured if 

vehicles are driven through stream 

segments where these life stages occur. 

Larger fish are likely to swim away to 

avoid death or injury. Public vehicular 

use is also often associated with an 

elevated risk of human-caused fire. 

New roads are proposed in 

association with housing developments 

in Williamson Valley Wash and Spring 

Creek; surveys within the last 5 years 

indicate that both of these streams 

provide high quality Gila chub habitat 

and are occupied by the species. In the 

past, roads in Bonita Creek traversed the 

streambed numerous times over its 

entire length. Use of the Bonita Creek 

road system created local disturbance of 

normal stream function including 

displacement and injury of fish, 

increased turbidity, and seasonal 

destruction of fish eggs and larvae at 

road crossings. Erosion of stream banks 

and terraces resulted in some areas, 

negatively affecting the condition of 

aquatic and associated riparian 

communities that support Gila chub 

(BLM 1998; U.S. Fish and Wildlife 

Service 2004a). BLM reduced the 

number of roads through the lower 

reaches of Bonita Creek from 15 miles 

(the entire reach of Bonita Creek in the 

Gila Box Riparian National 

Conservation Area (RNCA) to about 2 

miles. There are still localized impacts, 

as described above, including some 

continued mortality of Gila chub, where 

roads follow or cross Bonita Creek. 

BLM’s new roads and facilities in Bonita 

Creek, including camping and day use 

areas, limit and direct these recreational 

activities. Some trampling of vegetation 

and banks likely occurs, but is localized 

and minimal in areas of concentrated 

public use along Bonita Creek. 

Much of the current range of the Gila 

chub occurs on public lands 

administered by the BLM and FS. Public 

use of these lands is high, and such use 

creates an elevated risk of humancaused fire. This risk exists in picnic 

and camping areas where fire can 

escape into wild lands. Directing public 

use to relatively fire-safe areas, as 

opposed to allowing people to camp and 

picnic anywhere, can reduce this risk. 

For example, BLM’s improvements to 

recreational facilities in Bonita Creek 

over the last decade have served to 

reduce the risk of wildfire associated 

with public use. 

Development activities. Gila chub 

habitat is also increasingly threatened 

from urban and suburban development 

(Tellman et al. 1997). Urban and 

suburban development can affect Gila 

chub and their habitats in a number of 

ways, such as direct alteration of 

streambanks and floodplains from 

construction of buildings, gardens, 

pastures, and roads (Tellman et al. 

1997), or as mentioned above, diversion 

of water, both from streams and 

connected groundwater (Glennon 1995). 

On a broader scale, urban and suburban 

development alters the watershed, 

which changes the hydrology, sediment 

regimes, and pollution input (Dunne 

and Leopold 1978; Horak 1989; Medina 

1990; Reid 1993; Waters 1995). The 

introduction of nonnative plants and 

animals that can adversely affect Gila 

chub may also become more likely as 

nearby human populations increase due 

to activities, such as releases from home 

aquariums (Aquatic Nuisance Species 

Task Force 1994). 

Suburban and urban development can 

degrade and eliminate Gila chub habitat. 

The Phoenix metropolitan area, founded 

in part due to its proximity to the Salt 

and Gila Rivers, is a population center 

of millions of people. As mentioned 

above, a new proposed development 

project would occupy a significant 

portion of the Spring Creek watershed. 

More generally, communities in the 

middle and upper Verde River 

watershed, such as the Prescott-Chino 

Valley, the Cottonwood-Clarkdale-Camp 

Verde communities, Strawberry, Pine, 

and Payson, are all seeing rapid 

population growth. The upper San 

Pedro River is also the location of rapid 

population growth in the Sierra VistaHuachuca City-Tombstone area. Many 

of these communities are near Gila chub 

populations. 

Human activities in the watershed 

have had substantial adverse impacts to 

Gila chub habitat. Watershed alteration 

is a cumulative result of many human 

uses, including timber harvest, livestock 

grazing, roads, recreation, 

channelization, and residential 

development. The combined effect of all 

of these actions results in a substantial 

loss and degradation of habitat (Burns 

1971; Reid 1993). In Williamson Valley 

Wash, human uses (e.g., recreational use 

of off-road vehicles) in the highly 

erodible upper watershed have resulted 

in increased erosion and high loads of 

sediment. In 1993, flooding in 

Williamson Valley Wash carried enough 

sediment that the isolated pool where 

Gila chub were previously collected 

became completely filled with sand and 

gravel (Weedman et al. 1996). 

B. Overutilization for Commercial, 

Recreational, Scientific or Educational 

Purposes 

We have determined that 

overutilization for commercial, 

recreational, scientific or educational 

purposes are not a threat to the Gila 

chub. Collection of, or fishing for, Gila 

chub in Arizona is prohibited by 

Arizona Game and Fish Commission 

Order 41, except where such collection 

is authorized by special permit (AGFD 

2005c). The collection of Gila chub is 

prohibited in the State of New Mexico 

except by special scientific permit 

(NMGF 2005). Collection of Gila chub is 

prohibited in Mexico except by special 

permit. A few individual fish may be 

caught incidentally by recreational 

anglers; however, most Gila chub 

populations do not occur in popular 

fishing areas. Although roundtail chub 

is a related species that looks quite 

similar and is considered a sport fish in 

Arizona, AGFD allows a possession bag 

limit of 1 fish 13 inches or larger (AGFD 

2005c); because Gila chub do not grow 

larger than approximately 8 inches, and 

because Gila chub are in geographical 

66682 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

areas in which roundtail chub generally 

do not occur, we believe that angling for 

roundtail chub is not a threat to the Gila 

chub. No commercial uses exist for Gila 

chub. A limited amount of scientific 

collecting occurs, but does not pose a 

threat to Gila chub since it is regulated 

by the States. 

C. Disease and Predation 

The introduction and spread of 

nonnative species has been identified as 

one of the major factors in the 

continuing decline of native fishes 

throughout North America and 

particularly in the southwestern United 

States (Miller 1961; Lachner et al. 1970; 

Ono et al. 1983; Moyle 1986; Moyle et 

al. 1986; Carlson and Muth 1989; Cohen 

and Carlton 1995; Fuller et al. 1990). 

Miller (1989) concluded that nonnative 

species were a causal factor in 68 

percent of the fish extinctions in North 

America in the last 100 years. For 70 

percent of those fish still extant, but 

considered to be endangered or 

threatened, introduced nonnative 

species are a primary cause of the 

decline (Aquatic Nuisance Species Task 

Force 1994; Lassuy 1995). In Arizona, 

release or dispersal of recently 

introduced nonnative aquatic organisms 

is a continuing phenomenon (Rosen et 

al. 1995; U.S. Fish and Wildlife Service 

2001a). Aquatic nonnative species are 

introduced and spread into new areas 

through a variety of mechanisms, 

intentional and accidental, authorized 

and unauthorized. Mechanisms for 

nonnative dispersal in the southwestern 

United States include interbasin water 

transfer, sport fish stocking, 

aquaculture, aquarium releases, baitbucket release (release of fish used as 

bait by anglers), and biological control 

(e.g., the introduction of one species to 

control another species) (Aquatic 

Nuisance Species Task Force 1994; U.S. 

Fish and Wildlife Service 2001a). 

Gila chub evolved in a fish 

community with low species diversity 

and where few predators existed, and as 

a result developed few or no 

mechanisms to deal with predation from 

nonnative species (Carlson and Muth 

1989). In its habitats, the Gila chub was 

a predatory fish and experienced little 

or no predation or competition from 

other species. The introduction of more 

aggressive and competitive nonnative 

fish led to significant losses of Gila 

chub. 

In the Gila River basin, introduction 

of nonnatives is considered a major 

factor in the decline of all native fish 

species (Minckley 1985; Williams et al. 

1985; Minckley and Deacon 1991). 

Aquatic and semi-aquatic mammals, 

reptiles, amphibians, crustaceans, 

mollusks (snails and clams), insects, 

zoo- and phytoplankton, parasites, 

disease organisms, algae, and aquatic 

and riparian vascular plants that are 

outside of their historical range have all 

been documented to adversely affect 

aquatic ecosystems (Cohen and Carlton 

1995). As described below, the 

nonnative fishes have been 

demonstrated to pose a significant threat 

to Gila River basin native fishes, 

including Gila chub (Minckley 1985; 

Williams et al. 1985; Minckley and 

Deacon 1991). 

The aquatic ecosystem of the central 

Gila River basin has relatively small 

streams with warm water and low 

gradients, and many of the native 

aquatic species are small in size. 

Therefore, much of the threat to native 

fishes comes from small nonnative fish 

species, as has also been noted for 

southern Nevada aquatic ecosystems 

(Deacon et al. 1964). Examples of this 

are the impacts of mosquitofish 

(Gambusia affinis) and red shiner 

(Cyprinella lutrensis), which may 

compete with or prey upon native fish 

in the Gila River basin (Meffe 1985; 

Douglas et al. 1994). 

Nonnative fishes known to occur 

within the historical range of Gila chub 

basin include channel catfish (Ictalurus 

punctatus), flathead catfish (Pylodictis 

olivaris), red shiner, fathead minnow 

(Pimephales promelas), green sunfish 

(Lepomis cyanellus), largemouth bass 

(Micropterus salmoides), smallmouth 

bass (Micropterus dolomieui), rainbow 

trout (Oncorynchus mykiss), western 

mosquitofish, carp (Cyprinus carpo) 

(Young and Bettaso 1994; Weedman et 

al. 1996), warmouth (Lepomis gulosus), 

bluegill (Lepomis macrochiris), yellow 

bullhead (Ameiurus natalis), black 

bullhead (Ameiurus melas), and 

goldfish (Carassius auratus) (AGFD 

Native Fish Database 2005). 

Additionally, as discussed below, 

nonnative parasites introduced 

incidentally with nonnative species may 

jeopardize Gila chub populations. 

Although parasites are normal in fish 

populations and typically do not cause 

mortality in their host, the effects of 

nonnative parasites can be significant, 

especially when combined with other 

stressors such as poor habitat conditions 

(U.S. Geological Survey 2004, 2005). 

Nonnative crayfish (virile crayfish) also 

prey on and compete with Gila chub 

(Carpenter 2000, 2005). 

Dudley (1995) correlated green 

sunfish presence with Gila chub 

declines in Sabino Creek, Arizona, and 

documented predation by small green 

sunfish on young-of-the-year Gila chub. 

Dudley and Matter (2000) documented 

green sunfish predation on Gila chub 

and the displacement of Gila chub by 

green sunfish from preferred habitats; 

even small Green sunfish were highly 

predaceous on Gila chub. Unmack et al. 

(2003) found that in Silver Creek, Gila 

chub did not show signs of recruitment 

below a waterfall where they occurred 

with green sunfish; upstream, in the 

absence of green sunfish, Gila chub 

populations had multiple year classes 

and good recruitment. 

Western mosquitofish were 

introduced outside of their native ranges 

to help control mosquitoes. Because of 

their aggressive and predatory behavior, 

mosquitofish may negatively affect 

populations of small fish through 

predation and competition (Courtenay 

and Meffe 1989; Aarn and Unmack 

1998). Introduced mosquitofish have 

been particularly destructive in the 

American west where they have 

contributed to the elimination or 

decline of populations of federallythreatened and endangered species, 

such as the Gila topminnow 

(Poeciliopsis occidentalis occidentalis) 

(Courtenay and Meffe 1989). They often 

attack, shred fins, and sometimes kill 

other fish species. Mosquitofish are 

known to prey on eggs, larvae, and 

juveniles of various fishes, including the 

Gila chub. 

Largemouth bass are intentionally 

introduced for the purpose of sport 

fishing. Introduced bass usually affect 

populations of small native fishes 

through predation, sometimes resulting 

in the decline or extinction of such 

species (Minckley 1973). Species that 

have suffered such effects include 

populations of Gila chub and Monkey 

spring pupfish (Cyprinodon sp.) 

(Minckley 1973). 

The Asian tapeworm 

(Bothriocephalus acheilognathi) was 

introduced into the United States via 

imported grass carp in the early 1970s. 

It has since become well established in 

the southeast and mid-southern United 

States and has been recently found in 

the southwest including the Gila Basin. 

The definitive host in the life cycle of 

the Asian tapeworm is cyprinid (fish in 

the minnow family) fishes. There is a 

potential threat to the Gila chub as well 

as to the other native fishes in Arizona 

because of the presence of this parasite 

in the Gila Basin and the presence of 

cyprinid fish. The Asian tapeworm 

affects fish health in several ways. The 

direct impacts to fish are through 

impeding digestion of food as it passes 

through the intestinal track, and loss of 

nutrients as the worm feeds off the fish; 

large enough numbers of worms cause 

emaciation and starvation. An indirect 

effect is that weakened fish are more 

susceptible to infection by other 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66683 

pathogens. This parasite can infest 

many species of fish and is carried into 

new areas along with nonnative fishes 

or native fishes from contaminated 

areas. Asian tapeworm may be a 

significant source of mortality of 

humpback chub in the Colorado River 

basin (U.S. Geological Survey 2004, 

2005). 

The nonnative parasite 

Ichthyophthirius multifiliis (‘‘Ich’’) is a 

potential threat to Gila chub. ‘‘Ich’’

disease has occurred in some Arizona 

streams, probably favored by high 

temperatures and crowding as a result of 

drought (Mpoame 1982). The deep, 

quiet waters in which Gila chub often 

occur (Minckley 1973) seem stable 

enough that ‘‘Ich’’ cysts do not wash 

away. This protozoan becomes 

embedded under the skin and within 

the gill tissues of infected fish. When 

the ‘‘Ich’’ matures, it leaves the fish, 

causing fluid loss, physiological stress, 

and sites that are susceptible to 

infection by other pathogens. If ‘‘Ich’’ is 

present in large enough numbers they 

can also impact respiration because of 

damaged gill tissue. This parasite has 

been observed on the Sonoran sucker 

(Catostomus clakii), a species common 

throughout the Gila River basin, and 

‘‘Ich’’ does not appear to be hostspecific, so it could be transmitted to 

other species. ‘‘Ich’’ outbreaks were 

observed and caused significant 

mortality in Gila chub salvaged from 

Silver Creek; presumably, the parasite 

was already present in the population 

prior to salvage (E. Gardner, AGFD, 

pers. comm. 2005). 

Anchor worm (Lernaea cyprinacea) 

(Copepoda), also a nonnative species, is 

an external parasite, and is unusual in 

that it has little host specificity, 

infecting a wide range of fishes and 

amphibians. Additionally, infection has 

been known to kill large numbers of fish 

due to tissue damage and secondary 

infection of the attachment site 

(Hoffnagle and Cole 1997). Presence of 

this parasite in the Gila River basin is 

a threat to the Gila chub and other 

native fish. In July 1992, the BLM found 

Gila chub that were heavily parasitized 

by Lernaea cyprinacea in Bonita Creek. 

These fish were likely more susceptible 

to parasites due to physiological stress 

as a result of degraded habitat and 

decreased water flows due to water 

withdrawals. Clarkson and Creef (1993) 

suspected infestations by Lernaea 

cyprinacea in causing high mortality of 

stocked native fish, razorback sucker 

(Xyrauchen texanus) and Colorado 

pikeminnow (Ptycocheilus lucius). 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

Existing regulatory mechanisms have 

not been adequate to prevent the 

continuing decline of Gila chub. Gila 

chub are primarily threatened by 

introductions of nonnative fishes. Fish 

introductions are illegal unless 

approved by the appropriate States. 

However, enforcement is difficult. Many 

nonnative fish populations are 

established through illegal introductions 

(Aquatic Nuisance Specie Task Force 

1994). The use of live bait is permitted 

in Arizona for nine species of fish, 

crayfish, and tiger salamanders 

(Ambystoma pigrimum), all of which are 

nonnative to the State of Arizona and 

several of which are known to have 

serious adverse effects on native 

species, including the Gila chub. The 

portion of the State in which use of live 

bait is permitted is limited, and use of 

live bait is restricted in much of the Gila 

River system in Arizona (AGFD 2005c). 

The use of live bait is allowed in the 

Gila Basin in New Mexico (NMGF 

2004). 

The increasing restriction of live bait 

use will reduce the input of nonnative 

species into the Gila chub’s habitat. 

However, it will do little to reduce 

unauthorized bait use or other forms of 

‘‘bait-bucket’’ transfer (e.g., dumping of 

unwanted aquarium fish which may be 

invasive) not directly related to bait use. 

In fact, those other ‘‘bait-bucket’’

transfers are expected to increase as the 

human population of Arizona increases 

and as nonnative species become more 

available to the public through 

increased aquaculture, increased 

aquarium trade, and increased 

distribution through mechanisms such 

as the Central Arizona Project (CAP) 

aqueduct (Aquatic Nuisance Species 

Task Force 1994; U.S. Fish and Wildlife 

Service 2001a). The general public has 

been known to dump unwanted pet fish 

and other aquatic species into irrigation 

ditches such as the CAP aqueduct in the 

Phoenix metropolitan area (U.S. Fish 

and Wildlife Service 2001a). 

A variety of existing international 

conventions and laws, and Federal and 

State regulations, provide limited 

protection to the Gila chub and its 

habitat. The Gila chub is included in 

Wildlife of Special Concern in Arizona, 

and State regulations prohibit collection 

of or fishing for Gila chub in Arizona 

except under special permit (AGFD 

2005c). In New Mexico, Gila chub is 

listed as endangered, and collecting is 

prohibited except by special permit 

(NMGF 2004). In Mexico, the Gila chub 

is endangered and the collection of 

threatened and endangered species is 

prohibited (NORMA Oficial Mexicana 

1994 (NOM–059–ECOL–1994)). The 

habitat of the Gila chub and other 

threatened and endangered species is 

protected from some activities in 

Mexico. 

The Lacey Act, as amended (16 U.S.C. 

3371 et seq.), provides some protection 

for the Gila chub. This legislation 

prohibits the import, export, sale, 

receipt, acquisition, purchase, and 

engagement in interstate or foreign 

commerce of any species taken, 

possessed, or sold in violation of any 

law, treaty, or regulation of the United 

States, any Tribal law, or any law or 

regulation of any State. 

The Federal Land Policy Management 

Act of 1976 (43 U.S.C. 1701 et seq.) and 

the National Forest Management Act of 

1976 (16 U.S.C. 1600 et seq.) direct 

Federal agencies to prepare 

programmatic-level management plans 

to guide long-term resource 

management decisions. In addition, the 

FS is required to manage habitat to 

maintain viable populations of existing 

native and desired nonnative vertebrate 

species in planning areas (36 CFR 

219.19). These regulations have resulted 

in the preparation of a variety of land 

management plans by the FS and the 

BLM that address management and 

resource protection of areas that 

support, or in the past supported, 

populations of Gila chub. The FS has 

only limited ability to regulate 

introductions or stockings of nonnative 

species that prey on the Gila chub. 

Many activities that affect the Gila 

chub and its habitat may occur outside 

of the States where the species occurs. 

For instance, activities such as 

atmospheric pollution from copper 

smelters or other actions that may be 

responsible for global amphibian 

declines may also affect Gila chub. State 

and Federal air quality regulations 

strictly regulate emissions from copper 

smelters, historically a major source of 

acidic rainfall and atmospheric 

cadmium and arsenic in southeastern 

Arizona, pollutants that may affect the 

Gila chub (Hale and Jarchow 1988). 

However, a major source of these 

pollutants has been copper smelters in 

Sonora, Mexico, which are not subject 

to the same regulations as in the United 

States (Hale et al. 1995; Blanchard and 

Stromberg 1987). 

