13374 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations

DEPARTMENT OFTHE INTERIOR Colorado, New Mexico, Utah, and important to any fish species. such as Wyoming. The Lower Basin consists of spawning areas, nursery grounds, and Fish and Wildlife Service portions of the States of Arizona, interactions with predators and California. and Nevada. An additional competitors. However, because the four 50 CFR Part 17 5,000 kmz (2,000 mi2) ofthe Basin lies endangered fishes are present in such RIN 1018—A891 within Mexico. low numbers, basic life history and Historically, the native fish fauna of habitat use information has been Endangered and Threatened Wildlife the Basin was dominated by the difficult to obtain. Changes to the and Plants; Determination of Critical minnow (cyprinids) and sucker historical Colorado RiverBasin Habitat for the Colorado River (catostomids) families (Minckley et a!. ecosystem that have resulted in a lack Endangered Fishes: Razorback 1986). The four species of concern, the of reproduction andJor recruitment have Sucker, Colorado Squawfish, razorback sucker (Xyranchen texanus), been hypothesized as factors in their Humpback Chub, and Bonytail Chub Colorado squawfish (Ptychocheilus endangerment (USFWS 1990a, 1990b, lucius), humpback chub (Gila cypha). 1991; Minckley et al. 1991). In this case, AGENCY: Fish and Wildlife Service, and bonytail chub (Gila elegans) are not only would a lack of successful Interior. listed as endangered under the recruitment lead to small numbers of ACTION: Final rule. Endangered Species Act (Act) of 1973, fish, but over time, remnant stocks may as amended (16 U.S.C. 1531 et seq.). lose genetic diversity. Ultimately, SUMMARY: The Fish and Wildlife Service These fishes are threatened with designates critical habitat for four extinction could result because the loss extinction due to the cumulative effects of genetic diversity may make species of endemic Colorado River of environmental impacts that have Basin fishes: Razorback sucker populations less able to adjust to resulted in habitat loss (including environmental change. (Xyrauchen texanus), Colorado alterations to natural flows and changes squawfish (Ptychocheilus lucius), to temperature and sediment regimes), Habitats and Status of Endangered Fish humpback chub (Gila cypha), and proliferation of nonnative introduced Affected Environment bonytail chub (Gila elegans). These fish, and other man-induced species are listed as endangered under disturbances (Miller 1961; Minckley The four Colorado River endangered the Endangered Species Act of 1973, as 1973; U.S. Fish and Wildlife Service fishes evolved in the Colorado River Basin (Basin) and were adapted to the amended. The critical habitat [USFWS] 1987; Carlson and Muth designated is located primarily on 1989). natural environment that existed prior Federal land and, to a lesser extent, on Natural Colorado squawfish to the beginning of large-scale water tribal, State, and private lands. The populations survive only in the Upper development and introduction of designation provides additional Basin, where their numbers are nonnative species. This natural protection required under section 7 of relatively high only in the Green River environment was characterized by the Act with regard to activities that Basin of Utah and Colorado (compared highly fluctuating seasonal and annual require Federal agency action. The with other rivers in the Upper Basin) flows, distinctly different habitat types Service designates 3,168 km (1,980 mi) (Tyus 1991). Razorback sucker and (i.e., whitewater, lower gradient and of critical habitat for the four Colorado bonytail chub populations throughout meandering main channels, off-channel River endangered fishes in portions of the Basin consist predominately of old backwaters, and others) and varying Colorado, Utah, New Mexico, Arizona, adult fish. Populations persist primarily water quality (i.e., sediment load, Nevada, and California. The areas because of the longevity of these species temperature, salinity, etc.). Recent designated for each species also overlap (USFWS 1990a; Minckley et al. 1991), population declines and disappearances some areas designated for the other although some experimental and of endemic Basin fish species from species. augmentation programs have stocked much of their former range have been EFFECTIVE DATE: April 20, 1994. fish in the Basin. Humpback chub associated with the onset of rapid and widespread anthropogenic changes to ADDRESSES: The complete file for this populations in the Little Colorado River, rule is available for public inspection, Black Rocks, and Westwater Canyon in the natural environment. The cumulative environmental impact of by appointment, during normal business the Colorado River appear relatively these changes has resulted in alteration hours at the officeof the Field stable in number of fish, but declines ofthe physical and biological Supervisor, Ecological Services, U.S. have occurred in other locations (USFWS logob). characteristics of many rivers in the Fish and Wildlife Service, 2060 Basin. These impacts presumably Administration Building, 1745 West The historical ranges of the four occurred so rapidly that the fish could 1700 South, Salt Lake City, Utah 84104. endangered fishes have been fragmented by construction of dams and water not adapt to them (Carison and Muth FOR FURTHER INFORMATION CONTACT: diversions throughout the Basin 1989). Dams and diversions have Reed E. Harris, Field Supervisor, at the (Carlson and Muth 1989). The Fish and fragmented former fish habitat and above address, telephone 801/975—3630. Wildlife Service (Service) believes that restricted fish movement. As a result, SUPPLEMENTARY INFORMATION: it is important to the survival and genetic interchange (emigration and recovery of these species to maintain immigration of individuals) between Background and reestablish populations in some fish populations is rio longer The four endangered fishes are geographically distinct areas within possible. High flood flows were once endemic to the Colorado River Basin their historic range that provide varying normal in the Basin and provided food (Basin), which consists of portions of thermal, chemical, geological, and and nutrient exchange between river seven Western States. The Basin drains physical parameters required for channels and shallow-water flood plain approximately 627,000 km 2 (242,000 maintenance of genomes. habitats. These high flows are now mi 2) within the United States and has Conservation of these four species controlled by numerous dams. As a been politically divided into an Upper will require the identification and result of these dams, major changes also and Lower Basin. The Upper Basin management of water resources and have occurred in water quality, consists of portions of the States of habitat components that are considered quantity, temperature, sediment load F Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13375 and nutrient transport, and other Kaeding 1989). Fish in the Green River Colorado squawflsh spawning has characteristics of the aquatic Basin spawn in the spring with rising been documented in canyons in the environment (Carlson and Muth 1989). water levels and increasing Yampa and Green Rivers (Tyus 199fl. The altered river conditions that have temperatures. Razorback suckers move This reproduction is associated with resulted now provide suitable habitats into flooded areas in early spring and declining flows in June, July, or August for introduced, normative fish. Some of begin spawning migrations to specific and average water temperatures ranging these nonnative fish species have locations as they become reproductively from 22 to 25 °C(72 to 77 °F)depending flourished in the Basin (Minckley et al. active, and spawning occurs overrocky on annual hydrology. Rivermile 130 on 1982; Tyus et al. 1982; Carlson and runs and gravel bars (Tyus and Karp the Colorado River, near the Colorado- Muth 1989). These physical and 1990). Utah State line, also has been identified biological changes have impacted the In nonreproductive periods, adult as a spawning site, and radio-tagged river environment to the extent that no razorback suckers,occupy a variety of adults have moved to a specific 0.2 km completely unaltered habitat remains in habitat types, including impounded and (0.1 mi) area in four different years the Basin for the four Colorado River riverine areas, eddies, backwaters, (Osmundson and Kaeding 1989; USFWS endangered fish species. gravel pits, flooded bottoms, flooded unpublished data 1992—1993). In the Razorback Sucker mouths of tributary streams, slow runs, mainstream Colorado River, McAda arid sandy riffles, and others (reviewed by Kaeding (1991) stated that spawning This species once was abundant and Minckley et al. 1991). Summer habitats occurs at many locations. They also widely distributed in rivers of the Basin used include deeper eddies, backwaters, suggested that Colorado squawfish Uordan and Evermann 1896; Minckley holes, and midchannel sandbars spawning in the Colorado River may 1973). In the Lower Basin, the razorback (Osmundson and Kaeding 1989; Tyus have been adversely impacted by sucker remains in the Colorado River and Karp 1990; Minckley et al. 1991). construction of mainstream dams and a from the Grand Canyon to near the During winter, adult razorback suckers 48 percent reduction in peak discharge. border with Mexico. With the exception use main channel habitats that are On the San Juan River, a spawning of the relatively large stock of razorback reach has been identified between river suckers remaining in Lake Mohave (an similar to those used during other times of the year, including eddies, slow runs, mile 133.4 and 129.8, near the estimated 25,000 individuals), these confluence ofthe Mancos River (Ryder populations are small and recruitment is riffles, and slackwaters (Osmundson and Kaeding 1989; Valdez and Masslich and Pfeifer 1993). virtually nonexistent (Minckley et a!. 1989; Tyus and Karp 1990). After spawning, adult Colorado 1991). The formerly large Lower Basin Habitats used by young razorback squawfish utilize a variety of riverine populations have been virtually extirpated from other riverine suckers have not been fully described habitats, including eddies, backwaters, environments (Minckley et al. 1991). In because of the low number of young fish shorelines, and others (Tyus 1990). the Upper Basin, this species remains in present in the Basin. However, most During winter, adult Colorado the lower Yampa and Green Rivers, studies indicate that the larvae prefer squawfish use backwaters, runs, pools, mainstream Colorado River, and lower shallow, littoral zones for a few weeks and eddies, but are most common in San Juan River (Tyus et al. 1982; after hatching, then disperse to deeper shallow, ice-covered shoreline areas Minckley et al. 1991; Platania et al. water areas (reviewed by Minckley et a!. (Osmundson and Kaeding 1989; Wick 1991); however, there is little indication 1991). Laboratory studies indicated that and Hawkins 1989). In spring and early of recruitment in these remnant stocks. in a riveririe environment, the larvae summer, adult squawfish use shorelines The largest extant riverine population enter stream drift and are transported and lowlands inundated during typical occurs in the upper Green River Basin. downstream (Paulin et al. 1989). spring flooding. This natural lowland It consisted of only about 1,000 fish in Based on available data, Tyus and inundation is viewed as important for 1989 (Lanigan and Tyus 1989); recent Karp (1989) and Osmundson and their general health and reproductive information suggests that this Kaeding (1989) considered that conditioning (Osmundson and Kaeding population may have declined to less cumulative environmental impacts from 1989; Tyus 1990). Use of these habitats than 500 fish (USFWS unpublished interactions with normative fish, high presumably mitigates some of the effects data). In the absence of conservation winter flows, reduced high spring flows, of winter stress, and aids in providing efforts, it is presumed that all wild seasonal changes in river temperatures, energy reserves required for migration populations in the Basin would soon be and lack of inundated shorelines and and spawning. Migration is an lost as old fish die without sufficient bottom lands are factors that potentially important component in the natural recruitment. limit the survival, successful reproductive cycle of Colorado Reproduction and habitat use of reproduction, and recruitment of this squawfish. Tyus (1990) hypothesized razorback suckers has been studied in species. that migration cues, such as high spring Lower Basin reservoirs, especially in flows, increasing river temperatures, Colorado Squawfish Lake Mohave. Fish reproduction has and chemical inputs from flooded lands been visually observed along reservoir This species is the only living and springs, may be important to shorelines for many years. The fish representative of the genus successful reproduction. spawn overmixed substrates that range Ptychocheilus endemic to the Basin. In the Green River Basin, larval from silt to cobble and at water Fossils from the Mid-Pliocene epoch Colorado squawfish emerge from temperatures ranging from 10.5 to 210 C (about 6 million years ago) indicate that spawning substrates and enter the (51 to 700 F) (reviewed by Minckley et early Ptychocheilus had physical stream drift as young fry (Haynes et al. a!. 1991). characteristics that were similar to 1989). The larval fish are actively or Habitat use and spawning behavior of modem forms. Native populations of the passively transported downstream for adult razorback suckers in riverine Colorado squawfish are now restricted about 6 days, traveling an average habitats has been studied by to the Upper Basin in Wyoming, distance of 160 km (100 ml) to reach radiotelemetry in the Green River Basin Colorado, Utah, and NewMexico. nursery areas in lower gradient reaches (Tyus and Karp 1990) and in the upper Colorado squawfish populations have (Tyus and Haines 1991). These areas are Colorado River (Osmundson and been extirpated from the Lower Basin. nutrient-rich habitats that consist of 13376 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations ephemeral along-shore embayments that Reduced spring peak flows, availability chub, and other species (40FR 21499). develop as spring flows decline. of shoreline eddy and deep canyon. On September 14, 1978, the Service habitats, and competition and predation proposed 1,002 km (623 mi) of the Humpback Chub by normative fish were reported as Colorado, Green, Gunnison, and Yampa Remains of humpback chub have been potential limiting factors for humpback Rivers as critical habitat for the found in archaeological sites dated to chub in the Yampa River (Tyus and Colorado squawfish (43 FR 41060). The about 4000 B.C. (USFWS 1990b). This Karp 1989). The impact of hybridization proposal was for 1,002 km (623 mi) of Colorado River native fish was not with other species is currently being the Colorado, Green, Gunnison, and described as a species until 1946 (Miller evaluated. Yampa Rivers. This proposal was later 1946). This has been attributed to its withdrawn (44 FR 12382; March 6, presently restricted distribution in Bonytail Chub 1979)to comply with the 1978 remote, white water canyons (USFWS The bonytail chub (also known as the amendments to the Act (16 U.S.C. 1531 1990W. The historical abundance and bonytail) is the rarest native fish in the et seq.). distribution of the species is not well Basin. Historically reported as The razorback sucker was first known. In the Lower Basin, the widespread and abundant in rivers proposed for listing as a threatened humpback chub occurs in the Little throughout the Basin (Jordan and species on April 24, 1978 (43 FR 17375). Colorado and Colorado Rivers in the Evermann 1896), its populations have The proposal was withdrawn on May Grand Canyon. This population is the been greatly reduced. The fish is 27, 1980 (45 FR 35410), to comply with largest remaining in the Basin. In the presently represented in the wild by a provisions of the 1978 amendments to Upper Basin, humpback chub are found low number of old fish (i.e., ages of 40 the Act. These provisions required the in the Black RocksfWestwater Canyon years or more), and recruitment is Service to include consideration of and Cataract Canyon of the Colorado virtually nonexistent. In the Lower designating critical habitat in the listing River, Desolation and Gray Canyons of Basin, a small population persists in the of species, to complete the listing the Green River, and Yampa and Colorado River in LakeMohave, and process within 2 years from the date of Whirlpool Canyons in Dinosaur there are recent records from Lake the proposed rule, or withdraw the National Monument, Green and Yampa Havasu (USFWS 1990a). In the Upper proposal from further consideration. Rivers (USFWS 1990b). Basin, recent captures have been from The Service did not complete the listing Humpback chub in reproductive Dinosaur National Monument on the process within the 2-year deadline. condition are usually captured in May, Yampa River, Desolation and Gray On March 15, 1989, the Service June, or July, depending on location. Canyons on the Green River, and Black received a petition from the Sierra Club. Spawning occurs soon after the highest Rocks and Cataract Canyon on the National Audubon Society, The spring flows when water temperatures Colorado River (Kaeding et al. 1986; Wilderness Society, Colorado approach 20°C(68°F) (Karpand Tyus Tyus et a!. 1987; Va!dez 1990; USFWS Environmental Coalition, Southern Utah 1990; USFWS iggob). The importance 1990a). Wilderness Alliance, and Northwest of spring flows and proper temperatures The bonytail chub is adapted to Rivers Alliance to list the razorback for humpback chub is stressed by mainstream rivers, where it has been sucker as endangered. The Service made Kaeding and Zimmerman (1983), who observed in pools and eddies (Minckley a positive finding in June 1989 and implicated flow reductions and low 1973; Vanicek 1967). In reservoirs, the subsequently published a notice in the water temperatures in the Grand Canyon fish occupies avariety of habitat types Federal Register on August 15, 1989 (54 as factors curtailing successful (Minckley 1973). In Lake Mohave, FR 33586). This notice also stated that spawning of the fish and increasing Wagner (1955) observed the fish in eddy the Service was completing astatus competition from other species. habitats. Spawning requirements have review and was seeking additional Populations of humpback chub are information until December 15, 1989. A found in river canyons, where they never been documented in ariver, but Vanicek and Kramer (1969) reported proposed rule to list the razorback utilize a variety of habitats, including sucker as endangered was published in pools, riffles, and eddies, Most of the that spawning occurred in June and July at water temperatures of about 18°C the Federal Register on May 22, 1990 existing information on habitat (55 FR 21154). preferences has been obtained from (640 F). The available data suggest that habitats required for conservation of the The final rule listing the razorback adult fish in the Little Colorado River, sucker as an endangered species was bonytail chub include, river channels, the Grand Canyon, and the Black Rocks published on October 23, 1991 (56 FR of the Colorado River (Holder and and flooded, ponded, or inundated 54957), but critical habitat was not riverine habitats that would be suitable Stalnaker 1975; Kaeding and proposed. In the final rule, the Service for adults and young, especially if Zimmerman 1983; Kaeding et al. 1990). concluded that critical habitat was not In these locations, the fish are found competition from nonnative fishes is determinable at the time of listing and associated with boulder-strewn reduced (USFWS 1990a). questioned whether it was prudent to canyons, travertine dams, pools, and Previous Federal Actions designate critical habitat. eddies. Some habitat-use data also are On October 30, 1991, the Service available from the Yampa River Canyon Listing Chronology received a 60-day notice of intent to sue where the fish occupy similar habitats The Colorado squawfish and from the Sierra Club Legal Defense and also use rocky runs, riffles, rapids, humpback chub were listed as Fund. The subject of the notice was the and shoreline eddies (Karp and Tyus endangered species on March 11, 1967 Service’s failure to designate critical 1990). This diversity in habitat use (32 FR4001) and the bonytail chub was habitat concurrent with listing of the suggests that the adult fish are adapted listed as endangered on April 23, 1980 razorback sucker pursuant to section to avariety of habitats, and studies of (45 FR 27713). Critical habitat for these 4(b)(6)(c) of the Act. The Sierra Club tagged fish indicated that they move species was not designated at the time Legal Defense Fund follo~sedthis with between habitats, presumably in oftheir listing. On May 16, 1975, the a second notice of intent to sue dated response to seasonal habitat changes Service published a notice of its intent January 30, 1992. At a meeting on and life history needs (Kaeding and to determine critical habitat for the December 6, 1991, the Service Zimmerman 1983; Karp and Tyus 1990). Colorado squawfish and the humpback concluded that designation of critical Federal R~gister/ Vol. 59, No. 54 / Monday, March 21, 1994 ! Rules and Regulations 13377 habitat was