Wednesday, March 21, 2007

Part II

Department of the Interior and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Spikedace (Meda fulgida) and the Loach (Tiaroga cobitis); Final Rule

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13356 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

DEPARTMENT OF THE INTERIOR information on the spikedace or the et al. 1990, pp. 138–139), and is only loach minnow, refer to the previous commonly found in surveys of Aravaipa Fish and Wildlife Service final critical habitat designation for the Creek and some parts of the upper Gila spikedace and loach minnow published River in New Mexico (Arizona Game 50 CFR Part 17 in the Federal Register on April 25, and Fish Department (AGFD) 2004; RIN 1018–AU33 2000 (65 FR 24328). Arizona State University 2002; Propst 2002, pp. 4, 16–33, Appendix II—Table Spikedace Endangered and Threatened Wildlife 2; Propst et al. 1986, p. iv; Rienthal and Plants; Designation of Critical Description and . The 2006, p. 2). Based on the available maps Habitat for the Spikedace (Meda spikedace is a member of the minnow and survey information, we estimate its fulgida) and the Loach Minnow family . The spikedace was present range to be approximately 10 to (Tiaroga cobitis) first collected in 1851 from the Rio San 15 percent or less of its historical range, Pedro in Arizona and was described and the status of the within AGENCY: Fish and Wildlife Service, from those specimens in 1856 by Girard. occupied areas ranges from common to Interior. It is the only species in the genus Meda. very rare. Recent data indicate the ACTION: Final rule. The spikedace is a small, slim fish less population in New Mexico has declined than 3 inches (in) (75 millimeters (mm) in recent years (Paroz et al. 2006, p. 56). SUMMARY: We, the U.S. Fish and in length (Sublette et al. 1990, p. 136). Table 1 summarizes critical habitat Wildlife Service (Service), are It is characterized by an olive gray to areas designated as critical habitat in designating critical habitat for the brownish back and silvery sides with this final rule for spikedace, as well as spikedace (Meda fulgida) and loach vertically elongated black specks. potential threats and records of minnow (Tiaroga cobitis) pursuant to Spikedace have spines in the dorsal fin spikedace within those areas. the Endangered Species Act of 1973, as (Minckley 1973, pp. 82, 112, 115). amended (Act). In total, approximately Distribution and Habitat. Spikedace Loach Minnow 522.2 river miles (mi) (840.4 kilometers are found in moderate to large perennial Description and taxonomy. The loach (km)) are designated as critical habitat. streams, where they inhabit shallow minnow is a member of the minnow Critical habitat is located in Catron, riffles (shallow areas in a streambed family Cyprinidae. The loach minnow Grant, and Hidalgo Counties in New causing ripples) with sand, gravel, and was first collected in 1851 from the Rio Mexico, and Apache, Graham, Greenlee, rubble substrates (Barber and Minckley San Pedro in Arizona and was described Pinal, and Yavapai Counties in Arizona. 1966, p. 321; Propst et al. 1986, p. 12; from those specimens in 1865 by Girard DATES: This final rule is effective April Rinne and Kroeger 1988, p. 1). (pp. 191–192). The loach minnow is a 20, 2007. Recurrent flooding and a natural small, slender, elongated fish less than hydrograph (physical conditions, 3 in (80 mm) in length. It is olive ADDRESSES: Comments and materials boundaries, flow, and related colored overall, with black mottling or received, as well as supporting characteristics of water) are very splotches. Breeding males have vivid documentation used in the preparation important in maintaining the habitat of red to red-orange markings on the bases of this final rule, are available for public spikedace and in helping the species of fins and adjacent body, on the mouth inspection, by appointment, during maintain a competitive edge over and lower head, and often on the normal business hours at the U.S. Fish invading nonnative aquatic species abdomen (Minckley 1973, p. 134; and Wildlife Service, Arizona Ecological (Minckley and Meffe 1987, p. 103–104; Sublette et al. 1990, p. 186). Services Field Office, 2321 West Royal Propst et al. 1986, pp. 3, 81, 85). Distribution and Habitat. Loach Palm Road, Suite 103, Phoenix, AZ The spikedace was once common minnow are found in small to large 85021–4951. The final rule, economic throughout much of the Gila River perennial streams, and use shallow, analysis, environmental assessment, and basin, including the mainstem Gila turbulent riffles with primarily cobble more-detailed color maps of the critical River upstream of Phoenix, and the on the bottom in areas of swift currents habitat designation are also available via Verde, Agua Fria, Salt, San Pedro, and (Minckley 1973, p. 134; Propst and the Internet at http://www.fws.gov/ San Francisco subbasins. It occupies Bestgen 1991, p. 32; Propst et al. 1988, arizonaes/. Geographic Information suitable habitat in both the mainstem pp. 36–43; Rinne 1989, p. 111). The System (GIS) files of the critical habitat reaches and moderate-gradient loach minnow uses the space between, maps are also available via the Internet tributaries, up to approximately 6,500 and in the lee (sheltered) side of rocks at http://criticalhabitat.fws.gov/. feet (ft) (2,000 meters (m)) in elevation for resting and spawning. It is rare or FOR FURTHER INFORMATION CONTACT: (Chamberlain 1904, p. 8; Cope and absent from habitats where fine Steven L. Spangle, Field Supervisor, Yarrow 1875, pp. 641–642; Gilbert and sediments fill the interstitial spaces U.S. Fish and Wildlife Service, Arizona Scofield 1898, pp. 487, 497; Miller 1960 (small, narrow spaces between rocks or Ecological Services Field Office, 2321 and Hubbs, pp. 32–33). other substrate) (Propst and Bestgen West Royal Palm Road, Suite 103, Habitat destruction and competition 1991; p. 33). Recurrent flooding and a Phoenix, AZ 85021–4951 (telephone and predation by nonnative aquatic natural hydrograph are very important 602–242–0210; facsimile 602–242– species have severely reduced its range in maintaining the habitat of loach 2513). Persons who use a and abundance. It is now restricted to minnow and in helping the species telecommunications device for the deaf portions of the upper Gila River and the maintain a competitive edge over (TDD) may call the Federal Information East, West, and Middle Forks of the Gila invading nonnative aquatic species Relay Service (FIRS) at 800–877–8339, 7 River in New Mexico and the middle (Propst and Bestgen 1991, pp. 33, 37). days a week and 24 hours a day. Gila River, lower San Pedro River, The loach minnow was once locally SUPPLEMENTARY INFORMATION: Aravaipa Creek, Eagle Creek, and the common throughout much of the Gila Verde River in Arizona (Anderson 1978, River basin, including the mainstem Background pp. 14–17, 61–62; Bestgen 1985, p. 6; Gila River upstream of Phoenix, and the It is our intent to discuss only those Jakle 1992, p. 6; Marsh et al. 1989, pp. Verde, Salt, San Pedro, and San topics directly relevant to designation of 2–3; Paroz et al. 2006, pp. 26, 37–41, Francisco subbasins (Minckley 1973, p. critical habitat in this rule. For more 62–67; Propst et al. 1986, p. 1; Sublette 133–134; Lee et al. 1980, p. 365). It

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13357

occupies suitable habitat in both the River and its tributaries Dry Blue, River in Arizona, and limited portions mainstem reaches and moderate- Campbell Blue, Little Blue, Pace, and of the upper San Francisco River, the gradient tributaries, up to about 8,200 ft Frieborn creeks; Aravaipa Creek and its upper Gila River, and Tularosa River in (2,500 m) in elevation. Habitat tributaries Turkey and Deer creeks; New Mexico (Paroz et al. 2006, pp. 55– destruction and competition and Eagle Creek; East Fork White River; and 60; Propst and Bestgen 1991, pp. 29, 37). predation by nonnative aquatic species the Black River and the North Fork East The present range of the loach minnow have severely reduced its range and Fork Black River in Arizona (Bagley et is estimated at 10 percent of its abundance (Carlson and Muth 1989, pp. al. 1998, pp. 3–6, 8; Bagley et al. 1995, historical range (Propst et al. 1988, p. 232–233; Fuller et al. 1990, p. 1; multiple survey records; Barber and 12), and the status of the species within Lachner et al. 1970, p. 22; Miller 1961, Minckley 1966, p. 321; Britt 1982, pp. occupied areas ranges from common to pp. 365, 377, 397–398; Minckley 1973, 6–7; Leon 1989, p. 1; Marsh et al. 1989, very rare. Table 1 summarizes critical p. 135; Moyle 1986, pp. 28–34; Moyle et pp. 7–8; Paroz et al. 2006, pp. 26, 37– al. 1986, pp. 416–423; Ono et al. 1983, 41, 62–67; Propst et al. 1988, pp. 12–17; habitat areas designated for loach p. 90; Propst et al. 1988, p. 2, 64). It is Propst and Bestgen 1991, p. 29; Propst minnow, as well as potential threats and now restricted to portions of the upper 1996, multiple survey records; Springer records of loach minnow within those Gila, the San Francisco, and Tularosa 1995, pp. 6–7, 9–10), and is only areas. rivers in New Mexico; and the Blue common in Aravaipa Creek and the Blue

TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS DESIGNATED AS CRITICAL HABITAT, THREATS TO THE SPECIES, LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION

Spikedace and/or loach Last year occupancy Critical habitat distance minnow critical habitat Threats Source areas confirmed in mi (km)

Complex 1—Verde River

Verde River—Spikedace Nonnative fish species, 1999 ...... 43.0 mi (69.2 km) ...... AGFD 2004; ASU 2002; grazing, water diver- Brouder 2002, p. 1. sions.

Complex 2—Black River Complex

Boneyard Creek—Loach Recreational pressures, 1996 ...... 1.4 mi (2.3 km) ...... AGFD 2004; ASU 2002. minnow. nonnative fish species, recent fire and related retardant application, ash, and sediment. East Fork Black—Loach Recreational pressures, 2004 ...... 12.2 mi (19.7 km) ...... AGFD 2004; ASU 2002. minnow. nonnative fish species, recent fire and related retardant application, ash, and sediment. North Fork East Fork Recreational pressures, 2004 ...... 4.4 mi (7.1 km) ...... AGFD 2004; ASU 2002; Black—Loach minnow. nonnative fish species, Bagley et al. 1995, multiple recent fire and related surveys; Lopez 2000, p. 1. retardant application, ash, and sediment.

Complex 3—Middle Gila/Lower San Pedro/Aravaipa Creek

Aravaipa Creek— Fire, some recreational 2005 ...... 28.1 mi (45.3 km) ...... ADEQ 2006; AGFD 2004; ASU Spikedace and Loach pressure, nonnative 2002; Rienthal 2006, pp. 2– minnow. pressures, water diver- 3. sion, contaminants. Deer Creek—Loach min- Fire, some recreational 2005 ...... 2.3 mi (3.6 km) ...... AGFD 2004; ASU 2002; now. pressure, low nonnative Rienthal 2006, p. 2. pressures. Turkey Creek—Loach Fire, some recreational 2005 ...... 2.7 mi (4.3 km) ...... AGFD 2004; ASU 2002; minnow. pressure, nonnative Rienthal 2006, p. 2. pressures. Gila River—Ashurst-Hay- den Dam to San Pedro Spikedace ...... Water diversions, grazing, 1991 ...... 39.0 mi (62.8 km) ...... AGFD 2004; ASU 2002; Jakle nonnative fish species. 1992, p. 6. San Pedro River (lower)— Water diversions, grazing, 1966 (directly connected 13.4 mi (21.5 km) ...... AGFD 2004; ASU 2002. Spikedace. nonnative fish species, to Aravaipa Creek, with mining. records from 2005).

Complex 4—San Francisco and Blue Rivers

Eagle Creek—Loach min- Grazing, nonnative fish 1997 ...... 17.7 mi (28.5 km) ...... AGFD 2004; ASU 2002; now. species, water diver- Bagley and Marsh 1997, pp. sions, mining. 1–2; Knowles 1994, pp. 1–2, 5; Marsh et al. 2003, pp. 666–668.

VerDate Aug<31>2005 18:15 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13358 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS DESIGNATED AS CRITICAL HABITAT, THREATS TO THE SPECIES, LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION— Continued

Spikedace and/or loach minnow critical habitat Threats Last year occupancy Critical habitat distance Source areas confirmed in mi (km)

San Francisco River— Grazing, water diversions, 2005 ...... 126.5 mi (203.5 km) ...... AGFD 2004; ASU 2002; Paroz Loach minnow. nonnative fish species, et al. 2006, p. 67; Propst road construction and 2002, p. 13; Propst 2005, p. maintenance, channel- 10; Propst 2006, p. 2. ization. Tularosa River—Loach Grazing, watershed dis- 2002 ...... 18.6 mi (30.0 km) ...... ASU 2002; Propst 2002, p. 9; minnow. turbances. Propst 2005, p. 6. Frieborn Creek—Loach Dispersed livestock graz- 1998 ...... 1.1 mi (1.8 km) ...... ASU 2002. minnow. ing. Negrito Creek—Loach Grazing, watershed dis- 1998 ...... 4.2 mi (6.8 km) ...... Miller 1998, pp. 4–5. minnow. turbances. Whitewater Creek—Loach Grazing, watershed dis- 1984 (directly connected 1.1 mi (1.8 km) ...... ASU 2002; Propst et al. 1988, minnow. turbances. to the San Francisco p.15. River, with records from 2005). Blue River—Loach min- Water diversions, non- 2004 ...... 51.1 mi (82.2 km) ...... AGFD 2004; ASU 2002; Carter now. native fish species, 2005; Propst 2002, p. 4. livestock grazing, road construction. Campbell Blue Creek— Grazing, nonnative fish 2004 ...... 8.1 mi (13.1 km) ...... AGFD 2004; ASU 2002; Carter Loach minnow. species. 2005. Little Blue Creek—Loach Grazing, nonnative fish 1981 (directly connected 2.8 mi (4.5 km) ...... AGFD 2004; ASU 2002. minnow. species. to the Blue River, with records from 2004). Dry Blue Creek—Loach Grazing ...... 2001 ...... 3.0 mi (4.8 km) ...... ASU 2002; Propst 2006, p. 2. minnow. Pace Creek—Loach min- Grazing, nonnative fish 1998 ...... 0.8 mi (1.2 km) ...... ASU 2002. now. species.

Complex 5—Upper Gila River

East Fork Gila River— Grazing, nonnative fish 2000, 1998 ...... 26.1 mi (42.0 km) ...... ASU 2002; Propst 2002, p. 27; Spikedace and Loach species, ash flows from Propst et al. 1998, p.14–15; minnow wildfires. Propst 2006, pp. 2. Upper Gila River— Recreation, roads, graz- 2005 ...... 94.9 mi (152.7 km) ...... ASU 2002; Propst 2002, pp. 4, Spikedace and Loach ing, nonnative fish spe- 31. minnow. cies, water diversion. Middle Fork Gila River— Nonnative fish species, 1995, 1998 ...... 7.7 mi (12.3 km), 11.9 mi ASU 2002; Paroz et al. 2006, Spikedace and Loach Grazing, ash flows from (19.1 km). p. 63; Propst 2002, p. 22; minnow. wildfires. Propst, 2006, p. 2. West Fork Gila River— Nonnative fish species, 2005, 2002 ...... 7.7 mi (12.4 km) ...... ASU 2002; Paroz et al. 2006, Spikedace and Loach roads, ash flows from p. 64; Propst 2002, p. 18; minnow. wildfires. Propst 2006, p. 2.

Previous Federal Actions Complex. On August 31, 2004, the habitat designation published in the We previously published a final United States District Court for the Federal Register on April 25, 2000 (65 critical habitat designation on April 25, District of New Mexico set aside the FR 24328). April 25, 2000, critical habitat 2000 (65 FR 24328). In New Mexico Summary of Comments and designation in its entirety and remanded Cattle Growers’ Association and Recommendations Coalition of Arizona/New Mexico it to the Service for preparation of a new Counties for Stable Economic Growth v. proposed and final designation. On We requested written comments from United States Fish and Wildlife Service, December 20, 2005, we published a the public on the proposed designation CIV 02–0199 JB/LCS (D.N.M), the proposed critical habitat designation (70 of critical habitat for the spikedace and plaintiffs challenged the April 25, 2000, FR 75546). loach minnow on December 20, 2005 critical habitat designation for the For more information on previous (70 FR 75546), and in two notices to spikedace and loach minnow because Federal actions concerning the reopen the comment period on June 6, the economic analysis had been spikedace and loach minnow, including 2006 (71 FR 32496) and October 4, 2006 prepared using the same methods which listing documents published in 1985 (71 FR 58574). We also contacted the Tenth Circuit had held to be invalid. and 1986 (50 FR 25380, June 18, 1985; appropriate Federal, State, and local The Center for Biological Diversity 51 FR 39468, October 28, 1986; 51 FR agencies; scientific organizations; and joined the lawsuit as a Defendant- 23769, July 1, 1986) as well as the first other interested parties and invited Intervenor. The Service agreed to a critical habitat designation in 1994 (59 them to comment on the proposed rule. voluntary vacatur of the critical habitat FR 10898, March 8, 1994; 59 FR 10906, We requested information on the designation, except for the Tonto Creek March 8, 1994), refer to the critical current status, distribution, and threats

VerDate Aug<31>2005 18:15 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13359

to the spikedace and loach minnow, as two supported exclusions in Eagle Creek Peer review comments focused on the well as information on the status of and the upper Gila River, three opposed reduction in the proposed critical other aquatic species in the historical these exclusions, four proposed habitat designation from previous range of the spikedace and loach additional exclusions in other areas, and designations, the area encompassed by minnow. We requested this information three included comments or information critical habitat, and potential threats to in order to make a final critical habitat but did not express support for or the species, including the need to determination based on the best opposition to the proposed exclusions. expand ‘‘nonnative fish’’ to include available scientific and commercial We also received numerous comments ‘‘nonnative aquatic species.’’ data. We also requested information on on the content and soundness of the We reviewed all comments received proposed exclusions of various areas environmental assessment and from the peer reviewers and the public from the final critical habitat economic analysis. For the for substantive issues and new designation. In addition, we held public environmental assessment, comments information regarding critical habitat for hearings on June 13 and 20, 2006, in focused on the adequacy of completing the spikedace and loach minnow, and Silver City, NM, and Camp Verde, AZ, an environmental assessment rather addressed them in the following respectively, to solicit comments on the than an environmental impact summary. statement, the inadequacy of the proposed rule. We published newspaper Peer Reviewer Comments articles inviting public comment and comment period and opportunities for announcing these public hearings in the public participation, the use of the 300- (1) Comment: The reduction in stream Arizona Republic, Arizona Daily Star, foot buffer for the lateral extent of the miles of critical habitat proposed for Camp Verde Bugle, Sierra Vista Herald, designation, the application of the designation from that previously Tucson Citizen, Verde Independent, and destruction or adverse modification designated for the spikedace and loach White Mountain Independent in language, the adequacy of the minnow provides no incentive for land Arizona, and the Albuquerque Journal, discussion of impacts of the proposed and resource management agencies to Albuquerque Tribune, and Silver City action to water use and water rights, the launch projects that would restore Daily Press in New Mexico. range of alternatives covered, and the conditions for the enhancement of During the first public comment economic information provided in the spikedace and loach minnow. All of the period, which opened on December 20, environmental assessment. major stream course and complexes, and 2005, and closed on February 21, 2006, Comments on the economic analysis many of the smaller tributaries, have we received 23 comments directly included the suggestion that we failed to potential to provide elements necessary addressing the proposed critical habitat estimate benefits of the proposed for the recovery of these species and designation (e-mails, letters, and faxes). designation; the adequacy and scope of should be included in critical habitat. Of these, we received two comments the analysis; impacts to small business Our response: The Service’s process from peer reviewers, three from Federal entities, ranching and farming for designating critical habitat has agencies, five from Tribes, one from a communities, and water use and water evolved since prior designations of State agency, seven from organizations, rights; the Regulatory Flexibility Act; critical habitat for the spikedace and and five from individuals. We also the Verde River and estimated costs and loach minnow. As required by section received two requests for public benefits of including it in the final 4(b)(1)(A) of the Act, we used the best hearings. During the second comment designation; and Tribal lands and scientific and commercial data available period, which opened on June 6, 2006, impacts to Tribes. in determining areas for designation as and closed on July 6, 2006, we received Responses to comments were grouped critical habitat. 39 comments. Of these latter comments, into three categories below. Peer review (2) Comment: In primary constituent 2 were from Federal agencies, 3 from comments are listed first, followed by element (PCE) 4, ‘‘nonnative fish’’ State agencies, and 34 from comments received from the States. should be modified to include any and organizations or individuals. During the Comments received from the public are all nonnative aquatic species, including third comment period, which opened on listed last. Because staff from the New the current component of nonnative October 4, 2006, and closed on October Mexico Department of Game and Fish and those that may become 16, 2006, we received 11 comment (NMDGF) responded as peer reviewers, established in the future, as well as letters. Of these comments, three were their comments are listed in the peer crayfishes, macroinvertebrates, from Federal agencies and eight from review section, while those of the AGFD parasites, and disease-causing organizations and individuals. are listed under State comments. pathogens. Of the written comments received Our response: We agree and we have Peer Review during the first comment period, four changed ‘‘nonnative aquatic fishes’’ in supported, eight were opposed, and six In accordance with our policy the final rule to ‘‘nonnative aquatic included comments or information but published on July 1, 1994 (59 FR species.’’ In addition, language has been did not express support for or 34270), we solicited expert opinions added addressing additional nonnatives opposition to the proposed critical from 13 knowledgeable individuals with and their sources, as well as their habitat designation. Of the written scientific expertise that included potential effects on the native fish comments received during the second familiarity with the species, the community. comment period, nine supported, 23 geographic region in which the species (3) Comment: Designating critical were opposed, and seven included occurs, and conservation biology habitat serves positive purposes. The comments or information but did not principles. These individuals prohibition against adverse modification express support for or opposition to the represented Federal agencies, State is a powerful tool to protect unoccupied proposed listing and critical habitat agencies, university researchers, or seasonal or migratory habitat and designation. Written comments received themselves as private individuals. We unoccupied habitat for population during the third comment period were received responses from two of the peer expansion as part of recovery. The most specific to the proposals to exclude reviewers, one as a private individual effective benefit from designating portions of various streams due to and the other in the capacity of an critical habitat is the impetus it provides receipt of management plans for those individual who works for the New to agencies and people to initiate streams. Of these written comments, Mexico Department of Game and Fish. conservation activities for the target

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13360 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

species and voluntarily curtail adverse Our response: We have added wildfire preclude deposition of eggs among sand impacts. No evidence is provided to the threats discussion within the unit and gravel for spikedace, or on the concluding that the (1) jeopardy descriptions below and within Table 1 undersurfaces of large rocks for loach standard is sufficient to protect habitat as a threat to the West Fork Gila River. minnow. Please see the discussion better than a critical habitat designation, (6) Comment: The lateral extent of the under ‘‘Substrates’’ for both spikedace (2) that critical habitat designation areas proposed for critical habitat is and loach minnow for additional provides no education benefits better logical considering the dynamic nature information. obtained otherwise, or (3) that of streams in the Gila River basin, and (10) Comment: The statement within conservation can be better achieved the scientific understanding of the role the proposed rule that ‘‘Flooding, as through implementing management flood plains play in stream course part of a natural hydrograph, plans rather than through implementing functioning. Defining a measurable temporarily removes nonnative fish section 7 and other provisions of the width that is wide enough to species, which are not adapted to Act. incorporate flood flows beyond the flooding’’ is an over-generalization. Our response: Designation of critical bankfull width is reasonable. Minckley and Meffe (1987) concluded habitat is one tool for managing listed Our response: We agree with the that nonnative fishes fared poorly in species habitat. In addition to the commenter on this point. canyon reaches by noting that some nonnative species like green sunfish and designation of critical habitat, we have State Comments determined that other conservation smallmouth bass rebounded quickly mechanisms including the recovery (7) Comment: We suggest a rewording from floods because they were stream- planning process, section 6 funding to of the statement regarding water quality adapted. Flooding may also kill or States, section 7 consultations, in the PCE section for both spikedace displace native fishes. Some native management plans, Safe Harbor and loach minnow to not require low fishes exhibit the potential to reproduce agreements, and other on-the-ground levels of pollutants in the water. As quickly after flooding, which could strategies contribute to species written, these statements could be account for some of the effects reported conservation. We believe these other interpreted to mean that low levels of by Minckley and Meffe (1987). conservation measures provide greater pollutants are needed. Our response: We have adjusted the Our response: We agree with this text to better reflect Minckley and Meffe incentives and often greater comment, and have revised the wording (1987). conservation. Please see ‘‘Exclusions in the discussion of PCEs in the final (11) Comment: The most thriving under Section 4(b)(2) of the Act’’ for rule to indicate that suitable water populations of these fishes tend to be in additional discussion. quality for spikedace and loach minnow flood blasted, warm, shallow, braided (4) Comment: The Service should will contain no or only minimal channel refugia and at places where reclassify both species to endangered pollutant levels. vehicles splashed through streams, status, as a warranted but precluded (8) Comment: The Arizona inside corrals (through which streams finding was published in 1994. Both Department of Transportation requests flowed), and in river channels within species have experienced significant that the Service provide estimated mine sites which are regularly reductions in range and abundance acreages of proposed critical habitat for bulldozed. The loach minnow is since that time, and their status in the each habitat complex. The total mileage thriving on private land at a mine where wild continues to deteriorate. figures are inconsistent and total miles heavy trucks cross the road several Reclassification would recognize the should be provided for spikedace and times a day, resulting in an area that is precarious status of the species and give loach minnow. The total mileages in shallow and full of sediment. higher priority for recovery actions. Table 3 for New Mexico and Arizona are Our response: We disagree with this Our response: We agree and in the reversed. conclusion. While spikedace and/or 2006 Candidate Notice of Review Our response: Because fishes occupy loach minnow are sometimes found in (CNOR) (71 FR 53756; September 12, stream habitat, we have determined it is association with low water crossings, 2006) we resubmit our 12-month finding more appropriate to quantify the and while flooding is an important where we determine that reclassification delineation in terms of stream miles component of habitat maintenance for of both the spikedace and loach minnow rather than total acres. All mileage these species, we are not aware of any is warranted but precluded by other figures throughout the rule and in the locations where they occur in streams higher priority listing actions. The 2006 tables have been checked for flowing through corrals or within mine CNOR provides a detailed discussion of consistency and adjusted where sites which are regularly bulldozed. We why these listing actions are precluded necessary. currently have survey records dating by other higher priority listing actions. from the late 1800s to the present for We note that Federal and State agencies General Comments Issue 1: Biological these species, as well as numerous and other cooperators are continuing Concerns studies that detail the habitat with recovery actions for the spikedace (9) Some commentors have noted that requirements for the species, all of and loach minnow in a concerted effort we have misinterpreted or over- which indicate that they occur in to improve the status of these two fish. extrapolated information from various habitat different than that described by (5) Comment: No information is sources, in particular the proposed rule the commenter. presented on effects of wildfire on did not appear to include any studies (12) Comment: The Gila River is not habitats (PCEs) each species occupies. that specifically define ranges for ‘‘fine critical habitat for the because Since 2000, wildfires have burned much sediment’’ or ‘‘substrate extreme flood waters may kill small of the West Fork Gila River watershed, embeddedness’’; therefore, the phrase fish. Small streams are better suited for fine sediment deposition has increased ‘‘low or moderate amounts’’ appears small fish, because large fish will noticeably, and abundance of both open to subjective interpretation. predate on the smaller fish. spikedace and loach minnow have Our response: For purposes of critical Our response: Please refer to the declined substantially at a permanent habitat designation, low to moderate discussion on ‘‘Flooding’’ below under site on West Fork Gila River that is amount of substrate embeddedness the PCE discussion for spikedace. As annually sampled. means embeddedness that does not noted in that discussion, Minckley and

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13361

Meffe (1987, p. 99–100) studied the Our response: We believe the three its main channel in response to large differential responses of native and comment periods allowed for adequate flow events); (2) conservation of the nonnative fishes in seven unregulated opportunity for public comment. A total adjacent riparian area also helps provide and three regulated streams or stream of 100 days was provided for document nutrient recharge and protection from reaches that were sampled before and review and the public to submit sediment and pollutants; and (3) after major flooding. They noted that comments. vegetated lateral zones are widely fish faunas of canyon-bound reaches of (16) Comment: Reintroduction of the recognized as providing a variety of unregulated streams invariably shifted spikedace and loach minnow to the aquatic habitat functions and values from a mixture of native and nonnative Verde River will result in killing and (e.g., aquatic habitat for fish and other fish species to predominantly, and in poisoning of the non-native fish, leaving aquatic organisms, moderation of water some cases exclusively, native forms the public with a non-fishable river. The temperature changes, and detritus for after large floods. general public will be banned from aquatic food webs) and help improve or (13) Comment: One commenter notes setting foot or paddling on the river area maintain local water quality (see U.S. that many of these minnows can be seen or using the Verde River for recreation. Army Corps of Engineers’ final notice in the Gila River. Our response: The designation of concerning Issuance and Modification Our response: While spikedace and critical habitat does not entail of Nationwide Permits, March 9, 2000, loach minnow do occur in the Gila reintroduction efforts of spikedace or 65 FR 12818–12899). Please see the River, it is important to note that the loach minnow. In addition, designation section entitled ‘‘Lateral Extent’’ below ‘‘minnows’’ seen in the Gila River may of critical habitat does not set up for more information. In addition, in wildlife refuges or preserves, or require or may not be spikedace or loach more recent rules we have used the 300 the exclusion of all other uses. Critical minnow. There are approximately 235 ft (91.4 m) width to define the lateral habitat was designated previously on species of fishes that are within the extent of critical habitat for the Rio the Verde River for spikedace and loach minnow family, Cyprinidae, in North Grande silvery minnow (February 19, minnow from 2000 to 2004, during America (Bond 1979, p. 170). Spikedace 2003; 68 FR 8088), the Gila chub which time recreation and use of this and loach minnow are members of this (November 2, 2005; 70 FR 66664), and area by the public continued. the Arkansas River shiner (October 13, family. Other small-bodied, native (17) Comment: The Service appears minnows which are more commonly 2005; 70 FR 59808). inconsistent in their critical habitat (18) Comment: A designation of 300 ft found within the Gila River include designations in terms of the lateral (91.4 m) may impact roads or facilities. longfin dace (Agosia chrysogaster) and extent of the critical habitat designation. Roads or facilities impacted by flooding speckled dace ( osculus). There is no reference for best scientific may require periodic maintenance. These fish, even as adults, can be evidence in the determination of 300 ft Additionally, if a river shifts in response confused with spikedace and loach (91.4 m) as lateral extent. Prior rulings to flooding, critical habitat would have minnow. There are several other species for razorback sucker, Colorado to shift and potentially affect the which are technically minnows and pikeminnow, humpback chub, and rebuilding of diversion structures. The may be confused with spikedace and bonytail chub define the lateral extent of proposed rule does not address what loach minnow when young. These critical habitat as the 100-year happens when a river channel moves. include native roundtail chub (Gila floodplain where PCEs occur, with the Our response: Prior critical habitat robusta) and nonnative common caveat that potential areas of critical designations for spikedace and loach (Cyrpinus carpio), goldfish (Carassius habitat should be evaluated on a case by minnow from 2000 to 2004 did not auratus), and fathead minnow case basis. The final ruling for woundfin prevent maintenance or rebuilding of (Pimephales promelas) (Lee et al. 1980, and Virgin River chub use the 100-year structures damaged by flooding nor will pp. 140–367). floodplain. this final designation. Where critical (14) Comment: Spikedace were last Our response: Although we habitat is designated, activities funded, seen in the Verde River in 1999. They considered using the 100-year authorized, or carried out in these areas may already be extinct. floodplain, as defined by the Federal by Federal action agencies that may Our response: Because the last record Emergency Management Agency affect the PCEs of the critical habitat, for spikedace on the Verde River was (FEMA), we found that it was not may require consultation pursuant to from 1999, this area still meets the 10- included on standard topographic maps, section 7 of the Act. The purpose of the year occupancy criteria used in and the information was not readily consultation is not to stop activities developing the critical habitat. We are available from FEMA or from the U.S. from occurring, but to ensure that such also aware of gaps in the survey record Army Corps of Engineers for the areas activities do not result in jeopardy to in which spikedace were not found for designated as critical habitat, possibly listed species or adverse modification of greater than 10 years, but then due to the remoteness of various stream critical habitat. When determining final reappeared. Surveys do not allow for reaches. Therefore, we selected the 300- critical habitat map boundaries, we 100 percent detection of a species, foot lateral extent, rather than some made every effort to avoid including particularly for species such as other delineation, for three reasons: (1) developed areas such as buildings, spikedace that are hard to detect. The biological integrity and natural paved areas, and other structures that dynamics of the river system are lack any PCEs for the spikedace and General Comments Issue 2: Procedural maintained within this area (i.e., the loach minnow. Any such structures and and Legal Compliance floodplain and its riparian vegetation the land under them inadvertently left (15) Comment: Several commenters provide space for natural flooding inside critical habitat boundaries of this requested a 60-day extension of the patterns and latitude for necessary final rule are excluded by text and are comment period, or indicated that two natural channel adjustments to maintain not designated as critical habitat. public hearings and the comment appropriate channel morphology and Specifically, lands located within the periods provided were inadequate to geometry, store water for slow release to boundaries of the critical habitat provide comment on the proposed rule, maintain base flows, provide protected designation, but that do not contain any draft economic analysis, and the draft side channels and other protected areas, of the PCEs essential to the conservation environmental assessment. and allow the river to meander within of the spikedace and loach minnow

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13362 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

include: Existing paved roads; bridges; (21) Comment: The Service is regardless of the condition of other parking lots; railroad tracks; railroad inconsistent in its treatment of, and fails PCEs. Nonnatives are especially a trestles; water diversion and irrigation to properly analyze the impacts of, problem for the San Francisco River, canals outside natural stream channels; groundwater wells and other potential Gila River, and Eagle Creek. active sand and gravel pits; regularly detrimental activities that are located Our response: Critical habitat cultivated agricultural land; and outside the 300 ft (91.4 m) lateral extent designation is not the process through residential, commercial, and industrial of critical habitat. which we rule out habitat suitability developments. Our response: Activities funded, due to threats, but the process through Critical habitat includes the area of authorized, or carried out by Federal which we identify habitat that provides bankfull width plus 300 ft (91.4 m) on action agencies that may affect the PCEs for one or more of the life history either side of the banks. Should the of the critical habitat, may require functions of the species. As defined in active channel meander or shift we consultation pursuant to section 7 of the section 3(5)(A) of the Act, critical anticipate that it would still be Act. Thus, groundwater pumping habitat means ‘‘(i) the specific areas contained within the 300 foot (91.4 m) activities may require consultation within the geographical area occupied lateral extent of the designation (i.e. our pursuant to section 7 of the Act if the by the species, at the time it is listed in current critical habitat boundary); thus action agency determines that the accordance with the provisions of we do not find that critical habitat will activity may affect the PCEs for the section 4 of the Act, on which are found shift as a result. spikedace or loach minnow, regardless those physical or biological features (I) (19) Comment: The 300 ft (91.4 m) of whether the activity is occurring essential to the conservation of the lateral extent likely represents an within or outside the critical habitat species and (II) which may require expansion of critical habitat to areas that designation. special management considerations or are not necessarily riparian habitat, (22) Comment: The Service should protection.’’ During the designation particularly on small streams. designate the areas within the active process, the Service identifies threats to floodplain that are necessary to support Our response: Although the spikedace the best of our ability where they exist. the PCEs of spikedace and loach and loach minnow cannot be found in Identification of a threat within an area minnow critical habitat for the recovery the riparian areas when they are dry, does not mean that that area is no longer of the species, as demonstrated by the suitable, rather that special management these areas are periodically flooded and best available science. We suggest that or protections may be required. If an provide habitat during high-water the Service look at hydrogeomorphic area contains sufficient PCEs to provide periods. These areas also contribute to and biological features to determine the for one or more of the life history PCEs 1 and 2 and contain PCEs 3 and width along each segment where the functions of spikedace or loach 5. As noted in response to 18 above, PCEs are likely to exist. Such minnow, and if it was occupied at the vegetated lateral zones are widely information may include specific return time the species was listed and is recognized as providing a variety of intervals (5-, 10-, 50-year events), currently occupied, it is reasonable to aquatic habitat for fish and other aquatic floodplain features (ordinary high water include it within a proposed critical organisms, moderation of water mark), or floodplain vegetation as habitat designation. The need to address temperature changes, and detritus for indicators of important habitat, which a particular threat, such as nonnative aquatic food webs, and help improve or can be mapped in the field along with fishes, in a portion of the critical habitat maintain local water quality. bankfull flow width. designation may or may not arise in the (20) Comment: The 300 ft (91.4 m) Our response: As noted in our future. Further, describing both the designation needs additional defining. It response to comment 17 above, we do areas which support PCEs and the is unclear if it is to be measured up to not have this type of information threats to those areas assists resource the slope of the bank or horizontally on available to us and thus we selected the managers in their conservation planning a map. In many reaches of the specific 300 ft (91.4 m) lateral extent as the best efforts for threatened and endangered rivers and streams in the designation, available science to map the areas that species like spikedace and loach the flowing channels are confined contain or contribute to the features that minnow. within narrow canyon bottoms, and a are essential to the conservation of these (24) Comment: Absent clear scientific 300 ft (91.4 m) buffer in some cases species. evidence that intermittent stream extends several hundred feet vertically (23) Comment: The best scientific reaches are used by spikedace or loach up the side of the canyon. In addition, information currently available minnow to move between occupied bankfull width, while scientifically recognizes that for most native fish habitats, and are critical to their valid and useful, may be hard to species, conservation cannot be recovery, the fifth PCE should not be determine in the field. achieved without eliminating or greatly included as part of the final designation. Our response: Critical habitat suppressing nonnative fishes (Clarkson Our response: It was not our intent to includes the area of bankfull width plus et al. 2005). The common nonnative fish imply that spikedace or loach minnow 300 ft (91.4 m) on either side of the occupying the same or overlapping occupy intermittent reaches when water banks, except where bordered by a geographic areas with spikedace and is not present. We included canyon wall. Since a canyon wall is not loach minnow are known to compete interconnected waters because defined as a PCE for the spikedace and with or prey on all life stages of native spikedace and loach minnow have the loach minnow it would not be fish (Pacey and Marsh 1998). Thus, ability to move between populated, considered critical habitat. The 300 foot where nonnative fishes have high wetted areas, at least during certain flow lateral extent is not for the purpose of abundance, and where there is limited regimes or seasons. Because streams creating a ‘‘buffer zone.’’ Rather, it opportunity or ability for the Service to provide continuous habitat when defines the lateral extent of those areas manage these nonnative species due to connected, and because fish are mobile, we have determined contain or physical constraints of the river system it is reasonable to conclude that contribute to the features (PCEs 3 and 5) or political/social constraints, these intermittent areas, when wetted, may be that are essential to the conservation of segments are unlikely to provide used during fish movement. In addition, these species (e.g., water quality, food important habitat for any of the some complexes include stream reaches source, etc.). spikedace and loach minnow life stages that play a role in the overall health of