Wetland values and water quality of 

aquatic sites inhabited by the Gila chub 

are afforded varying protection under 

the Federal Water Pollution Control Act 

of 1948, as amended (33 U.S.C. 1251–

1376) (known as the Clean Water Act), 

and Federal Executive Orders 11988 

(Floodplain Management), and 11990 

(Protection of Wetlands). Section 404 of 

66684 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

the Clean Water Act regulates dredging 

and filling activities in waterways. 

The New Mexico Department of Game 

and Fish has adopted a wetland 

protection policy whereby the 

Department does not endorse any 

project that would result in a net 

decrease in either wetland acreage or 

wetland habitat values. This policy 

affords only limited protection to Gila 

chub habitat because it is advisory only; 

destruction or alteration of wetlands is 

not regulated by State law. 

The State of Arizona Executive Order 

Number 89–16 (Streams and Riparian 

Resources), signed on June 10, 1989, 

directs State agencies to evaluate their 

actions and implement changes, as 

appropriate, to allow for restoration of 

riparian resources. Implementation of 

this regulation may reduce adverse 

effects of some State actions on the 

habitat of the Gila chub, although 

benefits to the species have not been 

documented. 

Both Arizona and New Mexico 

regulate surface and groundwater 

withdrawal through the Arizona 

Department of Water Resources in 

Arizona and the Interstate Stream 

Commission and Office of the State 

Engineer for surface and groundwater in 

New Mexico. While these authorities 

provide some regulation that may 

provide protection to Gila chub habitat, 

in general, the Gila River basin, while 

fully appropriated, is subject to ongoing 

adjudication. In Arizona, significant 

regulation occurs only in Active 

Management Areas (AMAs); outside of 

these areas, there are no limits on 

groundwater pumping in Arizona 

(McKinnon 2005b; L. Graser, Arizona 

Department of Water Resources, pers. 

comm. 2005). All known Gila chub 

populations occur outside the 

designated AMAs. 

In summary, the protection afforded 

by these and other Federal laws and 

regulations is inadequate to halt the loss 

of the Gila chub populations and their 

habitat. 

E. Other Natural or Manmade Factors 

Affecting Its Continued Existence 

Gila chub populations now remain 

fragmented and isolated to small stream 

segments and are vulnerable to those 

natural or manmade factors that might 

further reduce their population size. 

Random events, such as drought, floods, 

and wildfire, can decimate populations 

of Gila chub. Also, small populations 

are subject to genetic threats, such as 

inbreeding depression (reduced health 

due to elevated levels of inbreeding) and 

to genetic drift (a reduction in gene flow 

within the species that can increase the 

probability of unhealthy traits; Meffe 

and Carrol 1994). 

Wildfires pose a threat to these 

remaining extant populations. The 

frequency and intensity of wildfires in 

the southwestern United States has 

increased over the past 10 years due to 

drought conditions, historical wildfire 

suppression activities, and increased 

recreational activities (e.g., camping). 

Efforts are underway to restore natural 

fire regimes to forest and grass lands. 

Gori and Backer (in press) found that 

using prescribed burns to mimic the 

historic fire regime improved watershed 

condition and Gila chub habitat in Hot 

Springs Creek. Unfortunately, most 

current work on restoring fire regimes is 

focused on areas of urban interface, and 

many decades will likely pass before 

natural fire cycles are restored on a 

landscape scale across the American 

southwest. A century of fire suppression 

has been exacerbated by livestock 

grazing that has led to unnaturally high 

fuel loadings (Cooper 1960; Covington 

and Moore 1994; Swetnam and Baison 

1994; Touchan et al. 1995; White 1985). 

Forests that once frequently burned at 

low intensities now rarely burn, but 

when they do, it is often at standreplacing intensity (Covington and 

Moore 1994). Fires in the southwest 

frequently occur during, or just prior to, 

the summer monsoon season. As a 

result, fires are often followed by rain 

that washes ash-laden debris into 

streams (Rinne 2004). It is usually such 

debris, rather than the fires themselves, 

that impact, and sometimes devastate 

fish populations (Rinne 2004), although 

direct effects from fire, including 

changes in temperature and water 

chemistry, can also cause fish morality. 

Indirect effects of fire also include 

watershed alteration that can alter 

streamflow, water quality, riparian 

vegetation, and instream sediment 

loads, all of which can drastically alter 

habitat for the Gila chub. Fire 

suppression can cause adverse affects to 

Gila chub from vegetation removal and 

road building, using fish habitats as 

water sources for fire fighting, and using 

fire retardants that are often toxic to 

aquatic species (see U.S. Fish and 

Wildlife Service 2004b for a thorough 

review of the effects of fire on fishes, 

including Gila chub, in Arizona). 

The 2003 Aspen Fire in the Santa 

Catalina Mountains outside Tucson 

devastated the Gila chub population in 

Sabino Canyon. This population would 

have been extirpated were individual 

fish not salvaged by the Service, AGFD, 

and FS, and later reestablished using the 

salvaged stock (AGFD 2005a). The Cave 

Creek Complex Fire burned over 

248,000 acres in summer 2005, 

threatening six Gila chub populations; 

individual fish were salvaged from Gila 

chub populations in Sycamore Creek, 

Indian Creek, and Silver Creek (Knowles 

et al. 2005). 

The fragmentation of habitat and 

isolation of Gila chub populations has 

decreased the opportunity for additional 

gene flow to occur within these 

populations. Currently, the Gila chub 

has limited representation in each of the 

subunits within its historical range. As 

described above, dewatering has 

resulted in fragmentation of Gila chub 

populations, and water demands from a 

rapidly increasing human population 

are expected to further reduce habitat 

available to the Gila chub, and will 

likely further fragment populations. 

Fragmentation of Gila chub habitat 

increases vulnerability to extinction 

from threats of further habitat loss and 

competition from nonnative fish 

because immigration and recolonization 

from adjacent populations is less likely. 

In depth analyses of southwestern fish 

occurrence patterns (including Gila 

chub) led Fagan et al. (2002) to conclude 

that the number of occurrences or 

populations of a species is far less 

significant in determining extinction 

risk than is fragmentation of the species. 

Small populations and limited gene 

flow can also cause inbreeding 

depression and genetic drift that can 

further reduce the health of a 

population (Meffe and Carroll 1994). To 

achieve recovery, isolated populations 

may need to be augmented or Gila chub 

may need to be reintroduced into areas 

where they are extirpated. 

Among the most important climatic 

factors affecting Arizona’s rivers and 

streams is the variable pattern of 

rainfall, which includes winter 

precipitation and summer 

thunderstorms that can be accompanied 

by flash floods. Flooding is a natural 

part of the hydrological cycle and is an 

important part of a river regime. Life 

cycles of plant and aquatic life are tied 

to annual floods. Stream biota is 

adapted to the seasonal cycles of 

flooding and low flows, which helps 

determine the biomass of fishes. Many 

native stream fishes of the southwest are 

morphologically and behaviorally 

adapted to survive periodic flooding 

(Harrel 1978; Meffe 1984; Minckley and 

Deacon 1991). However, in some cases, 

such as Sabino Canyon in the Santa 

Catalina Mountains in southeastern 

Arizona, these erratic flows can 

decimate already reduced populations. 

Extensive human alteration of 

watersheds that has occurred over the 

past 150 years in the lower Colorado 

River basin has resulted in changes in 

the hydrologic regimes of the rivers and 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66685 

in the geomorphology of the river 

channels. Seasonal fluctuations in river 

channels due to droughts, floods, dams, 

and high human demand for water has 

had adverse impacts on the available 

surface flow, which restricted the 

distribution of Gila chub into small, 

isolated populations. This fragmentation 

of habitat makes the Gila chub very 

vulnerable to threats from further 

habitat loss and competition from 

nonnative fish. Drought has 

significantly increased substantial 

changes in the natural hydrology of 

southwest rivers and streams, including 

increased peak flows and lowered water 

tables. Droughts in the southwest may 

cause increased declines in Gila chub, 

particularly as human demand increases 

for the dwindling water supplies. This 

human-initiated change is exacerbated 

by the naturally highly variable climate 

of the area. Peaks of flood flows have 

increased in volume while moving 

through the system more rapidly, so that 

damaging floods have become more 

frequent and more destructive. This 

increase in destruction is also tied to 

removal of riparian vegetation and 

encroachment of agricultural fields and 

buildings upon the floodplain. Flooding 

destruction results in increased 

channelization and flood control 

measures that further alter the stream 

channel and hydrologic regime. On the 

other hand, low flows have become 

lower and last longer, thus decreasing 

habitat quantity and quality during 

critical times of the year for Gila chub. 

Finding 

We have carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future threats faced by the Gila 

chub in determining that this species is 

in danger of extinction throughout all or 

a significant portion of its range. The 

habitat and range of the Gila chub are 

threatened with destruction, 

modification, and curtailment. Existing 

regulatory mechanisms do not provide 

adequate protection for these species, 

and other natural and manmade factors 

affect their continued existence. 

Because this species has a fragmented 

range, its populations are disconnected 

and isolated from each other, and 

potential habitat areas are isolated and 

separated by large areas of unsuitable 

habitat. Gila chub are therefore 

particularly vulnerable to localized 

extirpation should their habitat be 

degraded or destroyed. Because the 

connectivity of the habitat is limited, 

populations will have little opportunity 

to leave degraded habitat areas in search 

of suitable habitat. As a result, one 

contamination event, either physical or 

biological, or a period of drought in the 

aquatic habitat where the species is 

found could result in the loss of an 

entire population, of which there are 

few. Additionally, we have found that 

these fragmented populations are 

subject to a variety of imminent threats. 

Nonnative aquatic species, which can 

eliminate Gila chub via predation and 

competition, are present in many areas 

where there are populations of Gila 

chub. Arizona and New Mexico are arid 

States that are experiencing increasing 

human population growth, which is 

placing increasing demands on available 

water supplies. Surface water diversion 

and groundwater withdrawal threaten to 

eliminate numerous populations of the 

Gila chub. Habitat alteration due to 

numerous human activities threatens 

remaining Gila chub habitat. 

The Act defines an endangered 

species as one that is in danger of 

extinction throughout all or a significant 

portion of its range, whereas a 

threatened species is defined as any 

species likely to become endangered 

within the foreseeable future throughout 

all or a significant portion of its range. 

Without protections, the Gila chub will 

become extinct in the foreseeable future 

due to these primary threats: (1) 85 to 

90 percent of Gila chub habitat has been 

degraded or destroyed, and further 

degradation and destruction is ongoing 

as a result of various land use activities 

that degrade habitat (such as livestock 

grazing and water use); (2) extant 

populations of Gila chub are small and 

occupy habitat that has become severely 

fragmented, reducing chances for 

recolonization; and (3) competition 

with, and predation from, nonnatives is 

a major and increasing threat. The 

current status of the species and the 

threats described above led us to 

determine that the Gila chub meets the 

definition of an endangered species 

pursuant to section 3 of the Act. We are 

therefore listing Gila chub as an 

endangered species in this final rule. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. ‘‘Conservation’’ means the use 

of all methods and procedures that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. When the best available 

scientific data do not demonstrate that 

the conservation needs of the species so 

require, we will not designate critical 

habitat in areas outside the geographical 

area occupied by the species at the time 

of listing. An area currently occupied by 

the species but was not known to be 

occupied at the time of listing will 

likely be essential to the conservation of 

the species and, therefore, included in 

the critical habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (P.L. 106–554; 

H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service 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 determining which areas 

66686 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(P.L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. 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 to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that are 

contain the features that are essential to 

the conservation of the Gila chub. In 

proposing critical habitat for the Gila 

chub, we solicited information from 

knowledgeable biologists and reviewed 

recommendations contained in State 

wildlife resource reports (e.g., Weedman 

et al. 1996). We also reviewed the 

available literature pertaining to habitat 

requirements, historical localities, and 

current localities of the Gila chub. We 

used data in reports submitted during 

section 7 consultations, research 

published in peer-reviewed articles and 

presented in academic theses and 

agency reports, and regional Geographic 

Information System (GIS) data layer 

coverages. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we are 

required to base critical habitat 

determinations on the best scientific 

data available and to consider those 

physical and biological features 

(primary constituent elements (PCEs)) 

that are essential to the conservation of 

the species, and that may require special 

management considerations and 

protection. These 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, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific primary constituent 

elements required of Gila chub habitat 

are derived from the biological needs of 

the Gila chub as described below. 

Space for Individual and Population 

Growth and Normal Behavior 

Gila chub are highly secretive 

animals, preferring quiet deeper waters, 

especially pools, or they remain near 

cover, including terrestrial vegetation, 

boulders, and fallen logs (Minckley 

1973). Undercut banks created by 

overhanging terrestrial vegetation with 

dense roots growing into pool edges 

provide ideal cover for this species 

(Nelson 1993). Gila chub can survive in 

larger stream habitat, such as the San 

Carlos River, and artificial habitats, like 

the Buckeye Canal (Stout et al. 1970; 

Rinne 1976). Gila chub interact with 

spring and small stream fishes regularly 

(Meffe 1985), but prefer deeper waters 

(Minckley 1973). 

Adults often are found in deep pools 

and below areas with swift current, as 

in the Gila chub habitats found in Bass 

Canyon and Hot Springs in the 

Muleshoe Preserve area. Young-of-theyear (fish that are less than 1 year old) 

inhabit shallow water among plants or 

eddies, while older juveniles use highervelocity stream areas (Minckley 1973; 

Minckley and Deacon 1991). Tiny young 

stay in the shallowest water among 

plants; juveniles move into currents for 

a time, then return to pools where they 

grow larger (Minckley 1973). Griffith 

and Tiersch (1989) collected Gila chubs 

from both riffles and pools in Redfield 

Canyon. Dudley (1995) found that Gila 

chubs in Sabino Creek were highly 

reclusive in winter, occupying dark 

interstitial (small and closely narrow) 

space. Adults were found in deep water 

with small substrates, but often away 

from cover. Sub-adults were more active 

and visible in the summer and were 

observed farther from cover. Sub-adults 

were observed more frequently in 

shallow areas with measurable current 

as water temperatures increased. 

The naturally dynamic nature of 

riverine systems and floodplains 

(including riparian and adjacent upland 

areas) are an integral part of the stream 

ecosystem. For example, riparian areas 

are seasonally flooded habitats (i.e., 

wetlands) that are major contributors to 

a variety of vital functions within the 

associated stream channel (Federal 

Interagency Stream Restoration Working 

Group 1998, Brinson et al. 1981). They 

are responsible for energy and nutrient 

cycling, filtering runoff, absorbing and 

gradually releasing floodwaters, 

recharging groundwater, maintaining 

streamflows, protecting stream banks 

from erosion, and providing shade and 

cover for fish and other aquatic species. 

Healthy riparian and adjacent upland 

areas help ensure water courses 

maintain the habitat components 

essential to aquatic species (e.g., see FS 

1979; Middle Rio Grande Biological 

Interagency Team 1993; Briggs 1996), 

including the Gila chub. We believe a 

relatively intact riparian area, along 

with periodic flooding in a relatively 

natural pattern, is important in 

maintaining the stream conditions 

necessary for long-term conservation of 

the Gila chub. 

Habitats Protected From Disturbance or 

Representative of the Historic 

Geographical and Ecological 

Distribution of a Species 

Gila chub evolved in a fish 

community with low species diversity 

and with few predators, and as a result 

developed limited ability to survive 

predation (Carlson and Muth 1989; see 

Factor C. ‘‘Disease and Predation’’

section above). In its habitats, the Gila 

chub was probably the most predatory 

fish and experienced little or no 

competition. The introduction of more 

aggressive and competitive nonnative 

fish has led to significant losses of Gila 

chub. Nonnative crayfish also appear to 

prey on and compete with Gila chub 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66687 

(Carpenter 2000, 2005). A number of 

nonnative parasites are also a threat to 

Gila chub (see Factor C. ‘‘Disease and 

Predation’’ section above). 

Food 

Griffith and Tiersch (1989) observed 

that Gila chub are omnivorous (feed on 

both plants and animals). Adults appear 

to be principally carnivorous, feeding 

on large and small terrestrial and 

aquatic insects and sometimes other 

small fishes (Rinne and Minckley 1991). 

Smaller individuals often feed on 

organic debris and aquatic plants, 

especially filamentous (threadlike) 

algae, and less intensely on diatoms 

(unicellular or colonial algae). 

Griffith and Tiersch (1989) dissected 

27 Gila chub stomachs from Refield 

Canyon, finding aquatic material that 

included speckled dace (Rhinichtys 

osculus) and dobsonfly nymphs (order 

Megaloptera). Terrestrial insects 

included primarily ants, with some 

caterpillars and beetles. Diatoms (algae) 

were most common by volume. Bottom 

feeding may also occur, as suggested by 

presence of small gravel particles. 

Water Quality 

Water quality is also an issue for the 

Gila chub. Excessive sedimentation is 

the primary threat to water quality for 

the Gila chub (as discussed in Factor A. 

‘‘The Present or Threatened Destruction, 

Modification, or Curtailment of Its 

Habitat or Range’’ section above). In 

addition, mining activity can also 

introduce contaminants. For example, 

Gila chub that are found in Mineral 

Creek are limited to waters that are 

above a large mine. Water from the mine 

is drained back into Mineral Creek and 

no Gila chub have been found at this 

area. 

A recent study of Gila chub in Sabino 

and Cienega creeks documented water 

quality at various times of the year and 

found that water temperature, pH, 

dissolved oxygen, and conductivity 

ranged from 10.5 °C to 25.19 °C, 7 to 9.5, 

6.22 mg/l to 10.13 mg/l, and 125 mmhos 

to 438 mmhos, respectively, in Sabino 

Creek. Gila chub were captured in 

Cienega Creek in habitats with mid-day 

water temperature, pH, dissolved 

oxygen, and conductivity ranging from 

11.17 °C to 23.2 °C, 6.58 to 8.9, 1.26 mg/ 

l to 10.25 mg/l, and 469 mmhos to 760 

mmhos, respectively. 

Reproduction and Rearing of Offspring 

Spawning probably occurs over beds 

of submerged aquatic vegetation or root 

wads (Weedman et al. 1996). Nelson 

(1993) attempted to identify cover and 

substrate types, duration of spawning, 

breeding color changes, and water 

temperature during spawning in 

Cienega Creek, Arizona. He concluded 

that warmer water temperatures, 20 to 

24 degrees Celsius (C) (68 to 75.2 

degrees Farenheit (F)), appear to 

increase breeding color intensities. 

Thus, warmer water temperatures may 

contribute to successful spawning. For 

the roundtail chub (Gila robusta), a 

close relative of the Gila chub, spawning 

has been documented at temperatures of 

14 to 24 °C (57.2 to 75.2 °F), with 18 to 

20 °C (64.4 to 68 °C) most commonly 

noted (Bezzerides and Bestgen 2002). A 

recent study of culture of Gila chub 

found that 20 °C to 29 °C was suitable 

for rearing juvenile Gila chub, with 

higher temperatures resulting in faster 

growth (A. Schultz, University of 

Arizona, in litt. 2005). 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the Gila chub’s primary 

constituent elements are: 

(1) Perennial pools, areas of higher 

velocity between pools, and areas of 

shallow water among plants or eddies 

all found in headwaters, springs, and 

cienegas, generally of smaller 

tributaries; 

(2) Water temperatures for spawning 

ranging from 17 to 24 °C (62.6 to 75.2 

°F), and seasonally appropriate 

temperatures for all life stages (varying 

from approximately 10 °C to 30 °C). 

(3) Water quality with reduced levels 

of contaminants, including excessive 

levels of sediments adverse to Gila chub 

health, and adequate levels of pH (e.g. 

ranging from 6.5 to 9.5), dissolved 

oxygen (e.g. ranging from 3.0 to 10.0) 

and conductivity (e.g. 100 to 1000 

mmhos). 