prudent and determinable Notice of availability of the Economic preserves options for a species’ eventual and therefore in compliance with the Analysis, an Overview of the Proposed recovery. Section 3(5)(C) further states Act. The Service had no alternative but Critical Habitat Designation, and a that: “Except in those circumstances to designate critical habitat for the request for public comments were made determined by the Secretary, critical razorback sucker. Because the intent of in the Federal Register on November 12, habitat shall not include the entire the Act is “~ * * to provide a means 1993 (58 FR 5997), and in aNovember geographical area which can be whereby the ecosystems upon which 9, 1993, letter sent to interested parties. occupied by the threatened or endangered species and threatened The public comment period closed on endangered species.” species depend may be conserved January 11, 1994. On January 18, 1994, Role of Ciitical Habitat in Species * * s,” the Service also decided to the Service conducted the exclusion Conservation propose critical habitat for the Colorado process, assessing all the information squawflsh, humpback chub, and pertinent to a decision to exclude areas The designation of critical habitat will bonytail chub. The four endangered from designation as critical habitat for not, by itself, lead to recovery but is one Colorado River fish species coexist in economic or other relevant reasons. of several measures available to the Basin and much of their habitat contribute to conservation of a species. overlaps. Recovery Planning Critical habitat helps focus conservation On May 7, 1992, the Sierra Club Legal Recovery plans have been written for activities by identifying areas that Defense Fund on behalf of the Colorado three of the four listed Colorado River contain essential habitat features Wildlife Federation, Southern Utah fishes. The Colorado Squawflsh (primary constituent elements) Wilderness Alliance, Four Corners Recovery Plan was approved on March regardless of whether or not the areas Action Coalition, Colorado 16, 1978, and revised on August 6, 1991 are currently occupied by the listed Environmental Coalition, Taxpayers for (USFWS 1991). The Humpback Chub species. Such designations alert Federal the Animas River, and Sierra Club filed Recovery Plan was approved on August agencies, States, the public, and other a lawsuit in the U.S. District Court 22, 1979, with a first revision on May entities about the importance of an area (Court), Colorado, against the Service for 15, 1984, and a second revision on for the conservation ofa listed species. failure to designate critical habitat for September 19, 1990 (USFWS 1990b). Critical habitat also identifies areas that the razorback sucker. On August 18, The Bonytail Chub Recovery Plan was may require special management or 1992, a motion for summary judgment approved on May 16, 1984, with a protection. Areas designated as critical was filed requesting the Court to order revised plan approved September 4, habitat receive protection under section publication of a final rule to designate 1990 (USFWS 1990a). Recovery goals 7 of the Act with regard to actions critical habitat within 90 days. On contained in these recovery plans have carried out, funded, or authorized by a October 27, 1992, the Court ruled that been used in identifying and evaluating Federal agency that are likely to the Service had violated the Act by critical habitat for these three species. A adversely modify or destroy critical failing to designate critical habitat when recovery plan for the razorback sucker habitat. Section 7 requires that Federal the razorback sucker was listed. The has not been completed. agencies consult on their actions that Court ordered the Service to publish a may affect critical habitat and insure proposed rule within 90 days Determination of Critical Habitat that their actions are not likely to designating critical habitat for the Definition of Critical Habitat destroy or adversely modify critical razorback sucker using presently habitat. available information, and to publish a “Critical habitat,” as defined in Designation of an area as critical final rule at the earliest time permitted section 3(5)(A) of the Act, means: ‘(i) habitat only affects Federal actions that by the Act and its regulations. To take the specific areas within the may occur in the area. Designation does no action towards designation of critical geographical area occupied by the not create a management plan for a habitat would continue to place the species at the time it is listed * * , on listed species. Designation does not Service in violation of the Act and was which are found those physical or automatically prohibit certain actions, not a feasible alternative. biological features (I) essential to the establish numerical population goals, The Service published the proposed conservation of the species and (H) prescribe specific management actions rule to designate critical habitat on which may require special management (inside or outside of critical habitat), nor January 29, 1993 (58 FR 6578). At that considerations or protection; and (ii) does it have a direct effect on habitat not time, the Service had not completed an specific areas outside the geographical designated as critical habitat. However, economic analysis or a biological area occupied by a species at the time critical habitat may provide added support document. The Service it is listed * * ~, upon a determination protection for areas designated and thus published the Draft Biological Support by the Secretary that such areas are assist in achieving recovery. Document for public review on essential for the conservation of the September 15, 1993, and reopened the species.” Areas Outside of Critical Habitat public comment period (58 FR 48351). The term “conservation,” as defined Areas outside of critical habitat that On September 21, 1993, the Court held in section 3(3) of the Act, means: contain one or more of the primary a hearing on the Sierra Club Legal * * the use of all methods and constituent elements may still be Defense Fund “Motion For A Timetable procedures which are necessary to bring important for conservation of a species. For Publication Of Final Rule” on the any endangered species or threatened Also, some areas do not contain all of designation of critical habitat. On species to the point at which the the constituent elements and may have November 19, 1993, the Court directed measures provided pursuant to this Act those missing elements restored in the the Service (1) not to submit an interim areno longer necessary.” In the case of future. Such areas also may be final rule, (2) to provide a 60-day critical habitat, conservation represents important for the long-term recovery of comment period for the economic the areas required to recover a species the species even if they were not analysis, (3) to provide notice of the to the point of delisting (i.e., the species designated as critical habitat. Areas not exclusion process and request is recovered and is removed from the designated as critical habitat also may comments, and (4) to publish the final list of endangered and threatened be of value in maintaining ecosystem rule by March 15, 1994. species). In this context, critical habitat integrity and supporting other species, 1~378 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations indirectly contributing to recovery of a Water The following selection species. This includes a quantity of water of considerations were used by the Service Areas outside of critical habitat are sufficient quality (i.e., temperature, to help determine areas necessary for still subject to section 7 consultation on dissolved oxygen, lack of contaminants, survival and recovery of the razorback whether or not an action is likely to nutrients, turbidity, etc.) that is sucker. jeopardize the continued existence of a delivered to a specific location in 1. Presence of known or suspected species, and section 9 “take” accordance with a hydrologic regime wild spawning populations, although prohibitions for an action that may that is required for the particular life recruitment may be limited or affect Colorado River endangered fishes stage for each species. nonexistent. or their habitat. The Service anticipates 2. Areas where juvenile razorback that the importance of areas outside of Physical Habitat suckers have been collected or which critical habitat to the conservation of the This includes areas of the Colorado could provide suitable nursery habitat Colorado River endangered fishes will River system that areinhabited or (backwaters, flooded bottom lands, or be addressed through section 7, section potentially habitable by fish for use in coves). 9, and section 10 permit processes, the spawning, nursery, feeding, and rearing, 3. Areas presently occupied or that recovery planning process, and other or corridors between these areas. In were historically occupied that are appropriate State and Federal laws. addition to river channels, these areas considered necessary for recovery and also include bottom lands, side that have the potential for Primary Constituent Elements channels, secondary channels, oxbows, reestablishment of razorback suckers. In determining which areas to backwaters, and other areas in the 100- 4. Areas and water required to designate as critical habitat for a year flood plain, which when inundated maintain rangewide fish distribution species, the Service considers those provide spawning, nursery, feeding and and diversity under a variety of physical and biological attributes that rearing habitats, or access to these physical, chemical, and biological areessential to species conservation habitats. conditions. (i.e., constituent elements). Such 5. Areas that need special physical and biological features are Biological Environment management or protection to insure stated in 50 CFR 424.12 and include, Food supply, predation, and razorback survival and recovery. These but are not limited to, the following competition are important elements of areas once met the habitat needs of the items: (1) Space for individual and the biological environment and are razorback sucker and may be population growth and for normal considered components ofthis recoverable with additional protection behavior; constituent element. Food supply is a and management. (2) Food, water, air, light, minerals, or function of nutrient supply, The primary constituent elements other nutritional or physiological productivity, and availability to each were identified throughout the requirements; life stage of the species. Predation and historical range of the Colorado River (3) Cover or shelter; competition, although considered endangered fishes. In addition, the five (4) Sites for breeding, reproduction, normal components of this selection considerations described rearing of offspring, germination, or environment, are out of balance due to above also were used to evaluate seed dispersal; and generally; introduced nonnative fish species in potential razorback sucker critical (5) Habitats that are protected from many areas. habitat areas. The critical habitat disturbance or are representative of the designations were based on the primary historical geographical and ecological Additional Selection Criteria for the constituent elements, published and distributions of a species. Razorback Sucker unpublished sources of information, In addition, the Act stipulates that the Because arecovery plan for the Service reports and other findings, areas containing these elements may razorback sucker has not been recovery plans (for Colorado squawfish, require special management completed, additional selection criteria humpback chub, and bonytail chub), the considerations or protection. were developed to assist the Service in additional selection considerations, and Detailed descriptions and the making a determination of areas to the Service’s preliminary recovery goals biological basis for the constituent propose as critical habitat. Previous for the razorback sucker. elements were presented in the Draft Service findings, published and Biological Support Document (Maddux unpublished literature sources, and Adjustments to Boundaries et al. 1993). In considering the discussions with individual members of The 100-year flood plain is generally biological basis for determining critical the Colorado River Fishes Recovery included as part of the critical habitat habitat, the Service focused on the Team were utilized to develop the designation; however, only those primary physical and biological constituent elements and additional portions of the flood plain that contain elements essential to the conservation of selection criteria. the constituent elements are considered the species. The primary constituent Adult razorback suckers have part of critical habitat. Specific areas in elements are interrelated in the life displayed a degree of versatility in their the flood plain must be evaluated on a history of these species. This ability to survive and spawn in different case-by-case basis to determine if the relationship was a prime consideration habitats. However, razorback sucker areas constitute critical habitat. The in the designation of critical habitat. populations continue to decline and are Service stresses that, although critical The Service is required to list the considered below the survival level. habitat may only be seasonally occupied known primary constituent elements Thus, as versatile as the adult life stage by the fish, such habitat remains together with a description ofany of razorback sucker appears to be in important for their conservation. critical habitat that is designated. selecting spawning habitat, there has Protection of such seasonally occupied The primary constituent elements been little or no recruitment of young to habitats contributes to the conservation determined necessary for survival and the adult population. Therefore, special of the species. recovery of the four Colorado River consideration was given to habitats As a result of obtaining additional endangered fishes include, but arenot required for reproduction and biological information and review of limited to: recruitment. comments received during the public Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13379 comment period, the Service has the time period projected for the The models report total impacts determined that some areas are not recovery of the endangered fishes. resulting from interactions among the required forthe survival and recovery of Linkages between the biological sectors of the economy. the fishes because they do not contain requirements for recovering the National economicefficiency impacts the constituent elements, meet the endangered fishes and economic refer to the overall net impacts on the additional selection criteria, or are not activities in the region formed the basis national economy after the effects of in historical habitat. In addition, other for the economic analysis. As an index interregional transfers have been areas may contain constituent elements of these biological requirements, accounted for. The goal of a national but may contribute little to the prospect adjustments made in the operations of efficiency analysis is to determine of recovery for one or more of the four Federal reservoirs in the Basin and/or whether an action would have an fishes. Some of these areas are within mitigation of nonflow related activities overall positive or negative impact on sections of designated critical habitat along the river’s 100-year flood plain the national economy. and will be evaluated on a case-by-case were included. The effects of recovery National economic efficiency impacts basis. Five stream sections are separable efforts on future water depletions in the were analyzed in this study using a and have been removed from Basin also were taken into Computable General Equilibrium (CGE) consideration as part of critical habitat consideration. The direct and indirect model. The CGE model captures the because of a lack of biological impacts of these possible changes on economic interactions of consumers, the importance. These five areas are: current and prospective economic production sectors, and the government • DavisDarn to the upstream end of activities were then estimated for each sectors. The CGE model also analyzes Topock Marsh on the mainstem State, the region, and the national resource reallocations (e.g., changes in Colorado River (AZ, CA, NV) (bonytail economy. river flows as represented by increased chub) It is impossible to predict the outcome or decreased hydroelectric generation) • Bonita and Eagle Creeks, tributaries of future section 7 consultations in a manner such that the net effects, to the Gila River (AZ) (razorback sucker) involving endangered fishes in the not just the total effects, are calculated. • Cherry and Canyon Creeks, Basin. Ifthe Upper Basin and Sari Juan Given this capability, the CGE model is tributaries to the Salt River (AZ) Recovery Implementation Programs able to estimate net national efficiency (razorback sucker) (RIP) do not show sufficient and timely impacts. progress in recovering the endangered • Sycamore, Oak, and West Clear Modeling Approach Creeks, tributaries to the Verde River fishes, some planned water (AZ) (razorback sucker) developments may be modified, scaled A separate I~-0model was developed • The Verde River from Sullivan Lake back, delayed, or foregone. This for each State, and focused on the direct to Perkinsville (AZ) (razorback sucker) assumption provides an upper bound on and indirect impacts generated by the The Service reiterates that any or all the potential magnitude of economic critical habitat designation (Brookshire of these sections could contribute to the impacts associated with the critical et al. 1993). In most cases, impacts in a recovery of one or more of the fishes; habitat designation. Ifthe RIP’s are given State generated impacts in however, they do not provide aprimary successful in achieving their objectives, neighboring States. Thus, it was recovery area and areconsidered only many of the negative economic impacts necessary to investigate potential marginally important. The Service also can be avoided. offsetting impacts. As aresult, an 1—0 notes that some of these areas may not model was constructed that investigated Economic Modeling the impacts of the entire region (all have been historical habitat for the Two types of economic effects are of razorback sucker, afurther indication seven States). In addition to the State interest when considering the economic and regional 1—0 models, a CGE model that these areas may have only limited impacts of critical habitat designations: value in the recovery of these fishes. was developed for the economies of the regional economic impacts and national seven-State area and the rest of the Economic Impacts economic efficiency impacts. Regional United States. This model provided a economic impacts refer to the direct and Introduction comprehensive aggregate assessment of indirect impacts of the critical habitat the national economic efficiency Section 4(b)(2) of the Act directs the designations on specific geographic impacts. Secretary of the Interior (Secretary) to regions, such as States or other Economic activity forthe models was consider economic and other relevant subregions of the country. estimated using Impact Analysis for impacts in determining whether to Regional economic impacts were Planning (D.4PLAN) 1982 dafa sets that exclude proposed areas from the final analyzed using input-output (1—0) were updated and projected through the designation of critical habitat. The models that organize the basic year 2020, using data from the Bureau Service, as delegated by the Secretary, accounting relationships that describe of Economic Analysis of the U.S. may exclude areas from critical habitat the production sector of the economy Department of Commerce. The IMPLAN designation when the benefits of (Brookshire et aL 1993). The I-.O data set contains 528 economic sectors exclusion outweigh the benefits of method is based on the assumption that that were aggregated to 20 sectors inclusion, provided that exclusion will all sectors of the economy arerelated, (Brookshireet al. 1994). not result in extinction of a species. An and the production of a good or service economic analysis (Brookshire et a!. can be described by arecipe whose Without Fish and With Fish Scenarios 1994) was conducted on the ingredients arethe outputs from other Two scenarios were used to evaluate consequences of this action (critical sectors of the economy. The primary economic activities associated with the habitat designation). inputs are labor, capital, and other raw critical habitat designation (Brookshire The study region for the economic resources. Through its multiplier et al. 1994). The “without fish” analysis includes the seven States of the analysis, the I—U model is capable of economic scenario consisted of Basin: Arizona, California, Colorado, generating estimates of the changes in projections of the level of economic New Mexico, Nevada, Utah, and output for economic sectors, changes in activities that would be observed over Wyoming. The timeframe chosen for the employment, and changes in income the study period if no action was taken study, 1995 through 2020, encompasses due to the critical habitat designation. to recover the endangered fishes. l’he 13380 Federal Register / Vol. 59, No. 54 I Monday, March 21, 1994 / Rules and Regulations