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13363

the aquatic ecosystem, and therefore, included those areas within the during migration flows), it has been the integrity of upstream and designation. noted that only PCEs present at downstream spikedace and loach (27) Comment: The preamble designation will be protected. minnow habitat. Again, because stream articulates the following important (29) Comment: With respect to the habitat is continuous, actions taking concept: ‘‘Where a subset of PCEs are PCEs, an additional quantitative value place in an intermittent portion of the present (e.g., water temperature during that should be measured is the large channel can have effects in upstream spawning), only those PCEs present at wood present in a system. and downstream areas. Inclusion of designation will be protected.’’ This Our response: We agree that large these intervening areas assures concept should be reflected in the rule wood is an important factor to analyze protection of adjacent, perennial language itself. The proposal is not in assessing riparian ecosystem health; reaches. always clear as to what PCEs are present however, we are not aware of any data (25) Comment: There is no record or in each stretch of river. For example, at this time that illustrates what amount document that summarizes or describes with respect to the 39 mile stretch of the of large woody debris within a system in detail the PCE conditions that the Gila River included in the proposal, the would constitute ideal conditions for Service used as a decision-making tool preamble states only that it contains spikedace and loach minnow. Should to select reaches. ‘‘one or more’’ of four PCEs. This creates such information be developed in the Our response: As stated under the uncertainty about what PCEs are present future, it would be another useful factor ‘‘Critical Habitat’’ subheading in the in which segments, which could in turn in evaluating river system health and final rule, the areas included within the cause difficulties in future section 7 habitat suitability for spikedace and proposed critical habitat designation are consultations regarding possible adverse loach minnow. based not only on PCE conditions, but effects on critical habitat. (30) Comment: Flow velocity values also on whether or not an area was Our response: Within the discussion should be in feet per second, which is occupied at listing and may require immediately following Table 1, PCEs are a more appropriate field estimate and special management considerations or described for each complex. For ensures greater accuracy between protections. There is no single record or example, for the 39 mile stretch of the readings and reader. These values can document that summarizes this Gila River addressed in this comment, also be better correlated with historical information. Instead, the Service looked the proposed rule states that ‘‘Those and stream gauge data. at various databases and survey records portions of the Gila River proposed for Our response: While it may be more to determine occupancy, as well as designation contain one or more of the useful to report flow velocity values in habitat descriptions at various locations. PCEs, including sufficient flow We relied on information provided in velocities and appropriate gradients, feet per second, it is our practice to use survey reports and research documents substrates, depths, and habitat types values and units of measurement as they to describe conditions at various (i.e., pools, riffles).’’ This information were reported by the author of the locations. This information was then should be useful in future section 7 research summarized. synthesized to develop the proposed consultations. (31) Microhabitat flows are highly critical habitat designation. (28) Comment: Page 75556 of the related to habitat complexity. Though it (26) Comment: As a final step before proposed rule states ‘‘Where a subset of is appropriate to define these flows, the issuance of the proposed rule, the the PCEs are present (e.g., water there should be more emphasis on Service should have ranked the suitable temperature during spawning), only habitat complexity and the functions habitat to determine which areas those PCEs present at the time of needed to create it such as floodplain possess the highest quality of PCEs. designation will be protected.’’ interaction, riparian condition, and Based on this ranking, the Service Implementation of this misguided large wood recruitment. would then have published the approach negates the conservation value Our response: We believe the final proposed rule designating the portions of the critical habitat designation rule accomplishes both of these of suitable habitat needed to achieve because lack of perennial water, objectives. We have chosen to consider recovery goals. The proposed rule appropriate stream habitat, or high overall riparian health, as well as would have also described areas of abundance of predatory nonnative fish floodplain interaction and stream suitable habitat identified by the Service precludes the survival or recovery of health, by including riparian vegetation but not included in the proposed rule. spikedace or loach minnow. We believe and floodplain areas within the critical Our response: The regulations the Service needs to fully consider the habitat designation, as encompassed by governing critical habitat designations implication of this language in the the 300 foot lateral zone. In addition, we do not require ranking of suitable Proposed Rule, and reevaluate the have attempted to define key habitat. With species such as spikedace proposed reaches in light of the need to components of occupied habitat, as and loach minnow, whose current contain all PCEs at the time of defined in the PCEs. One of those distribution is severely reduced designation, especially those reaches components relates to flow velocities. compared to historical distribution, that contain high numbers of nonnative We have incorporated the information determining the highest quality of PCEs fish species. we have relevant to spikedace and loach is not a useful tool in developing a Our response: Stream complexes as minnow within the rule. recommendation, and inclusion of only part of this final rule making were (32) Comment: Because microhabitat the highest ranking areas would not be designated based on sufficient PCEs is variable and transient, gradient values sufficient for recovery of these species. being present to support spikedace and should be more generalized and at the The Service has developed a rule set loach minnow life processes. Some geomorphic reach level. that we have determined identifies complexes contain all PCEs and support Our response: We are required to use those areas to be included as final multiple life processes. Some segments the best scientific and commercial critical habitat. We have coupled that contain only a portion of the PCEs information available. At this time, no rule set with the best scientific and necessary to support the spikedace and assessment of gradient values at a commercial information available loach minnow’s particular use of that geomorphic reach level has been regarding species distribution, habitat habitat. Where a subset of the PCEs are completed for occupied or suitable parameters, and life history, and have present (such as water temperature spikedace and loach minnow habitat.

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13364 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(33) Comment: In evaluating riparian (35) Comment: Water depths of 1 to flooding itself would be inappropriate habitat, there should be two or more 30 inches are specified as a PCE for as a PCE as flooding is a process that native, riparian-obligate woody species adult, juvenile, and larval loach maintains the necessary components of and two or more riparian-obligate minnow. No data or references are cited occupied habitat, whereas PCEs are the herbaceous species present and vigorous to support any specific range of depths. features essential to the conservation of (Winward 2000). In terms of species Additionally, pools aren’t appropriate the species. We determine those diversity, all four age classes of native, for spikedace and loach minnow, but physical and biological features that are riparian-obligate woody species must be are suitable for predatory non-natives essential to the conservation of a given present and vigorous. These classes are that are significantly detrimental. species and that may require special seedling/sprout, young/sapling, mature/ Our response: Water depths are management considerations or decadent, and dead (Winward 2000). known for all occupied spikedace and protection, rather than looking at the Our response: We agree that a loach minnow sites, as discussed below. processes that aid in developing those diversity of composition leads to Therefore, the range described in the features 50 CFR 424.12(b). healthier riparian habitat; however, we PCEs reflects the range considered to (38) Comment: Although the five do not have sufficient information of provide suitable habitat for these fishes PCEs appear to be generally correct, this type tied to occupied spikedace and by biologists familiar with the species. they are describing fine-grained loach minnow critical habitat to use in Spikedace and loach minnow are less characteristics applicable to a square- developing an individual PCE. The likely to use pool habitat than other meter by square-meter assessment. Only individual PCEs represent the actual types of habitat, however, Sublette et al. two PCEs are coarse-grained; (1) reaches physical and biological parameters of (1990, p. 138) and Propst et al. (1986, p. devoid of nonnative fish, and (2) stream habitat used by the fish. 40) note that spikedace juveniles and reaches that flow sporadically and larvae are occasionally found in quiet (34) Comment: Conflicting comments provide connective corridors between pools or backwaters lacking streamflow were received on the temperature ranges occupied and seasonally occupied (Sublette et al. 1990, p. 138). Barber et listed within the PCEs for spikedace and reaches. The other PCEs are focused on al. (1970, pp. 11–12) also noted that the biological requirements for loach minnow. In summary, we female spikedace occupy deeper pools individual fish, rather than the received comments that the PCE and eddies during portions of the population or the species to which it temperature range is broader (35 to breeding season. In addition, Schreiber belongs. 85 °F) than the literature indicates (48.2 ° (1978, pp. 40–41) found that the Our response: We disagree with the and 71.6 F), with the potential net availability of pool and run habitats commenter on this point. It is true that effect being an extension of stream affects availability of prey species the PCEs focus on the biological needs reaches both upstream and downstream consumed by loach minnow. of the individual fish, but collectively, from areas actually likely to support the (36) Comment: Virtually any the biological needs of the fish represent species. A second commenter noted that perennial stream above 3,000 feet the biological needs of the species. As the Bonar et al. (2005) study found 100 elevation in Arizona displays the previously noted, critical habitat, as percent survival of loach minnow at characteristics cited by the Service in its ° ° stated in the Act, is defined as ‘‘*** 28 C (82 F) and 100 percent survival of PCEs and thus they are not particularly ° ° specific areas * * * on which are found spikedace at 30 C (86 F) corresponded helpful in identifying the areas the physical or biological features (I) quite well with upper limits in the necessary for the conservation of the essential to the conservation of the proposed rule PCEs. A third commenter spikedace and loach minnow. species * * *.’’ The Service has noted that appropriate values should be Our response: The PCEs are based on determined that the PCEs, as defined by a maximum seven day average. the range of criteria developed following studies in occupied areas, define the Our response: We have reviewed the review of research conducted at features essential to the conservation of study completed by the University of occupied spikedace and loach minnow the species. Arizona (Bonar et al. 2005) and sites. Use of the PCEs alone may result (39) Comment: We request exclusion incorporated its findings into in the inclusion of most streams above of all areas within roadway right-of- discussions of temperature tolerances 3,000 feet in elevation. However, ways or easement limits because section within the final rule. The PCEs serve as coupled with occupancy information 7 is required in these areas for projects guidelines to resource managers in and the geographic range of the species, affecting threatened and endangered evaluating the suitability of areas for we are able to identify final critical species. Designation within right-of- spikedace and loach minnow. habitat for the spikedace and loach ways would have no additional benefit. Temperature ranges provided are based minnow. Our response: Developed lands, on the studies completed at various (37) Comment: Flood magnitude and including roadway right-of-ways, do not occupied locations, and adequately frequency deserve careful consideration contain the PCEs essential to the represent the habitat most suitable for and incorporation as part of a ‘‘flood conservation of the spikedace and loach spikedace and loach minnow. In most frequency and magnitude’’ PCE. The minnow. Federal action agencies are instances, resource managers do not Service has failed to include important only required to consult on activities have the ability to develop seven day hydrologic features in the analysis of they authorize, fund, or carry out that averages. With respect to broadening the current habitat for spikedace and loach may affect the physical or biological range of the species by incorporating too minnow. features determined in this rule to be wide a range of suitable temperatures, Our response: We agree that flooding essential to conservation of these fish. we note that we are using the Act’s is a key process in maintaining suitable See also response to comment 18 above. standard of best available scientific habitat components for spikedace and (40) Comment: The Bureau of information, and should temperatures at loach minnow, and have addressed this Reclamation lands are on the lower San these sites be found at the high point of in PCE 2. A PCE focused strictly on Pedro River and not the Gila River. This the range provided in this PCE, it would flooding would be difficult to define, as mistake is also continued in the already be within an area occupied by there is considerable variability in the regulation promulgation section. the species, so the species’ range would flood magnitude and frequency of Our response: According to GIS not be broadened. different systems. More importantly, landownership layers from the Arizona

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13365

Land Resource Information System of occupancy within the last 10 years, or survival and recovery of a listed the Arizona State Land Department, the where the stream segment is directly species.’’ Bureau of Reclamation lands referenced connected to a segment with occupancy Our response: The Service no longer by the commenter are on the Gila River records from within the last 10 years.’’ relies on the regulatory definition of beginning at Township 4 South, Range While we do not have occupancy adverse modification of critical habitat. 13 West, section 3. records for these connected areas within Instead the Service relies on the (41) Comment: The critical habitat the last 10 years, we believe it is statutory provision of the Act to designation allows for exclusions when reasonable to consider these connected complete the analysis on critical habitat. special management considerations are areas to be occupied for the purposes of Please see ‘‘General Principles of not required based on management critical habitat as they are part of a Section 7 Consultations Used in the plans. This policy should allow for land larger contiguous complex with 4(b)(2) Balancing Process’’ below for management agencies to adopt species documented occupancy within the last additional information. management plans. 10 years. We consider it reasonable (47) Comment: There is no Our response: In this final rule, our because of the elusiveness of the ‘‘sufficiently unregulated hydrograph’’ exclusion of areas covered by species, the difficulty of obtaining a on the Gila River below its confluence management plans was made pursuant thorough sampling of remote streams with the San Pedro River. We do not to section 4(b)(2) of the Act, where we with difficult access, and the low believe the PCEs identified by the determined that the benefits of efficiency of sampling techniques. Service in the proposal are present in exclusion outweighed the benefits of (44) Comment: The North Fork of the this stretch. This section of the Gila inclusion. These determinations were White River and the mainstem White River (below the San Pedro) should be not hindered by landownership. River downstream of the confluence of removed from the critical habitat (42) Ten years is insufficient to the North and East Forks should be designation. determine presence or absence of included in the designation. Records of Our response: While it may not spikedace and loach minnow given the loach minnow within the last 10 years contain all of the PCEs, we have elusiveness of the species, the difficulty exist for both streams. determined it currently supports one or of obtaining a thorough sampling of Our response: These stream segments more of them (i.e., low gradient, remote streams with difficult access, occur on Tribal lands and we have no appropriate water temperatures, and and the low efficiency of sampling information available to us to conclude pool, riffle, run, and backwater techniques. There is greater biological that these areas meet the definition of components), and because of this and its support to use a period of 20 to 40 years critical habitat for the loach minnow. proximity to occupied areas, it remains as the standard for determining Please see ‘‘Relationship of Critical in the designation. ‘‘occupancy.’’ Habitat to Tribal Lands’’ below for (48) Comment: We dispute the claim Our response: We believe a period of additional discussion of Tribal that spikedace occupancy of the Verde 10 years is reasonable to determine management plan and protections that River was confirmed as recently as occupancy based on the fact that both exist for these fish on those lands. 1999. No spikedace have been species are difficult to detect in surveys, (45) Comment: The Service should confirmed from the Verde River since at surveys have been infrequent or use wording similar to that used in the least 1995. Thus, the Verde River does inconsistent because many of the areas 2000 critical habitat designation which not meet the Service’s own criteria for where they occur are remote, and we states ‘‘We have determined the primary critical habitat because there are no have areas where these species were not constituent elements essential to the records within the last 10 years. detected for long periods of time (44 conservation of spikedace include, but Our response: The 1999 record is years) and then detected again. are not limited to * * *.’’ This provides considered by the Service as a Specifically, the methodology used for inclusion of new scientific confirmed record. The spikedace in considers a stream segment occupied if information without the need for question was captured and identified by the spikedace or loach minnow has been cumbersome and expensive reproposal a qualified AGFD fisheries biologist detected in the last 10 years or if the of critical habitat. (AGFD 2004). stream segment is connected to a stream Our response: We have determined (49) Comment: The large amount of segment with spikedace or loach the revised language provides more privately owned land that is included in minnow records within the last 10 specifics and certainty about the PCEs, the proposal is too great of a restriction years. For example, we consider the and any revisions to a regulation as a of use. lower San Pedro River and the Gila result of new information may only be Our response: Critical habitat does not River ‘‘occupied’’ due to their made through a new rulemaking affect private actions on private lands. A connections with Aravaipa Creek, an process. designation of critical habitat requires area where we have documented (46) Comment: The proposed rule that Federal action agencies consult records of these fish from within the last incorrectly paraphrases the regulatory with the Service on activities that they 10 years. We have determined our definition of destruction or adverse fund, authorize, or carry out that may methodology is reasonable to determine modification of critical habitat. The affect critical habitat. We note that the areas that meet the definition of critical paraphrased definition limits analysis of designated 105 mi (170 km) for habitat. destruction or adverse modification to spikedace and the 126 mi (203 km) for (43) Comment: With respect to ‘‘those physical or biological features loach minnow of private lands is part of, occupancy, we do question the that were the basis for determining the not in addition to, the total 522 mi (840 assumption that all stream segments habitat to be critical’’, a limitation not km). with a ‘‘direct connection’’ to occupied found in the regulatory definition. (50) Comment: The adverse impacts of areas are themselves occupied. There is Instead, the regulatory definition critical habitat on non-Federal rights little scientific basis for this assumption. directly addresses effects to the critical and interests were exacerbated under Our response: The language within habitat rather than a surrogate. The Gifford Pinchot, which increases the the rule states ‘‘We consider an area to paraphrased definition also omits the impact of a critical habitat designation be occupied by the spikedace or loach regulatory definition’s inclusion of on water and land uses by creating a minnow if we have records to support diminution of the values of ‘‘both the heightened standard for the

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13366 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

‘‘destruction or adverse modification’’ of Rivers Technical Subcommittee, which require coordination with the Forest critical habitat. More activities that is evaluating the environmental impacts Service. We fully intend to continue our require a Federal permit or other of these water diversions from the upper ongoing coordination with the Blue approval will violate section 7(a)(2) of Gila and San Francisco rivers. River Native Fisheries, Research and the Act and will require formal Considerations for spikedace and loach Education Center. The designation of consultation. When combined with the minnow are prominent in those critical habitat is a separate process Service’s use of section 7(a)(2) to discussions. We have identified water which will not hinder these efforts and ‘‘Federalize’’ and control non-Federal diversions as a threat for spikedace and we commend the Center for their projects, Gifford Pinchot will loach minnow within this complex. interest in conserving the Blue River. dramatically increase the economic (52) Comment: The Upper Eagle Creek (54) Comment: The Service should impacts caused by the critical habitat Watershed Association has developed a remove the Middle Verde River from the designation. watershed plan in collaboration with final rule and retain the Upper Verde Our response: We recognize that the Forest Service and the Arizona River segment as critical habitat based under the Gifford Pinchot decision, Department of Environmental Quality. on: (1) The current biological conditions critical habitat designations may This plan has addressed the loach within each river segment to conserve provide greater benefits to the recovery minnow and spikedace as endangered the spikedace; (2) the existing physical of a species. This relates to the court’s fish that may occupy areas covered by barrier (i.e., Allen Ditch Diversion) ruling that the two standards (e.g. the plan. The plan guides the between the Upper and Middle Verde jeopardy and adverse modification) are community, permittees, and agencies in River, which likely precludes movement distinct and that adverse modification developing the Upper Eagle Creek and connectivity between reaches; (3) evaluations require consideration of Watershed into its greatest potential for the prevailing technical feasibility and impacts on the recovery of species. As all species. On the basis of this plan and fisheries management emphasis of each such, where appropriate, we analyze or the partnership with the people on the river segment; and (4) the high potential consider the effects of the Gifford land with all agencies, it would be best economic burden to groundwater and Pinchot decision in this rule, the to exclude Eagle Creek from the critical surface water users in the Middle Verde economic analysis, and the habitat designation. River (i.e., Verde Valley) compared to environmental assessment. For example, Our response: We appreciate the the Upper Verde River. in light of the uncertainty concerning efforts the Upper Eagle Creek Watershed Our response: Pursuant to section the regulatory definition of adverse Association has taken to work 4(b)(2) of the Act we have excluded the modification, our current collaboratively with the Forest Service, lower portion of the Verde River based methodological approach to conducting cooperators, and the Service. on economic costs. See exclusion economic analyses of our critical habitat Unfortunately, the Upper Eagle Creek discussion below. designations is to consider all Watershed Management Plan was (55) Comment: One of the conservation-related costs. This received on the last day of the third requirements of critical habitat is that approach would include costs related to comment period, and was still in draft these areas should be ‘‘protected from sections 4, 7, 9, and 10 of the Act, and form. For these reasons, we are not able disturbance or are representative of the should encompass costs that would be to consider the plan as a basis for historic geographical and ecological considered and evaluated in light of the excluding Eagle Creek at this time. We distributions of a species (50 CFR Gifford Pinchot ruling. Additionally, in understand it is the intention of the § 424.12(b)(1)–(5); 70 FR 75551; this critical habitat designation, we are Association to finalize and implement December 20, 2005).’’ In other words, if designating areas that are occupied, as the plan, and we look forward to suitable locations are available defined elsewhere in this rule, by one or working cooperatively with the elsewhere, it does not make sense to both species; thus, there is already a Association in these efforts. Once the designate critical habitat along stream requirement for consultation with the plan has been finalized and reaches that are already impacted by Service over any water and land use implemented, we have the option of land or water use activities or will soon actions that may affect these species. excluding those portions of Eagle Creek be impacted by those activities. The The purpose of the consultation process covered by the plan. As discussed in Service applied this criterion in some is not to ‘‘Federalize’’ private projects, ‘‘Exclusions under Section 4(b)(2) of the places (e.g., the upper San Pedro River, but to ensure that federally-sponsored Act’’ below, we have excluded other p. 75546) and portions of the Black activities do not jeopardize listed portions of Eagle Creek from critical River complex (p. 75560) that were species or adversely modify or destroy habitat based on other information found to have too high an abundance of designated critical habitat. available to us. nonnative fish to be important habitat), (51) Comment: The Gila Settlement (53) Comment: The Blue River should but did not apply it in others (i.e., and associated agreements allow the be excluded from critical habitat in middle Verde River, Gila River, and State of New Mexico to divert for order to ensure that the ongoing lower San Pedro River). The Service consumptive use 14,000 acre feet of coordination between the Service and should apply this criteria and standards water originally set aside under the the Blue River Native Fisheries, consistently to evaluate each PCE Central Arizona Project authorizing Research and Education Center is among all potentially suitable habitats legislation. The diversion of this unencumbered. in a transparent process. additional 14,000 acre-feet of water Our response: At this time we have no Our response: We do not agree that almost doubles current adjudicated documentation, such as a management critical habitat should not be designated withdrawal from the Gila and San plan, to evaluate in terms of a potential in areas that have experienced some Francisco rivers and could significantly exclusion of the Blue River from the level of impact to the habitat. As impair river function and riparian critical habitat designation. previously stated, designation of critical conditions and threaten native species Additionally, the majority of property habitat focuses on the areas that contain such as the loach minnow and along the Blue River is under Forest the PCEs and provide for the spikedace. Service management and management conservation of the species, rather than Our response: The Service is an active activities for the conservation of the the threats that may be present in an partner on the Gila and San Francisco spikedace and loach minnow would area. Thus, our methodology focuses on

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13367

occupied areas that contain the PCEs under the Act. The critical habitat (62) Comment: For spikedace, the and not on the type or level of threat designation will not protect the loach Verde River from Tapco Diversion Dam that occur in these areas. In addition, we minnow from the threat of nonnatives down to Fossil Creek should be note that we have limited suitable and therefore special management is not excluded. Although spikedace were habitat remaining for these species such required. found in 1999 in areas upstream, they that additional suitable locations are not Our response: The Act does not have not been found downstream of the available elsewhere. See also our require that critical habitat alleviate Sycamore Creek confluence in over 20 response to comment 58 below. threats to the species. We have years. Although this area is connected to (56) Comment: Bear Creek should be determined that various threats are the occupied areas upstream, the Tapco designated as loach minnow critical present in all the rivers we proposed as Dam and numerous nonnative fishes habitat from its junction with the Gila critical habitat, as identified in Table 1. occupy this reach and may serve to River upstream to the junction with its As required by the Act and the disconnect it from the upstream areas. tributaries Cherry Creek and Little definition of critical habitat, we provide Our response: We believe the Verde Cherry Creek. a discussion of known threats for each River meets the definition of critical Our response: As noted in the notice area to indicate that the biological and habitat for spikedace as we consider this to reopen the comment period physical features essential to the area occupied based on occupancy published on June 6, 2006 (71 FR 32498, conservation for these fish may require records from 1999. Additionally, the p. 32496), we did not propose Bear special management considerations or Verde contains one or more of the PCEs Creek because of the timeframe for protection. including appropriate flow velocities, completion of the final rule and (59) Comment: Habitat requirements gradients, temperatures, habitat associated documents. Information on for both of the species are different and components (pool, riffle, run and occupancy of Bear Creek was received the Service should recognize this and backwater), and an abundant aquatic late in the process. Should critical not combine them. insect food base, and it requires special habitat be revised in the future, Bear Our response: We agree that there are management or protection. However, Creek would be considered for differences in the habitat requirements pursuant to section 4(b)(2) of the Act, inclusion. of both species and we have we have excluded the lower portion of (57) Comment: Due to seasonal lack of distinguished this in our PCEs for each the Verde River (see ‘‘Exclusions under water flows, Eagle Creek is unsuitable of the fish. We note that it is not Section 4(b)(2) of the Act’’ below). habitat for designation below the Gila unusual for streams to support habitat (63) Comment: Regarding definition of and Salt River base line to the types for both the spikedace and loach adverse modification, the Service’s confluence with Willow Creek. minnow, often within the same reach, definition erroneously eliminates Additionally, from Willow Creek to the and some streams are occupied by both congressional intent that critical habitat Phelps Dodge diversion dam, flows are species (e.g., the Gila River and designations provide protection not just augmented to provide fresh water for Aravaipa Creek). to survival of a species but to its mining operations and for potable use at (60) Comment: The proposed rule recovery as well. It was the opinion of the Morenci and Clifton townsites. This states that ‘‘individual streams are not the court that ‘‘the purpose of portion of Eagle Creek does not qualify isolated, but are connected with others establishing ‘critical habitat’ is for for designation because: (1) These to form areas or complexes.’’ This government to carve out territory that is augmented flows do not provide a statement does not hold true for not only necessary for the species’ natural, unregulated hydrograph that Complex 4. Eagle Creek is currently survival but also important for the allow for adequate river functions; (2) isolated from the San Francisco and species’ recovery.’’ (Sierra Club v. flow velocities are frequently higher Blue River complexes by a diversion USFWS, 245 F.3d 434 (5th Cir. 2001). than those required for these native fish; dam. The Blue River will become The proposed rule for spikedace and (3) pool, riffle, run, and backwater inaccessible to upstream migration from loach minnow rejects that approach and components are not present; and (4) the rest of the complex if a proposed relies on Service policy limiting critical non-native fish dominate this reach to fish barrier is constructed on the Blue habitat to only those areas occupied by an extent detrimental to natives and River. the species. prevents the persistence or even Our response: We have clarified the Our response: The Act states, at occupancy of loach minnow or language in this final rule to indicate section 3(5)(c), that except in particular spikedace. that collections of streams in proximity circumstances determined by the Our response: We do not agree with to each other were grouped together to Secretary, critical habitat shall not this comment. While this portion of form a category called ‘‘complexes.’’ include the entire geographical area Eagle Creek has been modified by both Streams need not be hydrologically which can be occupied by the addition of flows and by the diversion connected in order to be grouped threatened or endangered species. Thus, structure, suitable habitat still exists. As together. it is not the intent of the Act that we stated previously, we consider those (61) Comment: No spikedace have designate critical habitat in all areas that areas that meet our definition of been observed in Eagle Creek for 17 have the potential to become suitable occupancy and support one or more of years, thus the segment does not meet habitat or in all areas of historic habitat. the PCEs as areas the meet the definition the criteria for occupancy. We have determined that our of critical habitat. Eagle Creek met these Our response: We agree, as the last methodology for determining those criteria. As discussed below, we have record for spikedace in Eagle Creek was areas containing features essential to the excluded portions of Eagle Creek in 1989. Thus, critical habitat for conservation of the spikedace and loach pursuant to section 4(b)(2) of the Act. spikedace in Eagle Creek has been minnow complies with the intent of the (58) Comment: Areas without threats removed from the final rule. However, Act and does not include all areas such as the San Francisco and the Eagle Creek is considered critical habitat which can be occupied. Our middle reach of the mainstem Gila River for the loach minnow. As discussed in methodology resulted in areas being do not require special management the exclusion section below, portions of proposed as critical habitat that are considerations or protection and thus Eagle Creek have been excluded from within the geographical range occupied can not be designated as critical habitat the final rule. by the spikedace and loach minnow and

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13368 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

that contain the biological or physical environmental baseline to include the are available for public review (see features essential to their conservation past and present impacts of all Federal, ADDRESSES section). and that may require special State, or private actions and other (70) Comment: The draft EA fails to management. human activities in the action area, the consider the impacts of critical habitat (64) Comment: The approach anticipated impacts of all proposed on the Arizona Water Settlements Act of proposed by the Service for determining Federal projects in the action area that 2004, which authorizes the exchange of whether to exclude Tribal lands from have already undergone formal or early Central Arizona Project (CAP) water the final rule places undue weight on section 7 consultation, and the impact diverted from the Colorado River into the argument that inclusion of Tribal of State or private actions which are New Mexico from the Gila River. The lands will compromise government-to- contemporaneous with the consultation project is reasonably foreseeable government relations, to the potential in process. The proposed rule would because New Mexico recently detriment of species conservation goals. expand that definition to include negotiated and executed an exchange Additionally, under relevant Federal ‘‘ongoing Federal actions at the time of agreement. The draft EA (p. 45) court precedent in Arizona, the Service designation’’ regardless of whether they acknowledges the project but fails to is not permitted to rely upon assurances have already undergone formal or early discuss the impacts. by the tribes that habitat will be section 7 consultation. Our response: Page 49 of the EA states ‘‘adequately managed’’ through the Our response: The language that the San Carlos Apache Tribe is implementation of Tribal management referenced above has been removed concerned that the designation of plans as a basis for exclusion. from this final rule. critical habitat for the spikedace and Our response: We disagree. See below General Comments Issue 3: National loach minnow would further complicate for our analyses of the exclusion of Environmental Policy Act Compliance the procedure for getting the CAP Tribal lands pursuant to section 4(b)(2) project approved. The Bureau of (69) Comment: We believe the of the Act. Reclamation states that this project analysis in the draft environmental (65) Comment: Ten days is not would be reevaluated before an enough time to review all of these new assessment to be simplistic and conclusory (See Middle Rio Grande exchange could occur and a new documents. There should be a delay in consultation is likely. designating critical habitat until the Conservancy Dist. v. Norton). The impacts on the environment will be (71) Comment: The Service failed to information can be properly reviewed. consider a reasonable range of Our response: We agree that the last significant and controversial. The alternatives to the proposed action in its comment period was shorter than we critical habitat designation as proposed EA. would have preferred. However, we is likely to result in adverse impacts on Our response: We disagree. The draft have an obligation to submit for riparian areas, not only within the EA considered a no-action alternative publication a final rule on December 20, critical habitat itself, but also in the and several action alternatives and 2005, and thus we were not able to areas located upstream and analyzed the adverse and beneficial accommodate a longer comment period. downstream. The impacts on water use environmental impacts of each. In addition, we believe the three and management are significant and (72) Comment: One alternative that comment periods allowed for adequate controversial. seems worthy of consideration is the opportunity for public comment. A total Our response: We determined through designation of known occupied habitat, of 100 days was provided for document the EA that the overall environmental rather than the designation of an entire review and the public to submit effects of this action are insignificant. stream based upon limited sightings in comments. An EIS is required only if we find that (66) Comment: The Phelps Dodge the proposed action is expected to have a limited area (e.g., Eagle Creek) or plans should undergo peer review and a significant impact on the human consideration of designating only revision before being considered as environment. The completed studies, Federal lands. The Service’s failure to sufficient conservation management. evaluations, and public outreach ‘‘rigorously explore’’ and evaluate Our response: Although formal peer conducted by the Service have not reasonable alternatives is per se review of management plans is not identified impacts resulting from the arbitrary and capricious. conducted or required, the documents proposed designation of critical habitat Our response: We disagree. The are available for public review and that are clearly significant. The Service alternatives considered are consistent comment during the open comment has afforded substantial public input with the purpose and need of the action period. and involvement, with two public of designating critical habitat. In (67) Comment: Phelps Dodge’s hearings and open houses. Each of these compliance with the Act, we must Management Plan does not assure the events had a small participation level by propose for designation those areas that maintenance of the PCEs for the the public (less than 10 in Arizona, less we have determined are essential, as spikedace and loach minnow. than 20 in New Mexico, and less than well as those areas containing features Our response: We have determined 30 written comments on the draft essential, to the conservation of the the formation of this working environmental assessment). Based on spikedace and loach minnow. Only relationship will promote the our analysis and comments received considering Federal lands for conservation of the loach minnow and from the public, we prepared a final EA designation would not, in this case, spikedace and their PCEs on Phelps and made a Finding of No Significant comply with the intent of the Act. As Dodge’s property. See exclusion section Impact (FONSI), negating the need for discussed elsewhere in this rule, the below for a more detailed discussion of preparation of an EIS. We have areas proposed for designation were their management plans and analysis of determined our EA is consistent with based on our definition of occupancy. this exclusion. the spirit and intent of NEPA. The final See also response to comment 71 above. (68) Comment: The proposed rule is EA, FONSI, and final economic analysis (73) Comments: In the NEPA analysis, an inappropriate venue for changing the provide our rationale for determining it should be recognized that there are regulatory definition of section 7 that critical habitat designation would positive aspects that have been observed consultation ‘‘baseline.’’ Section 7 not have a significant effect on the from human culture and interaction. regulations (51 FR 19958) define human environment. Those documents That analysis is required by law.