(4) Food base consisting of 

invertebrates (e.g. aquatic and terrestrial 

insects) and aquatic plants (e.g. diatoms 

and filamentous green algae); 

(5) Sufficient cover consisting of 

downed logs in the water channel, 

submerged aquatic vegetation, 

submerged large tree root wads, 

undercut banks with sufficient 

overhanging vegetation, large rocks and 

boulders with overhangs, a high degree 

of streambank stability, and a healthy, 

intact riparian vegetation community; 

(6) Habitat devoid of nonnative 

aquatic species detrimental to Gila chub 

or habitat in which detrimental 

nonnatives are kept at a level that 

allows Gila chub to continue to survive 

and reproduce; and 

(7) Streams that maintain a natural 

flow pattern including periodic 

flooding. 

Each of the areas designated in this 

rule have been determined to contain 

sufficient PCEs to provide for one or 

more of the life history functions of the 

Gila chub. In some cases, the PCEs exist 

as a result of ongoing Federal actions. 

As a result, ongoing Federal actions at 

the time of designation will be included 

in the baseline in any consultation 

conducted subsequent to this 

designation. 

Criteria for Defining Critical Habitat 

In designating critical habitat for the 

Gila chub, we reviewed information 

within our files and recommendations 

contained in State wildlife resource 

reports (e.g., Weeman et al. 1996). We 

also reviewed the available scientific 

literature pertaining to habitat 

requirements, historic localities, and 

current localities for this species. We are 

not aware of any reliable information 

that is currently available to us that was 

not considered in this designation 

process. This final determination relies 

on our best assessment of areas with 

features that are essential to the 

conservation of the species. Much 

remains to be learned about this species; 

should credible new information 

become available that contradicts this 

designation, we will reevaluate our 

analysis and, if appropriate, propose to 

modify this critical habitat designation, 

depending on available funding and 

staffing. 

We are designating critical habitat on 

lands that we have determined are 

occupied at the time of listing and have 

the features that are essential to the 

conservation of the species, and those 

additional areas found to be essential to 

the conservation of the species. All of 

the critical habitat areas are within the 

area historically occupied by the species 

and require special management 

consideration and protection. We note 

that one area included in this 

designation is not occupied (see 

‘‘Justification for Including Unoccupied 

Areas’’ below). 

Important considerations in selection 

of this critical habitat designation 

include factors specific to each river 

system, such as size, connectivity, and 

habitat diversity, as well as rangewide 

recovery considerations, such as genetic 

diversity and representation of major 

portions of the species’ historical range. 

Each area contains stream reaches that 

are in close proximity to nearby stream 

reaches with interconnected waters so 

that Gila chub can move between areas, 

at least during certain flows or seasons. 

The ability of the fish to repopulate 

areas where they have been depleted or 

extirpated is vital to recovery. 

Additionally, these reaches play a vital 

66688 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

role in the overall health of the aquatic 

ecosystem and, therefore, the integrity 

of upstream and downstream Gila chub 

habitats. 

Stabilization of the Gila chub at its 

present population level and 

distribution will not achieve 

conservation. The overall trend in the 

status of the Gila chub has been 

characterized by dramatic declines in 

numbers and range despite the fact that 

this species evolved in rapidly 

fluctuating, harsh environments. Known 

Gila chub populations remain 

fragmented and isolated to essentially 

very small stream segments and are 

vulnerable to those natural or manmade 

factors that might further reduce 

population size. If recovery actions fail 

to reverse the decline of Gila chub in its 

historical range, the species’

vulnerability to catastrophic events, 

such as the introduction of the green 

sunfish or a prolonged period of low or 

no flow, would increase. Recovery 

through protection and enhancement of 

the existing populations, plus 

reestablishment of populations in 

suitable areas of historical range, are 

necessary for the species’ survival and 

recovery. As previously stated, 

repatriation of Gila chub from extant 

populations will be evaluated as a 

means to recover the Gila chub in 

unoccupied portions of its historical 

habitat. Future restoration efforts will 

occur, pending completion of an 

approved recovery plan and genetic 

work to determine the suitability of 

using Gila chub from the extant 

populations in repatriation efforts. 

We divided the overall historical 

range into seven river subareas, and 

each critical habitat stream segment was 

derived from within these main river 

subareas. We have used these main river 

areas for points of reference in defining 

our critical habitat boundaries, but we 

are designating critical habitat only in 

tributaries of these main rivers, and not 

the main rivers themselves. The 

designated critical habitat constitutes 

our best assessment of areas that contain 

the essential features (PCEs) for the 

conservation of the Gila chub and that 

may require special management or 

protection. 

When determining critical habitat 

boundaries, we made every effort to 

avoid the designation of developed 

areas such as buildings, paved areas, 

boat ramps and other structures that 

lack PCEs for Gila chub. Any such 

structures do not contain the PCEs and 

are not considered part of the critical 

habitat designation. This also applies to 

the land on which such structures sit 

directly. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultations, unless they 

affect the species and/or PCEs in 

adjacent critical habitat. 

Segments were designated based on 

sufficient PCEs being present to support 

Gila chub life processes. Some segments 

contain all PCEs and support multiple 

life processes. Some segments contain 

only a portion of the PCEs necessary to 

support the particular use of that habitat 

by the Gila chub. Where a subset of the 

PCEs are present (e.g., water 

temperature during spawning) it has 

been noted that only PCEs present at 

designation will be protected. 

A brief discussion of each area 

designated as critical habitat is provided 

in the area descriptions below. 

Additional detailed documentation 

concerning these areas is contained in 

our supporting record for this 

rulemaking. 

Justification for Including Unoccupied 

Areas 

As background for this discussion, we 

note that during the development of this 

designation we documented all streams 

for which there were historical records 

for Gila chub. We found that the 1996 

AGFD status report on the species had 

captured most of the historical Gila 

chub records, with the exception of one, 

Haunted Canyon, which was collected 

by R.R. Miller in 1959 (UMMZ 

collection record 176179). We then 

documented all currently known 

occupied streams by consulting agencies 

(including AGFD and NMGF) and 

university researchers, and by 

conducting our own surveys. This 

information is portrayed in Table 1 

above, and summarized in the 

‘‘Background’’ section. Based on our 

evaluation of existing information, we 

have concluded that there is one area, 

that includes 6.3 km (3.9 mi) of Turkey 

Creek (AZ) that is unoccupied (i.e., does 

not meet our definition of occupied, as 

we do not have records to support 

occupancy within the last 5 years), but 

meets our definition of critical habitat in 

that it is essential to the conservation of 

species. Gila chub were last detected in 

Turkey Creek (AZ) in 1991; thus the 

species occupied this stream in recent 

times. We performed surveys of Turkey 

Creek in 2005 and determined that it 

contains sufficient PCEs to provide for 

one or more of the life history functions 

of the Gila chub. We believe that this 

stream could support Gila chub, and we 

are working with the AGFD to 

reestablish Gila chub into this system. 

Critical habitat is defined in section 3 

paragraph (5)(A) of the Act as (i) the 

specific areas within the geographic area 

occupied by a species, at the time it is 

listed in accordance with the Act, on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) that 

may require special management 

consideration or protection; and (ii) 

specific areas outside the geographic 

area occupied by a species at the time 

it is listed, upon determination that 

such areas are essential for the 

conservation of the species. As stated in 

the proposed rule (August 9, 2002; 67 

FR 51948), reestablishment of 

populations into suitable areas of the 

Gila chub’s historical range will be 

necessary for the conservation of the 

species. Protecting unoccupied areas, 

such as Turkey Creek in this case by 

designating it as critical habitat, can 

help to ensure that they will maintain 

the existing PCEs and provide for the 

future reestablishment of Gila chub for 

the purposes of recovery. We believe 

Turkey Creek represents important 

habitat that: (1) Has been documented to 

have been recently occupied by the 

species; (2) are in proximity to occupied 

areas and hydrologically connected to 

them during wet years; (3) contains 

sufficient PCEs to support the life 

history functions of the Gila chub; and 

(4) as noted above, are currently the 

subject of a Service/AZGDF partnership 

to reestablish the Gila chub in this area. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain the primary constituent 

elements and may require special 

management considerations or 

protection. We believe each area 

included in this final designation 

requires special management and 

protections based upon our five factor 

threats analysis provided above. Table 1 

also identifies the specific threats to 

each area. 

Special management considerations 

for each area will depend on the threats 

to the Gila chub in that critical habitat 

area. For example, special management 

that addresses the threat of nonnative 

species could include efforts to remove 

nonnative species from a creek, via 

chemical compounds that kill fish (e.g. 

rhotenone) but otherwise do not harm 

the environment, and construction of 

fish barriers that prevent the upstream 

movement of nonnative fishes into Gila 

chub habitat. Special management that 

addresses the threat of fire could 

include using prescribed fire to reduce 

fuel loads and prevent catastrophic 

wildfires, and salvaging individuals 

from populations that are threatened by 

wildfire. Livestock grazing is only a 

threat to Gila chub if not properly 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66689 

managed. Proper management may 

include the use of fencing, rest rotation 

grazing systems, and other 

improvements to allotments such as 

new water tanks. With regard to water 

use, maintaining high quality and 

adequate quantities of water for all life 

stages of Gila chub may involve special 

management actions such as retaining 

an adequate buffer of riparian vegetation 

to help filter out sediment and 

contaminants, and maintaining 

streamflow via sustainable levels of 

ground and surface water use. We have 

included below in our description of 

each of the critical habitat areas for the 

chub a description of the threats 

occurring in that area requiring special 

management or protections. 

Critical Habitat Designation 

We are designating approximately 

160.3 mi (258.1 km) of stream reaches 

as critical habitat. Critical habitat vital 

for the conservation of Gila chub 

includes: Cienegas, headwaters, springfed streams, perennial streams (Vives 

1990), and spring-fed ponds (Minckley 

1973). Historically, the range of the Gila 

chub covered over one-quarter of 

southeastern Arizona. The Gila chub 

now occupies about 10 to 15 percent of 

its historical range. Current populations 

of Gila chub are now scattered in small 

disconnected habitats throughout the 

following counties: Grant County, New 

Mexico, and Yavapai, Gila, Coconino, 

Pinal, Graham, Pima, Santa Cruz, 

Cochise, and Greenlee counties, 

Arizona. 

For each stream reach, the upstream 

and downstream boundaries are 

described below. Additionally, critical 

habitat includes the stream channels 

within the identified stream reaches and 

areas within these reaches potentially 

inundated during high flow events. 

Critical habitat includes the area of 

bankfull width plus 300 feet on either 

side of the banks. The bankfull width is 

the width of the stream or river at 

bankfull discharge, i.e., the flow at 

which water begins to leave the channel 

and move into the floodplain (Rosgen 

1996). Bankfull discharge while a 

function of the size of the stream, is a 

fairly consistent feature related to the 

formation, maintenance, and 

dimensions of the stream channel 

(Rosgen 1996). We chose the bankfull 

width because bankfull discharge and 

width are quantifiable measures as are 

required to accurately classify a stream 

channel and make sound decisions 

about management of the stream and its 

watershed. This 300-foot width defines 

the lateral extent of each area of critical 

habitat that contains sufficient PCEs to 

provide for one or more of the life 

history functions of the Gila chub. 

We determined the 300-foot lateral 

extent for several reasons. First, the 

implementing regulations of the Act 

require that critical habitat be defined 

by reference points and lines as found 

on standard topographic maps of the 

area (50 CFR 424.12). Although we 

considered using the 100-year 

floodplain, as defined by the Federal 

Emergency Management Agency 

(FEMA), we found that it was not 

included on standard topographic maps, 

and the information was not readily 

available from FEMA or from the Army 

Corps of Engineers for the areas we are 

proposing to designate. We suspect this 

is related to the remoteness of many of 

the stream reaches where the Gila chub 

occurs. Therefore, we selected the 300- 

foot lateral extent, rather than some 

other delineation, for three biological 

reasons: (1) The biological integrity and 

natural dynamics of the river system are 

maintained within this area (i.e., the 

floodplain and its riparian vegetation 

provide space for natural flooding 

patterns and latitude for necessary 

natural channel adjustments to maintain 

appropriate channel morphology and 

geometry, store water for slow release to 

maintain base flows, provide protected 

side channels and other protected areas, 

and allow the river to meander within 

its main channel in response to large 

flow events); (2) conservation of the 

adjacent riparian area also helps provide 

essential nutrient recharge and 

protection from sediment and 

pollutants; and (3) vegetated lateral 

zones are widely recognized as 

providing a variety of aquatic habitat 

functions and values (e.g., aquatic 

habitat for fish and other aquatic 

organisms, moderation of water 

temperature changes, and detritus for 

aquatic food webs) and help improve or 

maintain local water quality (see U.S. 

Army Corps of Engineers’ final notice 

concerning Issuance and Modification 

of Nationwide Permits, March 9, 2000, 

65 FR 12818–12899). 

This designation takes into account 

the naturally dynamic nature of riverine 

systems and recognizes that floodplains 

(including riparian areas) are an integral 

part of the stream ecosystem. For 

example, riparian areas are seasonally 

flooded habitats (e.g., wetlands) that are 

major contributors to a variety of vital 

functions within the associated stream 

channel (Federal Interagency Stream 

Restoration Working Group 1998; 

Brinson et al. 1981). They are 

responsible for energy and nutrient 

cycling, filtering runoff, absorbing and 

gradually releasing floodwaters, 

recharging groundwater, maintaining 

streamflows, protecting stream banks 

from erosion, and providing shade and 

cover for fish and other aquatic species. 

Healthy riparian areas help ensure water 

courses maintain the habitat 

components essential to aquatic species 

(Briggs 1996), including the Gila chub. 

Habitat quality within the mainstem 

river channels in the historical range of 

the Gila chub is intrinsically related to 

the character of the floodplain and the 

associated tributaries, side channels, 

and backwater habitats that contribute 

to the key habitat features (e.g., 

substrate, water quality, and water 

quantity) in these reaches. 

Among other things, the floodplain 

provides space for natural flooding 

patterns and latitude for necessary 

natural channel adjustments to maintain 

channel morphology and geometry. We 

believe a relatively intact riparian area, 

along with periodic flooding in a 

relatively natural pattern, are important 

in maintaining the stream conditions 

necessary for long-term survival and 

recovery of the Gila chub. 

Conservation of the river channel 

alone is not sufficient to ensure the 

survival and recovery of the Gila chub. 

For the reasons discussed above, we 

believe the riparian corridors adjacent to 

the river channel provide an important 

function for the protection and 

maintenance of critical habitat. 

The final designation includes seven 

river areas with a total of 160.3 mi 

(258.1 km) of stream reaches (see Table 

2 below). We are not designating 

mainstem river channels that may have 

been historically used by Gila chub as 

migration corridors and are currently 

considered outside of the occupied 

range of the Gila chub. In addition, most 

of these major rivers no longer contain 

suitable habitat to serve as migration 

corridors for movement of Gila chub. 

Instead, we are designating certain small 

tributary streams within the watershed 

of the rivers listed below. The seven 

areas designated as critical habitat are: 

(1) Upper Gila River Area; (2) Middle 

Gila River Area; (3) Babocomari River 

Area; (4) Lower San Pedro River Area; 

(5) Lower Santa Cruz River Area Area; 

(6) Upper Verde River Area; and (7) 

Aqua Fria River Area. 

Tables 2, 3, and 4 below show the 

lands being designated as critical habitat 

by landowner and State, by individual 

Federal landowner for each State, and 

by ownership of lands excluded 

pursuant to section 4(b)(2) of the Act, 

respectively. 

66690 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

TABLE 2.—APPROXIMATE CRITICAL HABITAT IN STREAM KILOMETERS (KM) AND MILES (MI) BY STATE AND LANDOWNER

Land owner New Mexico 

km (mi) 

Arizona 

km (mi) 

Total 

km (mi) 

Federal ....................................................................................................................... 18.9 (11.7) 153.1 (95.1) 172.0 (106.8) 

State ........................................................................................................................... 0 17.5 (10.9) 17.5 (10.9) 

County ........................................................................................................................ 0 13.6 (8.4) 13.6 (8.4) 

Private ........................................................................................................................ 4.0 (2.5) 51.0 (31.7) 55.0 (34.2) 

Total .................................................................................................................... 22.9 (14.2) 235.2 (146.1) 258.1 (160.3) 

TABLE 3.—APPROXIMATE CRITICAL HABITAT IN STREAM KILOMETERS (KM) AND MILES (MI) BY INDIVIDUAL FEDERAL

LANDOWNERS

Land owner New Mexico 

km (mi) 

Arizona 

km (mi) 

Total 

km (mi) 

Gila National Forest ................................................................................................... 18.9 (11.7) 0 18.9 (11.7) 

Apache-Sitgreaves National Forest ........................................................................... 0 50.5 (31.4) 50.5 (31.4) 

Coconino National Forest .......................................................................................... 0 16.9 (10.5) 16.9 (10.5) 

Coronado National Forest ......................................................................................... 0 13.9 (8.7) 13.9 (8.7) 

Prescott National Forest ............................................................................................ 0 21.0 (13.1) 21.0 (13.1) 

Tonto National Forest ................................................................................................ 0 7.4 (4.6) 7.4 (4.6) 

Subtotal ............................................................................................................... 18.9 (11.7) 109.7 (68.3) 128.6 (80.0) 

BLM—Phoenix District ............................................................................................... 0 7.7 (4.8) 7.7 (4.8) 

BLM—Safford District ................................................................................................ 0 11.9 (7.4) 11.9 (7.4) 

BLM—Tucson District ................................................................................................ 0 23.7 (14.8) 23.7 (14.8) 

Subtotal ............................................................................................................... 0 43.4 (27.0) 43.4 (27.0) 

Total .................................................................................................................... 18.9 (11.7) 153.1 (95.1) 172.0 (106.8) 

TABLE 4.—APPROXIMATE CRITICAL HABITAT EXCLUDED IN THIS FINAL RULE ON THE BASIS OF SECTION 4(B)(2) OF THE

ACT, IN STREAM KILOMETERS (KM) AND MILES (MI) BY LANDOWNER

Land owner New Mexico 

km (mi) 

Arizona 

km (mi) 

Total 

km (mi) 

Tribal .......................................................................................................................... 0 47.1 (29.3) 47.1 (29.3) 

BLM ............................................................................................................................ 0 15.8 (9.8) 15.8 (9.8) 

Private ........................................................................................................................ 0 14.2 (8.9) 14.2 (8.9) 

Total .................................................................................................................... 0 77.1 (48.0) 77.1 (48.0) 

Below we present brief descriptions of 

all areas and the segments within each 

area, reasons why each area and 

segment meets the definition of critical 

habitat for the Gila chub, a discussion 

of occupancy and a general description 

of land ownership. See Table 1 for 

specific occupancy data and sources of 

information; see the maps and legal 

description of critical habitat in the 

‘‘Regulation Promulgation’’ section 

below for more specific coordinate 

information. 

Area 1: Upper Gila River Area 

This area lies in Grant County, New 

Mexico, and Greenlee County, Arizona. 