“with fish” scenario was constructed by finance, insurance, and real estate recreationservices sector is also a very analyzing potential changes in sectors, which produce 18.4 percent and significant part of total employment at econonilc activity that may occur due to 14.9 percent of total output, 10.5 percent. Combined agricultural the critical habitat designations andlor respectively. The recreation services employment is approximately4.3 other protection and recovery efforts for sector produces 7.7 percent of the total percent of total employment (Brookshire endangered fish. output and the combined agricultural et al. 1993). sectors are responsible for 3.0 percent of State and Regional Economic Impacts Economic Setting the totaloutput (Brookshire et al. 1993). Economic Output Three conclusions were obtained from Employment the economic analysis (Table 1): First, Economic output measures the value Approximately 22.0 million people regional economic impacts associated of all goods and services produced andl are employed in the Basin economy. with critical habitat designation are or consumed in a regional economy. The largest employment sectors within positive for the Basin. Second, the State- The seven State Basin region generates the Basin States are the public sector level impacts are not distributed evenly about $1.3 trillion annually in economic (16.9 percent of total employment), and over States in the Basin. Finally, the output. This output is dominated by the the combined manufacturing sector percent deviation in the economy from combined manufacturing and the (15.4 percent of totalemployment). The the “without fish” scenario is small. TABLE 1 .—ANNUAUZED IMPACTS ($1991 MIwoNs) OF CRITICAL HABITAT DESIGNATION IN EACH STATE AND THE COLO- RADO RIVER BASIN. PARENTHESES ( ) = PERCENT CHANGE IN THE STATE AND REGIONAL ECONOMIES DUE TO DES- IGNATION. (AFTER BROOKSHIRE El AL. 1994) Personal In- ndirectbus~. ~ State (%c~nge) (%cha~e) ~ (% change) Arizona 1.049 0.201 0.048 —0.050 (.0008) (.0004) (.0006) (.0004) Calilomia +16.751 +2.880 +0.521 +0.720 (.0013) (.0007) (.0008) (.0007) Colorado —0.848 +0.850 —0.111 +0.213 (.0006) (.0020) (.0020) (.0020) Nevada +7.014 +3.369 +0.582 +0.842 (.0148) (.0164) (.0182) (.0164) New Mexico —12273 —1.511 —0.586 —0.378 (.0279) (.0110) (.0204) (.0110) Utah —3.628 —0.718 —0281 —0.180 (.0060) (.0039) (.0090) (.0040) Wyoming —0.359 —0.048 —0.023 —0.012 (.0020) (.0008) (.0020) (.0008) Basin +6.470 +3.704 +0.136 +1.049 (.0003) (.0006) (.0002) (.0006)

The projected impacts on the organized inthe same way as those for States and over time. For NewMexico, economies of various States ranged from output (Table 1). The conclusions the employment impact is about —$12.273 million in NewMexico expressed for output hold also for the approximately 2 jobs foregone in 1995 to about +$16.751 million in California earnings, indirect business taxes, and and this figure rises to 613 jobs foregone measured as annualized values (Table personal income taxes impacts by the year 2020. On the other hand, for 1). However, projected negative impacts (Brookshireet al. 1994). California there is a gain of that could occur in the various State Employment approximately 20 jobs in 1995 and this economies were so small when positive impact increases to a projected Table 2 presents State and regional compared to the base economies that 1,162 jobs by 2020. For theBasin as a incremental impacts on employment they are probably nonexistent, ranging whole, the employment impacts are overthe 25-year period of the study. from 0.0006 percent in Arizona to positive through the study period. In 0.0279 percent in New Mexico. Some The values in the table represent the States could experience small but deviation in employment, measured as 1995, the projected gain is approximately 60 jobs. By 2020, the positive impacts (e.g., California and jobs, between the without fish and with Nevada). fish scenarios. As with other aspects of gains in employment are projected to be Impacts on earnings, indirect business the economy, employment impacts are approximately 393 jobs. taxes, and personal income taxes are both positive and negative both across TABLE 2.— IMPACTS OF THE CRITICAL HABITAT DESIGNATION ON EMPLOYMENT IN EACH STATE AND THE COLORADO RIVER BASIN. EMPLOYMENT IMPACTS REPRESENT JOBS FOREGONE OR GAINED IN THE FUTURE THROUGH THE YEAR 2020. (AFTER BROOKSHIRE El AL. 1994) State 1995 J 2000 J 2005 J 2010 2015 j 2020 Arizona —1.85 —4.68 —7.77 —12.08 —18.86 —25.83 California +19.99 +92.57 +258.48 +475.86 +781.18 +1161.93 Federal Register 1 Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13381

TABLE 2.— IMPACTS OF THE CRITICAL HABITAT DESIGNATION ON EMPLOYMENT IN EACH STATE AND THE COLORADO RIVER BASIN. EMPLOYMENT IMPACTS REPRESENT JOBS FOREGoNE OR GAINED IN THE FUTURE TKRoui~1THE YEAR 2020. (AFTER BROOKSH;RE El AL 1 994)—Continued

State 1995 2000 2005 2010 2015 2020

Colorado ...... - +8.91 +5.16 —6.93 —19.69 —36.86 — 55.60 Nevada .~. ....~.. .. -. +3486 +71.52 +106.03 +14322 +17725 +208.69 New Mexico ~...... ~ —2.17 —27.98 —110.71 —239.60 —41521 —612.64 Utah ...... ~ ...... _ ...... —10.91 —22.30 —34.56 —47.71 —61.06 —74.13 Wyoming ~ .. ~ —0.40 —1.40 —2.41 —3.45 —4.35 —5.22 Colorado River Basin .. ..._. ÷59.94 +116.15 +178.70 +230.02 ÷294.76 +392.67

National Economic Impacts section 9 (take). Section 7 consultation of economic impacts could be assessed. The results below are from the requirements apply to Federal actions Those areas that exhibited economic ComputableGeneral Equilibrium model regardless of whether or not critical impacts above the thresholds were then and represent economic output for the habitat is designatedfor a particular examined to determine if the biological area. threshold of extinction would be Basin (Table 3). Although the projected The Service determined whether the national economic impacts were exceeded (Step 4) if thespecific area in positive for all variables, there is almost benefits of Inclusion of critical habitat question was dropped from areas would outweigh the benefits of no change in the regional economy. consideration as critical habitat. their exclusion, by using five sequential Benefits and Costs of Designation TABLE 3.—RESULTS OF COMPUTABLE steps: Step i—identify areas that meet the A public sector analysis examined the GENERAL EQUILIBRIUM MODEL FOR definition of critical habitat in section allocation ofscarce resources regarding THE COLORADO RIVER BASIN. 3(5) of the Act and that are considered economic efficiency and distribution ox (AFTER BROOKSHJRE ET AL. 1994) essential to the conservation of the equity (Brookshire et al. 1993, 1994). species. This was accomplished, and the The efficiency criterion addressed Pe~nt areas needed for conservation were whether designating areas as critical change greater Vana~e Economicpact un- Inecon- published In the proposed rule to habitat produces net benefits omy designate critical habitat on January 29, than costs. The equity criterion looks at 1993 (58 FR 6578). Justifications for the resulting distribution of gains and Regionat Prod- +$7.92 miflion ... 0.0013 these areas were presented in the Draft losses. The Act requires the Service to uct. Biological Support Document, which protect threatened and endangered Employment .... +710 Jobs 0.0047 was made available to the public on species for all citizens, now and inthe Earnings 46.62 million ... 0.0017 September 15, 1993 (58 FR 48351). future. This mandate falls under the Govt Revenue. $320 million ... 0.0016 Step 2—Conduct an economic national economic efficiency concern, analysis to determine the anticipated where policy adjustments seekto Exclusion Process economicconsequences of designating minimize economic efficiency lossesfor Background areas as critical habitat. A draft report society while preserving endangered on the economicanalysis was species. Pursuant to section 4(bj(2) ofthe Act, completed and made available tothe The Service does nothave a mandated critical habitat is designated by using public for comment on November 12. requirement to conduct an efficiency- the best scientific data available, and in 1993 (58 FR 59979). based benefit-cost analysis when full consideration of economic and Step 3—Developeconomic criteria or carrying out Its resource protection other impacts of designation. The thresholds to help Identify those areas activities. This is particularly true for determination on whether to exclude a that would be significantly affected by species listing activities under the Act. reach or portion of a reach considers: (1) the critical habitat designation. where economicconsiderations are The benefits of including that reach, (2) Comments were requested from the explicitly prohibited. During critical the benefits of excluding a reach, and (3) public to aid in developing the criteia habitat designation, however. theeffect of that reach, or the (November 12, 1993; 58 FR 59979). consideration of benefits and costs can cumulative effect of excluding more Step 4—Compile the biological occur when “economic and other than one reach, on the probability of information that should be considered relevant impacts” are specifically species extinction. If the exclusion of a to determine whether excluding an area included as part of the process of final river reach or portion of a reach would would result in extinction. Primary determination. result in the eventual extinction of a consideration was given to information The economic analysis (Brookshire et species, the exclusion is prohibited contained in published recovery plans. al. 1994) only addressed market-related under the Act. The Service determined whether benefits and costs. No attempt was made Exclusion of an area as critical habitat exclusion of an area will result in the to estimate nonmarket values associated would eliminate the protection extinction of a species. with the preservation of the endangered provided under the destruction or Step 5—Conduct the exclusion fishes. However, the Service recognizes adverse modification provision of process. The Service has evaluated that thebenefits ofpreservation are section 7 for critical habitat. However, it which areas, ifany, should be excluded positive. The extant literature would not remove the need to comply due to economic or other relevant addressing the value of wildlife with other requirements of the Act for impacts. Prior to this evaluation, resources documents positive benefits that area, such as the “likely to economic criteria in the form of for consu.mptive and nonconsumptive jeopardize” prohibition of section 7 thresholds (Step 3) were developed to uses of wildlife species. The legislative consultation (for Federal actions) and provide a method by which the severity history of the Act indicates that 13382 Federal Register I Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations

Congress believed that the “worth” or to prevent extinction of another. The chub, and bonytail chub. The Recovery value of a species is incalculable and dual nature of many of the designated Implementation Programs in the Upper invaluable. This is supported by the reaches ana other issues made the Colorado River and San Juan River Supreme Court interpretation ofthe Act exclusion process complex. Basins have also identified essential in TVA v. I-fill, 437 U.S. 153, 178 (1978). reaches for these species. Although all Conservation and Extinction as Factors This concept is applicable to the Basin areas proposed are important to in Designating Critical Habitat as it represents one of the most conservation, those areas currently distinctive collections of flora and fauna The Act defines “conservation” to supporting the largest remaining in North America. include the use of all means necessary populations may be key to the long-term The economic analysis and data used to bring about the recovery of an survival of these species. Additionally, during the exclusion process addressed endangered or threatened species. the physical and ecological impacts to: river basin or sub-basin by Section 7(a)(2) prohibitions against the relationships between these areas are an State, each State as a whole, the region. destruction or adverse modification of important consideration. and the Nation. Direct and indirect critical habitat apply to actions that Extinction of the four Colorado River impacts on employment, wages, and would impair survival and recovery of fishes would most likely occur as a State and Federal revenues from a listed species. As a result of the link result of the presence and continued business and personal income taxes also between criticalhabitat and recovery. introductions of nonnative fishes, were considered during the exclusion these prohibitions should protect the significant changes in the hydrologic process. value of critical habitat until recovery. cycle, increased fragmentation and Survival and recovery, mentioned in the Threshold of Significant Economic channelization of their habitat, and definitions of adverse modification and decreased water quality. Although a Impact jeopardy, are conceptually related. The single action could result in extinction, To establish the threshold for survival of a species may be viewed, in the cumulative reduction in suitable significant economic impact, impacts part, as a progression between habitat resulting from many actions also were evaluated in the context of the extinction and recovery of the species. could lead to species extinction. normal fluctuations of the economy The closer a species is to recovery, the Because these species are long-lived, the (Brookshire et al. 1994). Over the period greater the certainty of its continued specific effects of some impacts are 1959—1991, thegrowth rate of the survival. The terms “survival” and difficult to establish. Therefore, the national economy (measured as “recovery” differ by the degree of exclusion analysis focuses not only on percentage change In Gross Domestic confidence about the ability of aspecies specific rivers andior reaches, but also Product) varied from —2.2 percent to to persist in nature over a given period. on their relationship to other reaches in 6.2 percent. The mean growth rate was Critical habitat consists of areas that evaluating whether or not extinction 2.85 percent (with a standard deviation contain elements that are essential to would be probable if a reach were (SD) of 2.26 percent). Overthe same the conservation of a listed species. excluded. Such factors as: (1) Current period, the average unemployment rate Critical habitat identifies areas that population status, (2) habitat quality was 5.95 percent (SD=1.52 percent). should be considered in the (e.g., presence of spawning sites, Impacts that lie within this range are conservation effort and provides nursery areas, and condition of the within the normal fluctuations of the additional protection to those areas habitat), (3) geographical distribution of economy and are able to be absorbed by through section 7 consultation. Critical the populations, (4) genetic variability the economy. A conservative threshold habitat is designated to contribute to a within the population, and (5) the for significant impacts would be a 1 species’conservation; however, not all relationship between critical habitat percent SD from the projected baseline. areas proposed as critical habitat may be units were considered. Ifchanges in employment or output due necessary to prevent extinction. In order to determine river reaches to critical habitat at a State level exceed Consequently, some areas or portions of required to prevent extinction (ensure this threshold, then that area of critical areas may be excluded due to economic survival) of these fishes, the Service habitat should be considered for considerations, provided that such relied upon available biological economic exclusion. exclusions would not result in the information and approved recovery Various flow and nonflow impacts extinction of the species. plans. Information relating to the were evaluated in the economic analysis In its designation of critical habitat for species’ biological and ecological needs, (Brookshire et al. 1993, 1994). Impacts the four Colorado River fishes, the such as habitat, reproduction, rearing, associated with providing flows for Service has identified habitat required and genetics, was used in determining fishes, including reoperation of for recovery of each species and if an area was needed to prevent mainstream dams, constituted the delineated reaches that contain habitat extinction of the species. Where enough greatest monetary impacts. Flows in one features needed for spawning, rearing, information was available, specific reach may be dependent on the flows feeding, and migration. Species recovery plans presented downlisting from reaches upstream. Therefore, even conservation is related to a number of and delisting criteria. Downlisting though a reach may be excluded for factors, such as the number of criteria were generally equated to the economic reasons, those economic individuals, the amount of habitat, the survival level; delisting criteria were impacts may not disappear due to condition of the species and its habitat, related to the recovery level. Because no downstream flow requirements of the the species’reproductive biology, and recovery plan has been prepared for the fish. Thus, the smallest unit examined the genetic composition of the razorback sucker, reaches required for for economic impact was an individual remaining populations. Through its its survival (downlisting) and recovery river except for the mainstem Colorado previous efforts (e.g., section 7 (delisting) may change as arecovery River, which was by river reach. consultation, research), the Service also plan is developed by the Service and the Many of thecritical habitat reaches has identified biologically important Colorado River Fishes Recovery Team. were designated for more than one of areas that still support these endangered the endangered fishes. Therefore, some fish. Additionally, important reaches Exclusion reaches were needed for the eventual have been identified in recovery plans Afterconsidering the economic and recovery of one species, and also needed for the Colorado squawflsh, humpback other factors that may be pertinent to Federal Register / Vol. 59, No. 54 I Monday, March 21, 1994 / Rules and Regulations 13383 any decision to exclude areas from rivers, including the confluence of designation as critical habitat, including smaller tributaries and other habitats information provided during the public that provide essential fish habitat when comment period, the Service inundated. determined that no exclusions were Figure 1. Map of combined critical justified due to economic and other habitat for the four Colorado River relevant impacts. endangered fishes. Critical Habitat Designation BlUiNG COOE 4315-56-P Critical habitat for each species is shown by State In Figure 1 and summarized in Table 4. The 100-year flood plain delineates the lateral boundary of the critical habitat for the razorback sucker and Colorado squawfish. This boundary encompasses the productive areas adjacent to the BIL.UNG coos ~aio—ss-c