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13369

Our response: The purpose of a NEPA opportunity costs, which reflect the may be replaced with stocked native analysis is to determine the potential value of goods and services foregone in fish (e.g. Gila trout). Thus, this analysis impacts of a proposed set of alternative order to comply with the effects of the estimates the value of angler days at risk actions on the human environment. It is designation (e.g., lost economic if sportfish stocking were discontinued not the purpose of NEPA to evaluate the opportunity associated with restrictions on these reaches as part of the high end positive aspects of humans and their on land use). Where data are available, estimates. environment. the economic analysis does attempt to (78) Comment: One commenter states measure the net economic impact. For concerns that the Economic Analysis General Comments Issue 4: Economic example, if the fencing of spikedace and does not take into consideration the past Analysis loach minnow habitat to restrict riparian effects of fishing closures on the Blue General Methodology access for cattle is expected to result in River and Eagle Creek on local an increase in the number of individuals businesses. The comment states that one (74) Comment: Two commenters visiting the site for wildlife viewing, store in Greenlee County closed as a recommend that the Economic Analysis then the analysis would attempt to net result of reduced fishing activity. discuss impact estimates for the Verde out the positive, offsetting economic Our response: Section 6.1.1 of the River unit as two separate subunits: An impacts associated with their visits (e.g., FEA states that ‘‘the AZGFD ceased Upper Verde reach from Sullivan Dam impacts that would be associated with stocking of sportfish in Eagle Creek and to the Allen Diversion and a Lower an increase in tourism spending). the Blue River in Apache-Sitgreaves Verde reach from the Allen Diversion to However, no data were found that National Forest due to native fish Fossil Creek. would allow for the measurement of considerations in the late 1990s and Our response: The Final Economic such an impact, nor was such began stocking endangered Gila trout in Analysis (FEA) incorporates new information submitted during the public these reaches instead. Spikedace and information received, and separates comment period. loach minnow were among numerous costs associated with the Upper Verde (76) Comment: One commenter states species considered when these stocking and Lower Verde River segments where that many of the economic impacts cessations were put in place. Although possible. This distinction is made most attributed to spikedace and loach several citizens at a public hearing held apparent in sections 7 and 8, and minnow critical habitat in the Verde in Thatcher, Arizona, in 1999 voiced Appendix B of the FEA. Valley could be attributed to razorback disappointment that the sites are no (75) Comment: One commenter states sucker critical habitat. longer stocked, these changes in that the economic analysis fails to Our response: To the extent possible, stocking have not affected the overall quantify the benefits associated with the FEA distinguishes costs related number of fish stocked in Arizona. critical habitat designation. The specifically to spikedace and loach However, there may have been commenter further states that although minnow conservation where multiple consumer surplus losses associated with the Verde Valley Complex is singled out species are the subject of a single these closures because anglers may now as the reach where the largest impacts conservation effort or section 7 take trips to less preferred sites. It will occur, there is no basis for this consultation. In the case that another should be noted that any past impacts conclusion without exploring the ‘‘net species clearly drives a project would have occurred prior to this impacts’’ through incorporation of modification or conservation effort, the critical habitat rule taking effect.’’ benefit estimates and comparisons to associated costs are appropriately not Section 6 and Appendix B of the FEA baseline. attributed to the spikedace and loach now highlight that the curtailment of Our response: Section 4(b)(2) of the minnow. In Section 6, the FEA includes stocking in these reaches has caused Act requires the Secretary to designate language that clarifies that the Verde some economic impacts on local critical habitat based on the best River is designated as critical habitat for businesses. scientific data available after taking into the razorback sucker. consideration the economic impact, and Water Use and Grazing Issues any other relevant impact, of specifying Recreational Activities (79) Comment: One commenter states any particular area as critical habitat. (77) Comment: One commenter that exclusion of livestock from riparian The Service believes that society places expressed concern that the designation areas using fencing has actually had an a value on conserving any and all of critical habitat will cause a loss of adverse effect on the spikedace and threatened and endangered species and recreational activities on units such as loach minnow. the habitats upon which they depend. In the Verde River. Our response: The Economic Analysis our 4(b)(2) analysis below, we discuss Our response: Potential changes to recognizes that some controversy the economic benefits of excluding recreational activities are discussed in surrounds the issue of the impacts of portions of the Verde River and the Section 6 of the FEA. Potential impacts livestock on native fish species. Section conservation benefits related to the on recreational fishing losses are 4.1 of the FEA now states that ‘‘in inclusion of this stream segment. specifically discussed and estimated in public comments, private ranchers have Although, in this case, we are not able Section 6.4.2 of the FEA. Potential costs suggested that current management has to quantify the monetary value of associated with lost recreational fishing been successful at mitigating the critical habitat benefits in the Verde activity on the two stream segments negative effects of grazing on spikedace Valley Complex, we did consider the where non-native fish stocking currently and loach minnow habitat and that benefits that may be derived from a occurs are estimated to be $0 to $8.6 further limitation of grazing would critical habitat designation when million, using a discount rate of seven create conditions conducive to non- considering an exclusion pursuant to percent. As noted in Section 6.1.2, the native species. Some commenters have section 4(b)(2). future impact of proposed critical also suggested that fencing may be The Service’s approach for estimating habitat on the stocking regimes in detrimental to the species.’’ economic impacts includes both affected reaches is unknown, as is the (80) Comment: One commenter stated economic efficiency and distributional reduction in fishing activity that would that estimates of riparian fencing and effects. The measurement of economic occur if stocking is curtailed. Further, it maintenance costs in the Economic efficiency is based on the concept of is unknown whether non-native trout Analysis are low.

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13370 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

Our response: As presented in Section adversely impacted by the critical value potentially foregone ($38.5 4.4 of the FEA, fencing and maintenance habitat designation, or what data will be million in $2005) is included in high costs were developed using numerous relied upon in determining subflow. end estimates of impacts on water use. published sources, as well as through Our response: Section 3 of the (84) Comment: One commenter states discussions with both Forest Service Economic Analysis states that future that nothing was included on the costs and BLM. Fencing costs are presented as impacts on water users are possible due to retire farm and ranchland along the a range between $1,500 and $15,000 per to spikedace and loach minnow San Pedro River. river mile of fence construction, with an conservation efforts if less water is made Our response: Section 3 of the additional $110 to $2,600 in fence available for diversion to accommodate Economic Analysis identifies, to the maintenance. the spikedace and loach minnow. The extent possible, water users potentially (81) Comment: One commenter analysis also states that there are affected by spikedace and loach suggests that data in the Economic currently no data that indicate whether minnow conservation efforts. Exhibit 3– Analysis on agricultural establishments existing or future diversions of water 7 includes a description of 64 acres of in Greenlee County are incorrect. The (including groundwater use) reduce cropland that fall within the San Pedro commenter provides information on stream flow or modify hydrologic River segment, and 720 acres of ranching operations on Eagle Creek. The conditions to a degree that adversely cropland that fall within the vicinity of comment states that the Four Drag impact the spikedace and loach minnow proposed critical habitat. These acres Ranch, Seven Cross A Ranch, Anchor or their habitat. In addition, hydrologic are valued at $394,000 to $4.5 million Ranch, Double Circle Ranch, and Tule models are unavailable to assess the role (2005 dollars). Ranch are located on Eagle Creek. of any specific groundwater pumping (85) Comment: Two commenters state Our response: Appendix B, Exhibits activity or surface water diversion in that the Economic Analysis fails to B–2, B–3, and B–4 provide data on the determining stream flow or other consider impacts of the rule on the number of farm operations, number of hydrologic conditions within critical Arizona Water Settlements Act of 2004, ranching operations, and annual sales habitat. As such, this analysis does not Public Law 108–451. by county, as reported by the National quantify the probability or extent to Our response: Section 3.5.5 of the Agricultural Statistics Survey. Section 2 which water use would need to be FEA provides additional detail provided presents the number of establishments curtailed or modified to remedy impacts by the commenters about the 2004 and employees in the Agriculture, on spikedace and loach minnow. It Arizona Water Settlements Act (Pub. L. Forestry, Hunting, and Fishing Support does, however, provide information on 108–451) as it relates to the proposed industries, as reported by the U.S. the potential scale of the economic stretch of the Gila River in New Mexico. Census. A note was added to Exhibit 2– impacts that could occur if requirements (86) Comment: One commenter states 7 that clarifies the source of the data associated with spikedace and loach that the Economic Analysis makes no used and also refers readers to minnow conservation result in changes attempt to quantify the impacts to Appendix B, Exhibits B–2 through B–4. in water diversions or conveyance. farming activities in the Gila Valley. The Although specific ranches are not Specifically, the analysis addresses commenter further states that the named, Section 4 estimates that impacts potential impacts on water used for Service cannot simply declare that, due on grazing activities on Eagle Creek may irrigated agriculture. The analysis states to data and model limitations, the range from $5,000 to $126,000 over the that it is possible that irrigation analysis is not able to answer the next 20 years (discounted at seven activities could be affected if farmers question of whether impacts to water percent). make efforts to maintain adequate water users are likely. (82) Comment: One commenter states quantity and flow for the spikedace and Our response: Section 3.5.3 of the that the potential loss of the ability to loach minnow in the future. Because FEA discusses potential impacts of divert surface water and possibly agricultural water use comprises 98 spikedace and loach minnow groundwater is the most important percent of surface water use and 81 conservation activities on the Middle economic, social, and environmental percent of groundwater use in counties Gila/Lower San Pedro/Aravaipa Creek consideration in the Verde River unit, that contain critical habitat, it appears Complex (Complex 3). As stated in the and that the cost associated with such most likely that, if additional water analysis, ‘‘approximately 135 acres of a loss of water is not calculated into the supplies are needed for these species, lands used for cropland irrigation are examples provided in Chapter 7 of the they would come from current located within Complex 3, and 1,220 Draft Economic Analysis. agricultural water use. Thus, the acres are located in the valley that Our response: Chapter 7 of the FEA analysis assumes that to accommodate contains proposed critical habitat. The focuses on potential impacts to spikedace and loach minnow, farmers value of croplands in proposed critical residential and commercial may give up water and cease to farm, habitat is approximately $11,000, while development construction activities in resulting in losses of agricultural land lands in the vicinity of proposed critical critical habitat areas. Issues related to value. Should irrigated agriculture be habitat are valued at approximately $7.5 water use are discussed in Chapter 3 of curtailed to accommodate spikedace million. Approximately $15,000 in the analysis. Section 3.5.1 specifically and loach minnow, approximately 830 Natural Resource Conservation Service discusses water use in the Verde Valley, acres within proposed critical habitat, or funding was allocated to farms in and provides estimates of the number of 6,310 acres that fall in the vicinity of proposed critical habitat areas on these potentially affected surface water users critical habitat that are currently segments in 2005.’’ The value of these and groundwater wells. Potentially irrigated for cropland agriculture could at-risk agricultural lands are included in affected agricultural lands within the be retired from production. The impact estimates for this unit. Thus, Verde River Complex are valued at irrigated crop production at risk of being while the Economic Analysis does not between $3.1 million and $30.3 million. lost is valued at approximately $4.5 identify the likelihood of these impacts, (83) Comment: One commenter states million ($2005) within proposed critical it does quantify them and include them that the Economic Analysis did not habitat areas, or approximately $38.5 in potential future cost estimates. discuss decreed water rights associated million ($2005) including lands that (87) Comment: One commenter states with surface water diversion ditches rely on water diverted from proposed that the projected project modification and how those decreed rights will be critical habitat. Thus, the total cropland costs are estimated at $13,500 per water

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13371

project resulting from the critical habitat and loach minnow. Specifically, the include Morenci Mine, Tyrone Mine, designation, and that this estimate is analysis states that: Christmas Mine, and United Verde based on estimates of costs at Fort ‘‘While few active mineral mining Mine. The commenter further states that Huachuca. The commenter states that activities occur within the proposed critical the Economic Analysis does not project modification costs at Fort habitat, the mining industry has expressed consider potential effects to Phelps Huachuca are costing ‘‘tens-of-millions concern that water use by existing or Dodge grazing and agricultural activities of dollars.’’ The commenter states that potential mining operations could be affected related to proposed critical habitat. Phelps Dodge has recently incurred by endangered species conservation Our response: Section 5 of the Draft costs in excess of one million dollars for activities, particularly the designation of critical habitat. Critical to an understanding Economic Analysis identified the southwestern willow flycatcher of the potential for impacts on water Morenci Mine, the Tyrone Mine, and mitigation, and thus water project cost diversions or conveyance is an the Christmas Mine as being potentially estimates for spikedace and loach understanding of the probability and affected by proposed critical habitat. minnow critical habitat are low. magnitude of any such changes. As detailed Because the United Verde Mine falls Our response: The FEA includes in this section, there is currently no data that outside of proposed critical habitat and specific cost estimates for particular indicates whether existing or future has been inactive since 1953, it was not water projects expected to occur within diversions of water for mining activities specifically described in the Draft (including groundwater use) reduces stream proposed critical habitat areas in flow or modifies hydrologic conditions to a Economic Analysis. The FEA now Chapter 3 of the FEA. Typical project degree that adversely impacts the spikedace includes a discussion of impacts to modifications for water projects in the and loach minnow or their habitat. In United Verde Mine along with the other past have included minimizing addition, hydrologic models are unavailable mines. As described by the commenter, activities within the wetted channel, to assess the role of any specific mining current activities at the United Verde ensuring no pollutants enter surface facility’s groundwater pumping or surface Mine area primarily include leasing waters, replanting riparian vegetation, water diversions in determining stream flow water to agricultural activities. Potential monitoring for up to ten years, and or other hydrologic conditions within critical impacts of proposed critical habitat on habitat. As such, this analysis does not agricultural water use are addressed in conducting research studies. Future quantify the probability or extent to which project modifications are assumed to be water use for mining purposes would need to Section 3 of the FEA. Potential impacts similar to those associated with a low- be curtailed or modified to remedy impacts of proposed critical habitat on ranching flow gauge installation to measure flow on spikedace and loach minnow. activities, for all landowners, are in the Verde River that occurred as part Given these data and model limitations, addressed in Section 4 of the FEA. of a section 404 permit from U.S. Army this analysis does not answer the question of (90) Comment: One commenter states Corps of Engineers, or $13,500 per whether impacts to mining operations are that the Economic Analysis fails to project. Costs associated with the past likely (i.e., the probability of such impacts), consider the replacement costs or define the expected magnitude of these consultation on Fort Huachuca are not impacts. It does, however, provide associated with water users that may be included as part of these estimates, nor information on the potential scale of the impacted by the critical habitat are they included in the analysis, as Fort economic impact that could occur if designation. These costs are extremely Huachuca falls well outside the requirements associated with spikedace and high because water supplies in the west boundaries of proposed critical habitat, loach minnow conservation result in changes are scarce and not easily replaceable. and downstream of proposed habitat in water diversions or conveyance. Other costs relating to impacts on water areas. Quantified costs associated with Specifically, to allow for an understanding of use not considered include search, water-related projects also include the economic activities that could be at risk infrastructure, and lost profits from if modifications to water use or conveyance potential costs associated with costs of are required, this analysis provides data on curtailed operations at mining facilities. retiring agricultural cropland in order to the location of mining activities potentially Our response: The revised analysis provide sufficient water for the species. associated with CHD (critical habitat includes estimates of potential losses Potential costs to municipal, industrial designation) areas, as well as data on the provided by the commenter in Section and Tribal water use are also discussed, regional economic importance of these 5 of the analysis. As stated in Response but not quantified. Expenditures made operations.’’ 87, it is not contested that, should water on behalf of the southwestern willow The commenter provides hypothetical be lost to mining activities as a result of flycatcher are not relevant to this situations in which water currently used conservation activities for the spikedace analysis. by mining operations may be lost to and loach minnow, costs to the mining Mining Impacts mining activities, and calculates a value industry would be incurred. However, of the lost water rights and associated considerable uncertainty exists as to the (88) Comment: One commenter states replacement costs. While we do not likelihood, magnitude, and specific that the Economic Analysis failed to disagree that, should the water be lost costs of water losses. adequately evaluate impacts to mining to mining activities, such costs could Small Business Impacts operations and water use in the arid occur, there remains considerable southwest as a result of the proposed uncertainty as to the likelihood of such (91) Comment: One commenter states designation, resulting in a dramatic events. Nonetheless, the revised that the Economic Analysis would be understatement of economic impacts. analysis includes estimates of potential clearer if it reported the number of The commenter commissioned a report losses provided by the commenter in developers that are likely to be affected that estimates economic impacts to Section 5 of the analysis, to provide in the small business analysis. Phelps’s Dodge’s operations at the additional context for understanding the Our response: Appendix B, Small Tyrone Mine alone to exceed $100 potential magnitude of impacts, should Business and Energy Impacts Analyses, million. they occur. considers the extent to which the Our response: Section 5 of the FEA (89) Comment: One commenter states analytic results presented in the main evaluates potential impacts to mining that the Economic Analysis does not body of the FEA reflect potential future operations. Section 3 of the analysis identify all of the Phelps Dodge mines impacts to small businesses. Appendix addresses impacts to water use that may that may be affected by critical habitat B has been revised to provide additional occur in order to protect the spikedace designation. Potentially affected mines details about the number of developers

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13372 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

potentially affected by proposed critical farms. The commenter suggests that estimates are fully co-extensive). In habitat designation. using the median farm size would 2001, the U.S. 10th Circuit Court of (92) Comment: One commenter states improve results. The commenter also Appeals instructed the Service to that the Economic Analysis would be states that, because the Economic conduct a full analysis of all of the stronger if it provided data on the Analysis does not provide data on the economic impacts of proposed critical impact of critical habitat on small impacts on beef cattle ranching habitat designation, regardless of entities that thrive on the area’s operations, it is difficult to determine whether those impacts are attributable recreational activities. To collect such whether there will be a significant co-extensively to other causes (New information, the commenter suggests impact on this industry. The commenter Mexico Cattle Growers Ass’n v. that the Service seek public input on the also states that using the average U.S.F.W.S., 248 F.3d 1277 (10th Cir. reduction of fishing activity if stocking revenues of all ranching operations, 2001)). The economic analysis complies is curtailed. including both large and small business, with direction from the U.S. 10th Our response: Appendix B considers likely skews the average to the upper Circuit Court of Appeals. the extent to which the analytic results end by including a few large ranches. presented in the main body of the FEA Our response: Appendix B considers Summary of Changes From Proposed reflect potential future impacts to small the extent to which the analytic results Rule businesses. As stated in the Appendix, presented in the main body of the FEA Based upon our review of the public ‘‘the future impact of proposed CHD on reflect potential future impacts to small comments, economic analysis, the stocking regimes in these reaches is businesses. Appendix B has been environmental assessment, issues unknown, as is the reduction in fishing revised to estimate the number of addressed at the public hearings, and activity that would occur if stocking is affected farms using average revenues as any new relevant information that may curtailed. Further, it is unknown well as using median revenues. have become available since the whether non-native fish stocking may be Appendix B does provide data on the publication of the proposal, we replaced with catchable native fish impact to beef cattle ranching reevaluated our proposed critical habitat stocking (e.g. Apache trout). Thus, this operations, including revenue data for designation and made changes as analysis estimates the value of angler beef cattle ranching operations, the appropriate. Other than minor days at risk if sportfish stocking were number of ranches in each county, and clarifications and incorporation of discontinued on these reaches as part of the expected impact of the proposed additional information on the species’ the high end estimates. Angling trips are rule on these entities. While specific biology, status, and threats, this final valued at approximately $8.6 million revenue data for affected small beef rule differs from the proposal by the over 20 years (or $816,000 annually), cattle ranches is not readily available, a following: assuming a discount rate of 7 percent. proxy for this is developed in the (1) We excluded lands of the San It should be noted that because State revised Appendix by eliminating the Carlos Apache, White Mountain fish managers typically identify revenue outlier (Pinal County) from the Apache, and Yavapai-Apache Tribes alternative sites for stocked fish when average revenue estimates. This results pursuant to section 4(b)(2) of the Act areas are closed to stocking, these angler in an estimate of average revenues for (see ‘‘Exclusions Under Section 4(b)(2) days are likely to be redistributed to small ranches in the region of $42,500. of the Act’’ section below). other areas rather than lost altogether. The analysis therefore estimates that (2) We excluded lands owned by the Thus, the high-end estimate does not approximately 72 small ranching Phelps Dodge Corporation on the Gila consider the possibility that rather than operations may experience a reduction River and Eagle Creek pursuant to not fishing at all, recreators will visit in revenues of between 0.9 and 22 section 4(b)(2) of the Act (see alternative, less desirable fishing sites. percent of annual revenues annually. ‘‘Exclusion Under Section 4(b)(2) of the Existing models of angler behavior in These ranches represent 4.7 percent of Act’’ section below.) these areas were not available to refine ranches in affected counties, or one this estimate.’’ The Appendix further percent of ranches in New Mexico and (3) We excluded a portion of the states that ‘‘if, as in the high-end Arizona. Verde River pursuant to section 4(b)(2) estimate of impacts, angler trips to the (94) Comment: One commenter states of the Act (see ‘‘Exclusion Under two stream reaches that currently stock that estimated average revenue for Section 4(b)(2) of the Act’’ section non-native fish are not undertaken, ranchers in Greenlee County of below.) localized impacts on anglers and, in $133,000 is incorrect, and that, given (4) We modified the primary turn, small businesses that rely on the current drought, it is likely to be too constituent elements for clarity and to fishing activities could occur. These high. reflect additional information received impacts would be spread across a Our response: Appendix B of the FEA during the public comment period. variety of industries including food and lists the average revenues for cattle and (5) We made technical corrections to beverage stores, food service and calf ranches in Greenlee County as township, range, section legal drinking places, accommodations, $19,100. We have incorporated an descriptions, the confluence point of the transportation, and sporting goods.’’ To acknowledgement that revenue is East Fork Black and North Fork East conduct a survey of specific potential dependent on, and may fluctuate with, Fork Black rivers, and the upstream effects of closures is beyond the scope natural conditions such as drought. endpoint on Eagle Creek. Overall of this analysis. The revised Appendix (95) Comment: One commenter states mileage from the proposed to the final does, however, include a reference to that there is no attempt to define designation was slightly reduced by public comment received regarding a baseline conditions in order to conduct approximately 0.5 river miles as a result past store closure that occurred due to a ‘‘with’’ and ‘‘without’’ analysis as of these corrections. past area closures. prescribed by Executive Order 12866. (6) Eagle Creek is no longer included (93) Comment: One commenter states Our response: The economic analysis in the designation of critical habitat for that the average number of acres in estimates the total cost of species the spikedace, as further review of the farms applied in the small business conservation activities without available information shows this area analysis is skewed due to the inclusion subtracting the impact of pre-existing does not meet our definition of of a few very large (non small-business) baseline regulations (i.e., the cost occupied, and therefore does not meet

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13373

our criteria for defining critical habitat Habitat occupied at the time of listing recognize that designation of critical for the spikedace. may be included in critical habitat only habitat may not include all of the if the features essential to the habitat areas that may eventually be Critical Habitat conservation of the species therein may determined to be necessary for the Critical habitat is defined in section 3 require special management or recovery of the species. For these of the Act as—(i) The specific areas protection. Thus, we do not include reasons, critical habitat designations do within the geographical area occupied areas where existing management is not signal that habitat outside the by a species, at the time it is listed in sufficient to conserve the species. (As designation is unimportant or may not accordance with the Act, on which are discussed below, such areas may also be be required for recovery. found those physical or biological excluded from critical habitat pursuant Areas that support populations, but features (I) essential to the conservation to section 4(b)(2).) Accordingly, when are outside the critical habitat of the species and (II) that may require the best available scientific data do not designation, will continue to be subject special management considerations or demonstrate that the conservation needs to conservation actions implemented protection; and (ii) specific areas of the species require additional areas, under section 7(a)(1) of the Act and to outside the geographical area occupied we will not designate critical habitat in the regulatory protections afforded by by a species at the time it is listed, upon areas outside the geographical area the section 7(a)(2) jeopardy standard, as a determination that such areas are occupied by the species at the time of determined on the basis of the best essential for the conservation of the listing. An area currently occupied by available information at the time of the species. Conservation, as defined under the species but that was not known to action. Federally funded or permitted section 3 of the Act, means to use and be occupied at the time of listing will projects affecting listed species outside the use of all methods and procedures likely, but not always, be essential to the their designated critical habitat areas necessary that bring any endangered conservation of the species and, may still result in jeopardy findings in species or threatened species to the therefore, included in the critical habitat some cases. Similarly, critical habitat point at which the measures provided designation. designations made on the basis of the pursuant to the Act are no longer The Service’s Policy on Information best available information at the time of necessary. Such methods and Standards Under the Endangered designation will not control the procedures include, but are not limited Species Act, published in the Federal direction and substance of future to, all activities associated with Register on July 1, 1994 (59 FR 34271), recovery plans, habitat conservation scientific resources management such as along with Section 515 of the Treasury plans, or other species conservation research, census, law enforcement, and General Government planning efforts if new information habitat acquisition and maintenance, Appropriations Act for Fiscal Year 2001 available to these planning efforts calls propagation, live trapping, and (Pub. L. 106–554; H.R. 5658) and the for a different outcome. transplantation, and, in the associated Information Quality extraordinary case where population Guidelines issued by the Service Primary Constituent Elements pressures within a given ecosystem provide criteria and establish In accordance with section 3(5)(A)(i) cannot be otherwise relieved, regulated procedures to ensure that decisions of the Act and regulations at 50 CFR taking. made by the Service represent the best 424.12, in determining which areas to Critical habitat receives protection scientific data available. They require propose as critical habitat, we consider under section 7 of the Act through the Service biologists, to the extent prohibition against destruction or consistent with the Act and with the use those physical and biological features adverse modification of critical habitat of the best scientific data available, to (primary constituent elements (PCEs)) with regard to actions carried out, use primary and original sources of that are essential to the conservation of funded, or authorized by a Federal information as the basis for the species, and within areas occupied agency. Section 7 requires consultation recommendations to designate critical by the species at the time of listing, that on Federal actions that are likely to habitat. When determining which areas may require special management result in the destruction or adverse are critical habitat, the Service generally considerations and protection. These modification of critical habitat. The uses the listing package as a primary include, but are not limited to, space for designation of critical habitat does not source of information. Additional individual and population growth and affect land ownership or establish a information sources include the for normal behavior; food, water, air, refuge, wilderness, reserve, preserve, or recovery plan for the species, articles in light, minerals or other nutritional or other conservation area. Such peer-reviewed journals, conservation physiological requirements; cover or designation does not allow government plans developed by States and counties, shelter; sites for breeding, reproduction, or public access to private lands. scientific status surveys and studies, or rearing of offspring; and habitats that Section 7 is a purely protective measure biological assessments, or other are protected from disturbance or are and does not require implementation of unpublished materials and expert representative of the historical, restoration, recovery, or enhancement opinion or personal knowledge. All geographical, and ecological measures. information is used in accordance with distributions of a species. To be included in a critical habitat the provisions of Section 515 of the We determined the primary designation, the habitat within the area Treasury and General Government constituent elements for spikedace and occupied by the species must first have Appropriations Act for Fiscal Year 2001 loach minnow from studies on their features that are essential to the (Pub. L. 106–554; H.R. 5658) and the habitat requirements and population conservation of the species. Critical associated Information Quality biology including, but not limited to, habitat designations identify, to the Guidelines issued by the Service. Barber et al. 1970, pp. 10–12; Minckley extent known, using the best scientific Section 4 of the Act requires that we 1973; Anderson 1978, p. 7, 17, 31–37, data available, habitat areas that provide designate critical habitat on the basis of 41, 54; Barber and Minckley 1983, pp. essential life cycle needs of the species the best scientific and commercial data 34–39; Turner and Tafanelli 1983, pp. (i.e., areas on which are found the available. Habitat is often dynamic, and 15–20; Propst et al. 1986, p. 40–72, 82– primary constituent elements, as species may move from one area to 83; Hardy et al. 1990, pp. 19–20, 39; defined at 50 CFR 424.12(b)). another over time. Furthermore, we Douglas et al. 1994, pp. 12–14; Rinne

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13374 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

and Stefferud 1996, p. 14–17; and water temperatures in the stream. In and some are periodically dewatered. Velasco 1997, pp. 5–6. areas of fairly constant flow velocities While portions of stream segments (e.g., the second site), warmer water included in this designation may Spikedace temperatures were found in those experience dry periods, they are still The specific primary constituent portions of the stream with shallower considered important because the elements required for the spikedace are water (Propst et al. 1986, pp. 47–49). spikedace is adapted to stream systems derived from the biological needs of the Larval and juvenile spikedace, which with fluctuating water levels. While species as described in the Background occupy different habitats than adults, they can not persist in dewatered areas, section of this document and below. tend to occupy shallow, peripheral spikedace will use these areas as portions of streams that have slower connective corridors between occupied Space for Individual and Population currents (Anderson 1978, p.17; Propst et or seasonally occupied habitat when Growth and Normal Behavior al. 1986, pp. 40–41). Once they emerge they are wetted. Habitat Preferences from the gravel of the spawning riffles, Substrates. Spikedace are known to Spikedace have differing habitat spikedace larvae disperse to stream occur in areas with low to moderate margins where water velocity is very amounts of fine sediment and substrate requirements through their various life slow or still. Larger larval and juvenile embeddedness (filling in of spaces by stages. Generally, adult spikedace prefer spikedace (those fish 1.0 to 1.4 inches fine sediments), which are important intermediate-sized streams with (25.4 to 35.6 mm) in length) occurred features for healthy development of moderate to swift currents over sand, over a greater range of water velocities eggs. Spawning has been observed in gravel, and cobble substrates (i.e., than smaller larvae, but still occupied areas with sand and gravel beds and not stream bottoms). Preferred water depths water depths of less than 12.6 inches in areas where fine materials of a of adults are less than 11.8 in (30 cm) (32.0 cm) (Propst et al. 1986, p. 40). particle size less than sand coats the (Barber and Minckley 1966, p. 321; Juveniles and larvae are also sand or gravel substrate, as described Minckley 1973, p. 114; Anderson 1978, occasionally found in quiet pools or above. Additionally, low to moderate p. 17; Rinne and Kroeger 1988, p. 1; backwaters (e.g., pools that are fine sediments ensure that eggs remain Hardy 1990, pp. 19–20, 39; Sublette et connected with, but out of, the main well-oxygenated and will not suffocate al. 1990, p. 138; Rinne 1991, pp. 8–10; river channel) lacking streamflow due to sediment deposition (Propst et al. Rinne 1999, p. 6). As discussed below, (Sublette et al. 1990, p. 138). 1986, p. 40). larval and juvenile spikedace occupy Outside of the breeding season, which Spikedace were found over sand and different habitats than adults. occurs between April and June, eighty gravel substrates in the glide-run and Flow Velocities. Studies on flow percent of the spikedace collected in a low-gradient riffle habitats in both the velocity have been completed on the Verde River study used run and glide upper Verde (Rinne and Stefferud 1996, Gila River, Aravaipa Creek, and the habitat. For this study, a glide was p. 21) and the upper Gila (Propst et al. Verde River. In these studies, flows defined as a portion of the stream with 1986, p. 40; Rinne and Deason 2000, p. measured in habitat occupied by adult a lower gradient (0.3 percent), versus a 106). In a study of a small portion of the spikedace ranged from 23.3 to 70.0 cm/ run which had a slightly steeper Verde River, spikedace were found in second (9.2–27.6 in/second) (Barber and gradient (0.3–0.5 percent) (Rinne and glide-run habitats where substrates were Minckley 1966, p. 321; Hardy 1990, pp. Stefferud 1996, p. 14). Spikedace in the characterized by approximately 29 19–20, 39; Propst et al. 1986, p. 41; Gila River were most commonly found percent sand or fines (silty sand) (Rinne Rinne 1991, pp. 9–10; Rinne and in riffle areas of the stream with 2001, p. 68). In other studies of the Kroeger 1988, p. 1; Schreiber 1978, p. 4). moderate to swift currents (Anderson Verde River over a two-year period, Studies on the Gila River indicated that 1978, p. 17) and some run habitats (J.M. spikedace were found in areas with a juvenile spikedace occupy areas with Montgomery 1985, p. 21), as were percentage of fine content substrate that velocities of approximately 16.8 cm/ spikedace in Aravaipa Creek (Barber varied from 1 to 28 percent (Rinne 2001, second (6.6 in/second) while larval and Minckley 1966, p. 321). p. 68). Neary et al. (1996, p. 24) noted spikedace were found in velocities of Seasonal differences in habitats that spikedace were found in habitats 8.4 cm/second (3.3 in/second) (Propst et utilized by spikedace have been noted with substrates of less than 10 percent al. 1986, p. 41). in the upper Gila drainage, for both the sand. While there is some variability in Propst et al. 1986 (pp. 47–49) winter and breeding seasons. For the percent of sand or fine substrate in examined flow velocities in occupied example, spikedace were found to use occupied spikedace habitat, Neary et al. spikedace habitats as they varied by shallower habitats (<6.6 inches, <16.8 (1996, p. 24) concluded that, based on season. During the warm season (June– cm) in the winter, and deeper habitats the higher density of spikedace present November), occupied spikedace habitats (6.6 to 12.6 inches, 16.8–32.0 cm) in areas with lower percentages of sand in the Gila River had mean flow during warmer months (Propst et al. in the substrate, spikedace favored velocities of 19.3 in/second (49.1 cm/ 1986, p. 47). habitats with lower sand content. second) at one site and 7.4 in/second Specific habitat usage has been noted Substrates are, in part, a reflection of (18.8 cm/second) at the second site. for the breeding season as well. During the gradients and velocities of the During the cold season (December– the breeding season, female and male streams in which they are found. Sand May), mean flow velocities at these spikedace become segregated, with and gravel typically decrease as gradient same sites were 15.5 in/second (39.4 females occupying deeper pools and and velocity increase (Rinne and cm/second) and 8.4 in/second (21.4 cm/ eddies and males occupying riffles Stefferud 1996, p. 14). Spikedace second). It is believed that spikedace flowing over sand and gravel beds in numbers in the Verde River increased seek areas in the stream that offer water approximately 3.1 to 5.9 inches almost three times (from 18 to 52 warmer water temperatures during (7.9–15.0 cm) deep. Females then enter individuals) when the fine component cooler seasons to offset their decreased the riffles occupied by the males before of the substrate decreased from about 27 metabolic rates. Where water depth ova are released into the water column percent down to 7 percent (Neary et al. remains fairly constant throughout the (Barber et al. 1970, pp.11–12). 1996, p. 26), indicating that spikedace year (e.g., the first site), slower Streams in the southwestern United prefer habitats with lower amounts of velocities provided pockets of warmer States have a wide fluctuation in flows fines. Sand content in all glide-run

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13375

spikedace habitats in the Verde and Gila and rearrange stream bed materials aquatic areas (Barber and Minckley Rivers in 2000 was 18 and 20 percent (Stefferud and Rinne 1996, p. 80). 1983, p.39). (Rinne 2001, p. 68). However, because Floods likely benefit native fish by Stream Gradient. Spikedace occupy substrates are determined in part by breaking up embedded bottom materials streams with low to moderate gradients gradient and velocity of the stream, the (Mueller 1984, p. 355). A study of the (Propst et al. 1986, p. 3; Rinne and type of substrate should not be used Verde River analyzed the effects of Stefferud 1996, p. 14; Stefferud and alone in determining suitable spikedace flooding in 1993 and 1995, finding that Rinne 1996, p. 21; Sublette et al. 1990, habitat. these floods had notable effects on both p. 138). Specific gradient data are Sixty percent of spikedace larvae in native and nonnative fish species. generally lacking, but the gradient of the Gila River were found over sand- Among other effects, these floods on the occupied portions of Aravaipa Creek dominated substrates, while 18 percent Verde River either stimulated spawning and the Verde River varied between were found over gravel, and an or enhanced recruitment of three of the approximately 0.3 to <1.0 percent additional 18 percent found over native species or may have eliminated (Barber et al. 1970, p. 10; Rinne and cobble-dominated substrates. While 45 one of the nonnative fish species (Rinne Kroeger 1988, p. 2; Rinne and Stefferud percent of juvenile spikedace were and Stefferud 1997, pp. 159, 162; 1996, p. 14). found over sand substrates, an Stefferud and Rinne 1996, p. 80). Minckley and Meffe 1987 (pp. 99, Habitat Protected From Disturbance or additional 45 percent of the juveniles Representative of the Historic were found over gravel substrates, with 100) found that flooding, as part of a natural hydrograph, may temporarily Geographical and Ecological the remaining 9 percent associated with Distribution of a Species cobble-dominated substrates (Propst et remove nonnative fish species, which Nonnative aquatic species. One of the al. 1986, p. 40). are not adapted to flooding. Thus primary reasons for the decline of native The degree of substrate embeddedness flooding consequently removes the species is the presence of nonnative may also affect the prey base for competitive pressures of nonnative fish species on native fish species which fishes. Fish evolution in the arid spikedace. As discussed below, persist following the flood. Minckley American west is linked to disruptive constitute a significant portion of the and Meffe (1987, p. 99–100) studied the geologic and climatic events that acted spikedace diet. Suitable habitat for some differential responses of native and in concert over evolutionary time to mayflies includes pebbles or gravel for nonnative fishes in seven unregulated decrease the availability and reliability clinging (Pennak 1978, p. 539). Excess and three regulated streams or stream of aquatic ecosystems. The sedimentation would cover or blanket reaches that were sampled before and fragmentation and reduction of aquatic smaller pebbles and gravel, resulting in after major flooding noted that fish ecosystems resulted in a fish fauna that a lack of suitable habitat for mayflies, faunas of canyon-bound reaches of was both diminished and restricted in and a subsequent decrease in available unregulated streams invariably shifted the arid west. Lacking exposure to a prey items for spikedace. from a mixture of native and nonnative wider range of species, western species Flooding. Rainfall in the southwest is fish species to predominantly, and in seem to lack the competitive abilities generally characterized as bimodal, with some cases exclusively, native forms and predator defenses developed by winter rains of longer duration and less after large floods. Samples from fishes from regions where more species intensity and summer rains of shorter regulated systems indicated relatively are present (Douglas et al. 1994, pp. 9– duration and higher intensity. As we few or no changes in species 10). The introduction and spread of discuss below, periodic flooding composition due to releases from nonnative species has been identified as appears to benefit spikedace in three upstream dams at low, controlled one of the major factors in the ways: (1) Removing excess sediment volumes. However, during emergency continuing decline of native fishes from some portions of the stream; (2) releases, effects to nonnative fish throughout North America and removing nonnative fish species from a species were similar to those seen with particularly in the southwestern United given area; and (3) increasing prey flooding on unregulated systems. States (Miller 1961, p. 365, 377, 397– species diversity. There is some variability in fish 398; Lachner et al. 1970, p. 22; Ono et Flooding in Aravaipa Creek has response to flooding. Some nonnative al. 1983, p. 90; Moyle 1986, pp. 28–34; resulted in the transport of heavier loads species, such as smallmouth bass Moyle et al. 1986, pp. 416–423; Carlson of sediments such as cobble, gravel, and (Micropterus dolomieui) and green and Muth 1989, pp. 232–233; Fuller et sand that are deposited where the sunfish (Lepomis cyanellus), appear to al. 1990, p. 1). Miller et al. (1989, p. 1) stream widens, gradient flattens, and be partially adapted to flooding, and concluded that nonnative species were velocity and turbulence decrease. Dams often reappear in a few weeks (Minckley a causal factor in 68 percent of the fish formed by such deposition can and Meffe, p. 100). In addition, extinctions in North America in the last temporarily cause water to back up and Stefferud and Rinne (1996, p. 75) found 100 years. For 70 percent of those fish break into braids downstream of the that late-winter flooding affected the still extant, but considered to be dam. The braided areas provide entire fish community, either endangered or threatened, introduced excellent nurseries for larval and stimulating reproduction or promoting nonnative species are a primary cause of juvenile fishes (Velasco 1997, pp. 28– recruitment (at least among the larger- the decline (Lassuy 1995, p. 392). In 29). size fishes), and possibly eliminating Arizona, release or dispersal of recently On the Gila River in New Mexico, some nonnative species. introduced nonnative aquatic organisms flows fluctuate seasonally with The onset of flooding also is a continuing phenomenon (Rosen et snowmelt, causing spring pulses and corresponds with an increased diversity al. 1995, pp. 255–256, 258; U.S. Fish occasional floods, and late-summer or of food items for spikedace. Reductions and Wildlife Service 2001a, pp. 26–32). monsoonal rains producing floods of in the mainstream invertebrates, such as Aquatic nonnative species are varying intensity and duration. These mayflies, cause the fish to expand its introduced and spread into new areas high flows benefit spikedace spawning food base in an opportunistic manner. through a variety of mechanisms, and foraging habitat (Propst et al. 1986, In addition, inflowing flood waters carry intentional and accidental, authorized p. 3) as described above. Peak floods can terrestrial invertebrates, such as ants, and unauthorized. Mechanisms for modify channel morphology and sort bees, and wasps (Hymenopterans), into nonnative dispersal in the southwestern