Critical habitat includes several 

tributary streams: Turkey Creek, Dix 

Creek, Harden Cienega Creek, Eagle 

Creek, and East Eagle Creek. All of these 

segments are currently occupied by the 

Gila chub. These tributaries represent 

the few remaining tributaries of a low 

desert river that currently provide the 

necessary habitat for the Gila chub, in 

a largely natural state. Threats to this 

critical habitat area requiring special 

management and protections include 

fire, grazing, and nonnative species (see 

Table 1 above). 

a. Turkey Creek (New Mexico)—22.3 

km (13.8 mi) of creek extending from 

the edge of the Gila Wilderness 

boundary and continuing upstream into 

the Gila Wilderness in the Gila National 

Forest. Turkey Creek contains one or 

more of the primary constituent 

elements, including perennial pools and 

the necessary vegetation that provides 

cover. Turkey Creek supports a 

population of Gila chub; surveys 

confirmed the species presence in 2005 

(P. C. Marsh, ASU, in litt. 2005). Land 

ownership is entirely Gila National 

Forest and private. 

b. Eagle Creek and East Eagle Creek—

39.2 km (24.4 mi) of creek extending 

from the confluence of Eagle Creek with 

an unnamed tributary upstream to its 

confluence with East Eagle Creek, and 

including East Eagle Creek to its 

headwaters just south of Highway 191. 

Nine other native fishes known to 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66691 

occupy Eagle Creek include loach 

minnow (Tiaroga cobitis), spikedace 

(Meda fulgida), longfin dace (Agozia 

chrysogaster), speckled dace, Sonora 

sucker (Catostomus insignis), desert 

sucker (Catostomus clarkii), razorback 

sucker, roundtail chub, and an 

undetermined trout species 

(Oncorhynchus sp.). This upper portion 

of Eagle Creek contains one or more of 

the primary constituent elements, 

including a series of permanent pools 

with riffle (shallow area in a streambed 

causing ripples), run areas between 

these pools, and the necessary 

vegetation that provides cover. A 

diversion dam just below the end of the 

proposed critical habitat reach acts as a 

barrier to prevent nonnatives from 

invading from the Gila River. Periodic 

flooding appears to decrease the 

presence of nonnatives, subsequently 

decreasing the impacts to native fishes 

by nonnatives in Eagle Creek above this 

diversion dam (Marsh et al. 1990). East 

Eagle Creek contains one or more of the 

primary constituent elements, including 

a series of permanent pools with riffle, 

run areas between these pools, and the 

necessary vegetation that provides 

cover. East Eagle Creek is also 

hydrologically connected to Eagle 

Creek. Gila chub were most recently 

documented in Eagle Creek in 2005 

(Marsh 2005). Land ownership for this 

segment is predominantly FS, but 

includes some private land. 

c. Harden Cienega Creek—22.6 km 

(14.0 mi) of creek extending from its 

confluence with the San Francisco River 

in and continuing upstream to its 

headwaters. Harden Cienega Creek 

contains one or more of the primary 

constituent elements, including 

perennial pools and the necessary 

vegetation that provides cover. AGFD 

surveyed this stream in 2005 and found 

Gila chub to be abundant (McKell 2005). 

Land ownership for this segment is 

Apache-Sitgreaves National Forest, Gila 

National Forest, and private inholdings. 

d. Dix Creek—Portions of the Creek 

beginning 1.0 mile upstream from its 

confluence with the San Francisco River 

at a natural rock barrier and continuing 

upstream for 0.9 km (0.6 mi.) to the 

confluence of the right and left forks of 

Dix Creek. This critical habitat area also 

includes the Left Prong of Dix Creek as 

it continues upstream 2.0 km (1.2 mi), 

and the Right Prong of Dix Creek as it 

continues upstream 4.8 km (3.0 mi). The 

barrier at the lower end of Dix Creek 

appears to be effective in isolating the 

upper drainages from nonnative fish. 

Dix Creek contains one or more of the 

primary constituent elements, including 

perennial pools, and is devoid of 

nonnatives. AGFD surveyed this stream 

in 2005 and found Gila chub to be 

abundant (McKell 2005). Land 

ownership for these segments is entirely 

Apache-Sitgreaves National Forest. 

Area 2: Middle Gila River Area 

This area lies in Graham, Gila, and 

Pinal counties, Arizona. Critical habitat 

includes a tributary stream as critical 

habitat: Mineral Creek. The Mineral 

Creek population of Gila chub fills a gap 

of what was previously determined 

unoccupied habitat within the Middle 

Gila River Area. This may help to 

expand future populations of Gila chub 

in the Middle Gila River Area. Critical 

habitat within Mineral Creek consists of 

14.4 km (8.9 mi) of creek extending from 

the confluence with Devil’s Canyon 

upstream to its headwaters. Gila chub 

currently occupy Mineral Creek, and 

this area contains one or more of the 

primary constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Below this area, 

Mineral Creek flows through a mine, 

where it has been contaminated and 

does not provide suitable habitat. AGFD 

documented Gila chub in Mineral Creek 

in 2000 (Weedman 2000). The area 

below the mine is not being designated 

as critical habitat. Land ownership for 

this segment is Tonto National Forest, 

Arizona State lands, and private. 

Threats to this critical habitat area 

requiring special management and 

protections include fire, grazing, and 

nonnative species (see Table 1 above). 

Area 3: Babocomari River Area 

This area lies in Santa Cruz County, 

Arizona. Historically the Babocomari 

River was a perennial stream which 

flowed through cienegas and 

marshlands all the way to the San Pedro 

River. However, livestock overgrazing 

destroyed much of the river. In 1995, 

AGFD found that the only water use was 

a large impoundment in the river, on the 

Babocomari Ranch. Perennial flows 

begin upstream from this impoundment 

near T–4 Spring. Gila chub were first 

collected from the Babocomari River in 

1892 near Fort Huachuca Military 

Reservation and again in 1950, 

approximately 3.5 mi below the 

Babocomari Ranch (Weedman et al. 

1996). Tributaries to this area include 

O’Donnell Canyon and Turkey Creek, 

which are designated as critical habitat. 

Threats to this critical habitat area 

requiring special management and 

protections include fire, grazing, and 

nonnative species (see Table 1 above). 

a. O’Donnell Canyon—10.0 km (6.2 

mi) of creek extending from its 

confluence with Turkey Creek upstream 

to the confluences of Western, Middle, 

and Pauline Canyons. O’Donnell 

Canyon provides the full range of 

primary constituent elements necessary 

for the conservation of the Gila chub. 

AGFD surveyed O’Donnell Creek and 

found Gila chub in O’Donnell Creek, 

although at very low numbers, in 2004 

(Dean Foster, AGFD, in litt. 2005). Land 

ownership is BLM, Coronado National 

Forest, and private. 

b. Turkey Creek—6.3 km (3.9 mi) of 

creek extending from its confluence 

with O’Donnell Canyon upstream to 

where Turkey Creek crosses AZ 

Highway 83. Turkey Creek contains one 

or more of the primary constituent 

elements, including perennial pools, the 

necessary vegetation that provides 

cover, and adequate water quality. Gila 

chub have not been detected in Turkey 

Creek since 1991, although in wet years 

this segment is connected to occupied 

habitat in O’Donnell Creek (Weedman et 

al. 1996). Land ownership is Coronado 

National Forest and private lands. 

Area 4: Lower San Pedro River Area 

This area lies in Graham and Cochise 

counties, Arizona. Gila chub currently 

exist in several tributaries of this 

segment of the San Pedro River. 

Historically, Gila chub most likely 

occurred on both sides of the lower San 

Pedro River; however, documentation of 

Gila chub presence only exists for the 

east-side drainages. We are only 

designating critical habitat for the eastside drainage areas. Threats to this 

critical habitat area requiring special 

management and protections include 

fire, grazing, and nonnative species (see 

Table 1 above). 

a. Bass Canyon—5.5 km (3.4 mi) of 

creek extending from its confluence 

with Hot Springs Canyon upstream to 

the confluence with Pine Canyon. 

Perennial water was documented by 

Dave Gori (TNC, in litt., 1995) for this 

stream from the confluence with Hot 

Springs Canyon upstream 4.8 km (3.0 

mi). The remainder of the stream was 

dry for 8 km (5.0 mi). All the State land 

in the Muleshoe Preserve was traded to 

the BLM and is managed by TNC. 

Beginning in 1991, biologists with TNC 

established eight fixed sample stations 

in Bass Canyon, five in Hot Springs, and 

three in Double R Canyon. Beginning in 

1992, random pools were also sampled 

in the streams each year. Gila chub were 

collected from 1992 to 2003 in Bass 

Canyon (B. Rogers, TNC, in litt. 2005). 

Bass Canyon contains one or more of the 

primary constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Land ownership 

includes BLM and privately owned 

lands. 

66692 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

b. Hot Springs Canyon—10.5 km (6.5 

mi) of creek extending from its 

confluence with Bass Canyon 

downstream. The occurrence of Gila 

chub within this reach of Hot Springs 

Canyon is sporadic due to the limited 

number of pools; however, Gila chub are 

commonly found where good pool 

habitat exists in Hot Springs Canyon 

(per. comm. TNC, 2000). Hot Springs 

Canyon contains one or more of the 

primary constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Gila chub were 

found in Hot Springs Canyon in 2004 

(B. Rogers, TNC, in litt. 2005). Land 

ownership includes BLM, State lands, 

and private. 

c. Redfield Canyon—9.8 km (6.1 mi) 

of creek extending from its confluence 

with Sycamore Canyon downstream. 

The first documented collection of Gila 

chub in Redfield Canyon was in 1961. 

A number of collections of Gila chub 

occurred from 1976 to 1983, and most 

recently in 2003. Redfield Canyon 

contains one of the few populations of 

Gila chub for which population studies 

have been conducted (Griffith and 

Tiersch 1989). Fall Fish Count (FFC) 

sites were established and surveyed by 

volunteers from 1988 to 1990. TNC 

established monitoring stations from 

1991 to 1994. Gila chub were collected 

each year, and they were the most 

abundant species caught in 1991 (72% 

of the total fish caught) (Weedman et al. 

1996). TNC surveyed Redfield Canyon 

in November 2001, and Gila chub were 

documented. This segment of Redfield 

Canyon is remote and relatively 

pristine. Additionally, no livestock 

grazing is permitted, which contributes 

to the existence of the primary 

constituent elements for the Gila chub. 

Redfield Canyon has an abundant and 

healthy Gila chub population. Redfield 

Canyon contains one or more of the 

primary constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Land ownership 

includes BLM, State lands, and private. 

Area 5: Lower Santa Cruz River Area 

This area lies in Pima County, 

Arizona. Tributaries included in the 

critical habitat designation are Cienega 

Creek, Mattie Canyon, Empire Gulch, 

and Sabino Canyon. Threats to this 

critical habitat area requiring special 

management and protections include 

fire, grazing, and nonnative species (see 

Table 1 above). 

a. Cienega Creek—There are two 

segments of critical habitat designated 

in Cienega Creek. The first segment is in 

the lower part of the drainage, and 

includes 14.2 km (8.8 mi) of creek 

extending from where Cienega Creek 

becomes Pantano Wash to where it 

crosses Interstate 10. The second 

segment is in the upper part of the 

drainage and extends from its 

confluence with Empire Gulch on BLM 

lands to a point 13.6 km (8.4 mi) 

downstream. Perennial water exists 

within the lower segment in the Cienega 

Creek Natural Preserve managed by the 

Pima County Flood Control District. In 

June 2005, Gila chub were documented 

in this lower segment of Cienega Creek. 

The upper segment of Cienega Creek is 

considered to be one of the finest 

natural habitats for the Gila chub, and 

was the only stream segment with a 

population of Gila chub considered 

stable-secure by Weedman et al. (1996). 

Fish inventories of Cienega Creek and 

its tributaries, Mattie Canyon and 

Empire Gulch, have been conducted 

since 1989 by seining, electrofishing, 

and visual observation. Composition of 

native fish in Cienega Creek varies from 

its upper to lower reaches, as well as 

from year to year. Fish sampling is 

difficult in Cienega Creek because of the 

large volume of vegetation cover, great 

pool depths, and undercut banks. Visual 

observation and electrofishing data 

show that a large population of adult 

Gila chub occupy the upper perennial 

segment of Cienega Creek. Visual 

observations of adult Gila chub made for 

the aquatic habitat inventory in 1989 

and 1990 found 368 chub along the 

upper perennial length of Cienega 

Creek. This estimate is undoubtedly low 

due to water turbidity in some reaches, 

vegetation cover, and the secretive 

nature of Gila chub. Cienega Creek 

contains one or more of the primary 

constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Gila chub were 

found in the upper segment of Cienega 

Creek in 2004 (D. Foster, AGFD, pers. 

comm. 2005) and in the lower segment 

in 2005 (D. Duncan, Service, in litt. 

2005). Land ownership for the upper 

segment is BLM. The lower segment is 

owned by Pima County. 

b. Mattie Canyon—4.0 km (2.5 mi) of 

creek extending from its confluence 

with Cienega Creek upstream to the 

BLM Boundary. Gila chub were 

observed in Mattie Canyon in 2005 (J. 

Simms, BLM in litt. 2005). Mattie 

Canyon contains one or more of the 

primary constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Land ownership 

is BLM. 

c. Empire Gulch—5.2 km (3.2 mi) of 

creek extending from its confluence 

with Cienega Creek continuing 

upstream through BLM lands. The 

majority of this reach is on BLM land 

and contains one or more of the primary 

constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Gila chub were 

documented in Empire Gulch in 1995 

and in 2001 (67 FR 51948). Land 

ownership is BLM. 

d. Sabino Canyon—11.1 km (6.9 mi) 

of creek extending from the southern 

boundary of the Coronado National 

Forest upstream to its confluence with 

the West Fork of Sabino Canyon. Sabino 

Canyon is managed by the Coronado 

National Forest. Sabino Canyon was 

devastated by the Aspen Fire in July 

2003. Gila chub were salvaged during 

the fire, and later returned in May 2005 

(AGFD 2005a). Sabino Canyon contains 

one or more of the primary constituent 

elements, including perennial pools and 

adequate water quality. Land ownership 

is Coronado National Forest. 

Area 6: Upper Verde River Area 

This area lies in Yavapai County, 

Arizona. We are designating four 

tributaries within the Verde River 

drainage as critical habitat: Walker 

Creek, Red Tank Draw, Silver Creek, 

and Williamson Valley Wash. The 

Upper Verde River is the northwestern 

most part of the Gila chub’s historical 

range. Conserving these Gila chub 

populations will help maintain 

representation of the species throughout 

its historical range. All of these 

segments have at least one of the 

primary constituent elements present. 

Threats to this critical habitat area 

requiring special management and 

protections include fire, grazing, 

residential development, water use, and 

nonnative species (see Table 1 above). 

a. Walker Creek—7.6 km (4.7 mi) of 

creek extending from Prescott National 

Forest Road 618 upstream to its 

confluence with Spring Creek. The 

earliest known collection of Gila chub 

was in 1978 by J. Rinne (Weedman 

1996). Walker Creek was surveyed in 

1994 by AGFD at five different 

locations; Gila chub were collected at 

three of those locations. Gila chub were 

collected in Walker Creek by Service 

biologists in 2005 (Service data). The 

ephemeral nature of the lower end of 

Walker Creek appears to be limiting the 

invasion of nonnative species from Wet 

Beaver Creek (Weedman et al. 1996); the 

only nonnative species found in 2005 

were virile crayfish (Orconectes virilis). 

Walker Creek contains one or more of 

the primary constituent elements, 

including perennial pools and the 

necessary vegetation that provides 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66693 

cover. Land ownership is Coconino 

National Forest and private lands. 

b. Red Tank Draw—11.1 km (6.9 mi) 

of creek extending from the National 

Park Service boundary just upstream of 

its confluence with Wet Beaver Creek 

upstream to the confluence of Mullican 

and Rarick canyons. Red Tank Draw is 

an intermittent stream that offers 

abundant Gila chub habitat in the form 

of perennial pools. Gila chub were 

documented in Red Tank Draw in 1996 

by AGFD, and by the Service in 2005. 

Green sunfish and virile crayfish are 

present in the downstream reaches of 

this stream segment. Red Tank Draw 

contains one or more of the primary 

constituent elements, including 

perennial pools and the necessary 

vegetation that provides cover. Land 

ownership is Coconino National Forest 

and private. 

c. Spring Creek—5.7 km (3.6 mi) of 

creek including all non-private lands 

extending from the boundary of Forest 

Service land and continuing upstream 

to the Arizona Highway 89A crossing. 

Gila chub were documented in 2005 in 

Spring Creek by Service biologists 

(Service data). Spring Creek contains all 

of primary constituent elements, with 

the exception of habitat free from 

nonnative aquatic species; virile 

crayfish are the only nonnative present. 

Four other native fish species occur in 

Spring Creek: speckled dace, longfin 

dace, Sonora sucker, and desert sucker. 

Land ownership is Coconino National 

Forest and private. 

d. Williamson Valley Wash—7.2 km 

(4.4 mi) of creek extending from the 

gauging station upstream to the crossing 

of the Williamson Valley Road. In 1990 

Williamson Valley Wash was surveyed 

for Gila chub and collected on the Matli 

Ranch, and a large stretch of stream had 

perennial water (Weedman et al. 1996). 

In July 2001, Williamson Valley Wash 

was resurveyed, and Gila chub were 

abundant (Bryan Bagley in litt. 2001), 

although they appear to have become 

much more rare since that time (Bill 

Leibfried, in litt. 2005). Williamson 

Valley Wash contains the full range of 

primary constituent elements necessary 

for the conservation of the Gila chub. 

Williamson Valley Wash is entirely on 

private lands. 

Area 7: Agua Fria River Area 

This area lies in Yavapai County, 

Arizona. There are six tributaries in the 

Agua Fria River that are designated as 

critical habitat, all of which are 

currently occupied by Gila chub: Little 

Sycamore Creek, Sycamore Creek, 

Indian Creek, Silver Creek, Lousy 

Canyon, and Larry Creek. The Agua Fria 

River Area represents part of the upper 

northwest area of the historical range of 

the Gila chub, and current Gila chub 

populations in the six drainages of this 

river area are healthy. There have been 

no reports of any diseases associated 

with the Gila chub in this area. Survey 

results indicate a good representation of 

all age classes. However, the Cave Creek 

Complex Fire burned over 248,000 acres 

in summer 2005, threatening Gila chub 

populations in this area; individual fish 

were salvaged from Gila chub 

populations in Sycamore Creek, Indian 

Creek, and Silver Creek (Knowles et al. 

2005). Gila chub were introduced to 

Larry Creek and Lousy Canyon as a 

conservation action in July 1995 

(Weedman et al. 1996) by the BLM. 

Conserving these Gila chub populations 

will help maintain representation of the 

species throughout its historical range. 

Threats to this critical habitat area 

requiring special management and 

protections include fire, grazing, and 

nonnative species (see Table 1 above). 

a. Little Sycamore Creek—4.7 km (2.9 

mi) of creek extending from its 

confluence with Sycamore Creek 

upstream. This segment is intermittent 

but always contains some habitat in the 

form of perennial pools; Gila chub 

expand into larger habitats when they 

are available. Little Sycamore Creek 

contains one or more of the primary 

constituent elements, including 

perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Gila chub were 

documented in Little Sycamore Creek in 

2003 (A. Silas, FS, pers. comm. 2005). 

Land ownership is Prescott National 

Forest and private. 

b. Sycamore Creek—18.3 km (11.4 mi) 

of creek extending from its confluence 

with Little Sycamore Creek upstream to 

Nelson Place Spring. Sycamore Creek is 

perennial throughout most of its length, 

with the last 3 km (2 mi) being 

intermittent. Gila chub were 

documented in Sycamore Creek in 2005 

when they were removed as part of a 

salvage effort to secure the population 

from the effects of the Cave Creek 

Complex Fire (Hedwall et al. 2005). In 

surveys in 2002, there were no 

nonnatives collected and all age classes 

were represented. Gila chub distribution 

was limited to the area between the 

Double T Waterfall and the Rock Bottom 

Box totaling a length of 5 km (3.0 mi) 

of habitat. Both of these sites are 

effective fish barriers and seem to have 

served to prevent nonnatives from 

invading this upper section of Sycamore 

Creek. Due to the remoteness of this 

area, it is unlikely that additional 

threats to the existing Gila chub 

population will be of concern. Livestock 

grazing is very limited in the upper 

portion of this reach due to the canyons 

and inaccessibility to the stream. 