TABLE 4.—RIVER KILOMETERS (MILES) OF CRITICAL HABITAT FOR FoUR ENDANGERED COLORADO RIVER FISHES

ta e Razorback Colorado Humpback Bonytail T tal’ ~ ~ chub chub ° Colorado 349 583 95 95 583 (217) (362) (59) (59) (362) Utah 1107 1168 224 224 1172 (688) (726) (139) (139) (728) NewMexico 63 97 97 (39) (60) (60) Arizona 832 291 832 (517) (181) (517) AZ/Nevada 209 103 209 (130) (64) (130) AZ/California 214 80 294 (133) (50) (183) BasinTotal2 2776 1848 610 502 3188 (1724) (1148) (379) (312) 3(1980) ltai_D stances include all overlapping critical habitat reaches by State for all four Colorado River endangered fish. 32B>~nTotal—Distances include total extentof critical habitat by species for the entire Basin. Total Basin Total—Note that the sum of critical habitat by species is greater than actual river distance due to extensive overlap.

Razorback Sucker 4). This represents approximately 49 LowerBasin. These reaches flow percent of the historical habitat for the through avariety of landownerships, The Service is designating 15 reaches species. In the Upper Basin, critical both public and private. The amount of of the Colorado River system as critical habitat is designated for portions of the critical habitat for the razorback sucker habitat for the razorback sucker. These Green, Yampa, Duchesne, Colorado, by landownership in kilometers of reaches total 2,776 km (1,724 mi) as White, Gunnison, and San Juan Rivers. shoreline is presented in Table 5. measured along the center line of the Portions of the Colorado, Gila, Salt, and river within the subject reaches (Table Verde Rivers are designated in the TABLE 5.—OWNERSHIP OF SHORELINE IN KILOMETERS (MILES) FOR CRITICAL HABITAT FOR THE ENDANGERED UOLORADO RIvER FISHES’ Razorback Colorado Humpback Bonytail Ownership 2 sucker squawflsh chub chub NPS 1,955 900 545 676 (1,215) (559) (338) (420) BLM 1,140 1,119 203 114 (708) (695) (126) (71) 13384 Federal Register / Vol. 59, No. 54 I Monday, March 21, 1994 / Rules and Regulations

TABLE 5.—OWNERSHIP OF SHORELINE IN KILOMETERS (MILEs) FOR CRrnCAL HABITAT FOR THE ENDANGERED COLORADO RIVER FISHES ‘—Continued

Razorback Colorado Humpback Bonytail Ownershi~2 sucker squawflsh chub chub

.. 380 0 0 0 USFS...... (236)

USFWS ...... ~...... 159 35 0 40 (99) (22) (25) Tribal .... 894 451 444 97 (555) (280) (276) (60) State Lands .. 63 79 1 40 (39) (49) (<1) (25) Private -...... 960 1,112 27 37 (596) (691) (17) (23)

Total .. 5,551 3,696 1,220 1,005 (3,448) (2,296) (758) (624)

1 The river distances shown in this table were compiled using total shoreline kilometers (assuming 1 kilometer of river centerline has 2 kilo- meters of shoreline) for each critical habitat reach. There is considerable overlapof critical habitat reaches between species; thus, total miles of designated critical habitat for all four Colorado River endangered fish cannotbe obtained from this table. 2NPS_National Park Service; BLM—Bureau of Land Management; USFS—U.S. Forest Service; USFWS—U.S. Fish and Wildlife Service.

Colorado Squav~fish represen~tsapproximately 14 percent of process for conducting section 7 the historical habitat of the species. The Service designates six reaches of consultations on water projects was Critical habitat for the bonytail chub is outlined in the RIP and further clarified the Colorado River System as critical designated for portions habitat for the Colorado squawflsh. of the Colorado, by an October 15, 1993, final agreement Green, and Yainpa Rivers in the Upper on section 7 consultation. These reaches total 1,848 km (1,148 mi) Basin and the Colorado River in the The RIP provides the reasonable and as measured along the center line of Lower Basin. The approximate extent of prudent alternative to avoid the each reach (Table 4). This represents critical habitat for the bonytail chub is likelihood of jeopardy to the continued about 29 percentof the historical habitat presented by landownership of existence of the endangered fishes due of this species. Critical habitat is shoreline in Table 5. to depletion impacts of new projects, designated in portions of the Colorado, and all existing or past impacts related Green, Yainpa, White, Available Conservation Measures and San Juan to historical projects (with the exception Rivers in the Upper Basin. There is no Conservation measures provided to of the discharge of pollutants by criticalhabitat designated for this species listed as endangered or historical projects). Program species in the Lower Basin. The threatened under the Act include participants also intend that the RIP will approximate number of shoreline miles recognition, recovery actions, provide the reasonable and prudent of critical habitat by landownership for requirements for Federal protection, and alternative that will avoid the likely the Colorado squawfish is presented in prohibitions against certain practices. destruction or adverse modification of Table 5. Recognition through listing encourages critical habitat currently being Humpback Chub and results in conservation actions by designated for the endangered fishes. A Federal, State, local and private groups, Recovery Action Plan (RIPRAP) that The Service designates seven reaches and individuals. The Act provides for identifies specific actions and time of the Colorado River system as critical possible land and water acquisitions in frames needed to recover the habitat for the humpback chub. These cooperation with States and requires endangered fishes was developed by the reaches total 610 km (379 mi) as that recovery actions be carried out for RIP. The RIPRAP will be used by the measured along the center line of the all listed species. The requirements for Service in determining if the RIP is subject reaches (Table 4). This Federal agencies with respect to achieving sufficient progress as a represents approximately 28 percent of protection of designated critical habitat reasonable and prudent alternative to the historical habitat of the species. of a federally listed species and jeopardy. The RIP intends to analyze Critical habitat for the humpback chub prohibitions against taking are and amend the RIPRAP as appropriate, is designated for portions of the discussed below. so that it can serve as the reasonable and Colorado, Green, and Yampa Rivers in The Recovery Implementation prudent alternative to avoid the likely the Upper Basin and the Colorado and Program for Endangered Fish Species in destruction or adverse modification of Little Colorado Rivers in the Lower the Upper Colorado River Basin (RiP) is critical habitat. The Service considers Basin. The approximate extent of acooperative effort to recover the that the RIP has made sufficient critical habitat by landownership of endangered fish in the Upper Basin progress to serve as a reasonable and shoreline for thehumpback chub is (Green and Colorado Rivers only) while prudent alternative to jeopardy for presented in Table 5. providing for water development to projects that deplete less than 3.7 cubic proceed in a manner compatible with Bonylail Chub hectometers (hm3)(3,000 acre-feet). For applicable State and Federal laws. The projects depleting more thaii 3.7 hm~ The Service is designating seven RIP was implemented in January 1988 (3,000 acre-feet), the Service identifies reaches of the Colorado River system as by a Cooperative Agreement signed by actions in the RIPRAP that must be critical habitat for the bonytail chub. the Governors of Colorado, Utah, and completed to avoid jeopardy. These reaches total 499 km (312 mi) as Wyoming; the Secretary of the Interior; As a result of reasonable and prudent measured along the center line of the and the Administrator of the Western alternatives to theAnimas-LaPlata subject reaches (Table 4). This Area Power Administration. The Project provided in the Biological Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13385