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13376 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

United States include interbasin water carpo), bluegill (Lepomis macrochiris), appear to be particularly detrimental to transfer, sport fish stocking, yellow bullhead (Ameiurus natalis), spikedace because although spikedace aquaculture, aquarium releases, black bullhead (Ameiurus melas), and and shiners are naturally separated by baitbucket release (release of fish used goldfish (Carassius auratus) (AGFD geography (i.e., allopatric), they occupy as bait by anglers), and biological Native Fish Database 2005, ASU 2002). essentially the same habitat types. Red control (e.g., the introduction of one Additionally, as discussed below, shiner has an inverse distribution species to control another species) (U.S. nonnative parasites introduced pattern to spikedace in that, generally, Fish and Wildlife Service 2001a, pp. 13, incidentally with nonnative species may where is present, spikedace 37). threaten spikedace populations. are absent (Minckley 1973, p. 138). In the Gila River basin, introduction Although parasites are normal in fish Where the two species occur together, of nonnatives is considered a major populations and typically do not cause there is evidence of displacement of factor in the decline of all native fish mortality in their host, the effects of spikedace to less suitable habitats that it species (Minckley 1985, p. 20–21; nonnative parasites can be significant, otherwise did not occupy (Marsh et al. Williams et al. 1985, p. 1; Minckley and especially when combined with other 1989, pp. 67, 107). As a result, if red Deacon 1991, p. 17). Aquatic and semi- stressors such as poor habitat conditions shiners are present, suitable habitat aquatic mammals, reptiles, amphibians, (U.S. Geological Survey 2004, p. 1; available for spikedace is reduced. crustaceans, mollusks (snails and 2005, p. 2–3). Range expansion and species recovery clams), insects, zoo- and phytoplankton, There is evidence of the negative may then be curtailed due to red shiner parasites, disease organisms, algae, and impacts of nonnative predators on presence. aquatic and riparian vascular plants that native fishes for several stream reaches. One study focused on potential are outside of their historical range have The effect of nonnative fish preying on impacts of red shiner on spikedace in all been documented to adversely affect natives such as spikedace is classified as three areas; (1) Portions of the Gila River aquatic ecosystems (Cohen and Carlton interference competition. Channel and Aravaipa Creek having only 1995, pp. 1–8). As described below, the catfish, flathead catfish, and spikedace; (2) a portion of the Verde nonnative fishes have been smallmouth bass all prey on native River where spikedace and red shiner demonstrated to pose a significant threat fishes including spikedace, as have co-occurred for three decades; and to Gila River basin native fishes, evidenced by prey remains of native (3) a portion of the Gila River where red including spikedace and loach minnow fishes in the stomachs of these shiner recently invaded areas and where (Minckley 1985, p. 108–109; Williams et predatory species (Propst et al. 1986, p. spikedace had never been recorded. The al. 1985, p. 19). The aquatic ecosystem 82, Bonar et al. 2004, p. 13, 16–21). study indicated that, for reaches where of the central Gila River basin has Native fish species declines appear only spikedace were present, spikedace relatively small streams with warm linked to increases in nonnative fish displayed a preference for slower water and low gradients, and many of species. For example, in 1949, 52 currents and smaller particles in the the native aquatic species are small in spikedace were collected at Red Rock substrate than were generally available size. Therefore, much of the threat to while channel catfish composed only throughout the Gila River and Aravaipa native fishes comes from small 1.65 percent of the 607 fish collected. Creek systems. Where red shiner occur nonnative fish species, as has also been However, in 1977, only six spikedace in the Verde River, the study showed noted for southern Nevada aquatic were located at the same site, and the that red shiner occupied waters that ecosystems (Deacon et al. 1964, p. 385). percentage of channel catfish had risen were generally slower and with smaller Examples of this are the impacts of to 14.5 percent of 169 fish collected. particle size in the substrate than were, mosquitofish (Gambusia affinis) and red The decline of spikedace and the on average, available in the system. The shiner (Cyprinella lutrensis), which may increase of channel catfish is likely study concludes that spikedace, where compete with or prey upon native fish related (Anderson 1978, p. 51) because co-occurring with red shiner, move into in the Gila River basin (Meffe 1985, p. of this correlation and the evidence of currents swifter than those selected 173–174, 176–180; Douglas et al. 1994, predation by catfish on spikedace. when in isolation, while red shiner pp. 13–17). Similar interactions between native occupy the slower habitat, whether they The effects of nonnative fish and nonnative fishes were observed in are alone or with spikedace (Douglas et competition on spikedace can be the upper reaches of the East Fork of the al. 1994, pp. 14–16). classified as either interference or Gila River. In this system, native fish Western mosquitofish were exploitive. Interference competition were limited, with spikedace being rare introduced outside of their native range occurs when individuals directly affect or absent, while nonnative channel to help control mosquitoes. Because of others, such as by fighting, producing catfish and smallmouth bass were their aggressive and predatory behavior, toxins, or preying upon them (Schoener moderately common prior to 1983 and mosquitofish may negatively affect 1983, p. 257). Exploitive competition 1984 floods. Post-1983 flooding, adult populations of small fish through occurs when individuals affect others nonnative predators were generally predation and competition (Courtenay indirectly, such as through use of absent and spikedace were collected in and Meffe 1989, p. 320, 322, 324). common resources (Douglas et al. 1994, moderate numbers in 1985 (Propst et al. Introduced mosquitofish have been p. 14). 1986, p. 83). particularly destructive in the American Nonnative fishes known to occur Green sunfish (Lepomis cyanellus) is west where they have contributed to the within the historical range of the also thought to be a predator, likely elimination or decline of populations of spikedace include channel catfish responsible for replacement of natives federally threatened and endangered (Ictalurus punctatus), flathead catfish like spikedace, through predation. species, such as the Gila topminnow (Pylodictis olivaris), red shiner, fathead While no direct studies have been (Poeciliopsis occidentalis occidentalis) minnow (Pimephales promelas), green completed on predation by green (Courtenay and Meffe 1989, p. 323–324). sunfish (Lepomis cyanellus), largemouth sunfish on spikedace, they are a known The Asian tapeworm bass (Micropterus salmoides), predator that occurs within occupied (Bothriocephalus acheilognathi) was smallmouth bass (Micropterus spikedace areas. introduced into the United States via dolomieui), rainbow trout (Oncorynchus Interference competition occurs with imported grass carp in the early 1970s. mykiss), mosquitofish, carp (Cyprinus species such as red shiner. Red shiner It has since become well established in

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13377

the southeast and mid-southern United pathogens. If ‘‘Ich’’ is present in large invertebrates occurring in and on States and has been recently found in enough numbers they can also impact sediments along the margins of the the southwest including the Gila Basin. respiration because of damaged gill creek. True flies were found most The definitive host in the life cycle of tissue. This parasite has been observed frequently, but water fleas and aerial the Asian tapeworm is cyprinid (fish in on the Sonora sucker (Catostomus adults of aquatic and terrestrial insects the minnow family) fishes. There is a insignis), a species common throughout also provide significant parts of the diet. potential threat to spikedace as well as the Gila River basin, and ‘‘Ich’’ does not As juveniles grow and migrate into the to the other native fishes in Arizona appear to be hostspecific, so it could be swifter currents of the channel, because of the presence of this parasite transmitted to other species. ‘‘Ich’’ is nymphs (invertebrates between the in the Gila Basin and the presence of known to be present in Aravaipa Creek larval and adult life stages, similar to cyprinid fish. The Asian tapeworm (Mpoame 1982, p. 46). juveniles) and adults increase in affects fish health in several ways. The importance (Barber and Minckley 1983, Food direct impacts to fish are through pp. 36–37). impeding digestion of food as it passes Food Items. Spikedace are active, Spikedace are very dependent on through the intestinal track, and loss of highly mobile fish that visually inspect aquatic insects for sustenance, and the nutrients as the worm feeds off the fish; drifting materials both at the surface and production of the aquatic insects large enough numbers of worms cause within the water column. Gustatory consumed by spikedace occurs mainly emaciation and starvation. An indirect inspection, or taking potential prey in riffle habitats (Propst et al. 1986, p. effect is that weakened fish are more items into the mouth before either 59). As a result, habitat selection susceptible to infection by other swallowing or rejecting it, is also influences food items found in stomach pathogens. This parasite can infest common (Barber and Minckley 1983, p. content analyses. Spikedace in pools many species of fish and is carried into 37). Prey body size is small, typically had eaten the least diverse foods while new areas along with nonnative fishes ranging from 0.08 to 0.20 inches (2 to 5 those from riffles contained a greater or native fishes from contaminated mm) long (Anderson 1978, p. 36). variety of taxa, indicating that the areas. Asian tapeworm may be a Stomach content analysis of presence of riffles in good condition and significant source of mortality of other spikedace determined that mayflies, abundance help to ensure that a fish species in the Colorado River basin caddisflies, true flies, stoneflies, and sufficient number and variety of prey (U.S. Geological Survey 2004, p. 1, dragonflies are all prey items for items will continue to be available for 2005, p. 2). spikedace. In one Gila River study, the spikedace (Barber and Minckley 1983, Anchor worm (Lernaea cyprinacea) frequency of occurrence was 71 percent pp. 36–37, 40). (Copepoda), also a nonnative species, is for mayflies, 34 percent for true flies, Aquatic invertebrates that constitute an external parasite, and is unusual in and 25 percent for caddisflies (Propst et the bulk of the spikedace diet have that it has little host specificity, al. 1986, p. 59). A second Gila River specific habitat parameters of their own. infecting a wide range of fishes and study of four samples determined that Mayflies, which constituted the largest amphibians. Additionally, infection has total food volume was comprised of 72.7 percentage of prey items, spend their been known to kill large numbers of fish percent mayflies, 17.6 percent immature stages in fresh water. Mayfly due to tissue damage and secondary caddisflies, and 4.5 percent true flies nymphs occur in all types of fresh infection of the attachment site (Anderson 1978, pp. 31–32). At waters, wherever there is an abundance (Hoffnagle and Cole 1997, p. 24). Aravaipa Creek, mayflies, caddisflies, of oxygen, but they are most Presence of this parasite in the Gila true flies, stoneflies, and dragonflies characteristic of shallow water. Mayflies River basin is a threat to the Gila chub were all prey items for spikedace, as found in spikedace stomach content and other native fish. In July 1992, the were some winged insects and plant analyses consisted of individuals from Bureau of Land Management (BLM) materials (Schreiber 1978, pp. 12–16, several genera, with individuals from found Gila chub that were heavily 29, 35–37). the genus Baetidae constituting the parasitized by Lernaea cyprinacea in At Aravaipa Creek, spikedace highest percentage of prey from the Bonita Creek. These fish were likely consumed a total of 36 different prey mayfly order in the study by Schreiber more susceptible to parasites due to items. Mayflies constituted the majority (1978, p. 36). Baetidae are free-ranging physiological stress as a result of of prey items, followed by true flies. Of species of rapid waters that maintain degraded habitat and decreased water the mayflies consumed, 36.5 percent themselves in currents by clinging to flows due to water withdrawals. Creef were adults, while 33.3 percent were pebbles. Spikedace also consumed and Clarkson (1993, p. 1, p. 5) suspected nymphs. Terrestrial invertebrates, individuals from two other mayfly that infestations by Lernaea cyprinacea including ants, wasps, and spiders, were genera (Heptageniidae and caused high mortality of stocked native also consumed, as were beetles, true Ephemerellidae), which are considered fish, razorback sucker (Xyrauchen bugs, caddisflies, and water fleas ‘‘clinging species’’ as they cling tightly texanus) and Colorado pikeminnow (Barber and Minckley 1983, pp. 34–38). to stones and other objects and may be (Ptycocheilus lucius). Spikedace diet varies seasonally found in greatest abundance in crevices The nonnative parasite (Barber and Minckley 1983, pp. 34–35). and on the undersides of stones (Pennak Ichthyophthirius multifiliis (‘‘Ich’’) is a Mayflies dominated stomach contents in 1978, p. 539). The importance of gravel potential threat to spikedace. ‘‘Ich’’ July, but declined in August and and cobble substrates is illustrated by disease has occurred in some Arizona September, increasing in importance the fact that these prey species, which streams, probably favored by high again between October and June. When make up the bulk of the spikedace diet, temperatures and crowding as a result of mayflies were available in lower require these surfaces to persist. drought (Mpoame 1982, p. 46). This numbers, spikedace consumed a greater protozoan becomes embedded under the variety of foods, including true bugs, Water Quality skin and within the gill tissues of true flies, beetles, and spiders. Pollutants. Water with no or only infected fish. When the ‘‘Ich’’ matures, Spikedace diet varies with age class as minimal pollutant levels is essential for it leaves the fish, causing fluid loss, well. Young spikedace, which measure the survival of spikedace. Spikedace physiological stress, and sites that are less than 0.9 inches (22.9 mm) long, fed occur in areas where mining, susceptible to infection by other on a diversity of small-bodied agriculture, livestock operations, and

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13378 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

road construction and use are prevalent. tolerances of spikedace. In the study, Primary Constituent Elements for the Various pollutants are associated with fish were acclimated to a given Spikedace these types of activities. For spikedace, temperature, and then temperatures Pursuant to our regulations, we are waters should have low levels of were increased by 1 °C (33.8 °F) per day required to identify the known physical pollutants such as copper, arsenic, until test temperatures were reached. and biological features (primary mercury and cadmium; human and The study determined that no spikedace constituent elements) essential to the waste products; pesticides; survived exposure of 30 days at 34 or conservation of the spikedace. All suspended sediments; and gasoline or 36 °C (93.2 or 96.8 °F), and that 50 stream complexes designated as critical diesel fuels (Baker 2005). In addition, percent mortality occurred after 30 days habitat for the spikedace are occupied, for freshwater fish, dissolved oxygen at 32.1 °C (89.8 °F). In addition, growth are within the species’ historic should generally be greater than 3.5 rate was slowed at 32 °C (89.6 °F), as geographic range, and contain sufficient cubic centimeters per liter (cc/l) (Bond PCEs to support at least one life history 1979, p. 215). Below this, some stress well as at lower test temperatures of 10 °C and 4 °C (50 and 39.2 °F). Multiple function. may occur. Based on our current knowledge of Fish kills have been documented in behavioral and physiological changes were observed indicating that fish the life history, biology, and ecology of the San Francisco River (Rathbun 1969, the species and the requirements of the became stressed at 30, 32, and 33 °C (86, pp. 1–2) and the San Pedro River habitat to sustain the essential life 89.6, and 91.4 °F) treatments. The study (Eberhardt 1981, pp. 1–4, 6–9, 11–12, history functions of the species, we have 14, 16, and Tables 2–8), both of which concludes that temperature tolerance in determined that the primary constituent are within the species’ historical range. the wild may be lower due to the elements essential to the conservation of In both instances, leaching ponds influence of additional stressors, the spikedace are: associated with copper mines released including disease, predation, 1. Permanent, flowing water with no waters into the streams, resulting in competition, or poor water quality. or low levels of pollutants, including: elevated levels of toxic chemicals. For Survival of fish in the fluctuating a. Living areas for adult spikedace the San Pedro River, this included temperature trials in the study likely with slow to swift flow velocities elevated levels of iron, copper, indicates that exposure to higher between 20 and 60 cm/second (8 and 24 manganese, and zinc. Both incidents temperatures for short periods during a in/second) in shallow water between resulted in die-offs of species inhabiting day would be less stressful to spikedace. approximately 10 cm (4 in) and 1 meter the streams. Eberhardt (1981, pp. 1, 3, The study concludes that 100 percent (40 in) in depth, with shear zones where 9, 10, 14–15) notes that no bottom- survival of spikedace at 30 °C (86 °F) in rapid flow borders slower flow, areas of dwelling aquatic insects, live fish, or the experiment suggests that little sheet flow (or smoother, less turbulent aquatic vegetation of any kind were flow) at the upper ends of mid-channel found for a 60-mi (97 km) stretch of juvenile or adult mortality would occur due to thermal stress if peak water sand/gravel bars, and eddies at river in the area affected by the spill. downstream riffle edges; Rathbun (1969, pp. 1–2) reported temperatures remain at or below that b. Living areas for juvenile spikedace similar results for the San Francisco level (Bonar et al. 2005, pp. 7–8, 29–30). with slow to moderate water velocities River. The possibility for similar Reproduction and Rearing of Offspring of approximately 18 cm/second (8 in/ accidents, or pollution from other second) or higher in shallow water sources, exists throughout the ranges of As discussed above under flow between approximately 3 cm (1.2 in) these species due to their proximity to velocities, spikedace use a variety of and 1 meter (40 in) in depth; mines, communities, agricultural areas, habitat types within the channel during c. Living areas for larval spikedace and major transportation routes. their reproductive cycle and at various with slow to moderate flow velocities of Temperature. Temperatures of life stages. Although not typically approximately 10 cm/second (4 in/ occupied spikedace habitat vary with associated with pools, pools are used by second) or higher in shallow water time of year. In May, water temperatures female spikedace during the breeding approximately 3 cm (1.2 in) to 1 meter at Aravaipa Creek were uniformly season while males remained in riffle (40 in) in depth; and 66.2 °F (19 °C) (Barber et al. 1970, p. 11). habitats. Females leave the pools, d. Water with dissolved oxygen levels Summer water temperatures remained greater than 3.5 cc/l and no or minimal generally on the downstream end of the at no more than 80.6 °F (27 °C) at pollutant levels for pollutants such as riffle, and swim upstream to males in Aravaipa Creek (Barber et al. 1970, p. copper, arsenic, mercury, and cadmium; riffle habitat (Barber et al. 1970, pp.11– 14), and at a mean of 66.7 °F (19.3 °C) human and animal waste products; between June and November on the Gila 12). Unlike loach minnow that deposit pesticides; suspended sediments; and River in the Forks area (at the Middle, their eggs in a hole or depression, gasoline or diesel fuels. West, and East Forks) and 69.4 °F spikedace spawn in shallow riffles and 2. Sand, gravel, and cobble substrates (20.8 °C) in the Cliff-Gila Valley (Propst scatter their gametes (reproductive cells) with low or moderate amounts of fine et al. 1986, p. 47). Winter water into the water column. Spikedace eggs sediment and substrate embeddedness. temperatures ranged between 69.1 °F are adhesive and develop among the Suitable levels of embeddedness are (20.6 °C) in November down to 48.0 °F gravel and cobble of the riffles following generally maintained by a natural, (8.9 °C) in December at Aravaipa Creek spawning. Spawning in riffle habitat unregulated hydrograph that allows for (Barber and Minckley 1966, p. 316). ensures that the eggs are well periodic flooding or, if flows are Between December and May, mean oxygenated and are not normally subject modified or regulated, a hydrograph that temperature in the Forks area was to suffocation by sediment deposition allows for adequate river functions, ° ° ° ° 46.0 F (7.8 C), and 53.1 F (11.7 C) in due to the swifter flows found in riffle such as flows capable of transporting the Cliff-Gila Valley (Propst et al. 1986, habitats. However, after the eggs have sediments. p. 57). The overall range represented by adhered to the gravel and cobble 3. Streams that have: these measures is between 46–80.6 °F a. Low gradients of less than ° substrate, excessive sedimentation (7.8–27.0 C). could cause suffocation of the eggs approximately 1.0 percent; Recent studies by the University of b. Water temperatures in the (Propst et al. 1986, p. 40). Arizona focused on temperature approximate range of 35 to 86 °F (1.7 to

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13379

30.0 °C) (with additional natural daily the fish, as well as geographic location. pp. 113, 116; Velasco 1997, pp. 5–6; and seasonal variation); As noted below, researchers have Vives and Minckley 1990, pp. 451–452), c. Pool, riffle, run, and backwater documented a range of flows in areas Eagle Creek (Marsh et al. 2003, p. 666), components; and occupied by loach minnow. Tularosa River (Propst et al. 1984, pp. d. An abundant aquatic insect food Water Depth and Flow Velocities. One 7–12), and the Gila and San Francisco base consisting of mayflies, true flies, study found loach minnow in varying rivers (Britt 1982, pp. 1, 5, 10–12, 29; caddisflies, stoneflies, and dragonflies. water depths by lifestage, with water Propst and Bestgen 1991, p. 32; Propst 4. Habitat devoid of nonnative aquatic depth being 15.5 cm (6.1 in) for eggs, et al. 1984, pp. 7–12; Propst et al. 1988, species or habitat in which nonnative 10.6 cm (4.2 in) for larvae, 16.8 cm (6.6 pp. 36–39). Loach minnow prefer aquatic species are at levels that allow in) for juveniles, and 18.3 cm (7.2 in) for shallow, swift, and turbulent riffles. persistence of spikedace. adults (Propst et al. 1988, p. 38). However, loach minnow also occur in 5. Areas within perennial, interrupted Flow rate studies have been stream segments that contain pool, stream courses that are periodically completed on the Gila River, Tularosa riffle, and run habitats on the Blue, dewatered but that serve as connective River, San Francisco River, Aravaipa upper Gila, and San Francisco rivers corridors between occupied or Creek, and Deer Creek. Measured flows (AGFD 1994, pp. 1, 5–11; Bagley et al. seasonally occupied habitat and through in habitat occupied by adult loach 1995, pp. 11, 13, 16, 17, 22; J.M. which the species may move when the minnow ranged from 9.6 to 31.2 in/ Montgomery 1985, p. 21). habitat is wetted. second (24.4 to 79.2 cm/second) (Barber Substrates. Loach minnow in Units are designated based on and Minckley 1966, p. 321; Propst et al. Aravaipa Creek occurred over a gravel- sufficient PCEs being present to support 1988, pp. 32, 36–39; Propst and Bestgen pebble substrate with materials ranging one or more of the species’s life history 1991, p. 33; Rinne 1989, pp. 112, 116). between 3 to 16 mm (0.12 to 0.63 in) in functions. Some units contain all PCEs There is geographic variation in flow diameter and, except in the summer, and support multiple life processes, velocities used by adult loach minnow. were associated with the larger sizes of while some units contain only a portion Adult loach minnow in the Gila River available substrate. The use of larger of the PCEs necessary to support the preferred velocities of 1.2 to 14.4 in/ substrates was disproportionately species’ particular use of that habitat. second (3.0 to 36.6 cm/second), while greater than expected based on overall Where a subset of the PCEs is present at those in Aravaipa Creek preferred availability of substrate size in the the time of designation, this rule velocities of 15.6 to 20.4 in/second (39.6 stream, indicating that loach minnow protects those PCEs and thus the to 51.8 cm/second). This may be due to have a preference for the larger substrate conservation function of the habitat. the fact that there were considerably and tend to use these substrate areas more areas of slow velocity available to rather than areas with smaller substrate Loach Minnow loach minnow in the Gila River, and (Rinne 1989, pp. 112–114). For portions The specific primary constituent that there was more and larger cobble of the upper Gila River occupied by elements required for the loach minnow substrate in the Gila River, which loach minnow in 1999 and 2000, are derived from the biological needs of creates more habitat of slower velocities substrates were characterized by gravel- the species as described in the for loach minnow to use (Turner and pebble and cobble substrates, with 70 Background section of this proposal and Tafanelli 1983, pp. 15–20). percent of the sites having a gravel- below. Juvenile loach minnow generally pebble substrate, and 14 percent of the occurred in areas where velocities were sites having cobble substrate (Rinne Space for Individual and Population similar to those used by adults; 2001, p. 69). Growth and Normal Behavior however, these areas had faster Loach minnow in Aravaipa Creek and As noted for the spikedace above, velocities than those used by larvae. In the Gila River appeared to prefer cobble streams in the Southwestern United the Gila, San Francisco, and Tularosa and gravel, avoiding areas dominated by States have a wide fluctuation in flows rivers, juveniles occupied areas with sand or finer gravel. This may be due to and resulting habitat conditions at mean velocities ranging between 1.2 and the fact that loach minnow maintain a different times of the year. Loach 33.6 in/second (3.0 and 85.3 cm/second) relatively stationary position on the minnow persist in these varying (Propst et al. 1988, pp. 37–38; Propst bottom of a stream in flowing water. An conditions and, as discussed below, and Bestgen 1991, p. 32; Rinne 1989, p. irregular bottom, such as that created by several studies have documented habitat 111; Turner and Tafanelli 1983, p. 26). cobble or larger gravels, creates pockets conditions at occupied sites. Larval loach minnow move from the of lower water velocities around larger rocks under which they spawned to rocks where loach minnow can remain Habitat Preferences areas with slower velocities than the stationary with less energy expenditure Flow Velocities. Loach minnow live main stream after emergence, typically (Turner and Tafanelli 1983, pp. 24–25). on the bottom of small to large rivers, remaining in areas with significantly In the Gila and San Francisco rivers, the preferring shallow, swift, and turbulent slower velocities than juveniles and majority of loach minnow captured riffles, living and feeding among clean, adults. Larval loach minnow in the Gila, occurred in the upstream portion of a loose, gravel-to-cobble substrates San Francisco, and Tularosa rivers riffle rather than in the central and (Anderson and Turner 1977, pp. 2, 6–7, occupied areas that were shallower and lower depositional sections of the riffle. 9, 12–13; Barber and Minckley 1966, p. significantly slower than areas where This is likely due to the availability of 315; Britt 1982, pp. 10–13, 29–30; Lee eggs were found. In the Gila, San interstitial spaces in the cobble-rubble et al. 1980, p. 365; Marsh et al. 2003, p. Francisco, and Tularosa rivers, and substrate, which became filled with 666; Minckley 1981, p. 165; Velasco Aravaipa Creek, larval loach minnow sediment more quickly in the central 1997, p. 28). Loach minnow are occupied areas with flow velocities and lower sections of a riffle section as sometimes associated with filamentous ranging from 3.6 to 19.2 in/second (9.1 suspended sediment begins to settle to (threadlike) algae, which are attached to to 48.8 cm/second) (Propst et al. 1988, the stream bottom (Propst et al. 1984, p. the stream substrates (Anderson and p. 37; Propst and Bestgen 1991, p. 32). 12). Turner 1977, p. 5; Lee et al. 1980, p. The use of riffle habitat has been Loach minnow use different 365; Minckley 1981, p. 165). Specific documented in Aravaipa Creek (Barber substrates during different life stages. habitat use varies with the life stage of and Minckley 1966, p. 321; Rinne 1989, Eggs occurred primarily on large gravel

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13380 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

to rubble, while larvae were found scouring action of the flood waters were found in the digestive tracts of where substrate particles were smaller provides enhanced spawning habitat for channel catfish (Propst et al. 1988, p. 64; than substrates used by embryos. loach minnow. Propst and Bestgen 1991, p. 36). Juvenile fish occupy areas with Studies on the Gila, Tularosa, and San Exploitive competition, or substrates of larger particle size than Francisco rivers found that flooding is competition for actual resources larvae. Adults exhibited a narrower primarily a positive influence on native (Schoener 1983, p. 257), may occur preference for substrates than did fish, and apparently had a positive between loach minnow and red shiner, juveniles, and were most commonly influence on the relative abundance of as red shiner is the nonnative fish associated with gravel to cobble loach minnow (Britt 1982, p. 45). Rather species most likely to occur in stream substrates (Propst et al. 1988, pp. 36–39; than following a typical pattern of habitats occupied by small loach Propst and Bestgen 1991, pp. 32–33). winter mortality and population minnow. Red shiners occur in all places As noted above, streams in the decline, high levels of loach minnow known to be formerly occupied by loach southwestern United States have a wide recruitment occurred after the flood, minnow, and are absent or rare in places fluctuation in flows and are periodically and loach minnow relative abundance where loach minnow persists. Because dewatered. While portions of stream remained high through the next spring. of this, red shiner has often been segments included in this designation Flooding enhanced and enlarged loach implicated in the decline of loach may experience dry periods, they are minnow habitat, resulting in a greater minnow, as well as other native fishes. still considered important because the survivorship of individuals through Loach minnow habitat is markedly loach minnow is adapted to this winter and spring (Propst et al. 1988, p. different from that of the red shiner, so changing environment and will use 51). Similar results were observed on interaction between the two species was these areas as connective corridors the Gila and San Francisco rivers unlikely to cause shifts in habitat use by when they are wetted. following flooding in 1978 (Britt 1982, loach minnow (Marsh et al. 1989, p. 39). Flooding. In areas where substantial p. 45). Studies indicate that, instead, red shiner diversions or impoundments have been Natural flooding may also reduce the move into voids left when native fishes constructed, loach minnow are less negative impacts of nonnative fish such as loach minnow are extirpated likely to occur (Propst et al. 1988, pp. species on loach minnow. During due to habitat degradation in the area 63–64, Propst and Bestgen 1991, p. 37). significant floods, nonnative species (Bestgen and Propst 1987, p. 209). This This is in part due to habitat changes introduced into western streams were may preclude occupancy of this area by caused by the construction of the either displaced or destroyed, while loach minnow in the future, should diversions, and in part due to the native species were able to maintain habitat conditions improve. reduction of beneficial effects of their position in or adjacent to channel Prior to 1960, the Glenwood- flooding on loach minnow habitat. habitats, persist in micro refuges or Pleasanton reach of the Gila River Flooding appears to positively affect recolonize should they be displaced supported a native fish community of loach minnow population dynamics by (Britt 1982, p. 46; Minckley and Meffe eight different species. Post-1960, four resulting in higher recruitment 1987, p. 97). of these species became uncommon, and (reproduction and survival of young) Stream Gradient. In addition to the ultimately three of them were and by decreasing the abundance of availability of riffle habitat, gradient extirpated. In studies completed nonnative fishes (Stefferud and Rinne may influence the distribution and between 1961 and 1980, it was 1996, p. 1). abundance of loach minnow. In studies determined that loach minnow was less The construction of water diversions, of the San Francisco River, Gila River, common than it had been, while by increasing water depth, has reduced Aravaipa Creek, and the Blue River, diversity of the nonnative fish or eliminated riffle habitat in many loach minnow occurred in stream community had increased in stream reaches. In addition, loach reaches where the gradient was comparison to the pre-1960 period. minnow are generally absent in stream generally low, ranging from 0.3 to 2.2 Following 1980, red shiner, fathead reaches affected by impoundments. percent (Rinne 1989, p. 109; Rinne minnow, and channel catfish were all While the specific factors responsible 2001, p. 69). regularly collected. Drought and for this is not known, it is likely related diversions for irrigation resulted in a to modification of thermal regimes, Habitat Protected From Disturbance or Representative of the Historic decline in habitat quality, with canyon habitat, food base, or discharge patterns reaches retaining habitat components (Propst et al. 1988, p. 64; Minckley Geographical and Ecological Distribution of a Species for native species. However, 1973, pp. 1–11). establishment of nonnative fishes in the Flooding also cleans, rearranges, and Nonnative aquatic species. As noted canyon reaches then reduced the utility rehabilitates important riffle habitat under the discussion of nonnative fish of these areas for native species (Propst (Propst et al. 1988, pp. 63–64). Flooding species in the spikedace primary et al. 1988, pp. 51–56). allows for the scouring of sand and constituent elements section above, The discussion on spikedace includes gravel in riffle areas, which reduces the nonnative aquatic species have been information on other nonnative aquatic degree of embeddedness of cobble and introduced for a variety of reasons, species such as Asian tapeworm, anchor boulder substrates (Britt 1982, p. 45). resulting in interference or exploitive worm, and Ich, which are also Excessive sediment in the bedload, or competition. Interference competition, detrimental to loach minnow. that sediment that moves by sliding or such as predation, may result from rolling along the bed of the stream interactions between loach minnow and Food (Leopold et al. 1992, p. 180) is typically nonnative channel and flathead catfish. Food Items. Loach minnow are deposited at the downstream Omnivorous channel catfish of all sizes opportunistic, benthic insectivores that undersurfaces of cobble and boulder move into riffles to feed, preying on the obtain their food from riffle-dwelling substrate components where flow same most important to the larval mayflies, black flies, and true velocities are lowest, and can result in loach minnow diet. Juvenile flathead flies, as well as from larvae of other a higher degree of embeddedness (Rinne catfish also feed in riffles in darkness. aquatic insect groups such as caddisflies 2001, p. 69). Following flooding, Flathead catfish are piscivorous, even and stoneflies. Loach minnow in the cavities created under cobbles by when small. Loach minnow remains Gila, Tularosa, and San Francisco rivers