However, below the fish barriers, 

livestock have access to these areas. 

Sycamore Creek contains one or more of 

the primary constituent elements, 

including perennial pools, the necessary 

vegetation that provides cover, and 

adequate water quality. Land ownership 

is Prescott National Forest and private. 

c. Indian Creek—8.4 km (5.2 mi) of 

creek extending from Upper Water 

Springs downstream into BLM lands. 

Gila chub were first collected in Indian 

Creek in May 1995. Gila chub were 

salvaged from Indian Creek in 2005 to 

secure the population from the Cave 

Creek Complex Fire (J. Voeltz, AGFD in 

litt. 2005). Similar to Little Sycamore 

Creek, this segment is intermittent, but 

there is always some habitat available in 

the form of perennial pools; Gila chub 

expand into larger habitats when they 

are available. Indian Creek contains one 

or more of the primary constituent 

elements, including perennial pools and 

the necessary vegetation that provides 

cover (per. comm. BLM 2002). Land 

ownership is BLM, Prescott National 

Forest, and private. 

d. Silver Creek—8.5 km (5.3 mi) of 

creek extending from a spring on FS 

lands downstream onto BLM lands, all 

of which is located above a natural 

waterfall/barrier located 4 km (2.5 mi) 

above the confluence with the Agua Fria 

River. The earliest record of Gila chub 

collected in Silver Creek was in 1980. 

Due to high recruitment of young-of-theyear, Silver Creek was the source of Gila 

chub that were translocated to Larry 

Creek and Lousy Canyon in July 1995. 

Gila chub were salvaged from Silver 

Creek to protect the population from the 

Cave Creek Complex Fire in 2005 (D. 

Weedman, AGFD in litt. 2005). Silver 

Creek contains one or more of the 

primary constituent elements, including 

perennial pools and the necessary 

vegetation that provides cover (per. 

comm. BLM 2002). Land ownership is 

Tonto National Forest and BLM. 

e. Lousy Canyon—Extending from the 

confluence of an unnamed tributary 

upstream to the fork with an another 

unnamed tributary approximately 0.6 

km (0.4 mi) upstream. In 1995, BLM 

introduced Gila chub from Silver Creek 

into Lousy Canyon. In 2005, the Service 

surveyed the stream and observed Gila 

chub. Lousy Creek contains one or more 

of the primary constituent elements, 

including perennial pools and the 

necessary vegetation that provides 

cover. In addition, this area is within a 

canyon, and it is inaccessible to cattle 

due to the geological nature of the 

canyon, which acts as a barrier. Land 

ownership is BLM. 

66694 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

f. Larry Creek—Portions of the creek 

from an unnamed tributary upstream 0.7 

km (0.4 mi) to the confluence of two 

adjoining unnamed tributaries. In 1995, 

BLM introduced Gila chub from Silver 

Creek into Larry Creek, and the 

population appears to be thriving 

(Service files). Larry Creek contains one 

or more of the primary constituent 

elements, including perennial pools and 

the necessary vegetation that provides 

cover (Service files). In addition, this 

area is within a canyon, and it is 

inaccessible to cattle due to the 

geological nature of the canyon which 

acts as a barrier. The Service visually 

surveyed Larry Creek in 2003 and found 

Gila chub to be abundant. Land 

ownership is BLM. 

Exclusions Under Section 4(b)(2) of the 

Act 

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

critical habitat shall be designated, and 

revised, 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. An 

area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

In our critical habitat designations, we 

use the provision outlined in section 

4(b)(2) of the Act to evaluate those 

specific areas that contain the features 

essential to the conservation of the 

species to determine which areas to 

propose and subsequently finalize (i.e., 

designate) as critical habitat. On the 

basis of our evaluation, we have 

determined that the benefits of 

excluding certain lands from the 

designation of critical habitat for the 

Gila chub outweigh the benefits of their 

inclusion, and have subsequently 

excluded those lands from this 

designation pursuant to section 4(b)(2) 

of the Act as discussed below. 

Areas excluded pursuant to section 

4(b)(2) may include, but are not limited 

to, Tribal conservation plans/programs 

that cover the species and partnerships, 

conservation plans/easements, or other 

type of formalized relationship/ 

agreement on private lands. The 

relationship of critical habitat to these 

types of areas is discussed in detail in 

the following paragraphs. 

After consideration under section 

4(b)(2), the following areas of habitat 

have been excluded from critical habitat 

for the Gila chub: Bonita Creek and Blue 

River within the tribal lands of the San 

Carlos Apache Nation; Bonita Creek on 

BLM and private lands of the City of 

Safford; and portions of proposed areas 

5(a) and 6(c) to address economic 

impacts. A detailed analysis of our 

exclusion of these lands under section 

4(b)(2) of the Act is provided in the 

paragraphs that follow. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. The Court ruled that the 

Service could no longer equate the two 

standards and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, we 

believe the conservation achieved 

through implementing management 

plans is typically greater than would be 

achieved through multiple site-by-site, 

project-by-project, section 7 

consultations involving consideration of 

critical habitat. Management plans 

commit resources to implement longterm management and protection to 

particular habitat for at least one and 

possibly other listed or sensitive 

species. Section 7 consultations only 

commit Federal agencies to prevent 

adverse modification to critical habitat 

caused by the particular project, and 

they are not committed to provide 

conservation or long-term benefits to 

areas not affected by the proposed 

project. Thus, any management plan 

which considers enhancement or 

recovery as the management standard 

will always provide as much or more 

benefit than a consultation for critical 

habitat designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for the Gila chub. In general the 

educational benefit of a critical habitat 

designation always exists, although in 

some cases it may be redundant with 

other educational effects. For example, 

habitat conservation plans have 

significant public input and may largely 

duplicate the educational benefit of a 

critical habitat designation. This benefit 

is closely related to a second, more 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66695 

indirect benefit: That designation of 

critical habitat would inform State 

agencies and local governments about 

areas that could be conserved under 

State laws or local ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are making 

in this rule because these areas were 

included in the proposed rule as having 

essential Gila chub habitat. 

Consequently, we believe that the 

informational benefits are already 

provided even though these areas are 

not designated as critical habitat. 

Additionally, the purpose normally 

served by the designation of informing 

State agencies and local governments 

about areas which would benefit from 

protection and enhancement of habitat 

for the Gila chub is already well 

established among State and local 

governments, and Federal agencies in 

those areas that we are excluding from 

critical habitat in this rule on the basis 

of other existing habitat management 

protections. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

San Carlos Apache Tribe 

Relationship of Critical Habitat to 

American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2), 

we believe that fish, wildlife, and other 

natural resources on tribal lands are 

better managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. Based on this 

philosophy, we believe that, in many 

cases, designation of tribal lands as 

critical habitat provides very little 

additional benefit to threatened and 

endangered species. Conversely, such 

designation is often viewed by tribes as 

an unwanted intrusion into tribal self 

governance, thus compromising the 

government-to-government relationship 

essential to achieving our mutual goals 

of managing for healthy ecosystems 

upon which the viability of threatened 

and endangered species populations 

depend. 

The San Carlos Apache Tribe has two 

streams within its tribal lands, the Blue 

River and a portion of Bonita Creek, that 

are known to be currently occupied by 

Gila chub and its tribal lands contain 

features that are essential to the 

conservation of the Gila chub. The Tribe 

has completed and is implementing a 

Fisheries Management Plan (FMP) that 

includes specific management actions 

for the Gila chub. In making our 

determination with regard to tribal 

lands, we considered several factors, 

including our relationship with San 

Carlos Apache Tribe, and the degree to 

which the Tribe’s FMP provides specific 

management for the Gila chub. Tribal 

governments protect and manage their 

resources in the manner that is most 

beneficial to them. The San Carlos 

Apache Tribe exercises legislative, 

administrative, and judicial control over 

activities within the boundaries of its 

lands. Additionally, the Tribe has a 

natural resource programs and staff and 

have enacted the FMP. In addition, as 

trustee for land held in trust by the 

United States for Indian Tribes, the 

Bureau of Indian Affairs (BIA) provides 

technical assistance to the San Carlos 

Apache Tribe on management planning 

and oversees a variety of programs on 

their lands. Gila chub conservation 

activities have been ongoing on San 

Carlos Apache tribal lands, and, prior to 

the completion of their FMP, their 

natural resource management, while not 

specific to the Gila chub, was consistent 

with management of habitat for this 

species. The development and 

implementation of the efforts formalized 

in the San Carlos Apache Tribes FMP 

will continue with or without critical 

habitat designation. 

The San Carlos Apache Tribe highly 

values its wildlife and natural resources, 

and is charged to preserve and protect 

these resources under the Tribal 

Constitution. Consequently, the Tribe 

has long worked to manage the habitat 

of wildlife on its tribal lands, including 

the habitat of endangered and 

threatened species. We understand that 

it is the Tribe’s position that a 

designation of critical habitat on its 

lands improperly infringes upon its 

tribal sovereignty and the right to selfgovernment. 

The San Carlos Apache Tribes FMP 

provides assurances and a conservation 

benefit to the Gila chub. Implementation 

of the FMP will result in protecting all 

known Gila chub habitat on San Carlos 

Tribal Land and assures no net habitat 

loss or permanent modification will 

occur in the future. The purpose of the 

FMP includes the long-term 

conservation of native fishes, including 

Gila chub, on tribal lands. The FMP 

outlines actions to conserve, enhance, 

and restore Gila chub habitat, including 

efforts to eliminate nonnative fishes 

from Gila chub habitat. All habitat 

restoration activities (whether it is to 

rehabilitate or restore native plants) will 

be conducted under reasonable 

coordination with the Service. All 

reasonable measures will be taken to 

ensure that recreational activities do not 

result in a net habitat loss or permanent 

modification of the habitat. All 

reasonable measures will be taken to 

conduct livestock grazing activities in a 

manner that will ensure the 

conservation of Gila chub habitat. 

Within funding limitations and under 

confidentiality guidelines established by 

the Tribe, the Tribe will cooperate with 

the Service to monitor and survey Gila 

chub habitat, conduct research, perform 

habitat restoration, remove nonnative 

aquatic species, or conduct other 

beneficial Gila chub management 

activities. 

As a result of the assurances, 

protections, and conservation benefit 

provided for the Gila chub and its 

habitat on San Carlos Apache Tribal 

lands described above, we are excluding 

the Blue River and portions of Bonita 

Creek occurring on tribal lands from the 

Middle Gila River Area. 

(1) Benefits of Inclusion 

Including lands of the San Carlos 

Apache Tribe in critical habitat would 

provide some additional benefit from 

section 7 consultation, because we 

could consult via the Bureau of Indian 

Affairs (BIA) on actions that could 

adversely affect critical habitat. 

Although we have not formally 

conferenced with BIA on any actions 

affecting Gila chub, we have conducted 

six formal conferences with BLM and 

FS that have involved proposed critical 

habitat. Activities covered in these 

conferences included livestock grazing, 

recreation, fish stocking, fire 

management, and bank stabilization, 

and conservation measures that 

benefited Gila chub critical habitat 

included monitoring, fence repair (to 

exclude cattle from overusing and 

thereby damaging Gila chub habitat), 

and education programs to inform the 

public of the need to avoid actions that 

damage habitat. However, we note that 

because the Gila chub will still be listed 

under this final rule and will be found 

on San Carlos Apache tribal lands, 

section 7 consultation under the 

jeopardy standard will still be required 

if Tribal or BIA activities would affect 

Gila chub, regardless of our excluding 

66696 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

these lands from the critical habitat 

designation. As a result, we expect that 

inclusion of San Carlos Apache tribal 

lands would provide only that 

additional habitat protection accorded 

by critical habitat as discussed by the 

Ninth Circuit Court of Appeals in the 

Gifford Pinchot ruling discussed above. 

Nevertheless, few additional benefits 

would be derived from including these 

Tribal Lands in a Gila chub critical 

habitat designation beyond what will be 

achieved through the implementation of 

the FMP. As noted above, the primary 

regulatory benefit of any designated 

critical habitat is that federally funded 

or authorized activities in such habitat 

require consultation pursuant to section 

7 of the Act. Such consultation would 

ensure that adequate protection is 

provided to avoid destruction or adverse 

modification of critical habitat. The San 

Carlos Apache Tribe has already agreed 

under the terms of their FMP to protect 

Gila chub habitat (PCEs), to ensure no 

net loss, to coordinate with the Service 

in order to prevent any habitat 

destruction, and to conduct activities 

consistent with the conservation of the 

Gila chub and its PCEs. 

As discussed above, we expect that 

little additional educational benefit 

would be derived from designating 

lands (Blue River and Bonita Creek) of 

the San Carlos Apache as critical 

habitat. The additional educational 

benefits that might arise from critical 

habitat designation are largely 

accomplished through the multiple 

notice and comments which 

accompanied the development of this 

critical habitat designation, as 

evidenced by the San Carlos Apache 

Tribe currently working with the 

Service to address habitat and 

conservation needs for the Gila chub. 

Additionally, we anticipate that the San 

Carlos Apache Tribe will continue to 

actively participate in working groups, 

and provide for the timely exchange of 

management information. The 

educational benefits important for the 

long-term survival and conservation of 

the Gila chub are being realized without 

designating this area as critical habitat. 

Educational benefits will continue on 

these lands if they are excluded from 

the designation, because the FMP 

already recognizes the importance of 

those habitat areas to the Gila chub. 

Another possible benefit is the 

additional funding that may be 

generated for habitat restoration or 

improvement by having an area 

designated as critical habitat. In some 

instances, having an area designated as 

critical habitat may improve the ranking 

a project receives during evaluation for 

funding. The San Carlos Apache Tribe 

often requires additional sources of 

funding in order to conduct wildliferelated activities. Therefore, having an 

area designated as critical habitat could 

improve the chances of Tribe receiving 

funding for Gila chub-related projects. 

Additionally, occupancy by Gila chub 

also provides benefits to be considered 

in evaluating funding proposals. 

Because there are areas of occupied 

habitat on San Carlos Apache lands, the 

listing of the Gila chub may help secure 

funding for management of these areas. 

For these reasons, then, we believe 

that designation of critical habitat 

would provide some additional benefits. 

(2) Benefits of Exclusion 

The benefits of excluding the San 

Carlos Apache Tribal lands from critical 

habitat include: (1) The advancement of 

our Federal Indian Trust obligations and 

our deference to Tribes to develop and 

implement tribal conservation and 

natural resource management plans for 

their lands and resources, which 

includes the Gila chub and other 

Federal trust species; (2) the 

maintenance of effective working 

relationships to promote the 

conservation of the Gila chub and their 

habitat; (3) the allowance for continued 

meaningful collaboration and 

cooperation on Gila chub management 

and other resources of interest to the 

Federal government; (4) the provision of 

conservation benefits to riparian 

ecosystems and a host of species, 

including the Gila chub and its habitat, 

that might not otherwise occur; and (5) 

the reduction or elimination of 

administrative and/or project 

modification costs as analyzed in the 

economic analysis. 

During the development of the Gila 

chub critical habitat proposal (and 

coordination for other critical habitat 

proposals), and other efforts such as 

conservation of native fish species in 

general, we have met and 

communicated with the San Carlos 

Apache Tribe to discuss how they might 

be affected by the regulations associated 

with Gila chub conservation and the 

designation of critical habitat. As such, 

we established relationships with the 

San Carlos Apache Tribe specific to Gila 

chub conservation. As part of our 

relationship, we provided technical 

assistance to the San Carlos Apache 

Tribe to develop measures to conserve 

the Gila chub and its habitat on their 

lands. These measures are contained 

within the FMP that we have in our 

supporting record for this decision (see 

discussion above). This proactive action 

was conducted in accordance with 

Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997); 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2). 

We believe that the San Carlos Apache 

Tribe should be the governmental entity 

to manage and promote the conservation 

of the Gila chub on their lands. During 

our communication with the San Carlos 

Apache Tribe, we recognized and 

endorsed their fundamental right to 

provide for tribal resource management 

activities, including those relating to 

riparian ecosystems. 

The designation of critical habitat on 

the San Carlos Apache Tribal lands 

would be expected to adversely impact 

our working relationship with them. In 

fact, during our discussions with the 

San Carlos Apache Tribe and from 

comments received, we were informed 

that critical habitat would be viewed as 

an intrusion on their sovereign abilities 

to manage natural resources in 

accordance with their own policies, 

customs, and laws. To this end, we 

found that the San Carlos Apache Tribe 

would prefer to work with us on a 

government-to-government basis. For 

these reasons, we believe that our 

working relationship with the San 

Carlos Apache Tribe would be better 

maintained if they are excluded from 

the designation of critical for the Gila 

chub. We view this as a substantial 

benefit. 

We indicated in the proposed rule 

(August 9, 2002; 67 FR 51948) that in 

our final decision concerning 

designation of critical habitat on the San 

Carlos Apache Tribal lands, we would 

consider our relationship with the San 

Carlos Apache Tribe and whether they 

developed a Gila chub FMP. We 

identified that the San Carlos Apache 

Tribe had a draft FMP. We also 

discussed our continued cooperation 

with the San Carlos Apache Tribe 

during the comment period on the 

development of the FMP. During the 

comment period, we received input 

from the San Carlos Apache Tribe and 

BIA offices expressing the view that 

designating critical habitat for the Gila 

chub on Tribal land would adversely 

affect the Service’s working relationship 

with the San Carlos Apache Tribe. They 

noted the beneficial cooperative 

working relationships between the 

Service and the San Carlos Apache 

Tribe that have assisted in the 

conservation and recovery of listed 

species and other natural resources. 

They indicated that critical habitat 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66697 

designation on the San Carlos Apache 

Tribe would amount to additional 

Federal regulation of their sovereign 

lands, and would be viewed as an 

unwarranted and unwanted intrusion 

into Tribal natural resource programs. 

We conclude that our working 

relationships with the San Carlos 

Apache Tribe on a government-togovernment basis has been extremely 

beneficial in implementing natural 

resource programs of mutual interest 

(including the protection of Gila chubs 

and their PCEs), and that these 

productive relationships would be 

compromised by critical habitat 

designation of the San Carlos Apache 

Tribal lands. 

In addition to management/ 

conservation actions described for the 

conservation of the Gila chub, we 

anticipate future management/ 

conservation plans to include 

conservation efforts for other listed 

species and their habitat. We believe 

that many Tribes and Pueblos are 

willing to work cooperatively with us to 

benefit other listed species, but only if 

they view the relationship as mutually 

beneficial. Consequently, the 

development of future voluntary 

management actions for other listed 

species will likely be contingent upon 

whether the San Carlos Apache Tribal 

lands are designated as critical habitat 

for the Gila chub. Thus, the benefit of 

excluding these lands would be future 

conservation efforts that would benefit 

other listed species. 

The economic analysis conducted for 

this proposal estimates that the costs 

associated with designating this area of 

the proposed critical habitat would be 

$37,000 to $321,200 annually 

(discounted at 7 percent). These costs 

would be incurred as a result of changes 

in grazing management, fire 

management, recreation, timber harvest, 

and costs associated with compliance 

with Act. Excluding this reach could 

allow some or all of these costs to be 

avoided. However, considering that this 

area is currently occupied by the 

species, consultation for activities that 

might adversely impact the species, 

including possible habitat modification, 

would be required even without the 

critical habitat designation; thus the 

possible economic benefits might not 

materialize. 