Opinion issued on October 25, 1991 by pursuant to Federal, State, and tribal depend, and to provide a program for the Service, the Bureau of Reclamation laws. the conservation of listed species. agreed to fund 7 years of research and To date, 15 years of research and $18 Section 2(c)(1)of the Act states that to develop a Recovery Implementation million have beei~spent in fish stocking “~ * * all Federal departments and Program for the San Juan River. On and research on these fish species in the agencies shall seekto conserve October 24, 1991, a Memorandum of Lower Basin. A combined research and endangered species and threatened Understanding was signed by the management effort continues in the species and shall utilize their Service, the Bureau of Reclamation, the Lower Basin. This effort involves authorities in furtherance of the Bureau of Indian Affairs, States of researchers from Arizona State purposes of this Act.” Conservation Colorado and New Mexico, the Ute University, Arizona Game and Fish requirements of species listed as Mountain Indian Tribe, the Southern Department, Nevada Department of endangered or threatened under the Act Ute Indian Tribe, and theJicarilla Wildlife, California Fish and Game include recovery actions, requirements Apache Indian Tribe to set forth certain Department, Bureau of Reclamation, for Federal protection, and prohibitions agreements and to establish a San Juan Bureau of Land Management, and the against certain practices. Recovery Implementation Program Service. These groups are currently The Act provides for the conservation (SJRTP). The SJRIP provides the basis for developing protected grow-out areas in of listed species through several the recovery of the endangered fishes of lakes Mohave and Havasu for razorback mechanisms, such as section 5 (land the San Juan River. sucker and bonytail. To date, this effort acquisition); section 6 (Federal grants to The 7-year research effort focuses on has shown great potential. Additionally, States, and research); section 7 observing the biological response of there was a 10-year effortto restore (requiring Federal agencies to further endangered fish populations to habitat razorback suckers and Colorado the purposes of the Act by carrying out conditions after the reoperation of squawfish into the Gila River drainage. conservation programs. and insuring Navajo Dam to meet the needs of the An extensive research program has that Federal actions will not likely jeopardize Colorado squawfish and razorback been initiated as part of the Glen the continued existence of sucker. The recovery elements define Canyon Environmental Studies (GCES) the listed species or result in the the major categories of activities that to determine life history and ecology of destruction or adverse modification of will be conducted to recover the humpback chub in the Grand critical habitat); section 9 (prohibition of maintain Canyon. The humpback chub was one of taking of listed species); and section 10 endangered fish species and (permits the native fish community in the San the initial species listed under the Act. for scientific purposes or to Juan River Basin. Intensive studies are In 1978, the Service issued a jeopardy enhance propagation and survival of being conducted by the SJRIP to Biological Opinion on the existing listed species and habitat conservation determine the relative abundance and operation of Glen Canyon Darn, but planning on non-Federal lands). Critical habitat designation is distribution of endangered fishes and needed further research to determine what actions are needed to benefit the primarily intended to identify the other native and normative fishes. habitat needed for survival and Modification and loss of habitat, fish listed fish. At that time, limited information existed on the distribution, recovery. Such designation is not a poisoning, and normative fishes have management or conservation plan, arid contributed to the decline of the abundance, life history, and habitat use for the Grand Canyon populations in the designation of critical habitat does not Colorado squawfish and razorback offer specific direction for managing sucker in the San Juan River Basin. Colorado River mainstern and its associated tributaries. The inception of habitat. That type of direction, as well Regulating structures, such as Navajo as any change in management priorities, Darn, can be operated to control river these studies is an outcome of the initial GCES/Phase I effort and Service will come through the administration of flow and temperatures to affect the other parts of the Act (e.g., section 7, quantity and quality of habitats in conservation measures developed as part of long-term recovery effort for the section 10 permit process, and recovery certain river reaches during periods planning) and through development of when they aremost critical to species. The research program involves a coordinated effort among four management plans for specific species endangered fish species. After or areas. However, the designation of principal entities (Arizona State determining appropriate flow needs, the critical habitat in an area can result in Biology Committee of the SJRIP, with University, Arizona Game and Fish Department, Bureau of Reclamation, and additional protection for that area input from the Bureau of Reclamation, through administration of section 7 of the Service), each addressing specific will recommend specific flow regimes the Act. to the Service. It is anticipated that the study objectives. This program is part of water for habitat improvement will be the short-term experimental research for Recovery Planning provided by the reoperation of Navajo the Glen Canyon Dam Environmental Recovery plans developed under Dam. Impact Statement. A commitment to a section 4(f) of the Act guide much of the The Bureau ofReclamation has agreed long-term research and monitoring Service’s recovery activities and that it will operate Navajo Dam to program exists and will function as a promote conservation and eventual provide amore natural hydrograph, if conduit for the culmination of delisting of species. Recovery plans the research shows this type of additional information generated address the steps needed to recover a hydrograph is beneficial to recovery of through the endangered species species throughout its range and endangered species and the native fish research. provide amechanism for community. Ifhabitat and flow needs Relationship of Critical Habitat to implementation. Recovery plans are identified that cannot be met by Other Provisions of the Act provide guidance, which may include reoperation of Navajo Darn, additional population goals, and usually include sources of water to meet those needs Introduction identification of areas in need of will be identified on a case-specific The purpose of the Act, as stated in protection or special management. basis. The success of the SJRIP is section 2(b), is to provide a means to Recovery plans can include contingent upon the legal protection of conserve the ecosystems upon which management recommendations for areas water released for habitat flows endangered and threatened species proposed or designated as critical 13386 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations habitat. Recovery plans for the Colorado Service if one of its actions may affect be to avoid further reductions in the River endangered fishes may be either a listed species or its critical capability of the habitat to support modified to include specific habitat. Federal action agencies are Colorado River endangered fishes (e.g., recommendations for managing critical responsible for determining whether or the type ofactivities that led to listing, habitat. A recovery plan is not a not to consult with the Service. The such as depletions, predation, regulatory document, but a plan may Service will review agencies’ competition, fragmentation, and habitat identify recommendations for determinations on a case-by-case basis degradation). implementing actions and managing and may or may not concur with the For wide-ranging species, such as the critical habitat on Federal lands, and agencies’ determination of “no effect” or Colorado River endangered fishes, considerations for management of “may affect” for critical habitat, as where multiple critical habitat reaches critical habitat on other land. appropriate. Section 7 consultation is are designated, each reach has alocal In compliance with section 7(a)(1) of initiated by a Federal agency when its and a rangewide role in contributing to the Act, Federal agencies should actions may affect critical habitat by the conservation of the species. The loss incorporate recommendations and goals impacting any of the primary of a single piece of habitat may not provided within recovery plans for constituent elements or reduce the jeopardize the continued existence of these species into land and water potential of critical habitat to develop the species, but it may reduce the ability management plans. Biologically sound these elements. The consultation also of critical habitat to contribute to plans offer opportunities for resolving would take into consideration Federal recovery. In some cases, the loss of a site conflicts between development interests actions outside of criticalhabitat that containing aprimary constituent and endangered species conservation also may impact a critical habitat reach element could result in local population and provide a basis for present and (e.g., water management,water quality, instability. This could have a future management decisions. Valid and water depletions, and normative fish detrimental effect on the reach or that acceptable management prescriptions stocking or introductions). Though a portion of the reach where the loss contained in land and water Federal action may not destroy or occurred and could preclude recovery development plans can help guide the adversely modify critical habitat, it still or reduce the likeithood of survival of Service and other agencies in managing may affect one or more of the Colorado the species. Each critical habitat reach is critical habitat for the Colorado River River endangered fishes and their dependent upon conditions in adjacent endangered fishes and other listed and habitat and could be subject to reaches, whether or not those reaches nonlisted species. consultation under section 7 of the Act were designated critical habitat. Section 7 Consultation to determine the likelthood of jeopardy Consideration must therefore be given to to the species. Federal actions that would take place Section 7(a)(2) of the Act applies only A number of Federal entities fund, both within and outside of a critical to Federal agencies and requires them to authorize, or carry out actions that may habitat reach. Degradation of a critical insure that activities they authorize, affect areas the Service has designated habitat reach, regardless of the source of fund, or carry out are not likely to as critical habitat. Among these are the that degradation, may impact the destroy or adversely modify critical Western Area Power Administration, survival and recovery of the species. habitat. This Federal responsibility Federal Energy Regulatory Commission, The level of disturbance a particular accompanies, and is in addition to the Fish and Wildlife Service, Bureau of critical habitat reach could withstand requirement in section 7(a)(2) of the Act Land Management, National Park and still fulfill its intended purpose is that Federal agencies insure that their Service, Bureau of Indian Affairs, variable for each species and each area actions are not likely to jeopardize the Bureau of Mines, Bureau of of the Basin. Any proposed activity will continued existence of any listed Reclamation, Forest Service, Corps of need to be reviewed in the context of species. Jeopardy is defined in the Engineers, Army, Air Force, affected species, habitat condition, and section 7 regulations (50 CFR 402.02) as Environmental Protection Agency, project location. Because of the habitat any action that would be expected to Housing and Urban Development, overlap among these species, it may be appreciably reduce the likelthood of Federal Emergency Management difficult to completely separate out the survival and recovery of a species in the Agency, and Federal Highway effects of a particular action on any one wild by reducing its numbers, Administration. species. reproduction, or distribution. The designation of seasonally Basis for Section 7 Analysis Destruction or adverse modification of unoccupied habitat to provide for the critical habitat is defined at 50 CFR Designation of critical habitat focuses conservation (recovery) of a listed 402.02 as a direct or indirect alteration on the primary constituent elements species adds another dimension to the that appreciably diminishes the value of within the defined areas and the analysis. Because listed species are not critical habitat for both the survival and contribution of these elements to the always present in these habitats, it may recovery of a listed species. The species’recovery, based on not be possible to reach a “jeopardy” regulations also state that such consideration of the species’ biological finding for actions affecting that habitat. alterations include, but arenot limited needs and factors that contribute to However, it may be possible to conclude to, alterations destroying or adversely survival and recovery. The evaluation of “destruction or adverse modification” modifying any of those physical or actions that may affect critical habitat for a species if designated critical biological features that were the basis for the Colorado River endangered habitat is affected and its value for for determining the habitat to be critical. fishes should consider the effects of the conservation of the species is The requirement to consider potential action on any ofthe factors that were diminished. adverse modification of critical habitat the basis for determining the habitat to is necessary and in addition to the be critical. These include the primary Examples of Proposed Actions review necessary to evaluate the constituent elements of water, physical For any final regulation that likelihood of jeopardy in a section 7 habitat, and biological environment, as designates critical habitat, section consultation. well as the contribution of the reach and 4(b)(8) ofthe Act requires abrief As required by 50 CFR 402.14, a the local sites to recovery. The desired description and evaluation of those Federal agency must consult with the outcome of section 7 compliance should activities (public or private) that may Federal Register I Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13387 adversely modify such habitat or may be development ofbackwater or cove likely result in the destruction or affected by such designation. habitat that benefits native species, or adverse modification of critical habitat, Destruction or adverse modification of eradication of nonnative fish. However, the Service is required to provide critical habitat is defined as a direct or these activities should be evaluated on reasonable andprudent alternatives, if indirect alteration that appreciably a case-by-case basis. any, to the proposed action in its diminishes the value of critical habitat Federal actions related to fisheries biological opinion. By definition, for both survival and recovery of a listed management in general require close reasonable and prudent alternatives species. Some activities may disturb or evaluation by the Service. The allow the intended purpose of the remove the~primaryconstituent introduction or stocking of nonnative proposed action to go forward while elements within designated critical fish may require evaluation under avoiding the conditions that would habitat for the Colorado River section 7 for both the jeopardy and adversely modify critical habitat. To endangered fishes. These activities may adverse modification standards and to increase the potential for identifying include, among others, actions that determine whether it would constitute such alternatives, the Service would reduce the volume and timing of taking under section 9. Although the recommends that the agencies initiate water, destroy or block off spawning significance of predation on eggs, larvae, discussions early in the planning and nursery habitat, prevent and juvenile endangered fish species by process before plans have advanced to recruitment, adversely impact food normative fish has not been quantified the point where alternatives may not be sources, contaminate the river, or throughout the Basin, this impact has as feasible. Ifdiscussions are initiated increase predation by and competition been documented for many species of early, more opportunities to reduce with normative fish. In contrast, other endangered fishes in the Basin and is impacts may be available. Ifan adverse activities may have no effect on the considered a key factor in their decline. modification was anticipated, examples critical habitat’s primary constituent Normative fishes may have other effects of possible reasonable and prudent elements. Activities such as recreation on individual fish and critical habitat alternatives provided in a biological (boating, hiking, hunting, etc.), some through competition, changes in habitat, opinion include those noted in Table 6. types of farming, and properly managed and incidental mortality. livestock grazing may not adversely Endangered fish research and TABLE 6.—EXAMPLES OF POSSIBLE modify critical habitat. management activities are likely to REASONABLE AND PRUDENT ALTER- Areas designated as critical habitat for affect individual fish or improve the NATIVES the Colorado River endangered fishes quality and usefulness of habitat for the support a number of existing and endangered fishes. These types of Example Alternatives proposed commercial and activities are addressed through the noncommercial activities. Some of the section 10 permit process, which Relocate the proposed activity to another lo- commercial and governmental activities includes a section 7 evaluation to cation within or outside of critical habitat to that may destroy or adversely modify determine the effects of the action. avoid destruction or adverse modification critical habitat include construction and of habitat Reasonable and Prudent Measures operation of hydroelectric facilities, Modify the prplect (physicaflyloperationally) to irrigation, flood control, bank In cases where destruction or adverse avoid adverse modification of critical habi- stabilization, oil and gas drilling, modification is indicated (with or tat. mining, grazing, stocking or without the likelihood of jeopardy), a Provide offsetting measures to either Colo- introduction of normative fishes, portion of theeconomic impacts may rado Riverendangered fishes or the critical municipal water supplies, and resort result from complying with terms and habitat area by actions such as: facilities. Commercial activities not conditions in the incidental take A. acquiring water or securing water rights for Colorado River endangered fishes likely to destroy or adversely modify statement of a Biological Opinion. An from other sources to offset a proposed critical habitat include nonconsumptive incidental take statement is provided in depletion; activities such as river float trips, a biological opinion if the Service B. implementing water conservation meas- guided sport fishing, and excursion boat anticipates incidental loss of ures so that no net loss,of water occurs; tours. Noncommercial activities are individuals of the species as a result of C. enhancing constituent element areas so largely associated with private habitat alteration resulting from a that a net benefit to Colorado River en- recreation and are not considered likely Federal action. The incidental take dangered fishes occurs, i.e., acquiring to adversely affect critical habitat. Such statement outlines the number of bottom lands arid removal or large-scale activities include boating, fishing, and individuals and/or amount ofhabitat reductions of normative fish within a criti- various cal habitat reach; or activities associated with nature the Service anticipates will be lost due D. undertaking other recovery actions iden- appreciation. However, it mustbe to the Federal action. The Service then tified in recovery plans, Recovery Imple- emphasized that section 7 of the Act identifies reasonable and prudent mentation Programs, or other approved only applies to Federal actions (projects, measures necessary to minimize such management plans or activities. permits, loans, etc.) and that each take and sets forth terms and conditions Federal action must be evaluated on a that the Federal agency and/or applicant Some reasonable and prudent case-by-case basis. must comply with to implement the alternatives may only require minor Some activities could be considered a reasonable and prudent measures. In modifications to construction and/or benefit to Colorado River endangered some cases, the requirements to operational plans. As an example, a fishes habitat, such as the Colorado minimize incidental take (terms and proposed boat ramp may need to be River and San Juan River Recovery conditions) may be similar to reasonable relocated a short distance to avoid Implementation Programs and, and prudent alternatives developed impacting a spawning or nursery area. therefore, would not be expected to under an adverse modification or Projects resulting in more significant destroy or adversely modify critical jeopardy finding. impacts may require major changes to habitat. Examples of activities that the original proposal. A large irrigation could benefit critical habitat in some Reasonable and Prudent Alternatives diversion project, as an example, may be cases include protective measures such If the Service concludes in a likely to affect most of the constituent as instrearn flow protection, biological opinion that an action would elements of a critical habitat reach and 13388 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations also impact adjacent and downstream Moab Times-Independent, Vernal their support for the critical habitat reaches. The Service may recommend Express, Southern Utah News; designation, 947 expressed their reduction in the scope of the project, Arizona—The Arizona Republic, opposition, and the remainder were seasonal timing constraints on Today’s Daily News, Eastern Arizona neutral. A summary of the issues depletions and operation, and reservoir Courier, Arizona Daily Sun, Lake Powell brought forth from these comments and releases to provide required instream Chronicle, Yuma Daily Sun; New the Service’s response is provided flows. Mexico—Farmington Times, Santa Fe below. NewMexican, Albuquerque Journal; Expected Impacts of Designation Administrative Issues Nevada—Las Vegas Review Journal; The Service anticipates that the California—San Diego Union Tribune Issue 1: Numerous respondents stated factors described in this rule arid the and San Bernardino Sun. that the comment period for the Draft Draft Biological Support Document will On September 15, 1993, the Service Biological Support Document, Overview be used as abasis for determining the released the Draft Biological Support Document, and Economic Analysis was environmental impacts of various Document to the public for comment (58 not of sufficient length to allow activities on critical habitat. The Service FR 48351). The comment period on the adequate review; respondents suggested also will use Recovery Action Plans proposed designation was reopened. On 120 days or more for adequate review. developed within the Recovery November 12, 1993, the Service Respondents suggested that public Implementation Programs of the Upper published a notice announcing the hearings should be held in more Basin and the San Juan River Basin and availability ofthe Economic Analysis, locations including all areas potentially recovery plans for the razorback sucker the Overview Document, the closing impacted by the proposed designation. (when developed), Colorado squawfish, date for public comment, a request for Service Response: On any proposal to humpback chub, and bonytail chub information to be used during the designate critical habitat, the Service is during consultation to evaluate actions exclusion process and development of required to prqvide a minimum within a critical habitat reach. The economic exclusion criteria, and the comment period ‘Cf 60 days. When a Service also will use new information as dates and locations of additional public comment period is reopened, it is it becomes available. hearings (58 FR 59979). The public generally for up to 30 days. The Service Federal actions proposed in critical comment period on the proposed rule, opened a 60-day comment period on the habitat reaches may or may not the DraftBiological Support Document, proposed rule to designate critical adversely modify critical habitat, and the Economic Analysis ended on habitat for the four endangered Colorado depending on the current condition of January 11, 1994. Public hearings were River fishes. The comment period was the area and the degree of impact held on: November 29, 1993, in Salt extended for an additional 15 days. anticipated from implementation of the Lake City, Utah, and Las Vegas, Nevada; Because the Draft Biological Support project. The potential level of allowable November 30, 1993, in Cheyenne, Document and Economic Analysis were impacts or habitat reduction in critical Wyoming, and Globe, Arizona; not complete at the time ofthe proposed habitat reaches will be determined on a December 1, 1993, in Grand Junction, rule, the Service reopened the comment case-by-case basis during section 7 Colorado, and Flagstaff, Arizona; period for an additional 60 days rather consultation. December 2, 1993, in Farmington, New than the more usual 30 days. Therefore, Summary of Public Comment Mexico; and December 3, 1993, in San in total the comment period was 192 Bernardino, California. In addition to days. A longer comment period was not The Service published the proposed the announcement in the Federal possible because ofthe court order to rule to designate critical habitat on Register and notices in newspapers, a publish a final rule by March 15, 1994. 