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13381

consumed primarily true flies and cc/l (Bond 1979, p. 215). Below this, 30; Propst et al. 1988, p. 25; Propst and mayflies, with mayfly nymphs being an some stress may occur. Bestgen 1991, p. 34). Fungal infections important food item throughout the Fish kills associated with previous developed on egg masses found in slow- year. Mayfly nymphs constituted the mining accidents are detailed under the velocity waters of less than 2.4 in/ most important food item throughout spikedace PCEs above. These incidents second (6.2 cm/second) (Propst et al. the year for adults studied on the Gila occurred within the historical range of 1988, p. 25; Propst and Bestgen 1991, p. and San Francisco Rivers, while true fly the loach minnow. 34). Once hatched, areas of slower flows larvae were most common in the winter Temperatures. Loach minnow have a appear important to larval loach months (Propst et al. 1988, p. 27; Propst fairly narrow range in temperature minnow as they have been found in and Bestgen 1991, p. 35). In Aravaipa tolerance, and their upstream slower-velocity stream margins (Propst Creek, loach minnow consumed 11 distributional limits in some areas may et al. 1988, pp. 37–38). different prey items, including mayflies, be linked to low winter stream Substrate type is important to stoneflies, caddisflies, and true flies. temperature (Propst et al. 1988, p. 62). spawning as well. While loach minnow Mayflies constituted the largest Suitable temperature regimes appear to spawning occurs in the same riffle percentage of their diet during this be fairly consistent across geographic habitat that adults occupy, it is the study except in January, when true flies areas. Studies of Aravaipa Creek, East substrate that determines its suitability made up 54.3 percent of the total food Fork White River, the San Francisco for spawning. Eggs are deposited on the volume (Schreiber 1978, pp. 40–41). River, and the Gila River determined undersurface of rocks or cobbles. Rocks Loach minnow consume different that loach minnow were present in areas are generally flattened, have smooth with water temperatures in the range of surfaces, and are angular. Rocks which prey items during their various life ° ° stages. Both larvae and juveniles 48.2 to 71.6 F (9 to 22 C) (Britt 1982, have eggs attached are generally p. 31; Leon 1989, p. 1; Propst et al. 1988, primarily consumed true flies, which embedded on their upstream side in the p. 62; Propst and Bestgen 1991, p. 33; constituted approximately 7 percent of substrate. Eggs placed under rocks in Vives and Minckley 1990, p. 451). their food items in one year, and 49 the Gila River, San Francisco River, and Recent studies by the University of Aravaipa Creek were placed on the percent the following year. Mayfly Arizona focused on temperature nymphs were also an important dietary underside of rocks in nest cavities tolerances of loach minnow. In the formed by rocks of varying sizes (Britt element at 14 percent and 31 percent study, fish were acclimated to a given during a one-year study. Few other 1982, pp. 29, 31; Propst et al. 1988, p. temperature, and then temperatures 21; Vives and Minckley 1990, pp. 451– aquatic macroinvertebrates were were increased by 1 °C (33.8 °F) per day consumed (Propst et al. 1988, p. 27). In 452). until test temperatures were reached. Loach minnow spawning is the life a second study, true fly larvae and The study determined that no loach history stage most affected by sediment mayfly naiads constituted the primary minnow survived 30 days at 32 °C or fines (Rinne 2001, p. 69). Because food of larval and juvenile loach (89.6 °F), and that 50 percent mortality deposition of eggs occurs on the minnow (Propst and Bestgen 1991, occurred after 30 days at 30.6 °C downstream undersurfaces of cobble p. 35). (87.1 °F). In addition, growth rate was and boulder substrate components, The availability of pool and run slowed at 28 °C and 30 °C (82.4 and excessive fines in the bedload of a habitats affects availability of prey 86.0 °F) in comparison to growth at system can fill in the areas where eggs ° ° species. While most of the food items of 25 C (77 F), indicating that loach would otherwise be deposited, loach minnow are riffle species, two are minnow were stressed at sub-lethal especially in areas of slower velocities. not, including true fly larvae and mayfly temperatures. Survival of fish in the nymphs. Mayfly nymphs, at times, fluctuating temperature trials of the Primary Constituent Elements for the made up 17 percent of the total food study likely indicates that exposure to Loach Minnow volume of loach minnow in a study at higher temperatures for short periods Pursuant to our regulations, we are Aravaipa Creek (Schreiber 1978, pp. 40– during a day would be less stressful to required to identify the known physical 41). The presence of a variety of habitat loach minnow. The study concludes and biological features (primary types is therefore important to the that temperature tolerance in the wild constituent elements) essential to the persistence of loach minnow in a may be lower due to the influence of conservation of the loach minnow. All stream, even while they are typically additional stressors, including disease, stream complexes designated as critical associated with riffles. predation, competition, or poor water habitat for the loach minnow are Water Quality quality. The study concludes that 100 considered occupied, within the percent survival of loach minnow at species’ historic geographic range, and Pollutants. Water with no or only 28 °C (82.4 °F) suggests that little contain sufficient PCEs to support at minimal pollutant levels is important juvenile or adult mortality would occur least one life history function. for the conservation of loach minnow. due to thermal stress if peak water Based on our current knowledge of As with spikedace, loach minnow occur temperatures remain at or below that the life history, biology, and ecology of in areas where mining, agriculture, level (Bonar et al. 2005, pp. 6–8, 28, 33). the species and the requirements of the livestock operations, and road habitat to sustain the essential life Reproduction and Rearing of Offspring construction are prevalent activities. history functions of the species, we have Various pollutants are associated with Habitat conditions needed for determined that the primary constituent these types of activities. For loach reproduction and rearing of offspring elements essential to the conservation of minnow, waters should have low levels include appropriate flow velocities, the loach minnow are: of pollutants, such as copper, arsenic, substrates, sediment levels, and riffle 1. Permanent, flowing water with no mercury, and cadmium; human and availability. Loach minnow place eggs or minimal pollutant levels, including: animal waste products; pesticides; in areas with mean velocities ranging a. Living areas for adult loach suspended sediments; and gasoline or between 2.4 to 15.6 in/second (3.0 to minnow with moderate to swift flow diesel fuels (Baker 2005). In addition, 39.6 cm/second) in the Gila, San velocities between 9.0 to 32.0 in/second for freshwater fish, dissolved oxygen Francisco, West Fork, Middle Fork, and (24 to 80 cm/second) in shallow water should generally be greater than 3.5 East Fork Gila rivers (Britt 1982, pp. 29– between approximately 1.0 to 30 inches

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13382 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(3 cm to 75 cm) in depth, with gravel, of the PCEs necessary to support the designation are within the historical cobble, and rubble substrates; species’ particular use of that habitat. range of the species, contain one or b. Living areas for juvenile loach Where a subset of the PCEs is present at more of the PCEs required by spikedace minnow with moderate to swift flow the time of designation, this rule or loach minnow, have been occupied velocities between 1.0 and 34 in/second protects those PCEs and thus the in the past, and are directly connected (3.0 and 85.0 cm/second) in shallow conservation function of the habitat. to a stream segment with records of water between approximately 1.0 to 30 occupancy from 2004 or 2005 (see Table Methods inches (3 cm to 75 cm) in depth with 1 above). For the following reasons we sand, gravel, cobble, and rubble As required by section 4(b) of the Act, believe that these areas are occupied for substrates; we used the best scientific data the purposes of this critical habitat c. Living areas for larval loach available in determining areas that designation: (1) The areas are directly minnow with slow to moderate contain the features essential to the connected to stream segments with velocities between 3.0 and 20.0 in/ conservation of the spikedace and loach recent occupancy records (2004 and second (9.0 to 50.0 cm/second) in minnow. In designating critical habitat 2005); (2) the stream segments are shallow water with sand, gravel, and for the spikedace and loach minnow, we connected and the fish can move cobble substrates; solicited information from between them; (3) surveys have been d. Spawning areas with slow to swift knowledgeable biologists and reviewed infrequent or inconsistent and flow velocities in shallow water where recommendations contained in State spikedace and loach minnow can be cobble and rubble and the spaces wildlife resource reports. We also difficult to detect in surveys; and (4) we between them are not filled in by fine reviewed the available literature have other streams in which the species dirt or sand; and pertaining to habitat requirements, were not detected for long periods e. Water with dissolved oxygen levels historical localities, and current before being detected again [e.g., Eagle greater than 3.5 cc/l and no or minimal localities of the two species. We used Creek, where there was a 44 year gap pollutant levels for pollutants such as data in reports submitted during section between loach minnow detections (see copper, arsenic, mercury, and cadmium; 7 consultations, research published in Marsh et al. 2003, p. 666)]. We believe human and animal waste products; peer-reviewed articles and presented in a period of 10 years is reasonable to pesticides; suspended sediments; and academic theses and agency reports, and determine occupancy based on the fact gasoline or diesel fuels. regional GIS data layer coverages. that both species are difficult to detect 2. Sand, gravel, and cobble substrates We have also reviewed historical and in surveys, surveys have been with low or moderate amounts of fine current occurrence data, information infrequent or inconsistent because many sediment and substrate embeddedness. pertaining to habitat requirements for of the areas where they occur are Suitable levels of embeddedness are these species, scientific information on remote, and as noted above, we have generally maintained by a natural, the biology and ecology of the two areas where these species were not unregulated hydrograph that allows for species, general conservation biology detected for long periods of time (44 periodic flooding or, if flows are principles, and scientific information years) and then detected again. The life modified or regulated, a hydrograph that cited in the Recovery Plans for these expectancy of spikedace and loach allows for adequate river functions, two species. Of particular importance, minnow is 2 to 3 years. A period of 10 such as flows capable of transporting we reviewed databases, published years would represent a time period that sediments. literature, and field notes to determine provides for three to four generations of 3. Streams that have: the historical and current occurrence spikedace and loach minnow. a. Low gradients of less than data for the two species. The SONFishes We divided the overall historical approximately 2.5 percent; Database (ASU 2002) details occurrence range into five river complexes, and b. Water temperatures in the records from the 1800s through 1999. each critical habitat stream segment was approximate range of 35 to 82 °F (1.7 to The Heritage Database Management derived from within these larger 27.8 °C) (with additional natural daily System (HDMS) (AGFD 2004) contains complexes. We believe this is a and seasonal variation); information for Arizona with some reasonable approach because c. Pool, riffle, run, and backwater overlap of SONFishes records, as well as populations in mainstem tributaries components; and records from 1999 through 2004. may access a wider geographic area by d. An abundant aquatic insect food Agency and researcher field notes and moving into smaller tributaries, while base consisting of mayflies, true flies, published literature contain additional populations in tributaries are afforded black flies, caddisflies, stoneflies, and information on completed surveys and the ability to disperse to other dragonflies. species detections. tributaries via the mainstem river within 4. Habitat devoid of nonnative aquatic that complex. Overall, the complexes Criteria for Defining Critical Habitat species or habitat in which nonnative included herein provide coverage aquatic species are at levels that allow We are designating critical habitat on throughout the historical range of the persistence of loach minnow. lands within the geographical range species, with exceptions for areas that 5. Areas within perennial, interrupted occupied at the time of listing and were excluded for specific reasons, as stream courses that are periodically currently occupied by either, or in some detailed below (see ‘‘Exclusions under dewatered but that serve as connective cases both, the spikedace and loach Section 4(b)(2) of the Act’’ section corridors between occupied or minnow. We consider an area to be below). The critical habitat designation seasonally occupied habitat and through occupied by the spikedace or loach constitutes our best assessment of areas which the species may move when the minnow if we have records to support that contain sufficient features (PCEs) habitat is wetted. occupancy within the last 10 years, or essential to the conservation of Units are designated based on where the stream segment is directly spikedace and loach minnow and that sufficient PCEs being present to support connected to a segment with occupancy require special management or one or more of the species’ life history records from within the last 10 years protection. functions. Some units contain all PCEs (this is described within each unit We are designating critical habitat in and support multiple life processes, description below). The three connected areas that we have determined to be while some units contain only a portion areas (see Table 1 above) included in the occupied at the time of listing, and that

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13383

contain sufficient primary constituent For example, riparian areas are contained the features essential to the elements to support life history seasonally flooded habitats (i.e., conservation of the species. Bankfull functions essential for the conservation wetlands) that are major contributors to stage is defined as the upper level of the of the species. Lands were included in a variety of vital functions within the range of channel-forming flows which the designation based on sufficient PCEs associated stream channel (Federal transport the bulk of the available being present to support the life Interagency Stream Restoration Working sediment over time. Bankfull stage is processes of the species. Some lands Group 1998, Brinson et al. 1981, pp. 2– generally considered to be that level of contain all PCEs and support multiple 61, 2–69, 2–72, 2–75, 2–84 to 2–85). stream discharge reached just before life processes. Some lands contain only They are responsible for energy and flows spill out onto the adjacent a portion of the PCEs necessary to nutrient cycling, filtering runoff, floodplain. The discharge that occurs at support the particular use of that absorbing and gradually releasing bankfull stage, in combination with the habitat. In determining whether an area floodwaters, recharging groundwater, range of flows that occur over a length contains sufficient PCEs, the Service maintaining streamflows, protecting of time, govern the shape and size of the looked at various databases and survey stream banks from erosion, and river channel (Rosgen 1996, pp. 2–2 to records to determine occupancy, as well providing shade and cover for fish and 2–4; Leopold 1997, pp. 62–63, 66). The as habitat descriptions at various other aquatic species. Healthy riparian use of bankfull stage and 300 ft (91.4 m) locations. We relied on information and adjacent upland areas help ensure on either side recognizes the naturally provided in survey reports and research water courses maintain the habitat dynamic nature of riverine systems, documents to describe conditions at important for aquatic species (e.g., see recognizes that floodplains are an various locations. This information was U.S. Forest Service 1979, pp. 18, 109, integral part of the stream ecosystem, then synthesized to develop the critical 158, 264, 285, 345; Middle Rio Grande and contains the area and associated habitat designation. Biological Interagency Team 1993, pp. features essential to the conservation of When determining final critical 64, 89, 94), including the spikedace and the species. A relatively intact habitat map boundaries, we made every loach minnow. Habitat quality within floodplain, along with the periodic effort to avoid including developed the mainstem river channels in the flooding in a relatively natural pattern, areas such as buildings, paved areas, historical range of the spikedace and is an important element in the and other structures that lack any PCEs loach minnow is intrinsically related to conservation of spikedace and loach for the spikedace and loach minnow. the character of the floodplain and the minnow. Any such structures and the land under associated tributaries, side channels, We determined the 300-foot lateral them inadvertently left inside critical and backwater habitats that contribute extent for several reasons. First, the habitat boundaries of this final rule are to the key habitat features (e.g., implementing regulations of the Act excluded by text and are not designated substrate, water quality, and water require that critical habitat be defined as critical habitat. Therefore, Federal quantity) in these reaches. We have by reference points and lines as found actions limited to these areas would not determined that a relatively intact on standard topographic maps of the trigger section 7 consultation, unless riparian area, along with periodic area (50 CFR 424.12). Although we they affect the species or primary flooding in a relatively natural pattern, constituent elements in adjacent critical is important for maintaining the PCEs considered using the 100-year habitat. necessary for long-term conservation of floodplain, as defined by the Federal Emergency Management Agency Lateral Extent the spikedace and loach minnow. The lateral extent (width) of riparian (FEMA), we found that it was not The areas designated as critical corridors fluctuates considerably included on standard topographic maps, habitat are designed to provide between a stream’s headwaters and its and the information was not readily sufficient riverine and associated mouth. The appropriate width for available from FEMA or from the Army floodplain area for breeding, non- riparian buffer strips has been the Corps of Engineers for the areas we are breeding, and dispersing adult subject of several studies (Castelle et al. proposing to designate. We suspect this spikedace and loach minnow, as well as 1994). Most Federal and State agencies is related to the remoteness of many of for the habitat needs of juvenile and generally consider a zone 23–46 m (75– the stream reaches where these species larval stages of these fishes. In general, 150 ft) wide on each side of a stream to occur. Therefore, we selected the 300- the primary constituent elements of be adequate (NRCS 1998; Moring et al. foot lateral extent, rather than some critical habitat for spikedace and loach 1993; Lynch et al. 1985), although buffer other delineation, for three biological minnow include the riverine ecosystem widths as wide as 152 m (500 ft) have reasons: (1) The biological integrity and formed by the wetted channel and the been recommended for achieving flood natural dynamics of the river system are adjacent floodplains within 300 lateral attenuation benefits (Corps 1999). In maintained within this area (i.e., the feet on either side of bankfull stage, most instances, however, riparian buffer floodplain and its riparian vegetation except where bounded by canyon walls. zones are primarily intended to reduce provide space for natural flooding Areas within the lateral extent also (i.e., buffer) detrimental impacts to the patterns and latitude for necessary contribute to PCEs 1 and 2 (water stream from sources outside the river natural channel adjustments to maintain quality) and contain PCEs 3 (food channel. Consequently, while a riparian appropriate channel morphology and source) and 5 (provide areas where the corridor 23–46 m (75–150 ft) in width geometry, store water for slow release to fish may move through when wetted). may function adequately as a buffer, it maintain base flows, provide protected Spikedace and loach minnow use the is likely inadequate to preserve the side channels and other protected areas, riverine ecosystem for feeding, natural processes that provide spikedace and allow the river to meander within sheltering, and cover while breeding and loach minnow primary constituent its main channel in response to large and migrating. This designation takes elements. flow events); (2) conservation of the into account the naturally dynamic The lateral extent of streams was set adjacent riparian area also helps provide nature of riverine systems and at 300 ft (91.4 m) to either side of important nutrient recharge and floodplains (including riparian and bankfull stage to accommodate stream protection from sediment and adjacent upland areas) that are an meandering and high flows, and in pollutants; and (3) vegetated lateral integral part of the stream ecosystem. order to ensure that this designation zones are widely recognized as

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13384 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

providing a variety of aquatic habitat continued spread of nonnative fishes areas within each segment. For each functions and values (e.g., aquatic into spikedace or loach minnow habitat. stream reach, the upstream and habitat for fish and other aquatic Other threats requiring special downstream boundaries are described. organisms, moderation of water management include threat of fire, Additionally, critical habitat includes temperature changes, and detritus for retardant application during the fire, the stream channels within the aquatic food webs) and help improve or and excessive ash and sediment identified stream reaches and areas maintain local water quality (see U.S. following the fire. On-going improper within these reaches and, as described Army Corps of Engineers’ final notice livestock grazing can be a threat to above, the area of bankfull width plus concerning Issuance and Modification spikedace and loach minnow and their 300 lateral feet on either side of bankfull of Nationwide Permits, March 9, 2000, habitats. Poor water quality and width, except when the floodplain is 65 FR 12818–12899). adequate quantities of water for all life narrow and bounded by canyon walls. Among other things, the floodplain stages of spikedace and loach minnow This 300-foot width defines the lateral provides space for natural flooding threaten these fish and may require extent of each area of critical habitat patterns and latitude for necessary special management actions or that contains sufficient PCEs (3 and 5) natural channel adjustments to maintain protections. The construction of water to provide for one or more of the life channel morphology and geometry. We diversions, by increasing water depth, history functions of the spikedace and conclude that a relatively intact riparian has reduced or eliminated riffle habitat loach minnow. area, along with periodic flooding in a in many stream reaches. In addition, The critical habitat designation for relatively natural pattern, is important loach minnow are generally absent in both spikedace and loach minnow in maintaining the stream conditions stream reaches affected by includes five complexes totaling necessary for long-term survival and impoundments. While the specific approximately 522.2 mi (840.4 km) of recovery of the spikedace and loach factor responsible for this is not known, stream reaches (see Tables 1 and 2). The minnow. it is likely related to modification of spikedace and loach minnow critical Conservation of the river channel thermal regimes, habitat, food base, or habitat areas described below constitute alone is not sufficient to ensure the discharge patterns. We have included our best assessment at this time of areas survival and recovery of the spikedace below in our description of each of the determined to be occupied at the time and loach minnow. For the reasons critical habitat areas for the spikedace of listing, that contain the primary discussed above, we believe the riparian and loach minnow a description of the constituent elements and may require corridors adjacent to the river channel threats occurring in that area requiring special management, and those provide an important function within special management or protections. additional areas that were not occupied the areas designated as critical habitat. When determining critical habitat at the time of listing but are currently boundaries, we made every effort to occupied and contain the features Special Management Considerations or avoid the designation of developed essential to the conservation of the Protections areas such as buildings, paved areas, species. Unless otherwise indicated, the When designating critical habitat, we boat ramps and other structures that following areas identified in Table 1 and assess whether the areas determined to lack PCEs for spikedace and loach in the unit descriptions below, are be occupied at the time of listing, minnow. Any such structures do not designated as critical habitat for both contain the primary constituent contain the PCEs and are not considered spikedace and loach minnow (see the elements and may require special part of the critical habitat designation. ‘‘Regulation Promulgation’’ section of management considerations or This also applies to the land on which this rule below for exact descriptions protection. We believe each area such structures sit directly. Therefore, and distances of boundaries). The included in this final designation Federal actions limited to these areas designation includes portions of 8 requires special management and would not trigger section 7 streams for spikedace and 21 streams for protections as described in our unit consultations, unless they affect the loach minnow; however, individual descriptions and Table 1. species and/or PCEs in adjacent critical streams are not isolated, but are grouped Special management considerations habitat. with others to form areas or for each area will depend on the threats ‘‘complexes.’’ Critical Habitat Designation to the spikedace and/or loach minnow Table 2 below provides approximate in that critical habitat area. For example, Below are tables and descriptions of area (mi/km) determined to meet the threats requiring special management the critical habitat segments, including definition of critical habitat for the include nonnative fish species and the discussion of excluded and exempted spikedace and loach minnow by State.

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

Arizona New Mexico Total Landowner mi (km) mi (km) mi (km)

Federal ...... 170.4 (274.2) 167.7 (269.9) 338.1 (544.1) State ...... 8.0 (12.9) 1.3 (2.1) 9.3 (15) Tribal ...... 2.1 (3.4) 0 (0) 2.1 (3.4) Private ...... 90.2 (145.1) 82.5 (132.8) 172.7 (277.9)

Total ...... 270.7 (435.6) 251.5 (404.8) 522.2 (840.4)

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13385

TABLE 3.—AREAS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR THE SPIKEDACE AND LOACH MINNOW AND THE AREAS EXCLUDED FROM THE FINAL CRITICAL HABITAT DESIGNATION [ac (ha)/mi (km)]

Area excluded Area meeting the from the final State or geographic area definition of crit- critical habitat ical habitat designation (mi/km) (mi/km)

Arizona ...... 373.7 (601.5) 103.1 (165.9) New Mexico ...... 258.8 (416.4) 7.3 (11.7)

Total ...... 632.5 (1017.9) 110.3 (177.5)

The approximate area encompassed sufficient PCEs (3 and 5) to provide for U.S. Forest Service indicated this within each critical habitat unit is one or more of the life history functions stretch of the river may offer substantial shown in Table 4. of the spikedace and loach minnow. The value for spikedace and loach minnow continuing presence of spikedace and recovery. We will continue to seek TABLE 4.—CRITICAL HABITAT UNITS the existence of features that are further information regarding the Verde DESIGNATED FOR THE SPIKEDACE essential to the conservation of the River and its role in conservation for AND LOACH MINNOW species create a high potential for these two species and may consider [Area estimates reflect all land within critical restoration of loach minnow to the designation of the Verde River below habitat complexes] Verde River system. Threats to this Fossil Creek in future potential critical habitat area requiring special revisions of critical habitat. At this time, Critical habitat unit Mi Km management and protections include however, we are excluding all land water diversions, improper livestock south of the Coconino and Prescott 1. Verde River ...... 43.0 69.2 grazing, and nonnative fish species (see National Forest boundaries at the upper 2. Black River ...... 18.1 29.1 Table 1 above). end of the Verde Valley due to 3. Lower San Pedro/Gila River/Aravaipa Creek ...... 85.5 137.5 The landownership of this complex disproportionate economic concerns 4. Gila Box/San Francisco consists of large blocks of U.S. Forest (see Exclusions under Section 4(b)(2) River ...... 235.0 378.2 Service lands in the upper and lower below). 5. Upper Gila River ...... 140.6 226.3 reaches, with significant areas of private Complex 2—Black River Complex— ownership in the Verde Valley. There Apache and Greenlee Counties, Total ...... 522.2 840.4 are also lands belonging to Arizona Arizona State Parks, Yavapai Apache Tribe, and Complex 1—Verde River Complex— the AGFD. The Verde River divides the The Salt River Sub-basin represents a Yavapai County, Arizona west and east halves of the Prescott significant portion of loach minnow Spikedace have been detected in the National Forest, and passes by or historical range; however, loach Verde River Complex since 1890. The through the towns of Camp Verde, minnow have been extirpated from all Verde River was known to be occupied Middle Verde, Bridgeport, Cottonwood, but a small portion of the Black and by spikedace at the time of listing, and and Clarkdale. White rivers. The Black River Complex is still considered to be occupied based Verde River Complex—Spikedace is considered important because it is the on surveys documenting spikedace Only—43 mi (69.2 km) of river only remaining population of loach presence as recently as 1999. This extending from the Prescott and minnow on public lands in the Salt complex was also historically occupied Coconino National Forest boundary River Sub-basin. by loach minnow, with records from with private lands upstream to Sullivan We are designating streams within 1890 and 1938 (ASU 2002, Brouder Dam at Township 17 North, Range 2 this complex as critical habitat for loach 2002, AGFD 2004). At this time, the West, section 15. Sullivan Dam is at the minnow only. At this time, spikedace tributary streams of the Verde River are upstream limit of perennial flow in the are not known to historically occupy believed to be unoccupied by both mainstem of the Verde River. Perennial areas at this elevation; however, the data species and are not being included as flow results from a series of river- on maximum elevation for spikedace are critical habitat. The Verde River channel springs and from Granite Creek. not definitive and if information Complex is unusual in that a relatively The Verde River contains features becomes available that differs from that stable thermal and hydrologic regime is essential to the conservation of the currently available, the Black River found in the upper river and in Fossil spikedace between its headwaters and Complex may be reevaluated for Creek, one of the tributaries to the Verde Fossil Creek. These portions of the spikedace critical habitat designation in River. Also, spikedace in the Verde Verde River provide a relatively stable a future revision. Portions of the sub- River are genetically distinct from all thermal and hydrologic regime suitable basin are unsuitable, either because of other spikedace populations (Tibbets for spikedace. Below Fossil Creek, the topography or because of the presence 1993, pp. iii-iv, 34–35; Anderson and Verde River has a larger flow and is of reservoirs, stream channel alteration Hendrickson 1994, p. 154). The Verde thought to offer little suitable habitat by humans, or overwhelming nonnative River contains one or more of the (i.e., does not contain sufficient PCEs) fish populations. However, other areas primary constituent elements, including for spikedace or loach minnow. The within the sub-basin remain suitable. shear zones, sheet flow, and eddies, and Verde River below Fossil Creek is Complex 2 was not known to be an appropriate prey base. In addition, within the historical range for both occupied at listing, with first detections the lateral extent of each segment within species, and comments on previous of loach minnow occurring in 1996. It this complex of critical habitat contains critical habitat designations from the is currently occupied by loach minnow

VerDate Aug<31>2005 18:15 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13386 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(Bagley et al. 1995, multiple surveys; appropriate gradients, substrates, purposes of critical habitat. Because the Lopez 2000, p. 1; ASU 2002; AGFD depths, and habitat types (i.e., riffles, distribution of spikedace is reduced to 2004). Because the range of loach runs). This area is considered to be populations in the Verde River, minnow has been severely reduced, and occupied based on records from 1996; it Aravaipa Creek, and the Gila River in only a few streams remain occupied, the is also connected to the North Fork East New Mexico, all remaining populations Black River Complex is considered Fork Black River which has documented are considered important to the species. essential to the loach minnow. In loach minnow records from 2004. This This complex contains one or more of addition, Complex 2 supports one or area represents part of the only the PCEs for both species including more of the PCEs for loach minnow, occupied complex in the Salt River sufficient flow velocities and including sufficient flow velocities and basin. appropriate gradients, substrates, appropriate gradients, substrates, (4) East Fork White River—Loach depths, and habitat types (i.e., riffles, depths, and habitat types (i.e., riffles, Minnow Only—12.5 mi (20.1 km) of the runs). In addition, the lateral extent of runs). In addition, the lateral extent of East Fork White River extending from each segment within this complex of each segment within this complex of the confluence with the North Fork critical habitat contains sufficient PCEs critical habitat contains sufficient PCEs White River and the East Fork White (3 and 5) to provide for one or more of (3 and 5) to provide for one or more of River at Township 5 North, Range 22 the life history functions of the the life history functions of the East, section 35 upstream to Township spikedace and loach minnow. Ongoing spikedace and loach minnow. Threats in 5 North, Range 23 East, southeast actions requiring special management or this complex requiring special quarter of section 13. This area was protections in this area include wildfire, management or protections include occupied by loach minnow at the time some recreational pressure, low improper livestock grazing, nonnative of listing and is reported to be currently nonnative pressures, water diversions, fish, recreation, and sedimentation occupied by the White Mountain and contaminants issues. Aravaipa including that from a recent fire that Apache Tribe. This segment of the East Creek supports the largest remaining destroyed vegetation (see Table 1). The Fork White River contains sufficient spikedace and loach minnow ownership of this complex is features to support one or more of the populations in Arizona. Threats in this predominantly U.S. Forest Service, with life history functions of the loach complex requiring special management a few small areas of private land. All minnow that may include appropriate or protections include water diversions, streams within the complex are within gradient, temperature, habitat types improper livestock grazing, nonnative the boundaries of the Apache-Sitgreaves (pool, riffle, run, etc.), and low levels of fish, recreation, and mining (see Table National Forest and include lands of the non-natives. Threats in this segment 1). This area includes extensive BLM White Mountain Apache Tribe. requiring special management or land as well as extensive private land, (1) East Fork Black River—Loach protections include water diversions some State of Arizona lands, and a small Minnow Only—12.2 mi (19.7 km) of and recreation. The entirety of this area of allotted land, used by the San river extending from the confluence reach is located on lands belonging to Carlos Apache Tribe. The lower with the West Fork Black River the White Mountain Apache Tribe. A portions of the Gila River are Bureau of upstream to the confluence with an management plan for loach minnow has Reclamation lands. unnamed tributary approximately 0.51 been in place on these lands since 2000. mi (0.82 km) downstream of the On the basis of this plan and our (1) Gila River—Spikedace Only—39.0 Boneyard Creek confluence. This area is partnership with the White Mountain mi (62.8 km) of river extending from the considered occupied based on records Apache Tribe, we are excluding this Ashurst-Hayden Dam upstream to the from 1996, it is connected to the North area from final critical habitat pursuant confluence with the San Pedro River. Fork East Fork Black River with to section 4(b)(2) of the Act (see Spikedace were located in the Gila River documented loach minnow records ‘‘Relationship of Critical Habitat to in 1991 (Jakle 1992, p. 6), and the Gila from 2004, and contains one or more of Tribal Lands’’ section below for River is connected with Aravaipa Creek, the primary constituent elements additional information). which supports the largest remaining including sufficient flow velocities and spikedace population. Those portions of Complex 3—Middle Gila/Lower San appropriate gradients, substrates, the Gila River designated as critical Pedro/Aravaipa Creek Complex—Pinal depths, and habitat types (i.e., riffles, habitat contain one or more of the and Graham Counties, Arizona runs). primary constituent elements, including (2) North Fork East Fork Black River— The portions of this complex sufficient flow velocities and Loach Minnow Only—4.4 mi (7.1 km) of designated as critical habitat are within appropriate gradients, substrates, river extending from the confluence the geographical range occupied by both depths, and habitat types (i.e., glides, with the East Fork Black River upstream spikedace and loach minnow at their runs, eddies). Above the confluence to the confluence with an unnamed listing and currently. Spikedace and with the San Pedro River, flow in the tributary. This area is occupied by loach loach minnow have been present within Gila River is highly regulated by the minnow based on surveys documenting this complex since 1943, with Coolidge Dam and does not contain the presence of loach minnow as recently as occupancy confirmed most recently in features essential to the conservation of 2004. Above the unnamed tributary, the 2006 (ASU 2002, AGFD 2004, Rienthal either species. Below the confluence, river has finer substrate and lacks riffle 2006, p. 2–3). The portions of the Gila the input of the San Pedro provides a habitat, making it unsuitable for loach and San Pedro rivers included within sufficiently unregulated hydrograph, minnow. this complex were not known to be which is a feature essential to the (3) Boneyard Creek—Loach Minnow occupied at listing, with the first conservation of the spikedace. Threats Only—1.4 mi (2.3 km) of creek detection on the Gila River occurring in in this area requiring special extending from the confluence with the 1991 (Jakle 1992, p. 6). However, this management or protections include East Fork Black River upstream to the area is connected via the San Pedro water diversions, improper livestock confluence with an unnamed tributary. River to Aravaipa Creek, which contains grazing, and nonnative fish species. Boneyard Creek contains one or more of one of the largest remaining populations This river is part of the complex that the primary constituent elements, of spikedace, and is therefore contains the largest remaining including sufficient flow velocities and considered to be occupied for the population of spikedace and loach

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13387

minnow and contains the features nonnative fish, and recreational runs). In addition, the lateral extent of essential to the conservation of the pressure (see Table 1). This creek is part each segment within this complex of species. of the complex that contains the largest critical habitat contains sufficient PCEs (2) Lower San Pedro River— remaining population of spikedace and (3 and 5) to provide for one or more of Spikedace Only—13.4 mi (21.5 km) of loach minnow and contains the features the life history functions of the river extending from the confluence essential to the conservation of the spikedace and loach minnow. Threats in with the Gila River upstream to the species. this complex requiring special confluence with Aravaipa Creek. This (5) Deer Creek—Loach Minnow management are described in the area was occupied at the time of listing Only—2.3 mi (3.6 km) of creek individual stream reaches below. This and is considered to be occupied as it extending from the confluence with complex contains extensive U.S. Forest is directly connected with Aravaipa Aravaipa Creek upstream to the Service land, some BLM land, and Creek, which supports the largest boundary of the Aravaipa Wilderness. scattered private, State of Arizona, and remaining spikedace population. This This stream was occupied at the time of NMDGF lands. portion of the San Pedro River contains listing and is currently occupied by (1) Eagle Creek—Loach Minnow one or more of the primary constituent loach minnow. Deer Creek contains one Only—44.8 mi (71.9 km) of creek elements, including sufficient flow or more of the primary constituent extending from the Phelps-Dodge velocities and appropriate gradients, elements essential to the conservation of Diversion Dam upstream to the substrates, depths, and habitat types loach minnow, including sufficient flow confluence of Dry Prong and East Eagle (i.e., glides, runs, eddies). Existing flow velocities and appropriate gradients, creeks, including lands of the San in the river comes from surface and substrates, depths, and habitat types Carlos Apache Reservation and the subsurface contributions from Aravaipa (i.e., riffles, runs). The threats to loach Phelps Dodge Corporation. Eagle Creek Creek. Threats in this area requiring minnow in this area are similar to those was occupied by spikedace and loach special management or protections for Aravaipa Creek, including water minnow at the time of listing. The most include water diversions, nonnative diversions, nonnative fish, and current records of occupancy in Eagle fish, improper livestock grazing, and recreation. This creek is part of the Creek are from 1997 for loach minnow mining. This river is part of the complex complex that contains the largest and 1989 for spikedace. Eagle Creek that contains the largest remaining remaining population of spikedace and contains one or more of the primary population of spikedace and loach loach minnow and contains the features constituent elements essential to the minnow and contains the features essential to the conservation of the conservation of loach minnow, essential to the conservation of the species. including sufficient flow velocities and species. appropriate gradients, substrates, Complex 4—San Francisco and Blue (3) Aravaipa Creek—28.1 mi (45.3 km) depths, and habitat types (i.e., riffles, Rivers Complex—Graham and of creek extending from the confluence runs). Threats within this area that Greenlee Counties, Arizona and Catron with the San Pedro River upstream to require special management or County, New Mexico the confluence with Stowe Gulch, protections include water diversions, which is where the upstream limit of The streams in this complex are improper livestock grazing, nonnative sufficient perennial flow ends for either within the geographical range occupied fish, and mining (see Table 1). species. Aravaipa Creek was occupied by the loach minnow and the spikedace. A section of Eagle Creek by both spikedace and loach minnow at The Blue River system and adjacent approximately 17.2 mi (27.7 km) long the time of listing and continues to portions of the San Francisco River occurs on the San Carlos Apache support a substantial population of both constitute the longest stretch of Reservation. We have received a species (Rienthal 2006, p. 1–2). occupied loach minnow habitat management plan from the San Carlos Aravaipa Creek contains one or more of unbroken by large areas of unsuitable Apache Tribe addressing native fishes. the primary constituent elements, habitat. Loach minnow have been On the basis of this plan and our including sufficient flow velocities and present in this complex since 1840 up partnership with the San Carlos Apache appropriate gradients, substrates, to the present, including at its listing Tribe, we are excluding this area from depths, and habitat types (i.e., runs, (Miller 1998, pp. 4–5; ASU 2002; AGFD final critical habitat pursuant to section riffles, glides, eddies). Threats in this 2004; Carter 2005, pp. 1–9; Propst 2005, 4(b)(2) of the Act (see ‘‘Relationship of area requiring special management or p. 6; Propst 2006, p. 2). Within this Critical Habitat to Tribal Lands’’ section protections include water diversions, complex, Eagle Creek was known to be below for additional information). An nonnative fish, and recreational occupied by spikedace at its listing additional 9.9 mi (15.7 km) are owned pressures (see Table 1). (ASU 2002; Marsh et al. 2003, pp. 666– by the Phelps Dodge Corporation. We (4) Turkey Creek—Loach Minnow 668; AGFD 2004), while Frieborn, received a management plan from Only—2.7 mi (4.3 km) of creek Negrito, and Pace creeks were not Phelps Dodge addressing management extending from the confluence with known to be occupied at the time of for spikedace and loach minnow. On the Aravaipa Creek upstream to the listing. For the areas not known to be basis of this plan, we are excluding their confluence with Oak Grove Canyon. occupied at the time of listing, each of lands from the final critical habitat This creek was occupied at the time of these areas is currently occupied by designation pursuant to section 4(b)(2) listing and is currently occupied by loach minnow, supports one or more of of the Act (see ‘‘Exclusions under loach minnow (Rienthal 2006, p. 2–3). the PCEs, and is connected to a stream Section 4(b)(2) of the Act’’ for additional Turkey Creek contains one or more of that is also currently occupied. Because information). the primary constituent elements, the distribution of loach minnow has (2) San Francisco River—Loach including sufficient flow velocities and been severely reduced, these creeks are Minnow Only—126.5 mi (203.5 km) of appropriate gradients, substrates, considered essential to the species. river extending from the confluence depths, and habitat types (i.e., riffles, Streams in this complex contain one or with the Gila River upstream to the runs). Threats to this area requiring more of the PCEs for both species mouth of The Box, a canyon above the special management or protections are including sufficient flow velocities and town of Reserve. Loach minnow generally the same as for Aravaipa appropriate gradients, substrates, occupied the San Francisco River at the Creek, and include water diversions, depths, and habitat types (i.e., riffles, time of listing and occupy it presently,