Another benefit of excluding the San 

Carlos Apache Tribal lands from the 

critical habitat designation includes 

relieving additional regulatory burden 

and costs associated with the 

preparation of portions of section 7 

documents related to critical habitat. 

While the cost of adding these 

additional sections to assessments and 

consultations is relatively minor, there 

could be delays which can generate real 

costs to some project proponents. 

However, because in this case critical 

habitat was only proposed for occupied 

areas already subject to section 7 

consultation and a jeopardy analysis, it 

is anticipated this reduction would be 

minimal. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We find that the benefits of 

designating critical habitat for the Gila 

chub on San Carlos Apache Tribe lands 

are small in comparison to the benefits 

of exclusion. Exclusion would enhance 

the partnership efforts focused on 

recovery of the Gila chub within this 

reach and encourage other stakeholders 

to become a part of this cooperative 

effort. Excluding this area also would 

reduce some of the administrative costs 

during consultation pursuant to section 

7 of the Act. 

(4) Exclusion Will Not Result in 

Extinction of the Species 

The San Carlos Apache Tribe has 

committed to greater conservation 

measures on these areas than would be 

available through the designation of 

critical habitat. Because areas of the San 

Carlos Apache tribal lands are occupied 

by the Gila chub which is protected 

from take under section 9 of the Act, 

any actions that might kill Gila chub 

including habitat modification that 

would cause death of the Gila chub, 

must either undergo a consultation with 

the Service under the requirements of 

section 7 of the Act or receive a permit 

from us under section 10 of the Act. 

Additionally, we have concluded that 

excluding these lands from critical 

habitat will not result in the extinction 

of the Gila chub because the FMP 

specifically addresses conservation of 

the Gila chub. The purpose of the FMP 

includes the long-term conservation of 

native fishes, including Gila chub, on 

tribal lands. The FMP outlines actions 

to conserve, enhance, and restore Gila 

chub habitat, including efforts to 

eliminate nonnative fishes from Gila 

chub habitat. Such efforts provide 

greater conservation benefit than would 

result for designation as critical habitat. 

This is because section 7 consultations 

for critical habitat only consider listed 

species in the project area evaluated and 

Federal agencies are only committed to 

prevent adverse modification to critical 

habitat caused by the particular project 

and are not committed to provide 

conservation or long-term benefits to 

areas not affected by the proposed 

project. Such efforts provide greater 

conservation benefit than would result 

for designation as critical habitat. As a 

result, there is no reason to believe that 

this exclusion would result in 

extinction of the species. 

Accordingly, we have determined that 

the lands of the San Carlos Apache 

Tribe should be excluded pursuant to 

4(b)(2) of the Act because the benefits of 

excluding these lands from critical 

habitat outweigh the benefits of their 

inclusion, and the exclusion of these 

lands from the designation will not 

result in the extinction of the species. 

Gila Box Riparian National 

Conservation Area and the Bonita Creek 

Partnership 

As discussed in the ‘‘Summary of 

Changes from the Proposed Rule’’

section above, we have determined that 

proposed critical habitat in Bonita 

Creek, Graham County, Arizona, will 

not be designated as critical habitat due 

to our partnership with the BLM, 

Reclamation, and City of Safford. The 

City of Safford operates an infiltration 

gallery within Bonita Creek. The 

infiltration gallery uses submerged 

intake pipes to pull water from Bonita 

Creek which is then transported across 

BLM land via pipeline to the City of 

Safford where it is used for drinking 

water. The city is developing a 

Memorandum of Understanding (MOU) 

with BLM to jointly manage the water 

delivery system, and other common 

elements of the area. BLM manages 

lands both upstream and downstream of 

the private parcel on which the city’s 

gallery occurs as part of the Gila Box 

Riparian National Conservation Area 

(RNCA). We have reached this 

determination because we believe the 

benefits of excluding this segment from 

the final critical habitat designation 

outweigh the benefits of designating the 

creek as critical habitat. 

The portion of Bonita Creek located 

within the RNCA provides excellent 

habitat for Gila chub. Healthy Gila chub 

populations have long been documented 

in Bonita Creek upstream of the city’s 

infiltration gallery. Although they are 

present downstream, they are at much 

lower numbers, presumably due to the 

presence of a number of nonnative fish 

species. The city’s infiltration gallery, 

by creating a dry reach of Bonita Creek, 

for many years has apparently acted as 

a barrier to the upstream movement of 

nonnative fishes, protecting areas 

upstream of the gallery occupied by 

native fish species, including Gila chub. 

Reclamation is also planning to build a 

fish barrier on Bonita Creek below the 

City’s infiltration gallery to further this 

protection. 

BLM has a commitment to work 

toward conserving federally-listed 

66698 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

species in Bonita Creek that has existed 

for over a decade. As the primary land 

manager, they have conducted intensive 

monitoring for Gila chub, and funded 

research on the life history of Gila chub. 

They have also provided a law 

enforcement ranger to patrol the Gila 

Box RNCA, which helps reduce the 

threat of vandalism or introduction of 

nonnative fishes into the Gila chub 

habitat. BLM has also developed the 

Gila Box RNCA Management Plan, 

which provides management direction 

for all activities that occur in the RNCA. 

This plan specifically addresses wildlife 

conservation within Bonita Creek, 

including native fishes such as Gila 

chub. Guidelines for the construction of 

new roads, closures of old roads, 

development of recreational facilities, 

management of recreation, management 

of grazing, management of riparian areas 

including riparian vegetation, watershed 

management, and water quality 

management are all covered in the 

RNCA management plan, and this 

management is focused on improving 

habitats within the RNCA, including 

those of the Gila chub. 

BLM’s Gila Box RNCA management 

plan also details how BLM will work 

cooperatively with the City of Safford to 

provide for their management needs, 

while reducing potential adverse effects 

to the resources of the RNCA. The 

associated management action is to 

work with the City to support the 

management goals of the RNCA along 

with the management needs of the City 

and the effective operation of the public 

water system. The City of Safford is 

developing an MOU with BLM to 

formalize this arrangement, and this 

MOU will specifically address the 

conservation of native fishes, including 

the Gila chub. Additionally, we are 

working with Reclamation to build a 

concrete barrier on Bonita Creek 

downstream of the City’s infiltration 

gallery to further protect the creek from 

the invasion of nonnative fishes, and to 

reintroduce several federally-listed 

native fish species, both as conservation 

measures for Reclamation’s operation of 

the Central Arizona Project canal (U.S. 

Fish and Wildlife Service 2001b). 

Collectively, our partnership has 

contributed to immediate and long-term 

benefits to the conservation and 

recovery of protected species. 

(1) Benefits of Inclusion 

As stated in the environmental 

assessment, the primary conservation 

value of the proposed critical habitat 

segments is to sustain existing 

populations. As discussed in the 

‘‘General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process’’ section above, the 

threshold for reaching destruction or 

adverse modification would likely 

require a reduction in the capability of 

the habitat to sustain existing 

populations. Given that this area of 

Bonita Creek is being managed to 

benefit wildlife, including the Gila 

chub, it is highly unlikely that projects 

would be considered for this area that 

would result in depreciable 

diminishment or a long-term reduction 

of the capability of the habitat to sustain 

existing populations. To the contrary, 

activities occurring on these lands have 

provided benefits, as described above, to 

the Gila chub and are expected to 

continue to do so. To date, the Service 

has conducted nine formal 

consultations for BLM on management 

of lands within the RNCA, including 

three conference opinions since the Gila 

chub was proposed for listing in 2003 

(U.S. Fish and Wildlife Service 2004a). 

These consultations/conferences 

involved management actions 

administered by BLM, all of which are 

covered in the RNCA management plan 

which provides long-term conservation 

benefits to the species and its PCEs and 

none resulted in adverse modification to 

proposed critical habitat. 

As discussed above, we expect that 

little additional educational benefits 

would be derived from including Bonita 

Creek in the critical habitat designation. 

The additional educational benefits that 

might arise from critical habitat 

designation are largely accomplished 

through the multiple notice and 

comments that accompanied the 

development of this critical habitat 

designation. Because BLM is the 

primary land manager, they have 

conducted surveys and habitat 

monitoring for Gila chub at Bonita 

Creek. Therefore, the potential 

designation of critical habitat at Bonita 

Creek would not provide this 

educational benefit because BLM, and 

the City of Safford via the MOU, already 

know the fish are present and are 

studying its habitat. BLM is also already 

aware that Bonita Creek has a robust 

population of Gila chub that are 

important to conservation goals of the 

species. Likewise the City of Safford is 

aware of this through the MOU, as is 

Reclamation, through its conservation 

measure to build a fish barrier to protect 

the Bonita Creek fishery. 

(2) Benefits of Exclusion 

The benefits of excluding Bonita 

Creek from critical habitat designation 

include recognizing the value of 

partnerships with BLM and the City of 

Safford, encouraging actions that benefit 

multiple species, encouraging local 

participation in conservation of valuable 

habitat for multiple species, facilitating 

the cooperative activities provided by 

the Service, and reducing or eliminating 

administrative and/or project 

modification costs as analyzed in the 

economic analysis. Additionally, our 

existing partnership and the integration 

of Federal land management will 

generate a consistent management 

approach at Bonita Creek. 

The partnership and cohesive 

management at Bonita Creek will 

maintain habitat (PCEs) for Gila chub for 

the long-term. This partnership has 

already generated the development, 

finalization, and implementation of Gila 

Box RNCA management plan that 

provides long-term conservation 

benefits to the species and its PCEs. 

When finalized, the MOU will further 

this conservation benefit. In addition to 

maintaining habitat for the long-term at 

Bonita Creek, this partnership will 

include the development of species 

status and distribution information for 

the Gila chub needed to guide 

conservation efforts and assist in species 

conservation outside the area, and the 

creation of innovative solutions to 

conserve species that can be applied 

wherever similar needs exist, 

irrespective of land ownership. The 

partnership with BLM, Reclamation, 

and the City of Safford also facilitates 

other cooperative activities with other 

similarly situated industry, 

communities, and landowners. 

Continued cooperative relations with 

the City of Safford are expected to 

influence other future partners and lead 

to greater conservation than would be 

achieved through multiple section 7 

consultations. 

Non-Federal landowners or water 

operators such as the City of Safford are 

motivated to work with Reclamation, 

BLM, and the Service collaboratively to 

develop voluntary conservation efforts 

because of the economic benefits of 

such a partnership. Bonita Creek is 

valuable to the city both as a clean water 

supply, and as a tourist destination. 

Collaboration of this type often provides 

greater conservation benefits than could 

be achieved through strictly regulatory 

approaches, such as a critical habitat 

designation. The conservation benefits 

resulting from this collaborative 

approach are built upon a foundation of 

mutual trust and understanding. It takes 

considerable time and effort to establish 

this foundation, which is one reason it 

often takes several years to develop such 

partnerships. Excluding this area from 

critical habitat would help promote and 

honor that trust by providing certainty 

for partners that, once appropriate 

conservation measures have been agreed 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66699 

to, additional consultation will not be 

necessary. 

In discussions with the Service, the 

BLM and the City of Safford have 

indicated they view critical habitat 

designation as unwarranted, and that 

designation could undermine the 

conservation benefits that would be 

provided by their MOU. There is a 

concern by BLM and the City of Safford 

that designation of critical habitat at 

Bonita Creek has the potential to 

threaten the delivery of water to the City 

of Safford and other towns served by the 

city such as Thatcher and Soloman. 

Should this ever come to pass, the 

results could be significant; however, 

we do not believe that scenario is 

reasonably foreseeable. The Service’s 

commitment will encourage continued 

partnerships with these entities that 

could result in additional conservation 

plans or additional lands protected. 

Exclusion of areas where our 

partnership has been established 

following years of collaborative efforts 

will result in habitat protection for the 

Gila chub, preservation of these 

partnerships, and in promoting more 

effective conservation actions in the 

future. 

The economic analysis conducted for 

this proposal estimates that the costs 

associated with designating this 

segment of the proposed critical habitat 

would be about $0.25 to $1.02 million 

annually. Almost all of this cost is 

related to changes in water use and 

management required for conservation 

of the Gila chub. Excluding this reach 

could allow some or all of these costs to 

be avoided. However, considering that 

this area is currently occupied by the 

species, section 7 consultation for 

activities which might adversely impact 

the species, including possible habitat 

modification, would be required even 

without the critical habitat designation, 

and thus the possible economic benefits 

might not materialize. 

Another benefit of excluding Bonita 

Creek from the critical habitat 

designation includes relieving 

additional regulatory burden and costs 

associated with the preparation of 

portions of section 7 consultation 

documents related to critical habitat. 

While the cost of adding these 

additional sections to assessments and 

consultations is relatively minor, there 

could be delays which can generate real 

costs to some project proponents. 

However, because critical habitat in this 

case is only proposed for occupied areas 

already subject to section 7 consultation 

and a jeopardy analysis, it is anticipated 

this reduction would be minimal. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We find that the benefits of 

designating critical habitat for the Gila 

chub at Bonita Creek are small in 

comparison to the benefits of exclusion. 

In making this finding, we have 

weighed the benefits of including Bonita 

Creek as critical habitat to the benefits 

of these lands without critical habitat, 

with management based on our existing 

partnership and management by the 

BLM and City of Safford. Excluding 

Bonita Creek would reduce some 

additional administrative effort and cost 

during the consultation process 

pursuant to section 7 of the Act. 

Excluding Bonita Creek would continue 

to help foster development of future 

partnerships and strengthen our 

relationship with stakeholders. To date, 

BLM management has fostered the 

development, presence, and protection 

of Gila chub habitat. Because Bonita 

Creek is within the RCNA, we believe 

there is virtually no risk of development 

or extensive land-use by the BLM that 

would be expected to result in adverse 

modification. Excluding Bonita Creek 

promotes our partnership with the City 

of Safford by eliminating the concern of 

the City of Safford regarding the 

possible risk of loss of water delivery 

capabilities. 

We have, therefore, concluded that 

the current BLM management of this 

area, along with the partnership with 

BLM, the City of Safford, and 

Reclamation, and the conservation 

commitment to Gila chub habitat of 

these entities, outweigh those benefits 

that would result from the area being 

included in the designation. We have 

therefore excluded these lands from the 

final critical habitat designation 

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

(4) Exclusion Will Not Result in 

Extinction of the Species 

The City of Safford, Reclamation, and 

BLM are committing to greater 

conservation measures on these areas 

than would be available through the 

designation of critical habitat. As 

described above, the BLM has 

developed the Gila Box RNCA 

Management Plan, which provides 

management direction for all activities 

that occur in the RNCA. This plan 

specifically addresses wildlife 

conservation within Bonita Creek, 

including native fishes such as Gila 

chub. Additionally, because this 

segment is occupied by the Gila chub, 

which is protected from take under 

section 9 of the Act, any actions that 

might kill the Gila chub, including 

habitat modification that would cause 

the death of Gila chub must either 

undergo a consultation with the Service 

under the requirements of section 7 of 

the Act or receive a permit from us 

under section 10 of the Act. This 

exclusion leaves these protections 

unchanged from those which would 

exist if the excluded areas were 

designated as critical habitat. Such 

efforts provide greater conservation 

benefit than would result for 

designation as critical habitat. This is 

because section 7 consultations for 

critical habitat only consider listed 

species in the project area evaluated and 

Federal agencies are only committed to 

prevent adverse modification to critical 

habitat caused by the particular project 

and are not committed to provide 

conservation or long-term benefits to 

areas not affected by the proposed 

project. Critical habitat is also being 

designated for the Gila chub in other 

areas that will be accorded the 

protection from adverse modification by 

Federal actions using the conservation 

standard based on the Ninth Circuit 

decision in Gifford Pinchot, and the Gila 

chub occurs on other lands not being 

designated as critical habitat that are 

protected and managed explicitly to 

protect natural habitat values. These 

considerations, along with the 

continued persistence of the Gila chub 

in Bonita Creek due in part to the 

partnership BLM, the City of Safford, 

and Reclamation, lead us to conclude 

that there is no reason to believe that 

this exclusion would result in 

extinction of the species. 

Private Lands Proposed for Area 5(a)— 

Lower Cienega Creek and Area 6(c)— 

Spring Creek 

As discussed in the ‘‘Summary of 

Changes from the Proposed Rule’’

section above, we have determined that 

proposed critical habitat on 1.9 mi of 

the lower segment of Cienega Creek and 

on 1.9 mi of Spring Creek will not be 

designated as critical habitat due to the 

potential economic impact of 

designating these segments. The 

economic analysis indicates possible 

cost impacts of nearly $36 million from 

these two segments. This is both a 

significant impact and a highly 

disproportionate one. The small amount 

of proposed critical habitat we are 

excluding in these two areas bore more 

than half of the projected cost impacts 

from the entire designation 

(summarized in Exhibit ES–2 of the 

economic analysis). 

The economic analysis indicates a 

cost of nearly $40 million for these two 

areas overall, but $4 million of this is 

attributed to a segment of BLM lands on 

Cienega Creek that we are not 

66700 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

excluding. The Service has conducted a 

consultation with BLM over the water 

use addressed in the economic analysis, 

although that is not reflected in the 

analysis, and we accordingly believe 

that cost is unlikely to occur. 

We have reached this determination 

because we believe the benefits of 

excluding these segments from the final 

critical habitat designation outweigh the 

benefits of designating them as critical 

habitat. 

Section 4(b)(2) allows the Secretary to 

exclude areas from critical habitat for 

economic reasons if she determines that 

the benefits of such exclusion exceed 

the benefits of designating the area as 

critical habitat, unless the exclusion 

will result in the extinction of the 

species concerned. This is a 

discretionary authority Congress has 

provided to the Secretary with respect 

to critical habitat. Although economic 

and other impacts may not be 

considered when listing a species, 

Congress has expressly required their 

consideration when designating critical 

habitat. Exclusions under this section 

for non-economic reasons are addressed 

above. 

In general, we have considered in 

making these two exclusions that all of 

the costs predicted in the economic 

analysis may not be avoided by 

excluding the area, due to the fact that 

the areas in question are currently 

occupied by the species and there will 

be requirements for consultation under 

section 7 of the Act, or for permits 

under section 10 for any take of the 

species, and other protections for the 

species exist elsewhere in the Act and 

under State and local laws and 

regulations. As explained in the 

analysis, due to the uncertainty 

associated with future consultations, 

cost estimates are given as a range rather 

than a single number. We are also 

aware, and have considered in making 

the exclusions, that the low end 

estimate for the Spring Creek exclusion 

is a minimal amount, and that there is 

no certainty that either the high or low 

cost estimates for the Cienega Creek 

exclusion will occur absent the 

exclusion. However, there is a real risk 

that these costs might result. 

(1) Benefits of Inclusion 

As stated in the environmental 

assessment and addressed above, the 

primary conservation value of the 

proposed critical habitat segments is to 

sustain existing populations. The areas 

excluded are currently occupied by the 

species. If these areas were designated 

as critical habitat, any actions with a 

Federal nexus which might adversely 

modify the critical habitat would 

require a consultation with us. 

However, inasmuch as this area is 

currently occupied by the species, 

consultation for activities which might 

adversely impact the species, including 

possibly habitat modification (see 

definition of ‘‘harm’’ at 50 CFR 17.3) 

would be required even without the 

critical habitat designation. We 

recognize that consultation for critical 

habitat would likely provide some 

additional benefits to the species under 

the provision of the Gifford Pinchot 

decision; however, we believe that such 

benefits are minimal as discussed above. 