29, 1993 (58 FR January 6578). At that letter was sent to all interested parties Three public hearings were held after time, the Service requested comments announcing the dates of the public publication ofthe proposed rule, and an on all aspects of the proposal including hearings and January 11, 1994, as the additional eight public hearings were the scope of impacts and benefits of the closing date for public comment. During held to receive comment on the designation. A public comment period this comment period 399 written or oral proposal including the economic was opened from January 29, 1993, to comments were received. Issues analysis; one in each of the seven Basin March 30, 1993. On March 5, 1993, the presented by the public during the States and an additional hearing in public comment period was extended to comment periods are discussed below. Arizona. Any additional hearings would April 15, 1993 (58 FR 12573). During Economic and biological information not have met fiscal and time constraints this initial 75-day comment period, 686 received during the comment periods of the critical habitat designation. written or oral comments were received was reviewed and considered. In cases Issue 2: A few respondents suggested by the Service. During the comment where the information or data provided that the Service publish a revised period, the Service held public hearings was determined to be valid, changes proposed rule to allow for additional on the proposed rule at San Bernardino, were made in the economic analysis or public comment before making a final California, on March 29, 1993; Phoenix, to the boundaries of the critical habitat decision or that the Service should Arizona, on March 30, 1993; and designation. Significant economic data prepare a draft final rule and make that Denver, Colorado, on March 31, 1993. In received from the public were available to the public before finalizing addition to the announcement of the incorporated into the economic models the critical habitat designation. public hearings in the Federal Register priorto the exclusion process. Many Service Response: The standard (58 FR 12573), notices were published economic comments received were used rulemaking process requires preparation in the following newspapers: to improve the accuracy and readability of a proposed rule followed by a final Wyoming__Casper Star-Tribune; of the Economic Analysis. rule. Publishing a revised proposed rule Colorado—Denver Post, Rocky Of the 1,085 written and oral or a draft final rule is not required Mountain News, Northwest Colorado statements received during the public unless revisions are necessary that will Press, Grand Junction Daily Sentinel, comment periods, 599 were form letters result in an increased regulatory burden Durango Herald; Utah—Salt Lake that provided little additional in the revised rule. Furthermore, on Tribune, Deseret News, Ogden information on the proposed November 19, 1993, the Court directed Standard-Examiner, Sun Advocate, designation. Fifty respondents stated the Service not to publish an interim Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13389 final rule. Publishing the Draft EIS on the proposed critical habitat Issue 7: Representatives of tribal Biological Support Document and designation would not further the goals governments stated that designating Economic Analysis for public comment of NEPA or the Act. The NEPA critical habitat on tribal lands violates provided additional opportunities for documentation should be done on the Federal Government’s trust public involvement. All comments management plans and activities that responsibility. received on the Draft Biological Support involve critical habitat; section 7 Service Respo~’se-.As stated above, the Document and the Economic Analysis consultation is conducted on those Endangered Spec ~esAct of 1973, as were analyzed, considered, and where actions. Additionally, the Service amended, applies to all areas of the appropriate those comments were believes that the DraftBiological United States, including tribal lands. considered during the exclusion process Support Document and Economic The Service does not agree that and included in the final rule. Analysis provide the public and inclusion of tribal lands violates the Issue 3: Some respondents questioned decision makers the same information Federal Government’s trust whether critical habitat should have that is generally supplied in a NIEPA responsibility. Mere designation of been proposed without first completing document (environmental impact critical habitat does not affect tribal the biological and economic analyses statement or environmental assessment). lands unless a Federal action is likely to and stated that it was difficult to Issue 5: Many respondents were destroy or adversely modify critical comment on the proposed rule until concerned that critical habitat habitat. The requirement to consider these documents were made available to designation would result in “takings” of adverse modification of critical habitat the public. water rights and other private property. is an incremental section 7 Service Response:Designation of Service Response: The Service consideration above and beyond review critical habitat normally would have prepared a “Takings Implications to evaluate eopardy and incidental take allowed preparation of the Draft Assessment” under provisions of of the species. The Service will work Biological Support Document and Executive Order 12630 to address this with tribes to develop reasonable and Economic Analysis prior to publishing issue. The Service has concluded that prudent alternatives for any adverse the proposed rule. The Service argued the promulgation of the rule designating modification finding and to live up to in court that the biological support critical habitat will not take waterrights the Federal Government’s trust information and economic analysis or other private property. Although responsibility and to maintain should be completed for release with there may be cases where land or water compliance with the Act. the proposed rule. However, a court use may be conditioned, it is unlikely Issue 8: Several respondents stated order compelled the Service to focus that use would be prohibited. Moreover, that critical habitat should not be exclusively on development of the the Service does not anticipate any designated until a recovery plan is proposed rule. The Service recognized takings implications associated with completed for the razorback sucker. that the sequence would make other Federal agency actions resulting Service Response: The Act requires substantive comments on the proposed from the designation and if there were that critical habitat be designated rule difficult to prepare. For this reason to be any, it is unlikely that they would concurrently with a species’ listing or the Service provided an Overview, a be significant. within 2 years of the proposal to list the Draft Biological Support Document, and Issue 6: Tribal representatives stated species. Only if the Service determines an Economic Analysis for public review that tribal lands are sovereign and that identification of critical habitat is and comment prior to preparation of a therefore should not be designated. “not prudent” (i.e., will not be of net final rule. The Service considered all Service Response: The Endangered benefit to the species) is designation not public comments on these documents Species Act of 1973, as amended, required by the Act. The Service has and the proposed rule during the applies to any entity or individual determined that critical habitat for these exclusion process and final rule subject to the jurisdiction of the United species is determinable and that preparation. States. No area or entity within the designation is prudent. The Service Issue 4: Many respondents stated that boundaries of the United States is proposed listing of the razorback sucker the Service should prepare an exempt from the Act. The Act requires on May 22, 1990 (55 F’R 21154); Environmental Impact Statement (EIS) that the Service base designation of therefore, the designation of critical and comply with the National critical habitat on thebest scientific habitat for this species should have been Environmental Policy Act (NEPA) information, taking into consideration completed by May 22, 1992. The Act because the designation would have economic and other relevant impacts, also requires the Service to prepare a significant impact on the human and that areas be excluded only if the recovery plan for any listed species environment. benefits of exclusion outweigh the likely to benefit from one; although no Service Response: The United States benefits of inclusion. The Act does not timeframe is mandated, Ser.rice policy District Court for the District of Oregon provide for categorical exemption of provides that such plans shall be in Douglas Countyv. Manuel Lujan tribal lands from critical habitat completed within 30 months following (Civil No. 91—6423--HO) ruled that designation, or other provisions, when listing. Therefore, the timeframes critical habitat designations should be scientific studies indicate the lands imposed by the Act usually necessitate analyzed under NEPA. However, such contain important habitat. Section 9 the designation of critical habitat before decision is stayed pending appeal to the prohibits take of listed fish or wildlife a recovery plan can be approved. Ninth Circuit. on private and tribal lands, including Finally, the Court has ordered The 1981’Sixth Circuit Court decision destruction of habitat that results in the designation by March 15, 1994. in Pacific Legal Foundation v. Andrus take of such wildlife. Section 7 applies Issue 9: A few respondents suggested (657 F.2d 829) held that an EIS is not to any Federal agency that authorizes, that critical habitat should only have required for li5tings under the Act. The funds or carries out actions that are been designated for the razorback sucker decision noted that preparing an EIS on likely to jeopardize the continued and not for all four species at the same a listing action would not further the existence of a species or destroy or time. goals of NEPA or the Act. The Service adversely modify critical habitat. This Service Response: The Service was believes that the reasoning behind this includes Federal actions involving tribal ordered by the Court to designate decision is sound and that preparing an lands that may affect critical habitat. critical habitat for the razorback su~ker 13390 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations with no mention of the other three the species involved. Extensive areas are Service Response: The listing of a endangered Colorado Riverfish. required to meet all the life history threatened or endangered species is However, because the intent of the Act requirements of these four fishes. considered a different action than is “~ * * to provide a means whereby Issue 13:A few respondents stated determination of critical habitat. At the the ecosystems upon which endangered that critical habitat designation is not time of listing, the Service considered species and threatened species depend “prudent andior determinable.” biological factors in determining to list may be conserved * * s,” the Service Service Response: On October 27, the four species as endangered. also decided to propose critical habitat 1992, the Court ruled that the Service Regarding critical habitat, section 4(b)(2) for the Colorado squawfish, humpback had violated the Act in failing to of the Act places requirements on the chub, and bonytail chub. These fishes designate critical habitat when the Secretary to consider the economic coexist in the Basin and much of their razorback sucker was listed. The Court impact and any other relevant impact of habitats overlap. However, for species ordered the Service to have a proposed specifying any particular area as critical that do not have a requirement to rule designating critical habitat for the habitat. Economic impacts that result designate critical habitat, the Service razorback sucker published by January from other requirements of the Act that may designate critical habitat at any 25, 1993, using presently available are distinct from critical habitat time. The designation of critical habitat information and to have a more designation are not required to be for four species in a single rule is more complete final rule published at the considered during the economic cost- and time-effective than designating earliest time permitted by the Act and analysis for critical habitat. critical habitat separately for each its regulations. Issue 16: Some respondents were species. The language in the Act and Service concerned the Service did not seek issue 10: The public believed that regulations at 50 CFR 424.12 for adequate consultation with affected they should be more involved in the determining prudency indicate that groups. decision process and suggested that unless the designation will not be of net Service Response: The Service workgroups be established to designate benefit to the species, it is prudent to provided all interested groups as much critical habitat that involved affected designate critical habitat. If the Service time to comment on the proposed groups. finds that critical habitat is not designation as Court orders allowed. Service Response: Through comments determinable at the time, then it must The timeframes required that existing provided on the proposed rule, Draft collect the information needed to information be used to develop the Biological Support Document, and determine it and complete designation economic impact model. Economic Economic Analysis, the public provided within 2 years ofthe proposed listing. information has been obtained from information considered by the Service The Service has determined that existing sources and also was requested in the decision process. The Service, designation in this situation is both at the time of publication of the acting through its economic contractors, prudent and determinable. proposed rule, Draft Biological Support obtained additional information from Issue 14: Many respondents Document, and the Economic Analysis. affected groups needed to complete the questioned the effect of critical habitat Issue 17: Some individuals believed Economic Analysis. The process of on existing water laws, compacts that private property should not be asking for comments and holding (including compact entitlements). included in the designation. hearings is the Service’s standard treaties, etc., and indicated that the Service Response: The Endangered procedure for involving the public in Service had ignored the “Law of the Species Act applies to all areas within decision making regarding listing of River.” the United States and contains no species and designation of critical Service Response: Critical habitat biological or legal justification for the habitat. designation for the four fishes does not categorical exclusion of private lands - Issue 11: Various groups involved in modify or nullify any existing State from critical habitat designation. The recovery efforts for the four fishes asked water law, compact agreement. or treaty. Service designated critical habitat based how critical habitat will relate to It is the Service’s opinion that the Act, on biological information regarding existing RIP s. as well as other Federal statutes, are part whether or not an area contains the Service Response: Critical habitat is of what is commonly referred to as the primary constituent elements for critical an inventory of habitat needed for “Law of the River”. Impacts to water habitat for the four fishes, after taking survival and recovery and not a plan development opportunities within any into account the economic costs providing goals or guidance toward State are adequately addressed in the associated with the critical habitat achieving recovery. The Recovery Economic Analysis. designation. Critical habitat designation Implementation Programs for the It is the intent of the Service to fully only impacts private property if there is Colorado and San Juan Rivers (RIP’s) consider State water law, interstate an action by a Federal agency (permit, have, as their goal, recovery of these compact agreements, and treaties in funding or other action) that is likely to four fish species. Therefore, the protecting and recovering the four destroy or adversely modify critical designation of critical habitat is not in endangered fishes. As an example, the habitat. The requirement to consider conflict with the stated goal of the RIP’s. Service has worked to establish and to adverse modification of critical habitat It is the intent of the Service that support the Upper Colorado River and is an incremental section 7 recovery actions under the auspices of San Juan River Recovery consideration above and beyond section the RIP’s will serve as reasonable and Implementation Programs, whose 7 review to evaluate jeopardy and prudent alternatives to adverse participants have committed to recover incidental take of the species. modification. the four endangered fish consistent with Issue 18:A few agencies were Issue 12: A few respondents believed State water laws and other agreements. concerned that critical habitat that the designation included so much lssue 15:A few respondents believe designation will increase area that it would not be manageable. that the economic impacts of listing the administration/implementation costs of Service Response: The Service’s Colorado River fishes as endangered doing section 7 consultation. designation includes many miles of the should be accounted for in the Service Response: Section 7 Basin’s major rivers covering the areas economic analysis as impacts of consultation is already being done on all needed for the survival and recovery of designating critical habitat. Federal projects and other activities in Federal Register / Vol. 59, No. 54 1 Monday, March 21, 1994 / Rules and Regulations river reaches proposed for designation Economic Analysis be available to the additional costs. The reasonable and as critical habitat, because all reaches public at the time the proposed n~ewas prudent measures and terms and are occupied by the endangered fishes. published, that was not possible conditions covering incidental take Many of the effects of designation on the because of the Court’s order. Although included in thebiological opinion also physical and biological features of the not released concurrently with the may require the agency incur costs. The habitat are already considered in the proposed rule, the two documents were Act also provides direction for all analysis of effects of the action to written to support it, and comments Federal agencies to use their authorities determine if the project is likely to were requested on these documents and to seek to recover threatened and jeopardize the continued existence of considered in the exclusion process and endangered species in section 7(a)(1). the species. For most projects, the in preparation of the final rule, Providing for recovery actions also additional analysis required to Issue 21: Several letters requested that incurs costs. These costs are all determine destruction or adverse the Service provide for public comment associated with listing of a species and modification of critical habitat would be on the balancing/exclusion process, are not critical habitat costs. small and would not significantly including holding additional public Issue 23:One letter stated a concern increase existing workloads. hearings. that the delay in designating critical Issue 19: Several respondents stated Service Response: The exclusion that the Service was in violation of the process is conducted immediately prior habitat has harmed the endangered fishes. Endangered Species Act (Act) for to preparing a final rule and does not designating critical habitat more than provide for any additional public input. Service Response: The Service does two years after species, and the Federal All available information is used in the not believe that delay in designating Land Policy Management Act (FLMA) exclusion process. This includes critical habitat has contributed to the for failure to comply with required information obtained during the public decline of any of these four fish species. procedures in implementing a major comment period. Additional All four fishes enjoy the protection of management action. information supplied during the public the Act by virtue of their listing and, in Service Response: On October 27, comment period could change the accordance with section 7(a)(4), 1992, the Court ruled that the Service economic costs to certain areas or publishing of the proposed critical was in violation of the Act because provide additional biological habitat rule required Federal agencies critical habitat had not been designated information as to the significance of an and the Service to confer on potential concurrently with the listing of the area to the species. Information relating impacts of any Federal action upon razorback sucker. This designation of to the Exclusion Process was provided proposed critical habitat. Additionally, critical habitat for the Colorado River in the “Overview ofthe Critical Habitat prior to the designation of critical endangered fishes brings the Service Designation for the Colorado River habitat, Federal actions that may affect into full compliance with the Endangered Fish: Draft” published the endangered fish required review for requirements of the Act. In addition, the November 1993 (Fish and Wildlife possible jeopardy to the species under Service has followed procedural Service, Salt Lake City) and made section 7 of the Act, which reflect to requirements for the designation. The available to the public (58 FR 59979). large degree, if not completely, the same Act does not stipulate that critical That document stated that “~ * * issues presented by adverse habitat cannot be designated after the information and comments are welcome modification of critical habitat. initial two year period has passed. on the overall exclusion process, Issue 24: Several respondents Designauon of critical habitat is not a recommendations on economic criteria indicated that the Service should set management action under the FLPMA, for use in the exclusion determination, recovery goalsbased on numbers of fish but an action required by section 4 the any other benefits associated with so that it is evident when recovery is Act. Actions authorized, funded or exclusion, benefits of including achieved. carried out by Federal agencies must proposed areas as critical habitat, and undergo section 7 consultation if they information on which areas, if excluded, Service Response: Critical habitat may affect a listed species or critical would result in the extinction of any of designation is not amanagement or habitat. The Service will determine if the four endangered fishes.” recovery plan. Critical habitat serves to such actions are likely to jeopardize the Issue 22: A few respondents stated identify thoseareas where conservation continued existence of these four that there areno economic impacts from efforts should be concentrated but does endangered fishes or destroy or listing; therefore, all Impacts associated not dictate what those efforts should be, adversely modify their critical habitat. with having endangered fish in the or set goals to measure the success of Plans developed under FLPMA would Basin should be attributed to critical such efforts. be subject to section 7 consultation if it habitat. Recovery goals are appropriately is determined that the action may affect Service Response: Once a species is contained in recovery plans. Recovery the endangered fishes or their habitat. listed as endangered or threatened, plans generally identify specific actions Because the designation of critical protections under sections 7 and 9 of needed for the conservation of the habitat does not by itself create a the Act come into force. Section 7 species. Criteria for downlisting or management plan or automatically protections arebased on the provisions delisting contained in recovery plans exclude certain activities, FLPMA does in the Act that require all Federal function as goals to be met to achieve not apply to designation. agencies to insure that their actions do species conservation. In the Issue 20:One respondent believed not jeopardize the continued existence development of recovery plans, species that providing a comment period after of listed species. During formal experts determine the level of the DraftBiological Support Document! consultation under the Act, reasonable specificity of these goals, based on the Economic Analysis was made available and prudent alternatives contained in status of the species and its biology. did not allow for meaningful public biological opinions require agencies to Goalsbased on specific numbers of comment on the rule. insure they do not violate the jeopardy individuals are only set if the biology of Service Response: While the Service standard. Also, implementation of the species warrant it and in cases would have preferredthat the Draft reasonable and prudent alternatives in where reliable population estimates can Biological Support Document and biological opinions may require be made. 13392 - Federal Register I Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations