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13388 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

with occupancy verified in 2005. The Whitewater Creek unsuitable for loach addition, this area is connected with San Francisco River contains one or minnow. In addition, low water Campbell Blue Creek, which has more of the primary constituent temperatures likely influence the documented loach minnow records as elements essential to the conservation of upstream distributional limits (Propst recent as 2004. This area also contains loach minnow, including sufficient flow 2006, p. 2). Whitewater Creek was one or more of the primary constituent velocities and appropriate gradients, occupied at the time of listing, and is elements essential to the conservation of substrates, depths, and habitat types connected with the San Francisco River, loach minnow, including sufficient flow (i.e., riffles, runs). Threats to this area which has documented loach minnow velocities and appropriate gradients, requiring special management or records as recent as 2001. This area does substrates, depths, and habitat types protections include water diversions, support one or more primary (i.e., riffles, runs). Threats to this area improper livestock grazing, and constituent elements for loach minnow, requiring special management or nonnative fish species (see Table 1). including sufficient flow velocities and protections include improper livestock (3) Tularosa River—Loach Minnow appropriate gradients, substrates, grazing and nonnative fish species (see Only—18.6 mi (30.0 km) of river depths, and habitat types (i.e., riffles, Table 1). extending from the confluence with the runs). Threats to this area include (9) Pace Creek—Loach Minnow San Francisco River upstream to the grazing and nonnative fish (see Table 1). Only—0.8 mi (1.2 km) of creek town of Cruzville. Above Cruzville, the (6) Blue River—Loach Minnow extending from the confluence with Dry river does not contain the features Only—51.1 mi (82.2 km) of river Blue Creek upstream to a barrier falls. essential to the conservation of the extending from the confluence with the Pace Creek has been occupied by loach species because of the small size of the San Francisco River upstream to the minnow since listing and is considered stream and a predominance of fine confluence of Campbell Blue and Dry currently occupied with the most recent substrates. This area includes one or Blue creeks. The Blue River was record from 1998. This area also more of the primary constituent occupied at the time of listing and contains one or more of the primary elements essential to the conservation of continues to be occupied by loach constituent elements essential to the loach minnow, including sufficient flow minnow (Carter 2005, pp. 1–9). The conservation of loach minnow, velocities and appropriate gradients, Blue River contains one or more of the including sufficient flow velocities and substrates, depths, and habitat types primary constituent elements essential appropriate gradients, substrates, (i.e., riffles, runs). The Tularosa River to the conservation of loach minnow, depths, and habitat types (i.e., riffles, was occupied at the time of listing and including sufficient flow velocities and runs). Threats to this area requiring is known to be currently occupied based appropriate gradients, substrates, special management or protections on records as recent as 2002. Threats to depths, and habitat types (i.e., riffles, include improper livestock grazing and the species and its habitat in this area runs). Planning is underway among nonnative fish species (see Table 1). that require special management or several State and Federal agencies for (10) Frieborn Creek—Loach Minnow protections include grazing and reintroduction of native fishes, Only—1.1 mi (1.8 km) of creek nonnative fish (see Table 1). including spikedace, in the Blue River, (4) Negrito Creek—Loach Minnow and thus the Blue River may be extending from the confluence with Dry Only—4.2 mi (6.8 km) of creek considered for spikedace critical habitat Blue Creek upstream to an unnamed extending from the confluence with the in future revisions of the designation. tributary. Frieborn Creek has been Tularosa River upstream to the Threats in this area include water occupied by loach minnow since listing confluence with Cerco Canyon. Above diversions, improper livestock grazing, and is currently occupied with the most this area, the creek does not contain the nonnative fish, and roads (see Table 1). recent record from 1998. This area also features essential to the conservation of (7) Campbell Blue Creek—Loach contains one or more of the primary the species because of gradient and Minnow Only—8.1 mi (13.1 km) of constituent elements essential to the channel morphology. Negrito Creek has creek extending from the confluence of conservation of loach minnow, been occupied since listing, with the Dry Blue and Campbell Blue creeks including sufficient flow velocities and most recent record from 1998 (Service upstream to the confluence with appropriate gradients, substrates, 2005). In addition, this area is directly Coleman Canyon. Areas above Coleman depths, and habitat types (i.e., riffles, connected to the Tularosa River, which Canyon do not contain the features runs). Threats to this area requiring has occupancy records as recent as essential to the conservation of the special management or protections 2002. Negrito Creek contains one or species because the creek becomes include improper livestock grazing and more of the primary constituent steeper and rockier, making it nonnative fish species (see Table 1). elements essential to the conservation of unsuitable for loach minnow. Campbell (11) Little Blue Creek—Loach loach minnow, including sufficient flow Blue Creek is currently occupied (Carter Minnow Only—2.8 mi (4.5 km) of creek velocities and appropriate gradients, 2005, pp. 1–9) and supports one or more extending from the confluence with the substrates, depths, and habitat types of the velocities and appropriate Blue River upstream to the mouth of a (i.e., riffles, runs). Threats to this area gradients, substrates, depths, and canyon. Little Blue Creek was occupied requiring special management or habitat types (i.e., riffles, runs). Threats at the time of listing and is considered protections include improper livestock to this area requiring special to be occupied as it is directly grazing and nonnative fish (see Table 1). management or protections include connected with the Blue River, which (5) Whitewater Creek—Loach Minnow improper livestock grazing and has documented loach minnow records Only—1.1 mi (1.8 km) of creek nonnative fish species (see Table 1). as recent as 2004. This area also extending from the confluence with the (8) Dry Blue Creek—Loach Minnow contains one or more of the primary San Francisco River upstream to the Only—3.0 mi (4.8 km) of creek constituent elements essential to the confluence with the Little Whitewater extending from the confluence with conservation of loach minnow including Creek. Upstream of this area the river Campbell Blue Creek upstream to the sufficient flow velocities and does not contain the features essential to confluence with Pace Creek. Dry Blue appropriate gradients, substrates, the conservation of the species because Creek has been occupied by loach depths, and habitat types (i.e., riffles, of gradient and channel changes that minnow since listing and is occupied runs). Threats requiring special make the portion above Little with records dating from 2001. In management or protections in this area

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13389

include grazing and nonnative fish (see owned by the Phelps Dodge River. Portions of the Middle Fork Gila Table 1). Corporation. We received a management River contain one or more primary plan from Phelps Dodge addressing constituent elements essential to the Complex 5—Upper Gila River management for spikedace and loach conservation of loach minnow, Complex—Grant, Catron, and Hidalgo minnow for these areas. On the basis of including sufficient flow velocities and Counties, New Mexico this plan, we are excluding their lands appropriate gradients, substrates, Spikedace have been known to be from the final critical habitat depths, and habitat types (i.e., riffles, present in this complex since 1935 and designation pursuant to section 4(b)(2) runs). Threats to this area requiring up through the present. Loach minnow of the Act, and because of economic special management or protections have been known to be present in this impact concerns (see ‘‘Exclusion under include grazing, nonnative fish species, complex since 1938 and up through the Section 4(b)(2) of the Act’’ for additional and ash flows and increased sediment present. This complex was occupied by information). loading following wildfires (See Table both spikedace and loach minnow at the (2) East Fork Gila River—26.1 mi (42.0 1). time of listing (Propst et al. 1998, p. 14– km) of river extending from the (5) West Fork Gila River—7.7 mi (12.4 15; ASU 2002; Propst 2002, p. 4, 22, 27, confluence with the West Fork Gila km) of river extending from the 31; Paroz et al. 2006, p. 63–64; Propst River upstream to the confluence of confluence with the East Fork Gila River 2006, p. 2). This complex contains the Beaver and Taylor creeks. This area was upstream to the confluence with EE largest remaining populations of both occupied by both species at the time of Canyon. This lower portion of the West species in New Mexico. It is considered listing and both species have been Fork Gila River was occupied by both to represent the ‘‘core’’ of what remains found there as recently as 2001. In spikedace and loach minnow at the time of these species. Streams in this addition, this area is connected to of listing and continues to be occupied complex contain one or more of the habitat currently occupied by spikedace by both species. This area contains one PCEs for both species including and loach minnow on the West Fork of or more primary constituent elements sufficient flow velocities and the Gila River. Portions of the East Fork essential to the conservation of appropriate gradients, substrates, Gila River contain one or more of the spikedace and loach minnow, including depths, and habitat types (i.e., riffles, primary constituent elements essential sufficient flow velocities and runs). In addition, the lateral extent of to the conservation of spikedace and appropriate gradients, substrates, each segment within this complex of loach minnow including sufficient flow depths, and habitat types (i.e., riffles, critical habitat contains sufficient PCEs velocities and appropriate gradients, runs, glides, eddies). Above EE Canyon, (3 and 5) to provide for one or more of substrates, depths, and habitat types the river does not contain the features the life history functions of the (i.e., riffles, runs, glides, eddies). essential to the conservation of the spikedace and loach minnow. Threats Threats to this area requiring special species due to gradient and channel requiring special management or management or protections include morphology. Threats to this area protections in this area are addressed in improper livestock grazing, nonnative requiring special management or each of the individual stream segment fish species, and ash flows from protections include nonnative fish descriptions below. The largest areas are wildfires (See Table 1). species and ash flows and increased on U.S. Forest Service land, with small (3) Middle Fork Gila River— sediment loading following wildfires private inholdings. There are large areas Spikedace Only—7.7 mi (12.3 km) of (See Table 1). of private lands in the Cliff-Gila Valley, river extending from the confluence and the BLM administers significant with the West Fork Gila River upstream Effects of Critical Habitat Designation stretches upstream of the Arizona/New to the confluence with Big Bear Canyon. Section 7 Consultation Mexico border. There are also small This area is currently occupied (ASU areas of NMDGF, National Park Service, 2002, Paroz et al. 2006, p. 63, Propst Section 7 of the Act requires Federal and State of New Mexico lands. 2002, p. 22, Propst 2006, p. 2), and is agencies, including the Service, to (1) Upper Gila River—102.2 mi (164.4 connected to currently occupied habitat ensure that actions they fund, authorize, km) of river extending from the on the West Fork of the Gila River. The or carry out are not likely to destroy or confluence with Moore Canyon (near Middle Fork Gila River contains one or adversely modify critical habitat. In our the Arizona/New Mexico border) more of the primary constituent regulations at 50 CFR 402.02, we define upstream to the confluence of the East elements essential to the conservation of destruction or adverse modification as and West Forks of the Gila River. The spikedace, including sufficient flow ‘‘a direct or indirect alteration that Gila River was occupied by spikedace velocities and appropriate gradients, appreciably diminishes the value of and loach minnow at the time of listing substrates, depths, and habitat types critical habitat for both the survival and and continues to be occupied by both (i.e., riffles, runs, glides, eddies). recovery of a listed species. Such species (ASU 2002, Propst 2002, pp. 2, Threats to this area requiring special alterations include, but are not limited 4, 29–33). The Gila River from its management or protections include to, alterations adversely modifying any confluence with the West Fork Gila and improper livestock grazing, nonnative of those physical or biological features East Fork Gila contains one or more fish species, and ash flows and that were the basis for determining the primary constituent elements for increased sediment loading following habitat to be critical.’’ However, recent spikedace and loach minnow, including recent wildfires (See Table 1). decisions by the 5th and 9th Circuit sufficient flow velocities and (4) Middle Fork Gila River—Loach Court of Appeals have invalidated this appropriate gradients, substrates, Minnow Only—11.9 mi (19.1 km) of definition. Pursuant to current national depths, and habitat types (i.e., riffles, river extending from the confluence policy and the statutory provisions of runs, glides, eddies). Threats to this area with the West Fork Gila River upstream the Act, destruction or adverse requiring special management or to the confluence with Brothers West modification is determined on the basis protections include water diversions, Canyon. This area is currently occupied of whether, with implementation of the improper livestock grazing, recreation, (ASU 2002, Paroz et al. 2006, p. 63, proposed Federal action, the affected road construction, and nonnative fish Propst 2002, p. 22, Propst 2006, p. 2) critical habitat would remain functional species (see Table 1). Approximately 7.2 and is connected to currently occupied (or retain the current ability for the mi (11.6 km) along the Gila River are habitat on the West Fork of the Gila primary constituent elements to be

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13390 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

functionally established) to serve the conference report or opinion are strictly adversely modify or destroy proposed intended conservation role for the advisory. critical habitat. species. If a species is listed or critical habitat Federal activities that may affect the Section 7(a) of the Act requires is designated, section 7(a)(2) of the Act spikedace and loach minnow or their Federal agencies, including the Service, requires Federal agencies to ensure that designated critical habitat will require to evaluate their actions with respect to activities they authorize, fund, or carry section 7 consultation under the Act. any species that is proposed or listed as out are not likely to jeopardize the Activities on State, Tribal, local or endangered or threatened and with continued existence of such a species or private lands requiring a Federal permit respect to its critical habitat, if any is to destroy or adversely modify its (such as a permit from the Corps under proposed or designated. Regulations critical habitat. If a Federal action may section 404 of the Clean Water Act or a implementing this interagency affect a listed species or its critical permit under section 10(a)(1)(B) of the cooperation provision of the Act are habitat, the responsible Federal agency Act from the Service) or involving some codified at 50 CFR part 402. (action agency) must enter into other Federal action (such as funding Section 7(a)(4) of the Act requires consultation with us. As a result of this from the Federal Highway Federal agencies to confer with us on consultation, compliance with the Administration, Federal Aviation any action that is likely to jeopardize requirements of section 7(a)(2) will be Administration, or the Federal the continued existence of a proposed documented through the Service’s Emergency Management Agency) will species or result in destruction or issuance of: (1) A concurrence letter for also be subject to the section 7 adverse modification of proposed Federal actions that may affect, but are consultation process. Federal actions critical habitat. This is a procedural not likely to adversely affect, listed not affecting listed species or critical requirement only. However, once a species or critical habitat; or (2) a habitat, and actions on State, Tribal, proposed species becomes listed, or biological opinion for Federal actions local, or private lands that are not proposed critical habitat is designated that may affect, but are likely to federally-funded, authorized, or as final, the full prohibitions of section adversely affect, listed species or critical permitted, do not require section 7 7(a)(2) apply to any Federal action. The habitat. consultations. primary utility of the conference When we issue a biological opinion procedures is to maximize the Application of the Jeopardy and concluding that a project is likely to opportunity for a Federal agency to Adverse Modification Standards for adequately consider proposed species result in jeopardy to a listed species or Actions Involving Effects to the and critical habitat and avoid potential the destruction or adverse modification Spikedase and Loach Minnow and Their delays in implementing their proposed of critical habitat, we also provide Critical Habitat reasonable and prudent alternatives to action because of the section 7(a)(2) Jeopardy Standard compliance process, should those the project, if any are identifiable. species be listed or the critical habitat ‘‘Reasonable and prudent alternatives’’ Prior to and following designation of designated. are defined at 50 CFR 402.02 as critical habitat, the Service has applied Under conference procedures, the alternative actions identified during an analytical framework for spikedace Service may provide advisory consultation that can be implemented in and loach minnow jeopardy analyses conservation recommendations to assist a manner consistent with the intended that relies heavily on the importance of the agency in eliminating conflicts that purpose of the action, that are consistent core area populations to the survival may be caused by the proposed action. with the scope of the Federal agency’s and recovery of the spikedace and loach The Service may conduct either legal authority and jurisdiction, that are minnow. The section 7(a)(2) analysis is informal or formal conferences. Informal economically and technologically focused not only on these populations conferences are typically used if the feasible, and that the Director believes but also on the habitat conditions proposed action is not likely to have any would avoid jeopardy to the listed necessary to support them. adverse effects to the proposed species species or destruction or adverse The jeopardy analysis usually or proposed critical habitat. Formal modification of critical habitat. expresses the survival and recovery conferences are typically used when the Reasonable and prudent alternatives can needs of the spikedace and loach Federal agency or the Service believes vary from slight project modifications to minnow in a qualitative fashion without the proposed action is likely to cause extensive redesign or relocation of the making distinctions between what is adverse effects to proposed species or project. Costs associated with necessary for survival and what is critical habitat, inclusive of those that implementing a reasonable and prudent necessary for recovery. Generally, if a may cause jeopardy or adverse alternative are similarly variable. proposed Federal action is incompatible modification. Regulations at 50 CFR 402.16 require with the viability of the affected core The results of an informal conference Federal agencies to reinitiate area population(s), inclusive of are typically transmitted in a conference consultation on previously reviewed associated habitat conditions, a jeopardy report while the results of a formal actions in instances where a new opinion is warranted because of the conference are typically transmitted in a species is listed or critical habitat is relationship of each core area conference opinion. Conference subsequently designated that may be population to the survival and recovery opinions on proposed critical habitat are affected and the Federal agency has of the species as a whole. typically prepared according to 50 CFR retained discretionary involvement or 402.14, as if the proposed critical control over the action or such Adverse Modification Standard habitat were designated. We may adopt discretionary involvement or control is For the reasons described in the the conference opinion as the biological authorized by law. Consequently, some Director’s December 9, 2004 opinion when the critical habitat is Federal agencies may request memorandum, the key factor related to designated, if no substantial new reinitiation of consultation with us on the adverse modification determination information or changes in the action actions for which formal consultation is whether, with implementation of the alter the content of the opinion (see 50 has been completed, if those actions proposed Federal action, the affected CFR 402.10(d)). As noted above, any may affect subsequently listed species critical habitat would remain functional conservation recommendations in a or designated critical habitat or (or retain the current ability for the

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13391

primary constituent elements to be geographic range of the species, all were adversely modify critical habitat. functionally established) to serve the occupied by the species at the time of Second, it only limits destruction or intended conservation role for the listing, and are likely to be used by the adverse modification. By its nature, the species. Generally, the conservation role spikedace and loach minnow. Federal prohibition on adverse modification is of spikedace and loach minnow critical agencies already consult with us on designed to ensure those areas that habitat units is to support viable core activities in areas currently occupied by contain the physical and biological area populations. the spikedace and loach minnow, or if features essential to the conservation of Section 4(b)(8) of the Act requires us the species may be affected by the the species or unoccupied areas that are to briefly evaluate and describe in any action, to ensure that their actions do essential to the conservation of the proposed or final regulation that not jeopardize the continued existence species are not eroded. Critical habitat designates critical habitat those of the spikedace and loach minnow. designation alone, however, can not activities involving a Federal action that require active management efforts Exclusions Under Section 4(b)(2) of the may destroy or adversely modify such toward recovery. habitat, or that may be affected by such Act Once consultation under section 7 of designation. Activities that may destroy Section 4(b)(2) of the Act states that the Act is triggered, the process may or adversely modify critical habitat may critical habitat shall be designated, and conclude informally when the Service also jeopardize the continued existence revised, on the basis of the best concurs in writing that the proposed of the species. available scientific data after taking into Federal action is not likely to adversely Activities that may destroy or consideration the economic impact, affect the listed species or its critical adversely modify critical habitat are national security impact, and any other habitat. However, if the Service those that alter the PCEs to an extent relevant impact, of specifying any determines through informal that the conservation value of critical particular area as critical habitat. The consultation that adverse impacts are habitat for the spikedace and loach Secretary may exclude an area from likely to occur, then formal consultation minnow is appreciably reduced. critical habitat if [s]he determines that would be initiated. Formal consultation Activities that, when carried out, the benefits of such exclusion outweigh concludes with a biological opinion funded, or authorized by a Federal the benefits of specifying such area as issued by the Service on whether the agency, may affect critical habitat and part of the critical habitat, unless he proposed Federal action is likely to therefore result in consultation for the determines, based on the best scientific jeopardize the continued existence of a spikedace and loach minnow include, data available, that the failure to listed species or result in destruction or but are not limited to: designate such area as critical habitat adverse modification of critical habitat, (1) Channelization, impoundment, will result in the extinction of the with separate analyses being made road and bridge construction, species. In making that determination, under both the jeopardy and the adverse deprivation of substrate source, the Secretary is afforded broad modification standards. For critical destruction and alteration of riparian discretion and the Congressional record habitat, a biological opinion that vegetation, reduction of available is clear that in making a determination concludes in a determination of no floodplain, removal of gravel or under the section the Secretary has destruction or adverse modification may floodplain terrace materials, and discretion as to which factors and how contain discretionary conservation excessive sedimentation from mining, much weight will be given to any factor. recommendations to minimize adverse livestock grazing, road construction, Under section 4(b)(2), in considering effects to primary constituent elements, timber harvest, off-road vehicle use, and whether to exclude a particular area but it would not contain any mandatory other watershed and floodplain from the designation, we must identify reasonable and prudent measures or disturbances; the benefits of including the area in the terms and conditions. Mandatory (2) actions that would significantly designation, identify the benefits of measures and terms and conditions to and detrimentally alter the water excluding the area from the designation, implement such measures are only chemistry in any of the stream segments determine whether the benefits of specified when the proposed action listed above could destroy or adversely exclusion outweigh the benefits of would result in the incidental take of a modify the critical habitat of either or inclusion. If an exclusion is listed animal species. Reasonable and both species. Such activities include, contemplated, then we must determine prudent alternatives to the proposed but are not limited to, release of whether excluding the area would result Federal action would only be suggested chemical or biological pollutants into in the extinction of the species. In the when the biological opinion results in a the surface water or connected following sections, we address a number jeopardy or adverse modification groundwater at a point source or by of general issues that are relevant to the conclusion. dispersed release (non-point source); exclusions we considered. We also note that for 30 years prior to (3) actions that would introduce, the Ninth Circuit Court’s decision in General Principles of Section 7 spread, or augment nonnative fish Gifford Pinchot, the Service conflated Consultations Used in the 4(b)(2) species could destroy or adversely the jeopardy standard with the standard Balancing Process modify the critical habitat of either or for destruction or adverse modification both species; and The most direct, and potentially of critical habitat when evaluating (4) actions that would result in the largest, regulatory benefit of critical federal actions that affect currently removal of water from waterways. Such habitat is that federally authorized, occupied critical habitat. The Court activities include, but are not limited to, funded, or carried out activities require ruled that the two standards are distinct construction and operation of canals consultation pursuant to section 7 of the and that adverse modification and interbasin water transfers. Act to ensure that they are not likely to evaluations require consideration of We consider all of the units destroy or adversely modify critical impacts on the recovery of species. designated as critical habitat, as well as habitat. There are two limitations to this Thus, under the Gifford Pinchot those that have been excluded, to regulatory effect. First, it only applies decision, critical habitat designations contain features essential to the where there is a Federal nexus—if there may provide greater benefits to the conservation of the spikedace and loach is no Federal nexus, designation itself recovery of a species. However, we minnow. All units are within the does not restrict actions that destroy or believe the conservation achieved

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13392 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

through implementing management not designated as critical habitat. cost-share. Many private landowners, plans is typically greater than would be Additionally, the purpose normally however, are wary of the possible achieved through multiple site-by-site, served by the designation, that of consequences of encouraging project-by-project, section 7 informing State agencies and local endangered species to their property, consultations involving consideration of governments about areas that would and there is mounting evidence that critical habitat. Management plans benefit from protection and some regulatory actions by the Federal commit resources to implement long- enhancement of critical habitat for the government, while well-intentioned and term management and protection to spikedace and loach minnow, is already required by law, can (under certain particular habitat for at least one and well established among State and local circumstances) have unintended possibly other listed or sensitive governments, and Federal agencies in negative consequences for the species. Section 7 consultations only those areas that we are excluding from conservation of species on private lands commit Federal agencies to prevent critical habitat in this rule on the basis (Wilcove et al. 1996, Bean 2002, Conner adverse modification to critical habitat of other existing habitat management and Mathews 2002, James 2002, Koch caused by the particular project, and protections. 2002, Brook et al. 2003). Many they are not committed to provide The information provided in this landowners fear a decline in their conservation or long-term benefits to section applies to all the discussions property value due to real or perceived areas not affected by the proposed below that discuss the benefits of restrictions on land-use options where project. Thus, any management plan inclusion and exclusion of critical threatened or endangered species are which considers enhancement or habitat. found, and more specifically, when recovery as the management standard Conservation Partnerships on Non- critical habitat is proposed or will often provide as much or more Federal Lands designated. Consequently, harboring benefit than a consultation for critical endangered species is viewed by many habitat designation conducted under the Most federally listed species in the landowners as a liability, resulting in standards required by the Ninth Circuit United States will not recover without anti-conservation incentives because in the Gifford Pinchot decision. the cooperation of non-Federal maintaining habitats that harbor The information provided in this landowners. More than 60 percent of the endangered species represents a risk to section applies to all the discussions United States is privately owned future economic opportunities (Main et below that discuss the benefits of (National Wilderness Institute 1995), al. 1999, Brook et al. 2003). inclusion and exclusion of critical and at least 80 percent of endangered or The purpose of designating critical habitat in that it provides the framework threatened species occur either partially habitat is to contribute to the for the consultation process. or solely on private lands (Crouse et al. conservation of threatened and 2002). Stein et al. (1995) found that only endangered species and the ecosystems Educational Benefits of Critical Habitat about 12 percent of listed species were upon which they depend. The outcome A benefit of including lands in critical found almost exclusively on Federal of the designation, triggering regulatory habitat is that the designation of critical lands (90 to 100 percent of their known requirements for actions funded, habitat serves to educate landowners, occurrences restricted to Federal lands) authorized, or carried out by Federal State and local governments, and the and that 50 percent of federally listed agencies under section 7 of the Act, can public regarding the potential species are not known to occur on sometimes be counterproductive to its conservation value of an area. This Federal lands at all. intended purpose on non-Federal lands. helps focus and promote conservation Given the distribution of listed According to some researchers, the efforts by other parties by clearly species with respect to land ownership, designation of critical habitat on private delineating areas of high conservation conservation of listed species in many lands significantly reduces the value for the spikedace and loach parts of the United States is dependent likelihood that landowners will support minnow. In general the educational upon working partnerships with a wide and carry out conservation actions benefit of a critical habitat designation variety of entities and the voluntary (Main et al. 1999, Bean 2002, Brook et always exists, although in some cases it cooperation of many non-Federal al. 2003). The magnitude of this may be redundant with other landowners (Wilcove and Chen 1998, negative outcome is greatly amplified in educational effects. For example, habitat Crouse et al. 2002, James 2002). situations where active management conservation plans have significant Building partnerships and promoting measures (such as reintroduction, fire public input and may largely duplicate voluntary cooperation of landowners is management, control of invasive the educational benefit of a critical essential to understanding the status of species) are necessary for species habitat designation. This benefit is species on non-Federal lands and is conservation (Bean 2002). A critical closely related to a second, more necessary to implement recovery actions habitat designation cannot require such indirect benefit: That designation of such as reintroducing listed species, actions on the lands being exempted critical habitat would inform State active management, and habitat here. agencies and local governments about protection. The Service believes that the areas that could be conserved under Many non-Federal landowners derive judicious use of excluding specific areas State laws or local ordinances. satisfaction in contributing to of non-federally owned lands from However, we believe that there would endangered species recovery. The critical habitat designations can be little additional informational benefit Service promotes these private-sector contribute to species recovery and gained from the designation of critical efforts through the Four Cs provide a superior level of conservation habitat for the exclusions discussed in philosophy—conservation through than critical habitat alone. For example, this rule because these areas are communication, consultation, and less than 17 percent of Hawaii is included in this rule as having habitat cooperation. This philosophy is evident federally owned, but the state is home containing the features essential to the in Service programs such as HCPs, Safe to more than 24 percent of all federally conservation of the species. Harbor Agreements, Candidate listed species, most of which will not Consequently, we believe that the Conservation Agreements, Candidate recover without State and private informational benefits are already Conservation Agreements with landowner cooperation. On the island of provided even though these areas are Assurances, and conservation challenge Lanai, Castle and Cooke Resorts, LLC,

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13393

which owns 99 percent of the island, consultations. In the past decade we designation of critical habitat entered into a conservation agreement have encouraged non-Federal (depending upon the outcome of the with the Service. The conservation landowners to enter into conservation rulemaking, as well as additional agreement provides conservation agreements, based on a view that we can benefits to the species). In light of the benefits to target species through achieve greater species conservation on uncertainty concerning the regulatory management actions that remove threats non-Federal land through such definition of adverse modification, our (such as axis deer, mouflon sheep, rats, partnerships than we can through current methodological approach to invasive nonnative plants) from the coercive methods (61 FR 63854; conducting economic analyses of our Lanaihale and East Lanai Regions. December 2, 1996). critical habitat designations is to consider all conservation-related costs. Specific management actions include Relationship of Critical Habitat to This approach would include costs fire control measures, nursery Economic Impacts—Exclusions Under related to sections 4, 7, 9, and 10 of the propagation of native flora (including Section 4(b)(2) of the Act the target species) and planting of such Act, and should encompass costs that flora. These actions will significantly This section allows the Secretary to would be considered and evaluated in improve the habitat for all currently exclude areas from critical habitat for light of the Gifford Pinchot ruling. occurring species. Due to the low economic reasons if he determines that In addition, we have received several likelihood of a Federal nexus on the the benefits of such exclusion exceed credible comments on the economic island, we believe that the benefits of the benefits of designating the area as analysis contending that it excluding the lands covered by the critical habitat, unless the exclusion underestimates, perhaps significantly, MOA exceeded the benefits of including will result in the extinction of the the costs associated with this critical them. As stated in the final critical species concerned. Congress has habitat designation. Both of these factors habitat rule for endangered plants on provided this discretionary authority to are a balancing consideration against the the Island of Lanai: the Secretary with respect to critical possibility that some of the costs shown habitat. Although economic and other in the economic analysis might be On Lanai, simply preventing ‘‘harmful impacts may not be considered when attributable to other factors, or are activities’’ will not slow the extinction of listed plant species. Where consistent with listing a species, Congress has expressly overly high, and so would not the discretion provided by the Act, the required their consideration when necessarily be avoided by excluding the Service believes it is necessary to implement designating critical habitat. area for which the costs are predicted policies that provide positive incentives to In making the following exclusions, from this critical habitat designation. private landowners to voluntarily conserve we have in general considered that all natural resources and that remove or reduce of the costs and other impacts predicted Relationship of Critical Habitat to Tribal disincentives to conservation. While the in the economic analysis may not be Lands impact of providing these incentives may be avoided by excluding the area, because In accordance with the Secretarial modest in economic terms, they can be all of the areas in question are currently Order 3206, ‘‘American Indian Tribal significant in terms of conservation benefits that can stem from the cooperation of the occupied by the listed species and there Rights, Federal-Tribal Trust landowner. The continued participation of will be requirements for consultation Responsibilities, and the Endangered Castle and Cooke Resorts, LLC, in the under section 7 of the Act, or for Species Act’’ (June 5, 1997); the existing Lanai Forest and Watershed permits under section 10 (henceforth President’s memorandum of April 29, Partnership and other voluntary conservation ‘‘consultation’’), for any take of these 1994, ‘‘Government-to-Government agreements will greatly enhance the Service’s species, and other protections for the Relations with Native American Tribal ability to further the recovery of these species exist elsewhere in the Act and Governments’’ (59 FR 22951); Executive endangered plants. under State and local laws and Order 13175; and the relevant provision The Department of the Interior’s Four regulations. In conducting economic of the Departmental Manual of the C’s philosophy—conservation through analyses, we are guided by the 10th Department of the Interior (512 DM 2), communication, consultation, and Circuit Court of Appeal’s ruling in the we believe that fish, wildlife, and other cooperation—is the foundation for New Mexico Cattle Growers Association natural resources on tribal lands are developing the tools of conservation. case (248 F.3d at 1285), which directed better managed under tribal authorities, These tools include conservation grants, us to consider all impacts, ‘‘regardless of policies, and programs than through funding for Partners for Fish and whether those impacts are attributable Federal regulation wherever possible Wildlife Program, the Coastal Program, co-extensively to other causes.’’ As and practicable. Based on this and cooperative-conservation challenge explained in the analysis, due to philosophy, we believe that, in many cost-share grants. Our Private possible overlapping regulatory schemes cases, designation of tribal lands as Stewardship Grant program and and other reasons, some elements of the critical habitat provides very little Landowner Incentive Program provide analysis may also overstate some costs. additional benefit to threatened and assistance to private landowners in their Conversely, the Ninth Circuit has endangered species. Conversely, such voluntary efforts to protect threatened, recently ruled (Gifford Pinchot, 378 F.3d designation is often viewed by tribes as imperiled, and endangered species, at 1071) that the Service’s regulations an unwanted intrusion into tribal self including the development and defining ‘‘adverse modification’’ of governance, thus compromising the implementation of Habitat Conservation critical habitat are invalid because they government-to-government relationship Plans (HCPs). define adverse modification as affecting essential to achieving our mutual goals Conservation agreements with non- both survival and recovery of a species. of managing for healthy ecosystems Federal landowners (HCPs, contractual The Court directed us to consider that upon which the viability of threatened conservation agreements, easements, determinations of adverse modification and endangered species populations and stakeholder-negotiated State should be focused on impacts to depend. regulations) enhance species recovery. While we have not yet conservation by extending species proposed a new definition for public San Carlos Apache Tribe protections and providing for positive review and comment, compliance with The San Carlos Apache Tribe has one management actions beyond those that the Court’s direction may result in stream within its tribal lands, Eagle can be required through section 7 additional costs associated with the Creek, that is known to be currently

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13394 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

occupied by the spikedace and loach minnow, on tribal lands. The FMP United States for Indian Tribes, the BIA minnow and its tribal lands contain outlines actions to conserve, enhance, provides technical assistance to the features that are essential to the and restore spikedace and loach White Mountain Apache Tribe on conservation of the spikedace and loach minnow PCEs, including efforts to management planning and oversees a minnow. The Tribe has completed and eliminate nonnative fishes from variety of programs on their lands. is implementing a Fisheries spikedace and loach minnow habitat, The White Mountain Apache Tribe Management Plan (FMP) that includes actions that could not be compelled by highly values its wildlife and natural specific management actions for the a critical habitat designation. All habitat resources, and is charged to preserve spikedace and loach minnow and restoration activities (whether it is to and protect these resources under the conserves the PCEs. In this exclusion, rehabilitate or restore native plants) will Tribal Constitution. Consequently, the we considered several factors, including be conducted under reasonable Tribe has long worked to manage the our relationship with San Carlos coordination with the Service. All habitat of wildlife on its tribal lands, Apache Tribe, and the degree to which reasonable measures will be taken to including the habitat of endangered and the Tribe’s FMP provides specific ensure that recreational activities do not threatened species. We understand that management for the spikedace and result in a net habitat loss or permanent it is the Tribe’s position that a loach minnow. Tribal governments modification of the habitat. All designation of critical habitat on its protect and manage their resources in reasonable measures will be taken to lands improperly infringes upon its the manner that is most beneficial to conduct livestock grazing activities in a tribal sovereignty and the right to self- them. The San Carlos Apache Tribe manner that will ensure the government. exercises legislative, administrative, and conservation of spikedace and loach Yavapai Apache Tribe judicial control over activities within minnow habitat. Within funding the boundaries of its lands. limitations and under confidentiality The Yavapai Apache Tribe has long Additionally, the Tribe has natural guidelines established by the Tribe, the worked to protect the Verde River and resource programs and staff and has Tribe will cooperate with the Service to its surrounding habitat as it flows on the enacted the FMP. In addition, as trustee monitor and survey spikedace and loach lands of the Nation. The Nation is for land held in trust by the United minnow habitat, conduct research, implementing strong conservation States for Indian Tribes, the Bureau of perform habitat restoration, remove measures designed to preserve the Indian Affairs (BIA) provides technical nonnative fish species, or conduct other Verde River and its riparian corridor for assistance to the San Carlos Apache beneficial spikedace and loach minnow the benefit of all species, and in order Tribe on management planning and management activities. to protect the traditional and cultural oversees a variety of programs on their practices of the Nation. The Nation’s White Mountain Apache Tribe lands. Spikedace and loach minnow continued efforts to work cooperatively conservation activities have been The White Mountain Apache Tribe with the Service to protect federally ongoing on San Carlos Apache tribal has one stream within its tribal lands, listed species have previously been lands, and, prior to the completion of East Fork White River, that is known to demonstrated through adoption of a their FMP, their natural resource be currently occupied by loach minnow recent Southwestern Willow Flycatcher management was consistent with and its tribal lands contain features that Management Plan, dated May 25, 2005. management of habitat for this species. are essential to the conservation of the This document provides realistic and The development and implementation loach minnow. The White Mountain practicable objectives for protection of of the efforts formalized in the San Apache Tribe currently has a the riparian community on tribal lands. Carlos Apache Tribes FMP will management plan in place for loach This habitat is coextensive with the continue with or without critical habitat minnow. The plan was completed in habitat that was proposed for the designation. 2000 and provides for, among other spikedace. Because the existing The San Carlos Apache Tribe highly conservation measures, inventory and Management Plan requires that the values its wildlife and natural resources, monitoring, water quality protection habitat of the Verde River be protected and is charged to preserve and protect ordinance, captive propagation, and and preserved for the flycatcher, its these resources under the Tribal relocation to minimize loss from protections similarly extend to the Constitution. Consequently, the Tribe catastrophic events such as fire and spikedace. In addition, the Tribe passed has long worked to manage the habitat drought. Prior to and since the plan was a resolution on June 15, 2006, of wildlife on its tribal lands, including developed, the Tribe has actively confirming and declaring a riparian the habitat of endangered and managed for loach minnow. In this conservation corridor along the Verde threatened species. We understand that exclusion, we considered several River including 300 ft (91.4 m) on either it is the Tribe’s position that a factors, including our relationship with side of the river. Within the designation of critical habitat on its the White Mountain Apache Tribe, and conservation corridor stocking of non- lands improperly infringes upon its the degree to which the Tribe’s native fishes is prohibited, and livestock tribal sovereignty and the right to self- management plan provides specific grazing, construction and other government. management for the loach minnow and activities shall be minimized to assure The San Carlos Apache Tribes’ FMP conserves its PCEs. Tribal governments that no net loss of habitat for federally provides assurances and a conservation protect and manage their resources in listed species such as the spikedace and benefit to the spikedace and loach the manner that is most beneficial to loach minnow shall occur, and that no minnow. Implementation of the FMP them. The White Mountain Apache permanent modification of habitat will result in protecting all known Tribe exercises legislative, important to listed species is allowed. spikedace and loach minnow habitat on administrative, and judicial control over The Tribe will also take all reasonable San Carlos Tribal Land and assures no activities within the boundaries of its steps to coordinate with the Service net habitat loss or permanent lands. Additionally, the Tribe has regarding recreational activities, habitat modification will occur in the future. natural resource programs and staff and restoration activities, or other activities The purpose of the FMP includes the has been managing for the conservation that may impact the habitat important to long-term conservation of native fishes, of the loach minnow. In addition, as the spikedace and loach minnow. The including the spikedace and loach trustee for land held in trust by the Tribe will monitor habitat, including