As discussed above, we expect that 

little additional educational benefits 

would be derived from including these 

two areas as critical habitat. The 

additional educational benefits that 

might arise from critical habitat 

designation are largely accomplished 

through the multiple notice and 

comments which accompanied the 

development of this critical habitat 

designation. We have been in contact 

with the land owners in the course of 

developing the economic analysis, and 

they are already aware that maintaining 

habitat quality on their lands for the 

Gila chub is important to conservation 

of the species. 

Some benefits could be derived if 

water currently available to private 

entities at the Cienega Creek segment 

were required to be made available to 

Gila chub. Additionally, designation of 

critical habitat in the Spring Creek 

segment might result in consultations 

with Federal agencies or as part of intraService consultations for HCPs that may 

lead to higher quality habitat in that 

segment of the creek; however, we 

believe any possible benefits would be 

minimal as derived from critical habitat 

because the chub is present in the creek 

and consultations are already likely to 

occur. Designation of critical habitat in 

the Spring Creek segment might result 

in consultations that lead to higher 

quality habitat in that segment of the 

creek. However, preliminary 

discussions have begun from which we 

believe there may be a formal 

consultation via a Federal nexus 

involving permits required by the Clean 

Water Act. Because Gila chub are 

present in Spring Creek, this potential 

consultation would have to take place 

regardless of the presence of critical 

habitat. We believe that although some 

additional benefit may occur from 

critical habitat, any additional benefit 

would be minimal. 

In summary, we believe that 

designating these proposed segments as 

critical habitat would provide little 

additional Federal regulatory benefits 

for the species. Under the Gifford 

Pinchot decision, critical habitat 

designations may provide greater 

benefits to recovery of a species than 

was previously believed. Because the 

proposed critical habitat is occupied by 

the species, there must be consultation 

with the Service over any action which 

might impact it. Some improvements in 

habitat quality or water quantity might 

result from a designation, but we believe 

that they would be minimal, as 

discussed above. The additional 

educational benefits which might arise 

from critical habitat designation are 

largely accomplished through the 

multiple notice and comments which 

accompanied the development of this 

regulation, and contact with the affected 

parties during development of the 

economic analysis. 

(2) Benefits of Exclusion 

The benefits of excluding these 

segments from critical habitat 

designation are avoidance in up to $36 

million in possible economic impacts, 

as set out in the economic analysis. 

We also believe that excluding these 

lands, and thus helping landowners and 

water users avoid the additional costs 

that would result from the designation, 

will contribute to a more positive 

climate for Habitat Conservation Plans 

and other active conservation measures. 

These generally provide greater 

conservation benefits than result from 

designation of critical habitat—even in 

the post-Gifford Pinchot environment—

which requires only that the there be no 

adverse modification resulting from 

Federally-related actions. 

Generally, positive conservation 

efforts by landowners contribute more 

towards recovery of species than the 

mere avoidance of adverse impacts 

required under a critical habitat 

designation. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We find that the benefits of 

designating critical habitat for the Gila 

chub on these two segments of Cienega 

Creek and Spring Creek are small in 

comparison to the benefits of exclusion. 

As indicated above, we believe that 

designation of these stream segments 

will provide only minimal benefit to the 

species. In making this finding, we have 

weighed the benefits of including these 

segments as critical habitat against the 

possible costs imposed on private 

parties as a result of the designation. 

We have therefore excluded these 

lands from the final critical habitat 

designation pursuant to section 4(b)(2) 

of the Act. 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66701 

(4) Exclusion Will Not Result in 

Extinction of the Species 

Because these areas are occupied by 

the Gila chub, which is protected from 

take under section 9 of the Act, any 

actions that might adversely affect or 

result in take of the Gila chub, 

regardless of whether the Federal nexus 

needed to trigger consultation for 

critical habitat is present, must undergo 

a consultation with the Service under 

the requirements of section 7 of the Act 

or receive a permit from us under 

section 10 of the Act. This exclusion 

leaves these protections unchanged 

from those which would exist if the 

excluded areas were designated as 

critical habitat. Additionally, we have 

concluded that excluding these lands 

from critical habitat will not result in 

the extinction of the Gila chub because 

these exclusions are only a small 

percentage of the overall critical habitat 

designation. The majority of the area 

proposed as critical habitat for this 

species is being designated as critical 

habitat. 

Effect of Critical Habitat Designation 

Section 7 Consultation 

If a species is listed or critical habitat 

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

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of such a species or to destroy 

or adversely modify its critical habitat. 

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. Through this consultation, the 

action agency learns whether the 

Service regards the proposed action as 

consistent with section 7(a)(2) or if the 

Service can suggest modifications that 

would avoid jeopardy or adverse 

modification. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

Gila chub or its designated critical 

habitat will require section 7 

consultation. Activities on private or 

State lands requiring a permit from a 

Federal agency, such as a permit from 

the Corps under section 404 of the Clean 

Water Act, a section 10(a)(1)(B) permit 

from the Service, or some other Federal 

action, including funding (e.g., Federal 

Highway Administration (FHA), Federal 

Aviation Administration, or Federal 

Emergency Management Agency 

(FEMA)), will also continue to be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on non-Federal and private 

lands that are not federally-funded, 

authorized, or permitted, do not require 

section 7 consultations. 

Since we proposed critical habitat for 

the Gila chub on August 9, 2002 (67 FR 

51948), we have issued a number of 

formal conference reports as requested 

by several Federal agencies. Formal 

conference reports on proposed critical 

habitat contain a biological opinion that 

is prepared according to 50 CFR 402.14, 

as if critical habitat were designated as 

final. We may adopt these formal 

conference reports as the biological 

opinion with this final critical habitat 

designation, if no significant new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10 (d)). 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may adversely modify such habitat, or 

that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the Gila chub. Each of the specific 

areas designated in this rule as critical 

habitat for the Gila chub have been 

determined to contain sufficient PCEs to 

provide for one or more of the life 

history functions for the Gila chub. In 

some cases, the PCEs exist as a result of 

ongoing Federal actions. As a result, 

ongoing Federal actions at the time of 

designation will be included in the 

baseline in any consultation pursuant to 

section 7 of the Act conducted 

subsequent to this designation. Federal 

activities that, when carried out, may 

adversely affect critical habitat for the 

Gila chub include, but are not limited 

to: 

(1) Any activity that would 

significantly alter the minimum flow or 

the natural flow regime of any of the 

designated stream segments. Such 

activities may include, but are not 

limited to, groundwater pumping, 

impoundment, water diversion, and 

hydropower generation. 

(2) Any activity that might 

significantly alter watershed 

characteristics of any of the designated 

segments. Such activities may include, 

but are not limited to, vegetation 

manipulation (e.g., prescribed burns, 

timber harvest), road construction and 

maintenance, naturally ignited fire (e.g., 

lightning), livestock grazing, and 

mining. 

(3) Any activity that would 

significantly alter the channel 

morphology of any of the designated 

stream segments. Such activities may 

include, but are not limited to, 

channelization; impoundment; road and 

bridge construction; removal of 

substrate source; destruction and 

alteration of riparian vegetation; 

reduction of available floodplain; 

removal of gravel or floodplain terrace 

materials; and sedimentation from 

mining, livestock grazing, road 

construction, timber harvest, off-road 

vehicle use, and other watershed and 

floodplain disturbance. 

(4) Any activity that would 

significantly alter the water chemistry in 

any of the designated stream segments. 

Such activities may include, but are not 

limited to, release of chemical or 

biological pollutants into the surface 

waters or connected groundwater at a 

point source or by dispersed release 

(non-point). 

(5) Any activity that would introduce, 

spread, or augment nonnative aquatic 

species into any of the designated 

stream segments. Such activities may 

include, but are not limited to, stocking 

for sport, aesthetics, biological control, 

or other purposes; use of live bait fish, 

aquaculture, or dumping of aquarium 

fish or other species; construction and 

66702 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

operation of canals; and interbasin 

water transfers (i.e. CAP aqueduct). 

If you have any questions regarding 

whether specific activities will likely 

constitute destruction or adverse 

modification of critical habitat, contact 

the Field Supervisor, Arizona Ecological 

Services Office (see ADDRESSES section 

above). Requests for copies of the 

regulations on listed wildlife and 

inquiries about permits may be 

addressed to the U.S. Fish and Wildlife 

Service, Division of Endangered 

Species, P.O. Box 1306, Albuquerque, 

New Mexico 87103 (telephone (505) 

248–6920; facsimile (505) 248–6788). 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened under the Act include 

recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing encourages 

and results in public awareness and 

conservation actions by Federal, State, 

and local agencies private organizations, 

and individuals. The Act provides for 

possible land acquisition and 

cooperation with the States and requires 

that recovery actions be carried out for 

all listed species. The protection 

required of Federal agencies and the 

prohibitions against taking and harm are 

discussed, in part, below. 

Section 7(a) of the Act, as amended, 

requires Federal agencies to evaluate 

their actions with respect to any species 

listed as endangered or threatened and 

with respect to its critical habitat, if any 

is being 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 such a species or to 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 formal consultation with the 

Service. 

The Gila chub occurs primarily on 

Federal lands managed by Coronado, 

Apache-Sitgreaves, Tonto, Prescott, 

Coconino, and Gila National Forests, 

and by the BLM. Examples of Federal 

actions that may affect the Gila chub 

include, but are not limited to, dredgeand-fill activities, livestock grazing 

programs, construction and 

maintenance of stock tanks (pond), 

logging and other vegetation 

manipulation activities, flood protection 

and repair measures, channelization, 

water development, construction and 

management of recreation sites, road 

and bridge construction and 

maintenance, fish stocking, issuance of 

rights-of-way, prescribed fire, and 

discretionary actions authorizing 

mining. These and other Federal actions 

would require section 7 consultation if 

the action agency determines that the 

proposed action may affect listed 

species. 

Also subject to section 7 consultation 

are development activities on private 

and State lands when such activity is 

conducted by, funded by, or permitted 

by a Federal agency. Examples include 

permits issued under section 404 or 402 

of the Clean Water Act from the Corps 

or the EPA respectively. Federal actions 

not affecting the species, as well as 

actions on private lands that are not 

federally-funded or permitted, would 

not require section 7 consultation. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to all endangered wildlife. These 

prohibitions, codified at 50 CFR 17.21, 

in part, make it illegal for any person 

subject to the jurisdiction of the United 

States to take (including harass, harm, 

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

capture, or collect; or attempt any of 

these), import or export, ship in 

interstate commerce in the course of a 

commercial activity, or sell or offer for 

sale in interstate or foreign commerce 

any listed species. It is also illegal to 

possess, sell, deliver, carry, transport, or 

ship any wildlife that has been taken 

illegally. Certain exceptions apply to 

agents of the Service and State 

conservation agencies. 

Permits may be issued to carry out 

otherwise prohibited activities 

involving endangered wildlife species 

under certain circumstances. 

Regulations governing permits for 

endangered species are codified at 50 

CFR 17.22 and 17.23. Such permits are 

available for scientific purposes, to 

enhance the propagation or survival of 

the species, and/or for incidental take in 

connection with otherwise lawful 

activities. Requests for copies of the 

regulations regarding listed wildlife and 

inquires about permits may be 

addressed to U.S. Fish and Wildlife 

Service Branch of Endangered Species, 

P.O. Box 1306, Albuquerque, NM 87103 

(505) 248–6657 fax (505) 248–6922. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable those activities that 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness as 

to the effects of this listing on future and 

ongoing activities within the species’

range. We believe, based on the best 

available information that the following 

actions will not result in a violation of 

section 9: 

(1) Actions that may affect the Gila 

chub that are authorized, funded, or 

carried out by a Federal agency when 

the action is conducted in accordance 

with an incidental take statement issued 

by us pursuant to section 7 of the Act, 

or for which such action will not result 

in take; 

(2) Actions that may result in take of 

Gila chub when the action is conducted 

in accordance with a permit under 

section 10 of the Act; 

(3) Recreational activities such as 

hiking, off-road vehicle use, camping, 

and hunting in the vicinity of occupied 

Gila chub habitat that do not destroy or 

significantly degrade Gila chub habitat; 

(4) Release, diversion, or withdrawal 

of water from or near Gila chub habitat 

in a manner that does not displace or 

result in desiccation or death of eggs, 

larvae, or adults, does not disrupt 

spawning activities, or does not favor 

introduction of nonnative predators; 

and does not alter vegetation. 

Activities involving this species that 

we believe could be considered a 

violation of section 9 include, but are 

not limited to, the following: 

(1) Unauthorized collection, capture, 

or handling of the species; 

(2) Intentional introduction of 

nonnative predators, such as nonnative 

fish and crayfish, into occupied Gila 

chub habitat; 

(3) Water diversion, groundwater 

pumping, water releases, or other watermanagement activities that result in 

displacement of eggs, larvae, or adults; 

disruption of spawning activities; 

introduction of nonnative predators; or 

significant alteration of vegetation 

within occupied Gila chub habitat; 

(4) Discharge or dumping of 

hazardous materials, silt, or other 

pollutants into waters supporting Gila 

chub; 

(5) Possession, sale, delivery, 

transport, or shipment of illegally taken 

Gila chub; 

(6) Actions that take Gila chub that 

are not authorized by either a permit 

under section 10 of the Act or an 

incidental take statement under section 

7 of the Act, or are not exempted from 

the section 9 take prohibitions; and 

(7) Recreational activities such as offroad vehicle use in the vicinity of 

occupied Gila chub habitat that destroys 

or significantly degrades Gila chub 

habitat. 

Not all the activities mentioned above 

will result in a violation of section 9 of 

the Act; only those activities that result 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66703 

in ‘‘take’’ of Gila chub would be 

considered violations of section 9. We 

will review other activities not 

identified above on a case-by-case basis 

to determine whether they may be likely 

to result in violation of section 9 of the 

Act. 

If you have questions regarding 

whether specific activities will likely 

violate section 9, contact the Arizona 

Ecological Services Field Office (see 

ADDRESSES section above). 

Economic Analysis 

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

to designate critical habitat on the basis 

of the best scientific data available and 

to consider the economic impact, 

impact to national security, and other 

relevant impacts of designating a 

particular area as critical habitat. We 

based this designation on the best 

available scientific information. We 

utilized the economic analysis, and took 

into consideration comments and 

information submitted during the public 

hearing and comment periods to make 

this final listing and critical habitat 

determination. We may exclude areas 

from critical habitat upon a 

determination that the benefits of such 

exclusions outweigh the benefits of 

specifying such areas as critical habitat. 

We cannot exclude such areas from 

critical habitat when such exclusion 

will result in the extinction of the 

species. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

Gila chub. This information is intended 

to assist the Secretary in making 

decisions about whether the benefits of 

excluding particular areas from the 

designation outweigh the benefits of 

including those areas in the designation. 

This economic analysis considers the 

economic efficiency effects that may 

result from the designation, including 

habitat protections that may be coextensive with the listing of the species. 

It also addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

A draft analysis of the economic 

effects of the proposed critical habitat 

designation was prepared and made 

available for public review (August 31, 

2005; 70 FR 51732). The economic 

analysis considers the economic 

impacts of conservation measures taken 

prior to and subsequent to the final 

listing and designation of critical habitat 

for the Gila chub. Pre-designation 

impacts are typically defined as all 

management efforts that have occurred 

since the time of listing. The Gila chub 

has not been listed, but was proposed 

for listing on August 9, 2002 (67 FR 

51948). Our draft economic analysis 

found that the total post-designation 

costs associated with the seven 

proposed critical habitat areas are 

forecast to range from $11.3 million to 

$28.1 million in constant dollars over 20 

years, or $0.8 million to $1.9 million 

annually (Service 2005a). Estimated 

costs are primarily due to impacts on 

water management, livestock grazing, 

livestock grazing and timber 

management on San Carlos Apache 

Tribal lands, and fire management and 

other activities (species and habitat 

management, recreation, fire 

management, mining, and 

transportation activities). 

Based upon these estimates, we 

conclude in the final analysis, which 

reviewed and incorporated public 

comments, that no significant economic 

impacts are expected from the 

designation of critical habitat for Gila 

chub. A copy of the economic analysis 

is included in our supporting record 

and may be obtained by contacting the 

Arizona Ecological Services Field Office 

(see ADDRESSES section) or online at 

http://www.fws.gov/arizonaes/. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule because it may raise novel legal and 

policy issues. However, based on our 

economic analysis, it is not anticipated 

that the designation of critical habitat 

for the Gila chub would result in an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the timeline 

for publication in the Federal Register, 

the Office of Management and Budget 

(OMB) has not formally reviewed this 

final rule or accompanying economic 

analysis. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, then 

the agency will need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement pursuant to the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

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

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat, providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

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

et seq.) 

Under the Regulatory Flexibility Act 

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

by the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 

802(2)) (SBREFA), 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 

effect 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 an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based upon our draft economic analysis 

we certified in our August 31, 2005 (70 

FR 51732), Federal Register notice that 

this designation would not result in a 

significant effect as defined under 

SBREFA. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations 

and small governmental jurisdictions, 

including school boards and city and 

66704 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

town governments that serve fewer than 

50,000 residents, as well as 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 

if 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. 

To determine if the designation of 

critical habitat for the Gila chub would 

affect a substantial number of small 

entities, we considered the number of 

small entities affected within particular 

types of economic activities (e.g., water 

management and use, livestock grazing, 

San Carlos Apache Tribal activities, 

residential and related development, 

Gila chub-specific management 

activities, recreation activities, fire 

management activities, mining, and 

transportation). We considered each 

industry or category individually to 

determine if certification is appropriate. 

In estimating the numbers of small 

entities potentially affected, we also 

considered whether their activities have 

any Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

Federal agencies must consult with us if 

their activities may affect designated 

critical habitat. Consultations to avoid 

the destruction or adverse modification 

of critical habitat would be incorporated 

into the existing consultation process. 

Our economic analysis of this 

designation evaluated the potential 

economic effects on small business 

entities and small governments resulting 

from conservation actions related to the 

listing of this species and proposed 

designation of its critical habitat. We 

evaluated small business entities in nine 

categories: Water management and use, 

livestock grazing activities, San Carlos 

Apache Tribal activities, residential and 

related development, Gila chub-specific 

management activities, recreation 

activities, fire management activities, 

mining, and transportation. Based on 

our analysis, impacts are anticipated to 

occur in livestock grazing. The 

following is a summary of the 

information contained in Appendix B of 

the economic analysis: 

Livestock Grazing Activities 

Ranching operations are anticipated 

to be impacted by conservation 

activities for the Gila chub. 

Approximately 16 ranching operations 

may be impacted annually. Annual 

costs to each of these 16 ranching 

operations may be between $1,400 and 

$11,700. Average revenues of a ranch in 

the region of the proposed critical 

habitat designation are $144,000. These 

potential losses represent between 1 and 

8 percent of each ranch’s estimated 

average revenues. Exhibit B–2 in the 

economic analysis presents the average 

revenues of ranches by county. Of the 

118 beef cattle ranching and farming 

operations (NAICS 112111) in Arizona 

counties with proposed Gila chub 

critical habitat, 92 percent are 

considered small businesses. Therefore, 

15 small ranching operations (92 

percent of 16 operations) may 

experience a reduction in revenues of 

between 1 and 8 percent annually. The 

extent to which these impacts are 

significant to any of these ranching 

operations will depend on the 

individual financial conditions of the 

ranch. 

Based on these data, we have 

determined that this designation would 

not affect a substantial number of small 

businesses involved in or affected by 

livestock grazing. As such, we are 

certifying that this designation of 

critical habitat would not result in a 

significant economic impact on a 

substantial number of small entities. 