Biological Comments Federal agencies with insuring that their conditions, and their survival in Issue 25: Some respondents indicated actions do not jeopardize the continued modified habitats such as reservoirs is that little or no historic information existence of the species. To fulfill that an example. Furthermore, management exists that these fish species were ever responsibility, Federal actions that actions to restore areas of physical these fish must found in some areas proposed for affect provide for the habitat also are possible, so degradation designation. Somebelieved that habitat and biological needs of the may not be permanent. Issue 31: Numerous respondents razorback suckers were not native to species. Allowing a species to goextinct Arizona’s interior rivers but were because it has not adapted to rapid stated that normative fish species have caused introduced there. habitat changes by human adversely affected the endangered Service Response: The Service development is not permissible under species, that the Service was primarily responsible selected river reaches for this theAct. for their introduction, and designation that are part of the historical Issue 28:Many respondents that this effect is more important to the commented that the Service needs more survival species range of these species. Historical or of these than changes to biological data to determine critical physicaL habitat. These respondents recent records regarding the existence maintained and/or presence of these fish exist for habitat and therefore no areas should be that the presence of designated.. normative fish species in an area should almost all of these areas. For those few Service Response: The Act specifies that do not have a historical or recent preclude that area from designation as that “The Secretary shall designate critical habitat. record, information from species experts criticalhabitat* • *onthebasisofthe Service Response: The Service was used, in addition to examination of best scientific data available * * * recognizes and is concerned about the nearest known locations and of the The Service has determined that the problems with and Implications of the predevelopment riversystem to quantity and quality of existing presence of nonnative fish species in the determine if the species was likely to biological data for these species is Basin. There are no river systems in the have been present. Historical records adequate for designation of critical Basin that do not have established indicate that Arizona’s interior rivers habitat. These fishes have been the populations of nonnative fish species. In were inhabited by the razorback sucker, subject of intense study for over 10 areas with more natural habitat but razorback suckers were extirpated years and a significant amount of conditions, the native fish are better by the 1960’s. Efforts to reintroduce information has been collected. The able to compete with nonnatives. Over razorback suckers in these areas Service is confident that the best time, as habitat is restored, management continue. Convincing evidence was available commercial and scientific data actions to provide for recruitment of presented during the comment period has been used as required by the Act native fish to local populations can be that some areas proposed for and that data is more than adequate to taken to eliminate or reduce the effects designation were outside of historical determine critical habitat of normative fish. The Service has and range of the subject species. This Issue 29:Numerous respondents must consider the impacts of stocking resulted in a change in boundaries as stated that the designation of critical normative fish prior to doing so or discussed elsewhere in this final rule. habitat would not benefit these species. funding such actions. In the Upper Issue 26:Many respondents were Service Response: Designation of Colorado River Basin. the Service is concerned that the razorback sucker is critical habitat provides an avenue to working with State agencies and others found in some river reaches only recognize and inventory areas important to protect these endangered fishes by because of stoddng (reintroduction) for the survival and recovery of a developing a stocking policy for programs and that these programs may species. It also provides additional normative fishes. not have been successful. protection under section 7 Issue 32:Respondents indicated that Service Response: Natural consultations, especially for those areas additional areas should be included in populations of the razorback sucker not continuously occupied by the designation. Additions were were extirpated from historical habitats individuals of the species, or from the suggested for proposed reaches and to in the GUs, Salt, and Verde Rivers by effects of Federal actions upstream of rivers currently not included in the 1960’s. During the late 1970’s and the critical habitat. designation. into the 1980’s, efforts were made to Issue 30: Several respondents stated Service Response: The Administrative reestablish these populations using that all habitat in the Basin has been Procedure Act requires Federal agencies hatchery reared fish. These efforts have degraded and therefore should not be to provide appropriate notification of not been as successful as hoped, but the designated as critical habitat. proposed actions priorto making final Service believes that some of the Degradation may include seasonal determinations. Therefore, the Service introduced fish have survived in these drying of the river or portions thereof, cannot adopt a final rule that is systems where the razorback historically changes to temperature and silt! significantly more restrictive than the was a native fish. sediment load, changes to thehistorical proposed rule without first offeringthe Issue 27: A few individuals believed hydrograph. construction of dams and public an opportunity to comment on that these species should be allowed to reservoirs, and introduction of the differences. Notice and public go extinct because they cannot adapt to nonnative fishes, comment may only be waived in special changes in the river systems. Service Response: The Service agrees cases, such as emergencies or in Service Response: The Act provides that there are no remaining pristine instances where a proposed amendment the means to conserve the ecosystems river systems in the Basin to designate makes only minor technical changes fri upon which endangered species and as critical habitat, However, while a rule. Someof these additional areas threatened species depend. In section physical changes to the habitat have may warrant designation, and the 2(a), the Act finds that wildlife and occurred, the areas proposed for Service will consider designating them plant species have intrinsic values designation maintain or have the at a later date through the rulemaking (aesthetic, ecological, educational, potential to continue to support process with proper notice and historical, recreational, and scientific populations of these species. The four comment. These areas include the Little values) that areworth preserving for the Colorado River endangered fishes Colorado River up to Blue Springs for benefit of all citizens. The Act charges species are adaptable to many physical humpback chub, additional areas for Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13393 humpback chub in the Grand Canyon, constituent elements can be considered Federal funding or permits to undertake the Lower Colorado River for Colorado for inclusion as critical habitat. Areas a management action on their lands. In squawfish, and the Duchesne River up within the 100-year flood plain that that case, the Federal agency’s to the confluence with the Uintah River havebeen previously developed arenot responsibility is invoked. for razorback sucker and Colorado likely to provide constituent elements Issue 37: Some lettersindicated that squawflsh. when flooded. the selection of boundaries appeared Issue 33:Many respondents Issue 34: Several respondents related to landmarks rather than strictly questioned the need to designate flood believed that the four fish species do not for biological reasons. plain areas. Reasons provided include: haveenough incommon biologically Service Response: Exact reach the river is too regulated to allow floods; (habitat use, life history, etc.) to be endpoints andlor boundaries were agricultural, mining, oil and gas, included in this single designation. It indeed chosen for landmarks residential, transportation facilities, and will be too difficult to manage all four recognizable to an on-the-ground municipal development has occurred; fish together. observer. The Service believes that it is and there will be considerable economic Service Response: The historical important that theboundaries of critical impact. They stated that inclusion of ranges of the four species overlap. While habitat be as evident as possible. While flood plain is not biologically the specific habitat components each reach may have been adjusted in supportable. Others recommended required by each species may riot be a minorway to landmarks at the upper alternate flood plain elevations. identical, historical conditions created a and lower termini, thebiological basis Service Response: Large river systems variety of acceptable habitats within a for reach selection was not are composed of the mainstream reach of the river. This variety of compromised. channels and adjacent habitats that are habitats enabled more than one of the Issue 38: A few respondents indicated inundated during the higher water four species to use the area. Because the that the designation of critical habitat levels that areusually associated with fish naturally coexisted together over will improve water quality spring flows. These seasonally flooded much of their ranges, management Service Response: Maintaining the habitats are major contributors to the efforts to restore habitats will likely flows, habitat, and chemical parameters natural productivity ofthe river system provide the diversity of habitat required by these fish species may have by providing nutrient inputs and components needed to support these an influence on the changes in water making terrestrial food sources available species without having to provide quality that can be allowed within the to aquatic organisms. The extent of discrete and separate management critical habitat area. It is not certain how flooded wetlands in the Colorado River programs. much, if any, change to existing water has been reduced by the construction Issue 35: Many respondents stated quality would result. and operation of waterresource that the area proposed for designation Issue 39: Some respondents asked development projects. The remaining was too large. questions regarding the designation of flood plain areas have great importance Service Response: The size of the reservoirs and regarding full pool for recovery of endangered fish. critical habitat areas is required to elevation. Recent studies in the Colorado River ensure that the life history requirements Service Response: Data indicates that system have shown that the life for species can be met. Larval drift, adult razorback suckers and bonytail histories and welfare of native riverine migratory behavior, and the need to chubs can survive in reservoirs. Large fishes are linked with the maintenance maintain genetic diversity within populations of these fish can be of a natural or historical flow regimen species necessitates large reaches of maintained in reservoirs, allowing for (i.e., ahydrological pattern of high riverbe designated. The DraftBiological maintenance of genetic variability and spring and low autumn-winter flows Support Document provided life history providing stock for reintroduction and that vary in magnitude and duration, information that discusses in detail research. The full pool level in a depending on annual precipitation those aspects that influence the amount reservoir is defined as the water surface patterns and runoff from snowmelt). of habitat required for survival and elevation at full capacity. This does not Ichthyologists have predicted that recovery. The designation meetsthe mean that reservoirs should be stream regulation that results in loss of intent of the Act in not designating the maintained at full pool elevations, but flooding will result in extirpation of entire historic ranges of these species. that habitat is protected regardless of native fish species in the Colorado River Issue 36: Several respondents reservoir pool elevation. system. maintained that management of these Issue 40:Some respondents believed Inundated flood plains (bottom land areas should be the responsibility of the that the flow requirements for fish used habitats) are important for razorback land owning agency, tribal governments, in the economic analysis had an sucker, Colorado squawfish, and or private property owners, and that inadequate biological base. perhaps the bonytail and humpback other laws provide for the management Service Response: The best available chubs. Wooded bottom lands, side and of wildlife and fish, making designation commercial mid scientific data were secondary channels, oxbow lakes, and of critical habitat unnecessary. used in developing the flow scenarios flood plain wetlands provide nutrients, Service Response: Federal agencies used in the economic analysis. Flows food, cover, and other features necessary are responsible under the Act to insure for several river reaches have been for various life stages of these fish. In that their actions do not jeopardize the developed by the Service as part of order to delineate such areas in continued existence of or adversely project reviews or RIP activities. These designating critical habitat, the Service modify or destroy the critical habitat of flow recommendations have been used the 100-year flood elevation (100. a listed species. They are required to published by the Service in reports or year flood plain). In no way is this consider the presence of these species in biological opinions. For those river determination meant to include all land their management. No other Federal or reaches with no published flow within the 100-year flood plain as State law provides this level of recommendation, the Service developed critical habitat nor does it imply a protection for these resources. Non- flow scenarios using the best available specific frequency of flooding will be Federal entities (States, tribes, or hydrological and biological information. required as part of the rule. Only those individuals) are notbound to consider Issue 41: Several respondents areas that provide one or more of the critical habitat unless they are receiving believed the Service did not address the 13394 Federal Register I Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations role of the Colorado Rivernative fish areas, these flows must be evaluated and designation of critical habitat. All areac eradication programs on listed fish in perhaps adjusted in the future. designated have recently documented the San Juan and Green Rivers. Including specific flows as constituent occurrences of these fish and/or are Service Response: The Draft elements would require the rulemaking treated as occupied habitat in section 7 Biological Support Document contains a process be followed to make changes in consultations. There are two section that describes State and Federal recommended flows as research became experimental nonessential populations fish removal projects on the San Juan available. This would create for the Colorado squawfish in the Salt and Green Rivers These projects were administrative delays to respond to and Verde Rivers in Arizona. It is hoped an attempt to temporarily remove native fishery research recommendations. The that the species can be reestablished in and normative fishes from new reservoir flows used in Brookshire et al. (1993) Arizona through work under this storage pools prior to sportflsh stocking. were developed solely for use in the designation. Protection of the fishes and These projects were not expected to economic analysis. In reviewing the their habitat is greater under section 7 permanently eradicate those species nor impacts of future Federal actions on of the Act compared with those were they intended to remove those critical habitat, the Service will use the provided by the experimental species from entire river systems. These best scientific and commercial nonessential population classification. pro(ects probably had little net effect on information available at that time, as which is intended to provide listed species. required by the Act. management flexibility. Issue 42: Two respondents indicated Issue 45: Several respondents were Issue 47:Several respondents that the Uroer Basin Recovery concerned that the Service intended to questioned why the San Juan River ~rnplemen~dion Program was not a poison all the rivers to remove critical habitat for the razorback sucker ~ubsUtutefor designation of critical nonnative fish and that the poison ended at the Hogback Diversion and abitat. would harm people, animals, plants, extended to Farmington, New Mexico, Service Response: The RIP is not a and the soil. They also indicated their for the Colorado squawflsh. ~iibstitutefor the designation of critical displeasure concerning the loss of Service Response: Biological babitat; however, the ultimate goal of sportfish to recover the endangered fish. information on the razorback sucker both the RIP and thedesignation is the Service Response: As stated indicates that this species has an affinity recovery (delisting) of these endangered previously, the designation of critical for low velocity habitats such as fish. It is the intent of the Service to habitat does not require any particular backwaters and secondary channels. analyze and amend the section 7 management action or actions to occur. The geomorphology of the San Juan Agreement and Recovery Critical habitat serves to identify and River below the Hogback Diversion Implementation Program Recovery inventory those areas where provides these types of habitats. Action Plan of the RIP, as needed, in conservation activities should occur. In Upstream of the Hogback Diversion, the order for it to be a reasonable arid the development of any specific plan to river channel is more restricted with prudent alternative for the destruction implement conservation actions in a faster-flowing, deeper waterhabitats. or adverse modification of critical particular critical habitat reach, the and few backwaters or secondary habitat for all activities addressed by the agency involved is required to follow all channels are found. Thus, for the RIP. Federal and State laws and regulations razorback sucker, the area upstream Issue 43: Some respondents indicated prior to implementing the action. from the,diversion did not sufficiently that the additional selection criteria for The Service has identified the possess the primary constituent razorback sucker were too broad. introduction of nonnative fish species elements to justify its inclusion as being Service Response: The additional into the Basin as a significant cause of necessary for this species’ conservation. criteria use•~to aid the Service in the decline ofnative fish species. It is Biological information on the selecting areas for proposal as critical likely that the implementation of Colorado squawfish indicates that the habitat for the razorback sucker were conservation actions may result in adult fish use low velocity areas, but not broad to account for the various habitat proposals to reduce the numbers of as much as younger life stages. Adult conditions, geographic areas, and life nonnative fish in a particular area. Colorado squawfish often use more history requirements throughout the Techniques to reduce nonnative fish high-velocity or deep water river species’ range. The species has been numbers include netting. trapping, sections, similar to these available in shown to use a variety of habitats electrofishing, liberalization of creel the reach of the San Juan River above depending on geographic location and limits and equipment restrictions, the Hogback Diversion upstream to other factors such as nonnative fish physical habitat alterations or Farmington, New Mexico. This reach interactions that affect their habitat. restoration, as well as the use of has been identified in the Colorado Given the wide variety of habitats used toxicants. Squawfish Recovery Plan as being by various life stages of razorback The Service, or any other agency, is needed for downlisting ofthis species. sucker,the Service does not believe the required to follow Federal and State additional selection criteria were too laws and regulations in order to use fish Economic Issues broad. toxicants. These laws and regulations Issue 48:Many respondents raised Issue 44: One respondent indicated are in place to protect nontarget questions regarding the level of that the final rule should include organisms (including people, animals, geographic disaggregation in the specified flows as constituent elements. plants, and soils) from adverse effects of economic analysis. Service Response: The Service does the toxicant. Fish toxicants in use today Service Response: The direct impacts not believe it would be appropriate to have been used safely in rivers, ponds, of critical habitat designation were have specific flows included as and reservoirs for many years. determined at the river reach level. constituent elements because: (i) Flow Issue 46: A few respondents stated Economic data were available at the recommen~iUonsbased upon site- or that unoccupied areas should not be county level in the IMPLAN data sets river-specific research are unavailable designated as critical habitat, but and formed the basis of the analysis. for most critical habitat areas, and (2) designated experimental nonessential. However, it is inappropriate to conduct even though flow recommendations Service Response:The Service did not the economic analysis at the county could be made for some critical habitat include any unoccupied habitat in this level or tribal lands level because the Federal Register / Vol. 59, No. 54 I Monday, March 21, 1994 / Rules and Regulations 13395 direct impacts in almost all cases hydropower production and the indirect in the Lower Basin as necessary for extended beyond those immediate effects on all other sectors such as recovery and survival of these fish. boundaries. Further, the indirect effects agriculture, manufacturing, mining, and Issue 56: One commenter indicated were State-wide and region-wide. finance are represented. Thus, changes that the transfer of Colorado Eastern Issue 49: Concern was expressed that to one sector of the economy and the Slope agricultural water rights to tribal economics are distinctly different resulting impacts within all other municipal use would be impracticable than surrounding economics in that sectors are fully captured in the or impossible due to endangered species factor mobility (such as employment) is economic results as indirect impacts. constraints on the Platte River system. limited. Issue 52:Questions were raised Service Response: Construction of Service Response: While it is true that concerning the reallocation of water and conveyance facilities to transfer Eastern there are fewer opportunities for the sectors that were projected to utilize Slope agricultural water ta displaced workers on tribal lands, very the reallocated water. municipalities may require section 7 few of the direct impacts. other than the Service Response: In all cases, the consultation with regard to Platte River Navajo Indian Irrigation Project. are tied reallocated water represented a benefit endangered species. However, several to tribal economics. In the case of the and thus was placed in a relatively low such transfers have already occurred Navajo Tribe, the impacts are reported value use. For instance, in California, without any Federal action, in the New Mexico results. which incurs positive impacts, the demonstrating the feasibility of such Issue 50: Small distributors and users choice for the sector to receive the transfers. of hydroelectric power expressed reallocated water was the agricultural Issue 57: Concern was expressed concerns regarding the computation of sector. Ifmunicipal and industrial had regarding the comparability of the and the use of the electric power been chosen, then the positive impacts Input-Output (1—0) and Computable impacts in the economic analysis, as would have been much larger. General Equilibrium (CGE) results. well as issues regarding sunk cost, Issue 53:Concern was expressed Service Response: The underlying thermal replacement (fuel substitution), regarding the lack of economic impacts model assumptions differ. CGE models and the amount of thermal replacement resulting from flood plain designation. allow for greaterfactor mobility and required. Service Response: Information substitution. 