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13395

surveys for these fish and conduct any designated critical habitat is that these Tribal lands this may also help research or other activities to provide a federally funded or authorized activities secure funding for management of these conservation benefit. in such habitat require consultation areas. Below we determine, pursuant to a pursuant to section 7 of the Act. Such For these reasons, then, we believe 4(b)(2) analysis, that those portions of consultation would ensure that that designation of critical habitat the Verde River below the Prescott and adequate protection is provided to avoid would provide some additional benefits. Coconino National Forest boundary destruction or adverse modification of (2) Benefits of Exclusion with private lands above the Verde critical habitat. These three tribes have Valley will be excluded from the final already agreed under the terms of their The benefits of excluding San Carlos designation based upon economic costs. management plans and by tribal Apache, White Mountain Apache, and The Yavapai Apache tribal lands fall resolution to protect riparian and the Yavapai Apache tribal lands from within this area, and are excluded as aquatic communities, to ensure no net critical habitat include: (1) The part of that overall exclusion. However, loss of habitat, to coordinate with the advancement of our Federal Indian we also find pursuant to our analysis Service in order to prevent any habitat Trust obligations and our deference to below that their lands should be destruction, and to conduct activities Tribes to develop and implement tribal excluded on the basis of our consistent with the conservation of all conservation and natural resource relationship with the Yavapai Apache native species, including the spikedace management plans for their lands and Tribe, and the Tribe’s management of and loach minnow and their PCEs. resources, which includes the spikedace the Verde River that we believe provides As discussed above, we expect that and loach minnow and other Federal a conservation benefit to the spikedace. little additional educational benefit trust species; (2) the maintenance of would be derived from designating San effective working relationships to (1) Benefits of Inclusion Carlos Apache, White Mountain promote the conservation of the Including lands of the San Carlos Apache, and Yavapai Apache tribal spikedace and loach minnow and their Apache Tribe, the White Mountain lands as critical habitat. The additional habitats; (3) the allowance for continued Apache Tribe, and the Yavapai Apache educational benefits that might arise meaningful collaboration and Tribe in critical habitat would provide from critical habitat designation are cooperation on spikedace and loach some additional benefit from section 7 largely accomplished through the minnow management and other consultation, because we could consult multiple notice and comments which resources of interest to the Federal via the BIA on actions that may accompany the development of this government; and (4) the provision of adversely affect critical habitat. critical habitat designation, as conservation benefits to riparian Activities covered in previous evidenced by the Tribes working with ecosystems and a host of species, consultations include livestock grazing, the Service to address habitat and including the spikedace and loach recreation, fish stocking, fire conservation needs for the spikedace minnow and their habitat. management, bank stabilization and loach minnow. Additionally, we During the development of the projects, and conservation measures that anticipate that the Tribes will continue spikedace and loach minnow critical benefited spikedace and/or loach to actively participate in working habitat designation (and coordination minnow. These measures included groups, and provide for the timely for other critical habitat proposals), and monitoring, fence repair (to exclude exchange of management information. other efforts such as conservation of cattle from overusing and thereby The educational benefits important for native fish species in general, we have damaging habitat), and education the long-term survival and conservation met and communicated with each of programs to inform the public of the of the spikedace and loach minnow are these Tribes to discuss how they might need to avoid actions that damage being realized without designating this be affected by the regulations associated habitat. However, we note that because area as critical habitat. Educational with spikedace and loach minnow the spikedace and loach minnow are benefits will continue on these lands conservation and the designation of listed species and are found on these whether or not critical habitat is critical habitat. As such, we established Tribal lands, section 7 consultation designated because the Tribes already relationships with these Tribes specific under the jeopardy standard will still be recognize the importance of those to spikedace and loach minnow required if Tribal or BIA activities may habitat areas to the spikedace and loach conservation. As part of our adversely affect spikedace or loach minnow. relationship, we provided technical minnow, regardless of whether these Another possible benefit is the assistance to the Tribes to develop lands are included in the final critical additional funding that may be measures to conserve the spikedace and habitat designation. As a result, we generated for habitat restoration or loach minnow and their habitat on their expect that inclusion of San Carlos improvement by having an area lands. These measures are contained Apache, White Mountain Apache, and designated as critical habitat. In some within their management plans and the Yavapai Apache Tribe lands in the instances, having an area designated as tribal resolution that we have in our critical habitat designation would critical habitat may improve the ranking supporting record. This proactive action provide only that additional habitat a project receives during evaluation for was conducted in accordance with protection accorded by critical habitat funding. The Tribes often require Secretarial Order 3206, ‘‘American as discussed by the Ninth Circuit Court additional sources of funding in order to Indian Tribal Rights, Federal-Tribal of Appeals in the Gifford Pinchot ruling conduct wildlife-related activities. Trust Responsibilities, and the discussed above. Therefore, having an area designated as Endangered Species Act’’ (June 5, 1997); Nevertheless, few additional benefits critical habitat could improve the the President’s memorandum of April would be derived from including these chances of the Tribes receiving funding 29, 1994, ‘‘Government-to-Government Tribal Lands in the spikedace and loach for spikedace or loach minnow related Relations with Native American Tribal minnow final critical habitat projects. Additionally, occupancy by Governments’’ (59 FR 22951); Executive designation beyond what will be spikedace or loach minnow also Order 13175; and the relevant provision achieved through the implementation of provides benefits to be considered in of the Departmental Manual of the their management plans. As noted evaluating funding proposals. Because Department of the Interior (512 DM 2). above, the primary regulatory benefit of there are areas of occupied habitat on We believe that the San Carlos Apache,

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13396 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

White Mountain Apache, and the (3) Benefits of the Exclusion Outweigh Partnerships and Management Plans on Yavapai Apache Tribes should be the the Benefits of Inclusion Private Lands governmental entities to manage and The Phelps Dodge Corporation promote the conservation of the We find that the benefits of designating critical habitat for the (Phelps Dodge) provided two spikedace and loach minnow on their management plans to the Service during spikedace and loach minnow on these lands. During our communication with the second open comment period. One Tribal lands are small in comparison to the Tribes, we recognized and endorsed plan was provided for Eagle Creek in the benefits of the exclusion. Exclusion their fundamental right to provide for southeastern Arizona, and the other is tribal resource management activities, would enhance the partnership efforts for portions of the middle Gila River in including those relating to riparian focused on recovery of the spikedace New Mexico. We provide a summary of aquatic ecosystems. and loach minnow within these river each of these plans below. reaches. Excluding these areas also The designation of critical habitat on Eagle Creek Management Plan these Tribal lands would be expected to would reduce some of the adversely impact our working administrative costs during consultation Phelps Dodge’s lands along Eagle relationship with them. In fact, during pursuant to section 7 of the Act. We Creek are comprised of individual land our discussions with the Tribes, we discuss below additional economic parcels adjoining the southern boundary were informed that critical habitat costs and an exclusion of a portion of of the Apache-Sitgreaves National would be viewed as an intrusion on the Verde River that include tribal lands Forests and the eastern boundary of San their sovereign abilities to manage of the Yavapai Apache Nation. Carlos Apache Tribe lands. The parcels are not entirely connected; there are natural resources in accordance with (4) The Exclusion Will Not Result in their own policies, customs, and laws. intervening portions of Forest Service Extinction of the Species and other private lands between parcels To this end, we found that the Tribes of Phelps Dodge’s lands. would prefer to work with us on a Because these river reaches on the The management plan would affect government-to-government basis. We Tribal lands are occupied by the only those lands owned by Phelps view this as a substantial benefit. spikedace and loach minnow, which are Dodge. Phelps Dodge owns In addition to management/ protected from take under section 9 of approximately 34 square miles of land conservation actions described for the the Act, any actions that might kill around the upper portions of Eagle conservation of the spikedace and loach spikedace or loach minnow, including Creek; however, not all of lands minnow, we anticipate future habitat modification that would cause encompass or are adjacent to Eagle management/conservation plans to death of either species, must either Creek. Phelps Dodge owns land along include conservation efforts for other undergo a consultation with the Service approximately 11.0 mi (17.8 km) of listed species and their habitat. We under the requirements of section 7 of Eagle Creek, which are covered by the believe that many Tribes are willing to the Act or receive a permit from us management plan. The Service has work cooperatively with us to benefit under section 10 of the Act. determined that Eagle Creek currently other listed species, but only if they Additionally, we believe that the supports one of more of the PCEs for view the relationship as mutually exclusion of these lands from critical loach minnow and is occupied by loach beneficial. Consequently, the habitat would not result in the minnow. In addition, we determined development of future voluntary extinction of the spikedace or loach (see Table 1) that nonnative aquatic management actions for other listed minnow because their management species, water diversions, and mining species will likely be contingent upon outlines and the provisions of a are all potential threats within this area. whether the San Carlos Apache, White resolution specifically address Phelps Dodge’s water supply for its Mountain Apache, and the Yavapai conservation of these species. The tribal Morenci Mine operation is derived from Apache Tribal lands are designated as management strategies outline actions to a variety of water rights, including a critical habitat for the spikedace and conserve, enhance, and restore Black River water transfer (supported by loach minnow. Thus, the benefit of spikedace and loach minnow habitat, a Central Arizona Project exchange), excluding these lands would be future including efforts to eliminate nonnative several deep ground water wells, and conservation efforts that would benefit fishes from their habitat. Such efforts surface water from Eagle Creek, which constitutes approximately six percent of the spikedace and loach minnow as well provide greater conservation benefit the natural flow of that Creek. as other listed species. than would result from a designation of Phelps Dodge indicates within the Another benefit of excluding these critical habitat. This is because section management plan that their overall goal Tribal lands from the critical habitat 7 consultations for critical habitat only is to operate its Eagle Creek water designation includes relieving consider listed species in the project system to maintain perennial flows in additional regulatory burden and costs area evaluated and Federal agencies are Eagle Creek from the confluence of associated with the preparation of only committed to prevent adverse Willow Creek to the Phelps Dodge portions of section 7 documents related modification to critical habitat caused diversion dam to the extent it is legally, to critical habitat. While the cost of by the particular project and are not economically, and hydrologically adding these additional sections to committed to provide conservation or reasonable to do so. Within the assessments and consultations is long-term benefits to areas not affected management plan, Phelps Dodge relatively minor, there could be delays by the proposed project. Such efforts developed goals for both the loach which can generate real costs to some provide greater conservation benefit minnow and spikedace within the project proponents. However, because than would result for designation as Phelps Dodge reach. These goals in this case critical habitat is being critical habitat. As a result, there is no regarding the two species include the excluded in occupied areas already reason to believe that this exclusion following: (1) Monitoring distribution subject to section 7 consultation and a would result in extinction of the and abundance; (2) obtaining an jeopardy analysis, it is anticipated this species. understanding of the population reduction would be minimal. dynamics as they relate to existing

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13397

habitat conditions and land use interfere with existing land and water management practices. These practices; (3) continuing historic land use and rights. commitments will be carried out in the use practices and water supply practices same manner as described above under Gila River Management Plan which enhance water flows; and (4) the Eagle Creek Management Plan. consideration of habitat when deviating The Gila River Management Plan Within the management plan, Phelps from such historic management covers riparian lands owned by Phelps Dodge commits to coordinating with the practices. With respect to monitoring, Dodge in the middle reach of the Service regarding management activities Phelps Dodge has supported various mainstem Gila River south of Mogollon on their lands. This coordination will biological surveys and studies on Eagle Creek in New Mexico. Land ownership include an annual summary to the Creek, and intends to continue in this area is principally Federal, with Service regarding implementation of the participating in such research projects irregularly dispersed private and State management plan. Any deviations from in the near future. To gain a better lands. the plan will be addressed, as will the understanding of the population The management plan would affect intended implementation of actions dynamics of the loach minnow and only those lands owned by Phelps under the plan for the following year. spikedace, Phelps Dodge proposes to Dodge. Phelps Dodge owns lands The report will be provided to the support the Rocky Mountain Research surrounding or bordering approximately Service during the first quarter of each Station in its research. 7.3 mi (11.7 km) of the mainstem Gila calendar year. Phelps Dodge further intends to River. Some of the lands owned by Phelps Dodge will also make all utilize the management plan for loach Phelps Dodge in this area are leased for reasonable efforts to provide the Service minnow and spikedace by doing the ranching and agriculture purposes, with notice of any significant changes to following: (1) Form working including the U-Bar Ranch. The Service the management of its water supply relationships with others that promote has determined that these areas system that are outside the range of the conservation of these fish and their currently support one or more of the historic operating parameters discussed habitat; (2) develop the opportunity for PCEs for spikedace and loach minnow, in the management plan. If any changes collaboration and cooperation on and both species currently occupy this are required, Phelps Dodge will management issues and other resources portion of the stream. Those portions of consider loach minnow and spikedace of interest to the Federal government; the mainstem Gila River on Phelps habitat and any comments received and (3) provide conservation benefits to Dodge lands support diversity and from the Service, and will make riparian ecosystems, including habitat abundance of native fishes. In addition, reasonable efforts to minimize adverse that may be or may potentially become this reach contains a high proportion of impacts to the fish and their PCEs to the suitable. favorable habitat types for spikedace extent legally, economically, and To ensure continued conservation of and loach minnow, including low practically reasonable, so long as such spikedace and loach minnow in Eagle gradient riffles and glide-runs. In actions do not impair their ability to Creek, Phelps Dodge has also committed addition, we determined (see Table 1) hold, exercise, or modify their water to regular coordination with the Service, that recreation, roads, grazing, rights. which will include an annual summary nonnative aquatic species, and water Phelps Dodge will also make to the Service regarding implementation diversions are potential threats in this reasonable efforts to coordinate their of the management plan. Any deviations area that may require special water management activities by from the plan will be addressed, as will management or protections. attending regularly scheduled fisheries intended implementation of actions Phelps Dodge’s water rights and management working group meetings to under the plan for the following year. delivery system in this area have been stay abreast of ongoing management Phelps Dodge will make all reasonable developed and maintained to provide a issues and concerns within the overall efforts to provide the Service with dependable and adequate water supply Gila River area. Phelps Dodge will also notice of any significant changes to the for the operation of the Tyrone Mine. consider stream renovation projects for management of its water supply system The delivery system consists of a the Gila River should the Service decide that are outside the range of historic diversion structure on the Gila River as to pursue them, provided they do not operating parameters discussed in the well as a retention facility (Bill Evans interfere with existing land and water management plan. If any changes are Lake), and several wells. Surface water uses and rights. required, Phelps Dodge will consider is diverted from the Gila River at the The following analysis applies to both loach minnow and spikedace habitat diversion structure for storage in Bill the Eagle Creek and Gila River areas and any comments received from the Evans Lake and transported via pipeline covered by the Phelps Dodge’s Service, and will make reasonable to the Tyrone Mine Facility. management plans, referred to as Plans efforts to minimize adverse impacts to Within the management plan, Phelps below. these fish and the PCEs to the extent Dodge commits to the following: (1) legally, economically, and practically Monitoring the distribution and (1) Benefits of Inclusion reasonable, so long as such actions do abundance of the loach minnow and There are few benefits in including not impair their ability to hold, exercise, spikedace in the Gila River passing areas covered by these Plans in the final or modify their water rights. through the Phelps Dodge Reach; (2) critical habitat designation above those Phelps Dodge will also make obtaining an understanding of the benefits that will be achieved through reasonable efforts to coordinate their population dynamics of the loach the implementation of these Plans, water management activities by minnow and spikedace as they relate to including voluntary management and attending regularly scheduled fisheries existing habitat conditions and land use restoration projects. As discussed above, management working group meetings to practices in the Gila River; (3) the principal benefit of any area stay abreast of ongoing management continuing historic land use practices designated as final critical habitat is that issues and concerns within the overall and water supply practices which activities adversely affecting critical Eagle Creek area. Phelps Dodge will also enhance water flows in the Phelps habitat require consultation under consider stream renovation projects for Dodge Reach, (4) and considering loach section 7 of the Act if a Federal action Eagle Creek should the Service decide to minnow and spikedace habitat when is involved. Such consultation would pursue them, provided they do not deviating from the historical ensure that adequate protection is

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13398 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

provided to avoid destruction or adverse Another possible benefit is that the watersheds. The surveys, monitoring, modification of critical habitat. designation of critical habitat can serve research, and commitment to As of the date of this final rule, the to educate the public regarding the collaborate with the Service on Service has not conducted any formal potential conservation value (species restoration projects within these areas consultations that have directly presence and their PCEs) of an area, and document that conservation efforts will addressed the impacts of mining this may focus and contribute to occur for these fish and their habitat. activities in the areas proposed as conservation efforts by other parties by These activities and cooperation may critical habitat (Final Economic clearly delineating areas of high not occur if we were to designate critical Analysis 2004, pg. 5–3). There have, conservation value for certain species. habitat on these private lands, and these however, been several informal Any information about the spikedace actions cannot be compelled by the consultations regarding surface mining and loach minnow and its habitat that designation, particularly given the since the listing of the species. In reaches a wide audience, including expectation that there would be a very addition, the Service conducted one other parties engaged in conservation limited, if any, federal nexus for having formal consultation on spikedace and activities, would be considered a consultation on private activities here. razorback sucker (Xyrauchen texanus) valuable. However, Phelps Dodge is We believe that the results of these regarding spillway repair to the Phelps currently working with the Service to activities promote long-term protection Dodge Diversion dam on Eagle Creek in address the conservation of these fish and are aimed at conserving the 1996. This consultation did not directly and to avoid impacts to their habitat spikedace and loach minnow in these address impacts of the diversion dam (PCEs), and the agreements they have areas. The benefits of excluding these itself, though the Service recommended offered would institutionalize that areas from critical habitat will that such a consultation be conducted. cooperation. Further, these areas were encourage the continued conservation, The consultation found that the included in the proposed designation, land management, and coordination proposed action was not likely to which itself has reached a wide with the Service. If these areas are adversely affect the fish species, and audience, and has thus provided designated as critical habitat, we may recommended minimizing the use of information to the broader public about jeopardize future conservation, research, heavy equipment in the wetted area, the conservation value of these areas. and information sharing for the recovery making reasonable efforts to ensure no Thus, the educational benefits that of the spikedace and loach minnow and pollutants enter surface water, catch and might follow critical habitat designation likely not secure any offsetting benefits release of any spikedace found, as a well have already been provided through the from the designation due to the as monitoring activities. multiple notice and comments which apparent lack of a federal nexus to accompanied the development of this trigger consultation. The small number of previous section critical habitat designation and previous 7 consultations during the past 20 years (3) Benefits of Exclusion Outweigh the designations. For these reasons, then, since these species have been listed and Benefits of Inclusion we believe that designation of critical while critical habitat was designated habitat would have few, if any, In summary, the benefits of including and the expectation that there will be additional benefits beyond those that lands owned by Phelps Dodge in the will be few if any future projects with will result from continued consultation final critical habitat designation are a Federal nexus gives us reasonable for the presence of these species. small, and are limited to minimal grounds to believe that critical habitat educational benefits and potentially designation will create relatively few (2) Benefits of Exclusion some benefits through section 7 benefits for the spikedace and loach We believe that significant benefits consultations. However, since these minnow in these areas. Since these would be realized by excluding these lands are privately owned, unless a areas covered by the Plans are privately areas from the final critical habitat Federal nexus exists, final critical owned, unless there is a Federal nexus designation that include: (1) The habitat would not result in a section 7 in connection with activities occurring continuance and strengthening of our consultation. The lack of previous in these areas, the designation of critical relationship with Phelps Dodge to section 7 consultations during the 20 habitat will not require consultation promote the conservation of the years since these species have been with the Service for such activities. It is spikedace and loach minnow and their listed in these areas being excluded possible that the maintenance of the habitat; (2) the allowance for from the final designation of critical Phelps Dodge Diversion dam could act collaboration and cooperation in habitat give us reasonable grounds to as a Federal nexus for consultation surveys, monitoring, and research as we believe that such a Federal nexus is because the diversion is likely subject to work towards recovery of these species; unlikely to occur, or would likely occur U.S. Army Corps of Engineers permit and (3) the conservation benefits to the only for the subject of the prior requirements. This could result in Gila River and Eagle Creek ecosystems consultation, which resulted in a consultation, but because these areas are and spikedace and loach minnow finding of ‘‘unlikely to adversely affect’’ considered to be occupied by the habitat that might not otherwise occur, the species. We also note that the species, consultation would already take all as set out in the Plans summarized requirement of Federal agencies to place under the jeopardy standard (see above. Phelps Dodge is greatly consult with us on activities that may ‘‘General Principles of Section 7 concerned about the possible impacts of affect these species still exists, whether Consultations Used in the 4(b)(2) a critical habitat designation in this area or not critical habitat is designated, Balancing Process’’ above). Moreover, (James 2006, p. 7, 10–20) and is offering since these areas are considered since the prior consultation on these management plans as an occupied. The benefits of excluding maintenance of this structure found it alternative. It is unlikely they would these areas from designation as critical was ‘‘unlikely to adversely affect’’ the proceed with them if these areas were habitat for the spikedace and loach species, it is not reasonable to anticipate designated as critical habitat. minnow are significant, and include that a future consultation on Phelps Dodge, including the U-Bar encouraging the continuation of maintenance of the structure would Ranch that they own on the Gila River, monitoring, surveys, research, result in a finding of adverse is an important land manager within enhancement, and restoration activities modification of the critical habitat. Eagle Creek and the Gila River that will benefit spikedace and loach

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13399

minnow PCEs. The exclusion of this accepted comments on the draft analysis and may be obtained by contacting the area will likely also provide additional until October 16, 2006. Arizona Ecological Services Field Office benefits to the species by encouraging a The primary purpose of the economic (see ADDRESSES section) or online at cooperative working relationship with analysis is to estimate the potential http://www.fws.gov/southwest/es/ Phelps Dodge. Although the benefits of economic impacts associated with the arizona/. designation of critical habitat for the these management plans are less than Verde River plans in other areas upon which spikedace and loach minnow. This exclusions are often made (i.e. habitat information is intended to assist the As discussed in the ‘‘Summary of conservation plans), the likely lack of a Secretary in making decisions about Changes from the Proposed Rule’’ Federal nexus for these lands means whether the benefits of excluding section above, we have determined that that the benefits of these plans still particular areas from the designation proposed critical habitat on those exceed by the considerable margin the outweigh the benefits of including those portions of the Verde River below the benefits the species would receive from areas in the designation. This economic Prescott and Coconino National Forest the designation. We accordingly find analysis considers the economic boundary with private lands will not be that the benefits of excluding these areas efficiency effects that may result from designated as final critical habitat due to from the final critical habitat the designation, including habitat the potential economic impact of designation outweigh the benefits of protections that may be coextensive designation. The economic analysis their inclusion. with the listing of the species. It also estimates the potential future impacts addresses distribution of impacts, (2006–2025) associated with the entire (4) Exclusion Will Not Result in including an assessment of the potential stretch of the Verde River to be $64.59 Extinction of the Species effects on small entities and the energy million (undiscounted dollars). We have determined that exclusion of industry. This information can be used Although these costs do not account for areas covered by these Plans on the Gila by the Secretary to assess whether the variance in river miles or population, River and Eagle Creek will not result in effects of the designation might unduly they are a full order of magnitude larger extinction of these species. Any actions burden a particular group or economic than the estimated impacts for any other stretch of river proposed as critical that might adversely affect the sector. habitat, and represent more than half of spikedace and loach minnow must This analysis focuses on the direct and indirect costs of the rule. However, the total estimated impacts ($100.3 undergo a consultation with the Service economic impacts to land use activities million) for the entire proposed critical under the requirements of section 7 of can exist in the absence of critical habitat designation. Estimated the Act or receive a permit from us habitat. These impacts may result from, quantified costs on this reach primarily under section 10. The spikedace and for example, local zoning laws, State stem from potential impacts to loach minnow are protected from take and natural resource laws, and agriculture, but also include impacts on under section 9. The exclusions leave enforceable management plans and best development and recreation activities. these protections unchanged from those management practices applied by other Unquantified potential impacts could which would exist if the excluded areas State and Federal agencies. include impacts to water users, were designated as final critical habitat. The economic analysis considers the including Verde Valley municipalities Phelps Dodge is committed to greater economic impacts of conservation and the City of Prescott. conservation measures on their land measures taken prior to and subsequent The economic analysis indicates that than would be available through the to the final listing and designation of most of these costs occur in the lower designation of critical habitat. critical habitat for the spikedace and portion of the Verde River where the Accordingly, we have determined that loach minnow. Pre-designation impacts river runs through several communities exclusion of these areas of Eagle Creek are typically defined as all management in the Verde Valley that are and the Gila River as discussed above efforts that have occurred since the time experiencing rapid urban growth. under subsection 4(b)(2) of the Act will of listing. The spikedace and loach Therefore, we are excluding from the not cause the extinction of the species. minnow were listed on July 1 and final critical habitat designation the Economic Analysis October 28, 1986, respectively (51 FR lower portion of the Verde River below 23769, 51 FR 39468). Our draft the Prescott and Coconino National Section 4(b)(2) of the Act requires us economic analysis found that the total Forest boundary with private lands due to designate critical habitat on the basis post-designation costs associated with to significant and disproportionate of the best scientific information the five proposed critical habitat units economic impacts. available and to consider the economic are forecast to range from $25.2 to We have reached this determination and other relevant impacts of $100.3 million over 20 years, with because we believe the benefits of designating a particular area as critical discounted (7%) annual costs at $1.4 to excluding these segments from the final habitat. We may exclude areas from $6.7 million annually (IEc 2006, p. ES– critical habitat designation outweigh the critical habitat upon a determination 2). Estimated costs are primarily due to benefits of including them as critical that the benefits of such exclusions impacts on water use and management, habitat. outweigh the benefits of specifying such species management, and recreation. We have considered in making the areas as critical habitat. We cannot Based upon these estimates, we lower Verde River exclusion that all of exclude such areas from critical habitat conclude in the final analysis, which the costs estimated in the draft when such exclusion will result in the reviewed and incorporated public economic analysis may not be avoided extinction of the species concerned. comments, that no significant economic by excluding this area. This is because Following the publication of the impacts are expected from the this area is currently occupied by the proposed critical habitat designation, designation of critical habitat for spikedace and there will be we conducted an economic analysis to spikedace and loach minnow, except for requirements for consultation under estimate the potential economic effect of the Verde River, as discussed in further section 7 of the Act or for permits under the designation. The draft analysis was detail in the ‘‘Verde River’’ section section 10 for any take of the species. made available for public review on below. A copy of the economic analysis Additionally, other protections for the June 6, 2006 (71 FR 32496). We is included in our supporting record species exist elsewhere in the Act and

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13400 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

under State and local laws and multiple notice and comments which (4) Exclusion Will Not Result in regulations. accompanied the development of this Extinction of the Species (1) Benefits of Inclusion regulation, and contact with the affected Because we consider the lower parties during development of the portion of the Verde River to be The primary conservation value of the economic analysis. occupied by spikedace, a species lower Verde River proposed critical protected from take under section 9 of habitat segment is to sustain existing (2) Benefits of Exclusion the Act, any actions that might populations. The area excluded from the adversely affect or result in take of the final designation is currently considered The benefits of excluding the lower spikdace, regardless of whether a occupied by the spikedace. If this area Verde River from critical habitat Federal is present, must undergo a is designated as critical habitat, any designation are avoidance in up to consultation with the Service under the actions with a Federal nexus which $64.59 million (undiscounted dollars) in requirements of section 7 of the Act or might adversely modify or destroy the possible economic impacts, as set out in receive a permit from us under section critical habitat would require a the economic analysis. While the cost 10 of the Act. This exclusion leaves consultation with us. However, estimate of $64.59 million is an estimate these protections unchanged from those inasmuch as this area is currently of potential economic costs for the which would exist if the excluded areas occupied by the spikedace, consultation entire Verde River, we are only were designated as critical habitat. for activities which might adversely excluding the lower portion because we Additionally, we have concluded that impact the species, including possibly believe the lower portion of the Verde excluding this area from final critical habitat modification (see definition of River accounts for some of the highest habitat will not result in the extinction ‘‘harm’’ at 50 CFR 17.3) would be cost areas since this is where the river of the spikedace because this exclusion required even without the critical runs through several communities in the is only a small percentage of the overall habitat designation. We recognize that Verde Valley that are experiencing rapid critical habitat designation and, as noted consultation for critical habitat would urban growth. Additionally, as above, 91 percent of the known likely provide some additional benefits discussed below, we find that the upper locations of the spikedace occur in the to the species under the provision of the upper Verde River, which is not being Gifford Pinchot decision. portion of the Verde River is the most As discussed above, we expect that important for conservation of the excluded from the final critical habitat little additional educational benefits spikedace because it accounts for 91 designation. would be derived from including this percent of the known locations of the Required Determinations area as critical habitat. The additional spikedace in the Verde River. Regulatory Planning and Review educational benefits that might arise We also believe that excluding these from critical habitat designation are lands, and thus helping landowners and In accordance with Executive Order largely accomplished through the water users avoid the additional costs 12866, this document is a significant multiple notice and comments which that would result from the designation, rule in that it may raise novel legal and accompanied the development of this will contribute to a more positive policy issues, but will not have an critical habitat designation and previous climate for Habitat Conservation Plans annual effect on the economy of $100 designations. and other active conservation measures. million or more or affect the economy Designation of critical habitat in the in a material way. Due to the tight These generally provide greater lower Verde River might result in timeline for publication in the Federal conservation benefits than result from consultations with Federal agencies or Register, the Office of Management and designation of critical habitat—even in as part of intra-Service consultations for Budget (OMB) has not formally HCPs that may lead to conservation the post-Gifford Pinchot environment— reviewed this rule. As explained above, activities for the spikedace; however, we which requires only that the there be no we prepared an economic analysis of believe any possible benefits would be adverse modification resulting from this action. We used this analysis to minimal as derived from critical habitat federally-related actions. Generally, meet the requirement of section 4(b)(2) because the spikedace is present in the positive conservation efforts by of the Act to determine the economic Verde River and consultations are landowners contribute more towards consequences of designating the specific already likely to occur. recovery of species than the mere areas as critical habitat. We also used it In summary, we believe that avoidance of adverse impacts required to help determine whether to exclude designating this proposed segment as under a critical habitat designation. any area from critical habitat, as final critical habitat would provide little provided for under section 4(b)(2) of the additional Federal regulatory benefits (3) Benefits of Exclusion Outweigh the Benefits of Inclusion Act, if we determine that the benefits of for the species. Under the Gifford such exclusion outweigh the benefits of Pinchot decision, critical habitat We find that the benefits of specifying such area as part of the designations may provide greater designating final critical habitat for the critical habitat, unless we determine, benefits to recovery of a species than spikedace on the lower portion of the based on the best scientific data was previously believed. Because the Verde River are small in comparison to available, that the failure to designate proposed critical habitat is occupied by the benefits of exclusion. In making this such area as critical habitat will result the species, there must be consultation finding, we have weighed the benefits of in the extinction of the species. with the Service for any action which including the lower Verde River as final may adversely affect the species. Some Regulatory Flexibility Act (5 U.S.C. 601 critical habitat against the possible costs improvements in habitat quality might et seq.) result from a designation, but we believe imposed on private parties as a result of Under the Regulatory Flexibility Act that they would be minimal, as the final critical habitat designation. (5 U.S.C. 601 et seq.), as amended by the discussed above. The additional We have therefore excluded these Small Business Regulatory Enforcement educational benefits which might arise lands from the final critical habitat Fairness Act (5 U.S.C. 802(2)) from critical habitat designation are designation pursuant to section 4(b)(2) (SBREFA), whenever an agency is largely accomplished through the of the Act. required to publish a notice of

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13401

rulemaking for any proposed or final affected by this designation, this project modifications to restoration rule, it must prepare and make available analysis considers the relative number activities. The economic analysis for public comment a regulatory of small entities likely to be impacted in provides additional detail on flexibility analysis that describes the an area. In some circumstances, anticipated impacts; however, because effects of the rule on small entities (i.e., especially with critical habitat all Tribal lands have been excluded small businesses, small organizations, designations of limited extent, we may under section 4(b)(2), these costs will and small government jurisdictions). aggregate across all industries and not be incurred. However, no regulatory flexibility consider whether the total number of Water Management and Use: analysis is required if the head of the small entities affected is substantial. In Agricultural Crop Production agency certifies the rule will not have a estimating the numbers of small entities significant economic impact on a potentially affected, we also considered The economic analysis notes that substantial number of small entities. whether their activities have any spikedace and loach minnow The SBREFA amended the Regulatory Federal involvement. conservation activities have not Flexibility Act (RFA) to require Federal Designation of critical habitat only impacted crop production since the agencies to provide a statement of the affects activities conducted, funded, or listing of the species in 1986. The factual basis for certifying that the rule permitted by Federal agencies. Some economic analysis further notes that, will not have a significant economic kinds of activities are unlikely to have because agricultural water use impact on a substantial number of small any Federal involvement and so will not comprises 98 percent of surface water entities. The SBREFA also amended the be affected by critical habitat use and 81 percent of groundwater use RFA to require a certification statement. designation. In areas where the species in counties containing critical habitat Small entities include small is present, Federal agencies already are for spikedace and loach minnow, it is organizations, such as independent required to consult with us under likely that any additional water supplies nonprofit organizations; small section 7 of the Act on activities they needed for the species would come from governmental jurisdictions, including fund, permit, or implement that may agriculture. Therefore, the analysis school boards and city and town affect the spikedace or loach minnow. focuses on a potential scenario under governments that serve fewer than Federal agencies must also consult with which farmers would give up 50,000 residents; as well as small us if their activities may affect critical agricultural water use in an effort to businesses, Small businesses include habitat. Designation of critical habitat, provide adequate water supply for the manufacturing and mining concerns therefore, could result in an additional species, leading to reductions in crop with fewer than 500 employees, economic impact on small entities due production. The economic analysis wholesale trade entities with fewer than to the requirement to reinitiate notes that, because of the uncertainty 100 employees, retail and service consultation for ongoing Federal involved in estimating the potential businesses with less than $5 million in activities. reduction in agricultural production, the annual sales, general and heavy Our economic analysis of this scenario analyzed represents the high- construction businesses with less than designation evaluated the potential end estimate of impacts to water users. $27.5 million in annual business, economic effects on small business Should this scenario be realized, special trade contractors doing less than entities and small governments resulting losses in land values associated with $11.5 million in annual business, and from conservation actions related to the transitioning irrigated cropland to non- agricultural businesses with annual listing of these species and proposed irrigated lands will likely result, and sales less than $750,000. To determine designation of their critical habitat. We would range from $3,175 to $6,190 per if potential economic impacts to these evaluated small business entities in acre, depending on the area in which small entities are significant, we water management and use, livestock critical habitat is located. A total of considered the types of activities that grazing activities, mining operations, 6,310 acres of cropland are in the might trigger regulatory impacts under management activities specific to vicinity of proposed critical habitat (i.e., this designation as well as types of spikedace and loach minnow, in the same valley), and 810 of those project modifications that may result. In recreation, residential and related acres are located within the critical general, the term significant economic development, Tribes, transportation, habitat designation itself. The average impact is meant to apply to a typical and fire management. Based on our farm size in affected counties ranges small business firm’s business analysis, impacts are anticipated to from 1,300 acres to 7,800 acres. operations. occur in Tribes, agricultural crop Assuming affected farms are average- To determine if the rule could production as it relates to water use and sized for their counties, approximately significantly affect a substantial number management, livestock grazing, one to five farms could experience of small entities, we considered the residential and commercial reductions in crop production. number of small entities affected within development, and recreation. The Alternatively, the median farm size in particular types of economic activities following is a summary of the affected counties ranges from 41 to (e.g., water management and use, information contained in Appendix B of 1,300 acres. Assuming affected farms are livestock grazing, Tribal activities, the economic analysis: median-sized for their counties, residential and related development, approximately 4 to 199 farms could species-specific management activities, Tribes experience reductions in crop recreation activities, fire management The economic analysis estimates that production. Under the assumption that activities, mining, and transportation). future impacts resulting from spikedace all farms are small (1,884 farms across We apply the ‘‘substantial number’’ test and loach minnow conservation 5 counties), the estimate of future individually to each industry to activities on Tribal lands could include impacts (1 to 199) represents between determine if certification is appropriate. administrative costs of consultations, less than 1 percent to 6.5 percent of total However, the SBREFA does not surveys and monitoring, development of small farm operations in counties that explicitly define ‘‘substantial number’’ a Fisheries Management Plan, contain spikedace and loach minnow or ‘‘significant economic impact.’’ modifications to grazing, fire critical habitat. The analysis assumes Consequently, to assess whether a management, modifications to that affected farms are small, so that ‘‘substantial number’’ of small entities is recreational activities, and potential total future impacts represent less than