Please refer to Appendix B of our 

economic analysis for this designation 

for a more detailed discussion of 

potential economic impacts to small 

business entities. Since we have 

excluded Bonita Creek, Blue River, 

Cienega Creek, and Spring Creek from 

the final designation pursuant to section 

4(b)(2) of the Act, as discussed above, 

we have determined that this 

designation would not affect a 

substantial number of small businesses 

involved in or affected by water 

management activities or timber harvest. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

E.O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule is considered a significant 

regulatory action under E.O. 12866 due 

to its potentially raising novel legal and 

policy issues, but it is not expected to 

significantly affect energy supplies, 

distribution, or use. Appendix B of the 

economic analysis provides a discussion 

and analysis of this determination. The 

Office of Management and Budget has 

provided guidance for implementing 

this Executive Order that outlines nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The economic 

analysis finds that none of these criteria 

are relevant to this analysis; thus, 

energy-related impacts associated with 

Gila chub conservation activities within 

critical habitat are not expected. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) 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; AFDC 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 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66705 

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. 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. However, the legally 

binding duty to avoid destruction or 

adverse modification of critical habitat 

rests squarely on the Federal agency. 

Furthermore, to the extent that nonFederal 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 on to 

State governments. 

(b) The economic analysis discusses 

potential impacts of critical habitat 

designation for the Gila chub on water 

management activities, livestock 

grazing, Tribes, residential and 

commercial development activities, 

recreation activities, fire management 

activities, mining, and transportation 

activities. The analysis estimates that 

annual costs of the rule could range 

from $20.6 million to $61.8 million in 

undiscounted dollars over 20 years ($1.5 

million to $3.8 million annually). 

Impacts are largely anticipated to affect 

water operators and Federal and State 

agencies, with some effects on livestock 

grazing operations. Impacts on small 

governments are not anticipated, or they 

are anticipated to be passed through to 

consumers. For example, costs to water 

operations would be expected to be 

passed on to consumers in the form of 

price changes. Consequently, for the 

reasons discussed above, we do not 

believe that the designation of critical 

habitat for the Gila chub will 

significantly or uniquely affect small 

government entities. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the Gila chub in a takings 

implications assessment. The takings 

implications assessment concludes that 

this designation of critical habitat for 

the Gila chub does not pose significant 

takings implications. 

Federalism 

In accordance with Executive Order 

13132, this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior policy, the Service requested 

information from, and coordinated 

development of this critical habitat 

designation with, appropriate State 

resource agencies in Arizona and New 

Mexico. The impact of the designation 

on State and local governments and 

their activities was fully considered in 

the economic analysis. As discussed 

above, the designation of critical habitat 

for the Gila chub would have little 

incremental impact on State and local 

governments and their activities. In fact, 

the designation of critical habitat may 

have some benefit to the State and local 

resource agencies in that the areas with 

features that are essential to the 

conservation of this species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of this 

species are specifically identified. 

Civil Justice Reform 

In accordance with Executive Order 

12988, 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, as amended. This rule uses 

standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs that are essential for the 

conservation of the Gila chub. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain new or 

revised information collection for which 

Office of Management and Budget 

approval is required under the 

Paperwork Reduction Act. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld in the courts of the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. Ore. 1995), cert. denied 

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

the range of the species includes States 

within the Tenth Circuit, such as that of 

the Gila chub, pursuant to the Tenth 

Circuit ruling in Catron County Board of 

Commissioners v. U.S. Fish and Wildlife 

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

we undertake a NEPA analysis for 

critical habitat designation. We 

conducted a NEPA evaluation and 

notified the public of the draft 

document’s availability on August 31, 

2005 (70 FR 51732). We completed an 

environmental assessment and finding 

of no significant impact on the 

designation of critical habitat for the 

Gila chub; the final document is 

available and can be viewed online at 

http://www/fws.gov/arizonaes/. 

Secretarial Order 3206: American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act 

The purpose of Secretarial Order 3206 

(Secretarial Order) is to ‘‘clarif(y) the 

responsibilities of the component 

agencies, bureaus, and offices of the 

Department of the Interior and the 

Department of Commerce, when actions 

taken under authority of the Act and 

associated implementing regulations 

affect, or may affect, Indian lands, tribal 

trust resources, or the exercise of 

American Indian tribal rights.’’ If there 

is potential that a tribal activity could 

cause either direct or incidental take of 

a species proposed for listing under the 

Act, then meaningful government-togovernment consultation will occur to 

try to harmonize the Federal trust 

responsibility to tribes and tribal 

sovereignty with our statutory 

responsibilities under the Act. The 

Secretarial Order also requires us to 

consult with tribes if the designation of 

an area as critical habitat might impact 

tribal trust resources, tribally owned fee 

lands, or the exercise of tribal rights. We 

have excluded Tribal lands of the San 

Carlos Apache Nation from the critical 

habitat designation pursuant to section 

4(b)(2) of the Act. 

66706 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Arizona Ecological 

Services Field Office (see ADDRESSES

section). 

Author 

The primary authors of this rule are 

the Arizona Ecological Services Field 

Office staff (see ADDRESSES section) 

(telephone 602/242–0210). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. Amend § 17.11(h) by adding an 

entry for ‘‘Chub, Gila’’, in alphabetical 

order under ‘‘FISHES’’, to the List of 

Endangered and Threatened Wildlife, to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Chub, Gila ............. Gila intermedia ...... U.S.A. (AZ, NM), 

Mexico..

Entire ..................... 755 .................... 17.95(e) NA 

* * * * * * * 

■ 3. Amend § 17.95 (e) by adding 

critical habitat for Gila chub (Gila 

intermedia), in the same alphabetical 

order as this species occurs in 

§ 17.11(h), to read has follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Gila chub (Gila intermedia) 

(1) Critical habitat for the Gila chub in 

Grant County, New Mexico, and 

Yavapai, Gila, Greenlee, Graham, 

Cochise, Pima, Santa Cruz, and Pinal 

Counties in Arizona is described in 

detail and depicted on the following 

maps below. 

(2) Within these areas, the primary 

constituent elements are the following: 

(i) Perennial pools, areas of higher 

velocity between pool areas, and areas 

of shallow water among plants or eddies 

all found in small segments of 

headwaters, springs, or cienegas of 

smaller tributaries; 

(ii) Water temperatures for spawning 

ranging from 17 to 24° C (62.6 to 75.2° 

F), and seasonally appropriate 

temperatures for all life stages (e.g. 

varying from approximately 10°C to 

30°C); 

(iii) Water quality with reduced levels 

of contaminants, including excessive 

levels of sediments adverse to Gila chub 

health, and adequate levels of pH (e.g. 

ranging from 6.5 to 9.5), dissolved 

oxygen (e.g. ranging from 3.0 to 10.0) 

and conductivity (e.g. 100 to 1000 

mmhos); 

(iv) Food base consisting of 

invertebrates (e.g., aquatic and 

terrestrial insects) and aquatic plants 

(e.g., diatoms and filamentous green 

algae); 

(v) Sufficient cover consisting of 

downed logs in the water channel, 

submerged aquatic vegetation, 

submerged large tree root wads, 

undercut banks with sufficient 

overhanging vegetation, large rocks and 

boulders with overhangs, and a high 

degree of streambank stability and 

healthy, intact riparian vegetative 

community; 

(vi) Habitat devoid of nonnative 

aquatic species detrimental to Gila chub 

or habitat in which detrimental 

nonnatives are kept at a level that 

allows Gila chub to continue to survive 

and reproduce; and 

(vii) Streams that maintain a natural 

flow pattern including periodic 

flooding. 

(3) Each stream segment includes a 

lateral component that consists of 300 

feet on either side of the stream channel 

measured from the stream edge at bank 

full discharge. This lateral component of 

critical habitat is intended as a surrogate 

for the 100-year floodplain. 

(4) Lands located within the 

boundaries of the critical habitat 

designation, but are excluded by 

definition include: Existing paved 

roads; bridges; parking lots; dikes; 

levees; diversion structures; railroad 

tracks; railroad trestles; water diversion 

canals outside of natural stream 

channels; active gravel pits; cultivated 

agricultural land; and residential, 

commercial, and industrial 

developments. These developed areas 

do not contain any of the primary 

constituent elements, do not provide 

habitat or biological features essential to 

the conservation of the Gila chub, and 

generally will not contribute to the 

species’ recovery. 

(5) Critical Habitat Map Areas. Data 

layers defining map areas, and mapping 

of critical habitat areas, was done using 

Arc GIS and verifying with USGS 7.5′ 

quadrangles. Legal descriptions for New 

Mexico and Arizona are based on the 

Public Lands Survey System (PLSS). 

Within this system, all coordinates 

reported for New Mexico are in the New 

Mexico Principal Meridian (NMPM), 

while those in Arizona are in the Gila 

and Salt River Meridian (GSRM). 

Township has been abbreviated as ‘‘T’’, 

Range as ‘‘R’’, and section as ‘‘sec.’’

Where possible, the ending or starting 

points have been described to the 

nearest quarter-section, abbreviated as 

‘‘1⁄4’’. Cardinal directions are also 

abbreviated (N = North, S = South, W = 

West, and E = East). All mileage 

calculations were performed using GIS. 

(6) Note: Map 1 (index map) follows: 

BILLING CODE 4310–55–P 

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66708 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(7) Area 1: Upper Gila River—Grant 

County, New Mexico, and Greenlee 

County, Arizona. 

(i) Turkey Creek: 22.3 km (13.8 mi) of 

creek extending from the edge of the 

Gila Wilderness boundary at T14S, 

R16W, sec. 15 NW1⁄4 and continuing 

upstream to T13S, R15W, sec. 30 NE1⁄4. 

Land ownership: Gila National Forest 

and private. 

(ii) Eagle Creek and East Eagle Creek: 

39.2 km (24.4 mi) of creek extending 

from its confluence with an unnamed 

tributary at T1N, R28E, sec. 31 SW1⁄4

upstream to the headwaters of East 

Eagle Creek just south of Highway 191 

in T3N, R29E, sec. 28 SE1⁄4. Land 

ownership: Apache-Sitgreaves National 

Forest and private. 

(iii) Harden Cienega Creek: 22.6 km 

(14.0 mi) of creek extending from its 

confluence with the San Francisco River 

in GSRM T3S, R31E, sec. 3 SE1⁄4

upstream to the headwaters in NMPM 

T14S, R21W, sec. 6 NE1⁄4. Land 

ownership: Apache-Sitgreaves National 

Forest, Gila National Forest, and private. 

(iv) Dix Creek: Portions of the Creek 

beginning 1.0 mile upstream from its 

confluence with the San Francisco River 

at a natural rock barrier in T3S, R31E, 

sec. 9 NE1⁄4 continuing upstream for 0.9 

km (0.6 mi.) to the confluence of the 

right and left prongs of Dix Creek in 

T3S, R31E, sec. 9 center. Includes Left 

Prong of Dix Creek upstream of its 

confluence with Dix Creek 2.0 km (1.2 

mi) to T3S, R31E, section 15 NW1⁄4. 

Land ownership: Apache-Sitgreaves 

National Forest. Includes the Right 

Prong of Dix Creek continuing upstream 

of its confluence with Dix Creek 4.8 km 

(3.0 mi) to T3S, R31E, section 20 SE1⁄4. 

Land ownership: Apache-Sitgreaves 

National Forest. 

(v) Note: Map of Area 1, Gila River, 

(Map 2) follows: 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66709 


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66710 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(8) Area 2: Middle Gila River—Gila 

and Pinal Counties, Arizona. 

(i) Mineral Creek: 14.4 km (9.0 mi) of 

creek extending from its confluence 

with Devil’s Canyon in T2S, R13E, 

section 35 NW1⁄4 continuing upstream 

to its headwaters in T2S, R14E, sec. 15 

center at the confluence of Mineral 

Creek and an unknown drainage. Land 

ownership: Tonto National Forest, State, 

and private. 

(ii) Note: Map of Area Upper Gila 

River, (Map 3) follows: 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66711 


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66712 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(9) Area 3: Babocomari River—Santa 

Cruz County, Arizona. 

(i) O’Donnell Canyon: 10.0 km (6.2 

mi) of creek extending from its 

confluence with Turkey Creek at T21S, 

R18E, sec. 22 SE1⁄4 upstream to the 

confluences of Western, Middle, and 

Pauline Canyons in T22S, R18E, sec. 17 

NE1⁄4. Land ownership: Bureau of Land 

Management, Coronado National Forest, 

and private. 

(ii) Turkey Creek: 6.3 km (3.9 mi) of 

creek extending from its confluence 

with O’Donnell Canyon in T21S, R18E, 

sec. 22 SE1⁄4 upstream to where Turkey 

Creek crosses AZ Highway 83 in T22S, 

R18E, sec. 9 NE1⁄4. Land ownership: 

Coronado National Forest, and private. 

(iii) Note: Map of Area 3, Babocomari 

River, (Map 4) follows: 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66713 


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66714 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(10) Area 4: Lower San Pedro River—

Cochise and Graham Counties, Arizona. 

(i) Bass Canyon: 5.5 km (3.4 mi) of 

creek extending from its confluence 

with Hot Springs Canyon in T12S, 

R20E, sec. 36 NE1⁄4 upstream to the 

confluence with Pine Canyon in T12S, 

R21E, sec. 20 SW1⁄4. Land ownership: 

Bureau of Land Management and 

private. 

(ii) Hot Springs Canyon: 10.5 km (6.5 

mi) of creek extending from T13S R20E, 

sec. 5 NW1⁄4 continuing upstream to its 

confluence with Bass Canyon in T12S, 

R20E, sec. 36 NE1⁄4. Land ownership: 

Bureau of Land Management, State, and 

private (The Nature Conservancy). 

(iii) Redfield Canyon: 9.8 km (6.1 mi) 

of creek extending from the western 

boundary of T11S, R19E, section 35 

upstream to its confluence with 

Sycamore Canyon in T11S, R20E, sec. 

28 NE1⁄4. Land ownership: Bureau of 

Land Management, State, and private. 

(iv) Note: Map of Area 4, Lower San 

Pedro River, (Map 5) follows: 

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66716 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(11) Area 5: Lower Santa Cruz River—

Pima County, Arizona. 

(i) Cienega Creek: (Two Segments). 

First segment includes 14.2 km (8.8 mi) 

of creek extending from where Cienega 

Creek becomes Pantano Wash T16S, 

R16E, at the boundary of sec. 14 and 

sec. 23 to where it crosses Interstate 10 

at T17S, R17E, sec. 1 NW1⁄4. Land 

ownership: County and State Trust. 

Second segment includes 13.6 km (8.4 

mi) of creek extending from T18S, R18E, 

sec. 6 S1⁄2 to its confluence with Empire 

Gulch at T19S, R17E, sec. 3 SE1⁄4. Land 

ownership: Bureau of Land Management 

and State. 

(ii) Mattie Canyon: 4.0 km (2.5 mi) of 

creek extending from its confluence 

with Cienega Creek in T18S, R17E, sec. 

23 NE1⁄4 upstream to the Bureau of Land 

Management Boundary in T18S, R17E, 

sec. 25 SW1⁄4. Land Ownership: Bureau 

of Land Management. 

(iii) Empire Gulch: 5.2 km (3.2 mi) of 

creek extending from its confluence 

with Cienega Creek in T19S, R17E, sec. 

3 SE1⁄4 continuing upstream to T19S, 

R17E, sec. 16 NW1⁄4 on the western 

boundary of section 16. Land 

Ownership: Bureau of Land 

Management and State. 

(iv) Sabino Canyon: 11.1 km (6.9 mi) 

of creek extending from the southern 

boundary of the Coronado National 

Forest in T13S, R15E, sec. 9 SE1⁄4

upstream to its confluence with the 

West Fork of Sabino Canyonin T12S, 

R15E, sec. 22 NE1⁄4. Land ownership: 

Coronado National Forest. 

(v) Note: Map of Area 5, Lower Santa 

Cruz River, (Map 6) follows: 

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66718 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(12) Area 6: Upper Verde River—

Yavapai County, Arizona. 

(i) Walker Creek: 7.6 km (4.7 mi) of 

creek extending from Prescott National 

Forest Road 618 in T15N, R6E, sec. 33 

SW1⁄4 upstream to its confluence with 

Spring Creek in T14N, R6E, sec. 1, SE1⁄4. 

Land ownership: Coconino National 

Forest and private. 

(ii) Red Tank Draw: 11.1 km (6.9 mi) 

of creek extending from the National 

Park Service boundary just upstream of 

its confluence with Wet Beaver Creek in 

T15N, R6E, sec. 31 NE1⁄4 upstream to 

the confluence of Mullican and Rarick 

canyons in T15N, R6E, sec. 2 NW1⁄4. 

Land ownership: Coconino National 

Forest and private. 

(iii) Spring Creek: 2.7 km (1.7 mi) of 

creek including all non-private land 

extending from T16N, R4E, sec. 27 SE1⁄4

at the boundary of Forest Service land 

and continuing upstream to the Arizona 

Highway 89A crossing in T16N, R4E, 

sec. 16 SE1⁄4. Land ownership: Coconino 

National Forest, and State. 

(iv) Williamson Valley Wash: 7.2 km 

(4.4 mi) of creek extending from the 

gauging station in T17N, R3W, sec. 7 

SE1⁄4 upstream to the crossing of the 

Williamson Valley Road in T17N, R4W, 

sec. 36 NE1⁄4. Land ownership: private. 

(v) Note: Map of Area 6, Upper Verde 

River, (Map 7) follows: 

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66720 Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 

(13) Area 7: Agua Fria River—Yavapai 

County, Arizona. 

(i) Little Sycamore Creek: 4.7 km (2.9 

mi) of creek extending from its 

confluence with Sycamore Creek in 

T11N, R4E, sec. 6 SW1⁄4 upstream to 

T11N, R4E, sec. 4 NE1⁄4. Land 

ownership: Prescott National Forest and 

private. 

(ii) Sycamore Creek: 18.3 km (11.4 mi) 

of creek extending from its confluence 

with Little Sycamore Creek at T11N, 

R4E, sec. 6 SW1⁄4 upstream to Nelson 

Place Spring in T11N, R5E, sec. 21 

NE1⁄4. Land ownership: Prescott 

National Forest and private. 

(iii) Indian Creek: 8.4 km (5.2 mi) of 

creek extending from T11N, R3E, sec. 35 

NE1⁄4 to Upper Water Springs in T11N, 

R4E, sec. 16 SE1⁄4. Land ownership: 

Bureau of Land Management, Prescott 

National Forest, and private. 

(iv) Silver Creek: 8.5 km (5.3 mi) of 

creek extending from T10N, R3E, sec. 10 

SE1⁄4 continuing upstream to the spring 

in T10N, R4E, Sec. 4 SW1⁄4. Land 

ownership: Tonto National Forest and 

Bureau of Land Management. 

(v) Lousy Canyon: Portions of the 

creek from the confluence of an 

unnamed tributary upstream to the fork 

with an unnamed tributary 

approximately 0.6 km (0.4 mi) 

upstream, all entirely T9N, R3E, sec. 5 

NW1⁄4. Land ownership: Bureau of Land 

Management. 

(vi) Larry Creek: Portions of the creek 

from an unnamed tributary and 

continuing upstream 0.7 km (0.4 mi) to 

the confluence of two adjoining 

unnamed tributaries, entirely within 

T9N, R3E, sec. 9 NW1⁄4. Land 

ownership: Bureau of Land 

Management. 

(vii) Note: Map of Area 7, Aqua Fria 

River, (Map 8) follows: 

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / Rules and Regulations 66721 

* * * * * Dated: October 24, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–21498 Filed 11–1–05; 8:45 am] 

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