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13402 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

1 percent to 6.5 percent of total small development activities are estimated at total annual sales for these two counties. farm operations in counties that contain $3.4 to $5.2 million over 20 years, or Based on 2001 National Survey of spikedace and loach minnow habitat. $319,000 to $419,000 annually Fishing, Hunting, and Wildlife- (assuming a discount rate of seven Associated Recreation for Arizona and Livestock Grazing percent). The analysis concludes that up New Mexico, average expenditures per The economic analysis notes that to 1,646 housing units could be built on fishing trip are approximately $37, with ranching operations holding Federal approximately 2,880 privately owned the bulk of these expenditures occurring grazing allotment permits are acres within proposed critical habitat in the food service and gasoline anticipated to experience economic over the next 20 years in Yavapai industries. By multiplying this per-trip impacts as they implement species County. The economic analysis provides estimate by the number of fishing trips conservation requirements for grazing additional detail on anticipated impacts; potentially lost due to spikedace and activities. The analysis assumes that however, because we excluded the loach minnow conservation activities (0 each Federal grazing allotment falling middle and lower portions of the Verde to 13,260 days per year, assuming one within critical habitat is run by a unique River under section 4(b)(2) of the Act, day per trip), expenditures by these ranching operation, so that the majority of these costs will not be anglers are estimated to be up to approximately 76 ranching operations incurred. $485,000 annually. The high-end may be impacted annually. These 76 estimate of annual loss of trip Recreation ranches represent 4.7 percent of ranches expenditures could therefore represent a in the affected counties, or 1.0% of The analysis notes that areas currently loss of approximately 0.06 percent of ranches in New Mexico and Arizona. stocked with nonnative sportfish annual revenues for affected businesses. Annual costs to each of these ranches include the Camp Verde area in the In general, two different mechanisms would be between $390 and $9,200 per Verde River in Complex 1 and the East in section 7 consultations could lead to ranch. With average revenues per ranch Fork Gila River in Complex 5. The additional regulatory requirements for in this region at $166,700, these losses analysis states that the future impact of the approximately four small represent between 0.2 and 5.5 percent of the critical habitat designation on the businesses, on average, that may be each ranch’s estimated average stocking regimes in these areas is required to consult with us each year revenues. unknown, as is the reduction in fishing regarding their project’s impact on the The analysis notes that approximately activity that would occur if stocking is spikedace and loach minnow and their 72 small ranching operations may curtailed, and whether or not nonnative habitat. First, if we conclude, in a experience a reduction in revenues of fish stocking might be replaced with biological opinion, that a proposed between 0.9 and 22 percent of annual catchable native fish stocking (e.g., action is likely to jeopardize the revenues annually. The analysis Apache trout). Because of these continued existence of a species or concludes that the extent to which these unknowns, the analysis evaluated the adversely modify its critical habitat, we impacts are significant to any individual high-end cost of angler days at risk if can offer ‘‘reasonable and prudent ranch depends on its financial sportfish stocking were discontinued in alternatives.’’ Reasonable and prudent conditions. these reaches. alternatives are alternative actions that Angling trips are valued at $8.6 can be implemented in a manner Residential and Commercial million over 20 years (or $816,000 Development consistent with the scope of the Federal annually), assuming a discount rate of agency’s legal authority and The analysis for residential and seven percent. The analysis notes that jurisdiction, that are economically and commercial development concludes that State fish managers typically identify technologically feasible, and that would impacts are likely to occur in the Verde alternative sites for stocked fish when avoid jeopardizing the continued River segment, as it contains a large areas are closed to stocking, so that existence of listed species or result in amount of private land, a relatively large angler days are likely to be redistributed adverse modification of critical habitat. human population, and high projected to other areas rather than lost altogether. A Federal agency and an applicant may population growth potential in the next The high-end estimate does not consider elect to implement a reasonable and 20 years. The analysis notes that it is the possibility that recreators will visit prudent alternative associated with a likely that project modification costs alternative fishing sites. biological opinion that has found associated with spikedace and loach The two stream reaches where jeopardy or adverse modification of minnow conservation activities would impacts on recreation are anticipated to critical habitat. An agency or applicant be passed from the developer to the occur are in Yavapai County, Arizona, could alternatively choose to seek an existing landowner in the form of and Catron County, New Mexico. If exemption from the requirements of the reduced prices for raw land. The angler trips to the two stream reaches Act or proceed without implementing landowners may be developers, farmers, are not lost, but instead are redistributed the reasonable and prudent alternative. ranchers, or simply individuals or to other streams, then regional impacts However, unless an exemption were families that are not registered on small businesses are likely to be obtained, the Federal agency or businesses, and the analysis concludes minimal. If, as in the high-end estimate applicant would be at risk of violating that some of the existing landowners of impacts, angler trips to the two section 7(a)(2) of the Act if it chose to may be small entities. stream reaches are not undertaken, proceed without implementing the Impacts to developers are estimated to localized impacts on anglers, and in reasonable and prudent alternatives. include fencing costs, scientific studies, turn small businesses that rely on Second, if we find that a proposed surveying and monitoring requirements, fishing activities, could occur. These action is not likely to jeopardize the and possibly off-setting mitigation impacts would be spread across a continued existence of a listed animal or (habitat set-aside). Costs are estimated to variety of industries including food and plant species, we may identify range from $3.1 million to $4.8 million beverage stores, food service and reasonable and prudent measures per large development, or $3,900 to drinking places, accommodations, designed to minimize the amount or $5,900 per housing unit ($190 to 300 transportation, and sporting goods. The extent of take and require the Federal annually, if costs are distributed evenly analysis found that these industries agency or applicant to implement such over 20 years). Total impacts to generate approximately $829 million in measures through non-discretionary

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13403

terms and conditions. We may also thus section 7 consultations, would be Block Grants; Vocational Rehabilitation identify discretionary conservation limited to a subset of the area State Grants; Foster Care, Adoption recommendations designed to minimize designated. The most likely Federal Assistance, and Independent Living; or avoid the adverse effects of a involvement could include actions Family Support Welfare Services; and proposed action on listed species or needing a section 404 permit under the Child Support Enforcement.) ‘‘Federal critical habitat, help implement Clean Water Act (e.g., livestock grazing, private sector mandate’’ includes a recovery plans, or to develop agricultural water developments, regulation that ‘‘would impose an information that could contribute to the recreation). A regulatory flexibility enforceable duty upon the private recovery of the species. analysis is not required. sector, except (i) a condition of Federal Based on our experience with assistance; or (ii) a duty arising from consultations pursuant to section 7 of Executive Order 13211 participation in a voluntary Federal the Act for all listed species, virtually On May 18, 2001, the President issued program.’’ all projects—including those that, in Executive Order 13211 (Actions their initial proposed form, would result Concerning Regulations That The designation of critical habitat in jeopardy or adverse modification Significantly Affect Energy Supply, does not impose a legally binding duty determinations in section 7 Distribution, or Use) on regulations that on non-Federal government entities or consultations—can be implemented significantly affect energy supply, private parties. Under the Act, the only successfully with, at most, the adoption distribution, and use. Executive Order regulatory effect is that Federal agencies of reasonable and prudent alternatives. 13211 requires agencies to prepare must ensure that their actions do not These measures, by definition, must be Statements of Energy Effects when destroy or adversely modify critical economically feasible and within the undertaking certain actions. This final habitat under section 7. While non- scope of authority of the Federal agency rule to designate critical habitat for the Federal entities who receive Federal involved in the consultation. We can spikedace and loach minnow is not funding, assistance, or permits or who only describe the general kinds of expected to significantly affect energy otherwise require approval or actions that may be identified in future supplies, distribution, or use. Therefore, authorization from a Federal agency for reasonable and prudent alternatives. this action is not a significant energy an action may be indirectly impacted by action, and no Statement of Energy These are based on our understanding of the designation of critical habitat, the Effects is required. the needs of the species and the threats legally binding duty to avoid it faces, as described in the final listing Unfunded Mandates Reform Act (2 destruction or adverse modification of rule and this critical habitat designation. U.S.C. 1501 et seq.) critical habitat rests squarely on the Within the final critical habitat units, Federal agency. Furthermore, to the the types of Federal actions or In accordance with the Unfunded authorized activities that we have Mandates Reform Act (2 U.S.C. 1501 et extent that non-Federal entities are identified as potential concerns are seq.), the Service makes the following indirectly impacted because they carrying out, permitting, or funding of: findings: receive Federal assistance or participate Livestock grazing, road and bridge (a) This rule will not produce a in a voluntary Federal aid program, the construction and maintenance, water Federal mandate. In general, a Federal Unfunded Mandates Reform Act would diversions (including maintenance of mandate is a provision in legislation, not apply; additionally, critical habitat diversion structures), recreation, gravel statute or regulation that would impose would not shift the costs of the large mining, burning and wildfires, mining, an enforceable duty upon State, local, or entitlement programs listed above on to watershed disturbances, and the spread Tribal governments, or the private sector State governments. and includes both ‘‘Federal of nonnative aquatic species. (b) The economic analysis discusses intergovernmental mandates’’ and It is likely that a developer or other potential impacts of critical habitat ‘‘Federal private sector mandates.’’ project proponent could modify a designation for spikedace and loach These terms are defined in 2 U.S.C. project or take measures to protect the minnow on water management spikedace and loach minnow. The kinds 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that activities, livestock grazing, Tribes, of actions that may be included if future residential and commercial reasonable and prudent alternatives ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ development activities, recreation become necessary include conservation activities, fire management activities, set-asides, management of competing with two exceptions. It excludes ‘‘a mining, and transportation activities. nonnative species, restoration of condition of federal assistance.’’ It also The analysis estimates that the total degraded habitat, and regular excludes ‘‘a duty arising from costs of the rule could range from $25.2 monitoring. These are based on our participation in a voluntary Federal understanding of the needs of the program,’’ unless the regulation ‘‘relates to $100.3 million in undiscounted species and the threats it faces, as to a then-existing Federal program dollars over 20 years. Impacts are described in the final listing rule and under which $500,000,000 or more is largely anticipated to affect water use proposed critical habitat designation. provided annually to State, local, and and management, recreation, and These measures are not likely to result tribal governments under entitlement livestock. Impacts on small governments in a significant economic impact to authority,’’ if the provision would are not anticipated, or they are project proponents. ‘‘increase the stringency of conditions of anticipated to be passed on to In summary, we have considered assistance’’ or ‘‘place caps upon, or consumers in the form of price changes. whether this critical habitat designation otherwise decrease, the Federal Consequently, for the reasons discussed would result in a significant economic Government’s responsibility to provide above, we do not believe that the effect on a substantial number of small funding’’ and the State, local, or tribal designation of critical habitat for the entities. We have determined, for the governments ‘‘lack authority’’ to adjust spikedace and loach minnow will above reasons and based on currently accordingly. (At the time of enactment, significantly or uniquely affect small available information, that it is not these entitlement programs were: government entities. As such, a Small likely to affect a substantial number of Medicaid; AFDC work programs; Child Government Agency Plan is not small entities. Federal involvement, and Nutrition; Food Stamps; Social Services required.

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13404 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

Takings Paperwork Reduction Act of 1995 (44 Secretarial Order 3206: American U.S.C. 3501 et seq.) Indian Tribal Rights, Federal-Tribal In accordance with Executive Order Trust Responsibilities, and the 12630 (‘‘Government Actions and This rule does not contain any new Endangered Species Act Interference with Constitutionally collections of information that require Protected Private Property Rights’’), we approval by OMB under the Paperwork The purpose of Secretarial Order 3206 have analyzed the potential takings Reduction Act. This rule will not (Secretarial Order) is to ‘‘clarif(y) the implications of designating critical impose record keeping or reporting responsibilities of the component habitat for the spikedace and loach requirements on State or local agencies, bureaus, and offices of the minnow in a takings implications governments, individuals, businesses, or Department of the Interior and the Department of Commerce, when actions assessment. The takings implications organizations. An agency may not taken under authority of the Act and assessment concludes that this conduct or sponsor, and a person is not associated implementing regulations designation of critical habitat for these required to respond to, a collection of affect, or may affect, Indian lands, tribal fish does not pose significant takings information unless it displays a trust resources, or the exercise of implications. currently valid OMB control number. American Indian tribal rights.’’ If there Federalism National Environmental Policy Act is potential that a tribal activity could cause either direct or incidental take of It is our position that, outside the In accordance with Executive Order a species proposed for listing under the Tenth Circuit, we do not need to 13132, this rule does not have Act, then meaningful government-to- prepare environmental analyses as significant Federalism effects. A government consultation will occur to defined by the NEPA in connection with Federalism assessment is not required. try to harmonize the Federal trust designating critical habitat under the In keeping with Department of the responsibility to Tribes and tribal Endangered Species Act of 1973, as Interior policies, we requested sovereignty with our statutory amended. We published a notice information from and coordinated responsibilities under the Act. The outlining our reasons for this development of this critical habitat Secretarial order also requires us to determination in the Federal Register designation with appropriate State consult with Tribes if the designation of on October 25, 1983 (48 FR 49244). This resource agencies in Arizona and New an area as critical habitat might impact assertion was upheld in the courts of the Mexico. The designation of critical tribal trust resources, tribally owned fee Ninth Circuit (Douglas County v. habitat in areas currently occupied by lands, or the exercise of tribal rights. Babbitt, 48 F.3d 1495 (9th Cir. Ore. spikedace or loach minnow may impose 1995), cert. denied 116 S. Ct. 698 (1996). References Cited nominal additional regulatory However, when the range of the species restrictions to those currently in place A complete list of all references cited includes States within the Tenth in this rulemaking is upon request from and, therefore, may have little Circuit, such as that of the spikedace incremental impact on State and local the Arizona Ecological Services Field and loach minnow, pursuant to the Office (see ADDRESSES section above). governments and their activities. The Tenth Circuit ruling in Catron County designation may have some benefit to Board of Commissioners v. U.S. Fish Authors these governments in that the areas and Wildlife Service, 75 F.3d 1429 (10th containing features essential to the The primary authors of this package Cir. 1996), we undertake a NEPA are the Arizona Ecological Services conservation of this species are more analysis for critical habitat designation. clearly defined, and the primary Office staff (see ADDRESSES section We conducted a NEPA evaluation and above). constituent elements of the habitat notified the public of the draft necessary to the conservation of this document’s availability on June 6, 2006 List of Subjects in 50 CFR Part 17 species are specifically identified. While (71 FR 32496). We completed an Endangered and threatened species, making this definition and environmental assessment and finding Exports, Imports, Reporting and record identification does not alter where and of no significant impact on the keeping requirements, Transportation. what federally sponsored activities may designation of critical habitat for the occur, it may assist local governments in spikedace and loach minnow. The final Regulation Promulgation long-range planning (rather than waiting documents are available and can be I Accordingly, we amend part 17, for case-by-case section 7 consultations viewed online at http://www.fws.gov/ subchapter B of chapter I, title 50 of the to occur). southwest/es/arizona/. Code of Federal Regulations as set forth Civil Justice Reform Government to Government below: Relationship With Tribes In accordance with Executive Order PART 17—[AMENDED] 12988, the Department of the Interior’s In accordance with the President’s I 1. The authority citation for part 17 Office of the Solicitor has determined memorandum of April 29, 1994, continues to read as follows: that this rule does not unduly burden ‘‘Government-to-Government Relations the judicial system and does meet the with Native American Tribal Authority: 16 U.S.C. 1361–1407; 16 U.S.C. requirements of sections 3(a) and 3(b)(2) Governments’’ (59 FR 22951), Executive 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– of the Order. We are designating critical Order 13175, and the Department of 625, 100 Stat. 3500; unless otherwise noted. habitat in accordance with the Interior’s manual at 512 DM 2, we I 2. Amend § 17.95(e) by revising the provisions of the Endangered Species readily acknowledge our responsibility critical habitat entries for ‘‘Loach Act. This final rule uses standard to communicate meaningfully with Minnow (Tiaroga cobitis)’’ and property descriptions and identifies the recognized Federal Tribes on a ‘‘Spikedace (Meda fulgida)’’ to read as primary constituent elements within the government-to-government basis. We follows: designated areas to assist the public in have excluded all Tribal lands from the understanding the habitat needs of final critical habitat designation § 17.95 Critical habitat—fish and wildlife. spikedace and loach minnow. pursuant to section 4(b)(2) of the Act. * * * * *

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13405

(e) Fishes. (D) Spawning areas with slow to swift nonnative aquatic species are at levels * * * * * flow velocities in shallow water where that allow persistence of loach minnow. cobble and rubble and the spaces Loach Minnow (Tiaroga Cobitis) (v) Areas within perennial, between them are not filled in by fine interrupted stream courses that are (1) Critical habitat units are depicted dirt or sand; and periodically dewatered but that serve as for Apache, Graham, Greenlee, and (E) Water with dissolved oxygen connective corridors between occupied Pinal Counties, Arizona; and Catron, levels greater than 3.5 cc/l and no or or seasonally occupied habitat and Grant, and Hidalgo Counties, New minimal pollutant levels for pollutants through which the species may move Mexico, on the maps and as described such as copper, arsenic, mercury, and when the habitat is wetted. below. cadmium; human and animal waste products; pesticides; suspended (3) Each stream segment includes a (2) Within these areas, the primary sediments; and gasoline or diesel fuels. lateral component that consists of 300 constituent elements of critical habitat (ii) Sand, gravel, and cobble substrates feet (91.4 meters) on either side of the for loach minnow are the following: with low or moderate amounts of fine stream channel measured from the (i) Permanent, flowing water with no sediment and substrate embeddedness. stream edge at bank full discharge. This or low levels of pollutants, including: Suitable levels of embeddedness are lateral component of critical habitat (A) Living areas for adult loach generally maintained by a natural, contains and contributes to the physical minnow with moderate to swift flow unregulated hydrograph that allows for and biological features essential to the velocities between 9.0 to 32.0 in/second periodic flooding or, if flows are loach minnow and is intended as a (24 to 80 cm/second) in shallow water modified or regulated, a hydrograph that surrogate for the 100-year floodplain. between approximately 1.0 to 30 inches allows for adequate river functions, (4) Critical habitat map areas. Data (3 cm to 75 cm) in depth, with gravel, such as flows capable of transporting layers defining map areas, and mapping cobble, and rubble substrates; sediments. of critical habitat areas, was done using (B) Living areas for juvenile loach (iii) Streams that have: Arc GIS and verifying with USGS 7.5′ (A) Low gradients of less than minnow with moderate to swift flow quadrangles. Legal descriptions for New approximately 2.5 percent; Mexico and Arizona are based on the velocities between 1.0 and 34 in/second (B) Water temperatures in the Public Lands Survey System (PLSS). (3.0 and 85.0 cm/second) in shallow approximate range of 35 to 86 °F (1.7 to Within this system, all coordinates water between approximately 1.0 to 30 30.0 °C) (with additional natural daily reported for New Mexico are in the New inches (3 cm to 75 cm) in depth with and seasonal variation); sand, gravel, cobble, and rubble (C) Pool, riffle, run, and backwater Mexico Principal Meridian (NMPM), substrates; components; and while those in Arizona are in the Gila (C) Living areas for larval loach (D) An abundant aquatic insect food and Salt River Meridian (GSRM). All minnow with slow to moderate base consisting of mayflies, true flies, mileage calculations were performed velocities between 3.0 and 20.0 in/ black flies, caddisflies, stoneflies, and using GIS. second (9.0 to 50.0 cm/second) in dragonflies. (5) Note: Index map of critical habitat shallow water with sand, gravel, and (iv) Habitat devoid of nonnative units for loach minnow (Map 1) follows: cobble substrates; aquatic species or habitat in which BILLING CODE 4310–55–P

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13406 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(6) Complex 2—Black River, Apache (i) East Fork Black River—12.2 mi confluence with the West Fork Black and Greenlee Counties, Arizona. (19.7 km) of river extending from the River at Township 4 North, Range 28

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.000 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13407

East, section 11 upstream to the extending from the confluence with East with the East Fork Black River at confluence with unnamed tributary Fork Black River at Township 5 North, Township 5 North, Range 29 East, approximately 0.51 mi (0.82 km) Range 29 East, section 5 upstream to the section 5 upstream to the confluence downstream of the Boneyard Creek confluence with an unnamed tributary with an unnamed tributary at Township confluence at Township 5 North, Range at Township 6 North, Range 29 East, 6 North, Range 29 East, section 32. Land 29 East, section 5. Land ownership: U.S. section 30. Land ownership: U.S. Forest ownership: U.S. Forest Service Forest Service (Apache—Sitgreaves Service (Apache—Sitgreaves National (Apache—Sitgreaves National Forest). National Forest). Forest). (iv) Note: Map of Complex 2 (Black (ii) North Fork East Fork Black (iii) Boneyard Creek—1.4 mi (2.3 km) River) of loach minnow critical habitat River—4.4 mi (7.1 km) of river of creek extending from the confluence (Map 2) follows:

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13408 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4725 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.001 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13409

(7) Complex 3—Middle Gila/Lower (ii) Turkey Creek—2.7 mi (4.3 km) of South, Range 18 East, section 14 San Pedro/Aravaipa Creek, Pinal and creek extending from the confluence upstream to the boundary of the Graham Counties, Arizona. with Aravaipa Creek at Township 6 Aravaipa Wilderness at Township 6 (i) Aravaipa Creek—28.1 mi (45.3 km) South, Range 19 East, section 19 South, Range 19 East, section 18. Land of creek extending from the confluence upstream to the confluence with Oak ownership: Bureau of Land with the San Pedro River at Township Grove Canyon at Township 6 South, Management. 7 South, Range 16 East, section 9 Range 19 East, section 32. Land upstream to the confluence with Stowe ownership: Bureau of Land (iv) Note: Map of Complex 3 Gulch at Township 6 South, Range 19 Management. (Aravaipa Creek) of loach minnow East, section 35. Land ownership: (iii) Deer Creek—2.3 mi (3.6 km) of critical habitat (Map 3) follows: Bureau of Land Management, Tribal, creek extending from the confluence and State lands. with Aravaipa Creek at Township 6

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13410 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4725 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.002 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13411

(8) Complex 4—San Francisco and with the Tularosa River at Township 7 Forest Service (Gila National Forest) in Blue Rivers, Pinal and Graham South, Range 18 West, section 19 New Mexico. Counties, Arizona, and Catron County, upstream to the confluence with Cerco (viii) Dry Blue Creek—3.0 mile (4.8 New Mexico. Canyon at Township 7 South, Range 18 km) of creek extending from the (i) Eagle Creek—17.7 mi (28.5 km) of West, section 21. Land ownership: U.S. confluence with Campbell Blue Creek at creek extending from the Phelps— Forest Service (Gila National Forest), Township 7 South, Range 21 West, Dodge Diversion Dam at Township 4 and private lands. section 6 upstream to the confluence South, Range 28 East, section 23 (v) Whitewater Creek—1.1 mi (1.8 km) with Pace Creek at Township 6 South, upstream to the confluence of Dry Prong of creek extending from the confluence Range 21 West, section 28. Land and East Eagle Creeks at Township 2 with the San Francisco River at ownership: U.S. Forest Service (Gila North, Range 28 East, section 29, Township 11 South, Range 20 West, National Forest). excluding portions of the San Carlos section 27 upstream to the confluence Reservation. Land ownership: U.S. (ix) Pace Creek—0.8 mile (1.2 km) of with the Little Whitewater Creek at creek extending from the confluence Forest Service (Apache—Sitgreaves Township 11 South, Range 20 West, National Forest), and private lands. with Dry Blue Creek at Township 6 section 23. Land ownership: private South, Range 21 West, section 28 (ii) San Francisco River—126.5 mi lands. (203.5 km) of river extending from the upstream to a barrier falls at Township (vi) Blue River—51.1 mi (82.2 km) of confluence with the Gila River at 6 South, Range 21 West, section 29. river extending from the confluence Township 5 South, Range 29 East, Land ownership: U.S. Forest Service with the San Francisco River at section 21 upstream to the mouth of The (Gila National Forest). Box, a canyon above the town of Township 2 South, Range 31 East, section 31 upstream to the confluence of (x) Frieborn Creek—1.1 mi (1.8 km) of Reserve, at Township 6 South, Range 19 creek extending from the confluence West, section 2. Land ownership: Campbell Blue and Dry Blue Creeks at Township 6 South, Range 20 West, with Dry Blue Creek at Township 7 Bureau of Land Management, U.S. South, Range 21 West, section 6 Forest Service (Apache–Sitgreaves section 6. Land ownership: U.S. Forest Service (Apache–Sitgreaves National upstream to an unnamed tributary at National Forest), State, and private Township 7 South, range 21 West, lands in Arizona, and U.S. Forest Forest) and private lands in Arizona; U.S. Forest Service (Gila National section 8. Land ownership: U.S. Forest Service (Gila National Forest) and Service (Gila National Forest). private lands in New Mexico. Forest) in New Mexico. (iii) Tularosa River—18.6 mi (30.0 (vii) Campbell Blue Creek—8.1 mi (xi) Little Blue Creek—2.8 mi (4.5 km) km) of river extending from the (13.1 km) of creek extending from the of creek extending from the confluence confluence with the San Francisco River confluence of Dry Blue and Campbell with the Blue River at Township 1 at Township 7 South, Range 19 West, Blue Creeks at Township 6 South, Range South, range 31 East, section 5 upstream section 23 upstream to the town of 20 West, section 6 in New Mexico to the mouth of a canyon at Township Cruzville at Township 6 South, Range upstream to the confluence with 1 North, Range 31 East, section 29. Land 18 West, section 12. Land ownership: Coleman Canyon at Township 4 North, ownership: U.S. Forest Service U.S. Forest Service (Gila National Range 31 East, section 32 in Arizona. (Apache–Sitgreaves National Forest). Forest) and private lands. Land ownership: U.S. Forest Service (xii) Note: Map of Complex 4 (San (iv) Negrito Creek—4.2 mi (6.8 km) of (Apache–Sitgreaves National Forest) Francisco and Blue Rivers) of loach creek extending from the confluence and private lands in Arizona; U.S. minnow critical habitat (Map 4) follows:

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13412 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4725 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.003 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13413

(9) Complex 5—Upper Gila River confluence with the West Fork Gila Service (Gila National Forest) and Complex, Catron, Grant, and Hidalgo River at Township 11 South, Range 12 private lands. Counties, New Mexico. West, section 17 upstream to the (iv) West Fork Gila River—7.7 mi (i) Upper Gila River—94.9 mi (152.7 confluence of Beaver and Taylor creeks (12.4 km) of river extending from the km) of river extending from the at Township 13 South, Range 13 West, confluence with the East Fork Gila River confluence with Moore Canyon (near section 8. Land ownership: U.S. Forest the Arizona/New Mexico border) at at Township 13 South, Range 13 West, Service (Gila National Forest) and section 8 upstream to the confluence Township 18 South, Range 21 West, private lands. section 32 upstream to the confluence of with EE Canyon at Township 12 South, the East and West Forks of the Gila (iii) Middle Fork Gila River—11.9 mi Range 14 West, section 22. Land River at Township 13 South, Range 13 (19.1 km) of river extending from the ownership: U.S. Forest Service (Gila West, section 8. Land ownership: confluence with the West Fork Gila National Forest), National Park Service, Bureau of Land Management, U.S. River at Township 12 South, Range 14 and private lands. Forest Service (Gila National Forest), West, section 25 upstream to the (v) Note: Map of Complex 5 (Upper State, and private lands. confluence with Brothers West Canyon Gila River Complex) of loach minnow (ii) East Fork Gila River—26.1 mi at Township 11 South, Range 14 West, critical habitat (Map 5) follows: (42.0 km) of river extending from the section 33. Land ownership: U.S. Forest

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13414 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.004 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13415

* * * * * approximately 3 cm (1.2 in) to 1 meter (v) Areas within perennial, (40 in) in depth; and interrupted stream courses that are Spikedace (Meda fulgida) (D) Water with dissolved oxygen periodically dewatered but that serve as (1) Critical habitat units are depicted levels greater than 3.5 cc/l and no or connective corridors between occupied for Graham, Greenlee, Pinal, and minimal pollutant levels for pollutants or seasonally occupied habitat and Yavapai Counties, Arizona; and Catron, such as copper, arsenic, mercury, and through which the species may move Grant, and Hidalgo Counties, New cadmium; human and animal waste when the habitat is wetted. products; pesticides; suspended Mexico, on the maps and as described (3) Each stream segment includes a sediments; and gasoline or diesel fuels. below. lateral component that consists of 300 (2) Within these areas, the primary (ii) Sand, gravel, and cobble substrates with low or moderate amounts of fine feet (91.4 meters) on either side of the constituent elements of critical habitat stream channel measured from the for spikedace are the following: sediment and substrate embeddedness. Suitable levels of embeddedness are stream edge at bank full discharge. This (i) Permanent, flowing water with no lateral component of critical habitat or minimal pollutant levels, including: generally maintained by a natural, unregulated hydrograph that allows for contains and contributes to the physical (A) Living areas for adult spikedace and biological features essential to the with slow to swift flow velocities periodic flooding or, if flows are modified or regulated, a hydrograph that spikedace and is intended as a surrogate between 20 and 60 cm/second (8 and 24 for the 100-year floodplain. in/second) in shallow water between allows for adequate river functions, approximately 10 cm (4 in) and 1 meter such as flows capable of transporting (4) Critical habitat map areas. Data (40 in) in depth, with shear zones where sediments. layers defining map areas, and mapping (iii) Streams that have: rapid flow borders slower flow, areas of of critical habitat areas, was done using (A) Low gradients of less than ′ sheet flow (or smoother, less turbulent Arc GIS and verifying with USGS 7.5 approximately 1.0 percent; flow) at the upper ends of mid-channel quadrangles. Legal descriptions for New (B) Water temperatures in the Mexico and Arizona are based on the sand/gravel bars, and eddies at ° approximate range of 35 to 82 F (1.7 to Public Lands Survey System (PLSS). downstream riffle edges; 27.8 °C) (with additional natural daily (B) Living areas for juvenile spikedace Within this system, all coordinates and seasonal variation); reported for New Mexico are in the New with slow to moderate water velocities (C) Pool, riffle, run, and backwater of approximately 18 cm/second (8 in/ Mexico Principal Meridian (NMPM), components; and while those in Arizona are in the Gila second) or higher in shallow water (D) An abundant aquatic insect food and Salt River Meridian (GSRM). All between approximately 3 cm (1.2 in) base consisting of mayflies, true flies, mileage calculations were performed and 1 meter (40 in) in depth; caddisflies, stoneflies, and dragonflies. (C) Living areas for larval spikedace (iv) Habitat devoid of nonnative using GIS. with slow to moderate flow velocities of aquatic species or habitat in which (5) Note: Index map of critical habitat approximately 10 cm/second (4 in/ nonnative aquatic species are at levels units for spikedace (Map 1), follows: second) or higher in shallow water that allow persistence of spikedace. BILLING CODE 4310–55–P

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 13416 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(6) Complex 1—Verde River, Yavapai (i) Verde River—43.0 mi (69.2 km) of Coconino National Forest boundary County, Arizona. river extending from the Prescott and with private lands at Township 17

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.005 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13417

North, Range 3 East, section 7, upstream ownership: U.S. Forest Service (ii) Note: Map of Complex 1 (Verde to Sullivan Dam at Township 17 North, (Coconino and Prescott National River) of spikedace critical habitat (Map Range 2 West, section 15. Land Forests), State, and private lands. 2) follows:

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4725 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.006 13418 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(7) Complex 3—Middle Gila/Lower (ii) Lower San Pedro River—13.4 mi confluence with the San Pedro River at San Pedro/Aravaipa Creek, Pinal and (21.5 km) of river extending from the Township 7 South, Range 16 East, Graham Counties, Arizona. confluence with the Gila River at section 9 upstream to the confluence (i) Gila River—39.0 mi (62.8 km) of Township 5 South, Range 15 East, with Stowe Gulch at Township 6 South, river extending from the Ashurst- section 23 upstream to the confluence Range 19 East, section 35. Land Hayden Dam at Township 4 South, with Aravaipa Creek at Township 7 ownership: Bureau of Land Range 11 East, section 8 upstream to the South, Range 16 East, section 9. Land Management, Tribal, State, and private confluence with the San Pedro River at ownership: Bureau of Land lands. Township 5 South, Range 15 East, Management, Tribal, State, and private (iv) Note: Map of Complex 3 (Middle section 23. Land ownership: Bureau of lands. Gila/Lower San Pedro/Aravaipa Creek) Reclamation, Bureau of Land (iii) Aravaipa Creek—28.1 mi (45.3 of spikedace critical habitat (Map 3) Management, State, and private lands. km) of creek extending from the follows:

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13419

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4725 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.007 13420 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

(8) Complex 5—Upper Gila River (ii) East Fork Gila River—26.1 mi section 2. Land ownership: U.S. Forest Complex, Catron, Grant, and Hidalgo (42.0 km) of river extending from the Service (Gila National Forest) and Counties, New Mexico. confluence with the West Fork Gila private lands. (i) Upper Gila River—94.9 mi (152.7 River at Township 13 South, Range 13 (iv) West Fork Gila River—7.7 mi km) of river extending from the West, section 8 upstream to the (12.4 km) of river extending from the confluence with Moore Canyon (near confluence of Beaver and Taylor creeks confluence with the East Fork Gila River the Arizona/New Mexico border) at at Township 11 South, Range 12 West, at Township 13 South, Range 13 West, Township 18 South, Range 21 West, section 17. Land ownership: U.S. Forest section 8 upstream to the confluence section 32 upstream to the confluence of Service (Gila National Forest) and with EE Canyon at Township 12 South, the East and West Forks of the Gila private lands. River at Township 13 South, Range 13 (iii) Middle Fork Gila River—7.7 mi Range 14 West, section 22. Land West, section 8, excluding lands owned (12.3 km) of river extending from the ownership: U.S. Forest Service (Gila by the Phelps Dodge Corporation. Land confluence with the West Fork Gila National Forest), National Park Service, ownership: Bureau of Land River at Township 12 South, Range 14 and private lands. Management, U.S. Forest Service (Gila West, section 25 upstream to the (v) Note: Map of Complex 5 (Upper National Forest), State, and private confluence with Big Bear Canyon at Gila River Complex) of spikedace lands. Township 12 South, Range 14 West, critical habitat (Map 4) follows:

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations 13421

VerDate Aug<31>2005 17:02 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2 ER21MR07.008 13422 Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations

* * * * * Dated: March 6, 2007. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07–1218 Filed 3–20–07; 8:45 am] BILLING CODE 4310–55–P

VerDate Aug<31>2005 18:15 Mar 20, 2007 Jkt 211001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\21MRR2.SGM 21MRR2 jlentini on PROD1PC65 with RULES2