1—0 models do not permit Service Response:The electric received during the public comment impacts to communicate and adjust impacts were computed by Stone and periods and previously available data with geographic areas outside the State Webster Management Consultants, Inc., did not indicate any major economic or region; thus negative impacts are utilizing a model developed for the Glen impacts related to flood plain overestimated. Therefore, due to these Canyon Dam. The model development designation. The Service recognizes that differences, results from these models effort was funded by the Bureau of individual pr~jectslocated in the flood are not directly comparable. Reclamation. The Service chose to use plain may experience economic Issue 58:Concerns were raised this model after determining this was impacts. regarding changes in governmental the most up-to-date and comprehensive Issue 54: Concern was raised by the revenue flows from hydropower model available. Shut-in hydroelectric Navajo Nation and its representatives impacts. capacity is treated as a sunk cost in the regarding the expansion of the Navajo Service Response: Such revenues analysis following accepted economic Indian Irrigation Project (NIIP). represent transfers of economic theory. Gas and coal activities are Service Response: Based upon resources, not real resource costs. The projected to expand to provide thermal information provided during the public models capture changes in government power replacement. Existing excess comment period, the New Mexico revenues. capacity in these sectors means that this analysis was revised to include an Issue 59: Concern was raised expansion is a benefit to the regional additional 5Z,000 acre-feet of future regarding a variety of projects planned economy. The analysis of Stone and water depletions foregone. Additionally, for the region that were not specifically Webster yielded a result that 121 cropping patterns and yields for NIIP addressed in the analysis. megawatts of additional thermal weie adjusted based on information Service Response: Projects not generation capacity would be required supplied by the Navajo Nation and the specifically identified in the economic to offset the reduction of Bureau of Indian Affairs during the analysis were presumed to be hydrogeneration capacity. comment period. Likewise, when data undertaken and appear in the baseline The small systems impacts were not provided during the comment periods projections. Further, some future available for inclusion in the Economic seemed reasonable, those economic data projects have already undergone section Analysis released November 12, 1993. were incorporated into the models. 7 consultation and as such do not The economic analysis was updated to Issue 55:Concerns were raised by represent an impacL Future projects for include impacts associated with small several commenters about the lack of which little or no information is systems as well as large system impacts. economic impacts identified in the currently available will be subject to The updated results were used in the Lower Basin. In some cases, section 7 consultation and as such it is exclusion process and are included in hypothetical changes to existing Lower premature to judge whether they will be the final rule. Colorado, Salt, Verde, andlor Gila River affected. Issue 51: Public comments expressed operations were provided to estimate Issue 60: Concerns were raised concern that all economic sectors and economic impacts to agriculture and regarding the omission of the cost of impacts of designating critical habitat mining activities. capital facilities to use water such as were not addressed in the economic Service Response: At present, the planned municipal diversions. analysis. Service does not foresee changes in Service Response: These costs would Service Response: All models used in current hydrological operations of these be incurred regardless of whether the economic analysis are general rivers occurring as aresult of recovery critical habitat is designated and as such equilibrium in nature. That is, all efforts for these fishes. The impacts are not an appropriate cost for inclusion impacts are.represented through predicted by the commenters and the in the analysis. linkages among economic sectors. For scenarios used to generate those impacts Issue 61:Respondents recommended example, both the direct impacts to are not envisioned by Service biologists that the economic benefits of listing and 13396 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations critical habitat designation must be it reflected the hydrology of the system flood plain developments. Any new addressed. with major waterdevelopments in place flood control project or other water Service Response: The economic and operating without any operational development project would likely be analysis addresses both monetary cost changes due to endangered fish needs. subject to section 7 consultation, and if and the benefits ofdesignating critical Thus, this period was the most accurate destruction or adverse modification of habitat. Monetary values associated one available for determining the full critical habitat were found, reasonable with the benefits of the existence of the economic impact of reoperation of the and prudent alternatives would be species are not within the framework of river system for recovery of the developed to address the project the economic evaluation of critical endangered fish. Average, above purposes. Actions without Federal habitat designation nor is such an average, and below average flow years involvement are not affected by the evaluation required by the Act. These were modeled. designation of critical habitat. types of economic data would require Issue 67:Several letters indicated that Social Comments extensive research and debate prior to designation would adversely affect being used in the evaluation of critical Issue 65: Some respondents believed historic use of resources and lands. habitat. that humans are the real endangered Service Response: Existing issue 62: A few respondents indicated species. Fish should not be considered development and use of water rights that changing flows to benefit the more important than people. There is no and non-Federal lands will not be endangered fish would be detrimental to benefit to people from these species. affected by the designation of critical people along the rivers. Service Response: The Act strives to habitat except in cases where a Federal Service Response: Designation of protect species that are in danger of project or funding is required. Actions critical habitat is not a management becoming extinct in the immediate or without Federal involvement are not plan for the recovery of these foreseeable future. Humans are not in affected by the designation of critical endangered fish. Specific management such danger. On the contrary, the habitat. actions such as changing flowsto number of humans has increased in the Issue 68: Some respondents wondered benefit these fish will result from the last 100 years at a rapid rate. Humans~ how the designation would affect use of RIP’s, other recovery programs, and have, at times, believed that some other these rivers and reservoirs for actions or project-specific requirements species may be of little or no value, recreation. of biological opinions. Effects of flow when in fact the same species later has Service Response: The direct effects of changes due to Federal actions that been determined to be of great value. hi critical habitat designation upon benefit the endangered fish will be the past, the Colorado River fishes were reservoir and river-based recreation are addressed through the NEPA process. of value to man for subsistence food, expected to be minor. Few Federal issue 63: Several respondents and they were widely taken for actions related to recreation are likely to questioned why only 10 percent of the recreational and commercial reasons. “destroy or adversely modify” critical cost of recovering these fish was The four endangered fishes are habitat. Power boating, rafting, attributed to critical habitat. Others considered of value to different swimming, fishing, and similar uses do were confused on how the Service segments of the human population for not significantly impact or destroy the arrived at the 90/10 percent split widely different reasons. As a case in physical habitat of these species. between species listing and critical point, one species, the Colorado However, these types of activities (flow habitat designation. squawfish has been valued by humans changes, sport fish management, etc.) Service Response: The Act requires for several different reasons, including: may be affected by specific efforts to that the economic and other relevant (1) Historic value—it has been suggested recover these species. The Economic impacts of designation of critical habitat that the food provided by this fish was Analysis provided data on the potential be determined. This provision requires of importance in the early settlement of economic impacts to recreational that the Service separate those costs portions of the West, and it was activities due to designation of critical specific to designation of critical habitat certainly used as food by American habitat for these species. This from the costs associated with the Indians; (2) food for humans—the information can be used to evaluate the listing of these species. The Service literature is full of accounts of humans significance of the effect of critical used the extensive history of section 7 catching and eating Colorado squawfish, habitat will have upon the various consultations that used the “jeopardy” and its culinary qualities have been recreation activities in and along the standard to estimate the level of widely attested; (3) scientific—the Colorado River system. additional protection that might be potomadromous migrations and unique issue 69: A few respondents stated provided by “adverse modification.” life cycle of this largest North American that decisions affecting the quality and Although the increased protection minnow is of great scientific interest way of life in a community should be provided by critical habitat varies by and importance; and (4) ecological—as made locally and for thebenefit of the impact type (flood plain activities, the top native predator of the Colorado local community. depletions, etc.), overall the Service River, it has a valid place in the natural Service Response: Congress has determined that increased protection Colorado River ecosystem. determined that endangered species provided by critical habitat would issue 66: Many respondents believed consideration is of national importance account for approximately 10 percent of that the designation would adversely and should be evaluated in a wider the total cost identified. affect the quality of life in communities context. Effects to the local community Issue 64:A few respondents adjacent to critical habitat because loss are recognized in the process of questioned the selection of 1967—1985 of water rights, elimination of flood designating critical habitat. However, for the hydrologic period to be used in plain developments, prevention of new the economic analysis and the exclusion preparation of the economic analysis. flood control projects and similar issues process, according to the Act, only Some also indicated that using average may result in destruction of consider national and regional impacts. flow years did not give an accurate communities. An area can be removed from the portrayal of impacts. Service Response: The designation critical habitat designation if the Ser~’iceResponse: The Service will not take existing water rights nor economic costs of the designation are selected the 1967—1985 period because will it require the removal of existing greater than the benefits to the species Federal Register I Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations 13397 and if exclusion is not likely to result in Rights.” The Takings Implications UT/CO 1982; La Sal, UT/CO 1985; Hite the extinction of the species. Assessment concludes that the Crossing, UT 1982; Parker, AZ/CA 1980; Isstie 70:Many respondents stated the designation does not pose significant DavisDam, AZ/NV/CA 1982; Boulder need for balance between economic and takings implications. City, NV/AZ 1978; Needles, CA 1986. environmental issues. Service Response: The Economic References Cited Colorado: Moffat County. The Yampa Analysis and public comments were A complete list of all references cited River from the boundary of Dinosaur used by the Service during the herein is available upon request from National Monument in T.6N., R.99W., exclusion process to achieve a balance the Service’s Utah Field Office (see sec. 27 (6th Principal Meridian) to the between the needs of these species and ADDRESSES above). confluence with the Green River in economic and other concerns. The T.7N., R.103W., sec. 28 (6th Principal Authors exclusion process allows for areas to be Meridian). excluded from critical habitat The primary authors of this rule are Utah: Uintah County; and Colorado: designation if economic and other Henry R. Maddux, U.S. Fish and Moffat County. The Green River from impacts exceed benefits for the listed Wildlife Service, Utah Field Office (see the confluence with the Yampa River in species of concern, provided that ADDRESSES section); William R. Noonan, T.7N., R.103W., sec. 28 (6th Principal U.S. Fish and Wildlife Service, Colorado exclusion will not result in the Meridian) to the boundary of Dinosaur extinction of the species. The exclusion Field Office; Lesley A. Fitzpatrick, U.S. Fish and Wildlife Service, Arizona Field National Monument in T.6N., R24E., process allows economic and other sec. 30 (Salt Lake Meridian). issues to be weighed against the Office-, and Harold M. Tyus, U.S. Fish requirements of cxitical habitat under and Wildlife Service, Region 6, Denver, Utah: Uintah and Grand Counties, the Act. Colorado. The Green River (Desolation and Gray Canyons) from Sumner’s Amphitheater List of Subjects in 50 C.FR Part 17 National Environmental Policy Act inT.12S.,R.18E.,sec.5(SaltLake The Service has determined that an Endangered and threatened species, Meridian) to Swasey’s Rapid in T.20S., Environmental Assessment, as defined Exports, Imports, Reporting and R.16E., sec. 3 (Salt LakeMeridian). recordkeeping requirements, and under the authority of the National Utah: Grand County; and Colorado: Environmental Policy Act of 1969, need Transportation. Mesa County. The Colorado River from not be prepared in conjunction with Regulations Promulgation regulations adopted pursuant to section Black Rocks in T.1OS., R.104W., sec. 25 4(a) of the Act. A notice outlining the Accordingly, part 17, subchapter B of (6th Principal Meridian) to Fish Ford in Service’s reasons for this determination chapter I, title 50 of the Code of Federal T.21S., R.24E., sec. 35 (Salt Lake was published in the Federal Register Regulations is hereby amended as set Meridian). on October 25, 1983 (48 FR 49244). forth below: Utah: Garfield and San Juan Counties The Colorado River from Brown Betty Executive Order 12866 and Regulatory PART 17—[AMENDED] Flexibility Act Rapid in T.30S., R.18E., sec. 34 (Salt 1. The authority citation for part 17 Lake Meridian) to Imperial Canyon in This rule was reviewed by the Office continues to read as follows: T.31S., R.17E., sec. 28 (Salt Lake of Management and Budget under Authority: 16 U.S.C. 1361—1407; 16 U.S.C. Meridian). Executive Order 12866. Based on the 1531—1544; 16 U.S.C. 4201—4245; Pub. I.. 99— information discussed in this rule Arizona: Mohave County; Nevada: 625. 100 Stat. 3500, unless otherwisenoted. concerning public projects and private Clark County; and California: San activities within critical habitat areas, § 17.tl [Amended] Bernardino County. The Colorado River there are no significant economic 2. Section 17.11(h) is amended by from Hoover Dam in T.30N., R.23W., impacts resulting from the critical revising the Critical Habitat column for sec. 3 (Gila and Salt River Meridian) to habitat designation. There are a limited the entries “Chub, bonytail.” “Chub, Davis Dam in T.21N., R.21W., sec. 18 number of actions on private land that humpback,” “Squawfish. Colorado,” (Gila and Salt River Meridian) including have Federal involvement through and “Sucker, razorback,” under FISHES, Lake Mohave up to its full pool funds or permits that may be affected by to read “17.95(e)”. elevation. critical habitat designation. Also, no 3. Section 17.95(e) is amended by Arizona: Mohave County; and adding critical habitat of the direct costs, enforcement costs, bonytail California: San Bernardino County. The information collection, or recordkeeping chub (Gila elegans), humpback chub Colorado River from the northern requirements are imposed on small (Gila cypha), Colorado squawfish boundary of 1-lavasu National Wildlife entities by this designation. Further, the (Ptychocheilus lucius), and razorback Refuge in R.22W., T.16N., sec. 1 (Gila rule contains no recordkeeping sucker (Xyrauchen texanus), in the same arid Salt River Meridian) to Parker Dam requirements as defined by the alphabetical order as each species inT.I1N.,R18W., sec. 16 (Gila and Salt Paperwork Reduction Act of 1990. occurs in § 17.11(h). River Meridian) including Lake Havasu Taking Implications Assessment § 17.95 CrItical habitat—fisli and wildlife. up to its full pool elevation. The Service has analyzed the * t * * * Known constituent elements include potential taking implications of (e) * * * water, physical habitat, and biological designating critical habitat for the * S * * * environment as required for each razorback sucker, Colorado squawfish, particular life stage for each species. humpback chub, and bonytail chub in a Bonytail Chub (Gila elegans) Takings Implications Assessment Description of areas taken from the BILLING CODE 431 0-as-c prepared pursuant to requirements of Bureau of Land Management (BLM) Executive Order 12630, “Governmental 1:100,000 scale maps (available from Actions and Interference with BLM State Offices): Rangely, CO 1989; Constitutionally Protected Property Canyon of Lodore, CO 1990; Seep Ridge. 13398 Federal Register / Vol. 59, No. 54 I Monday, March 21, 1994 / Rules and Regulations

the Colorado River in T.32N., R.5E., sec. River and its 100-year flood plain from 1 (Salt and Gila River Meridian). the confluence with the Yampa River in Arizona: Coconino County. The T.7N., R.103W., sec. 28 (6th Principal Colorado River from Nautiloid Canyon Meridian)to the confluence with the in T.36N., R.5E., sec. 35 (Salt and Gila Colorado River in T.30S., R19E., sec. 7 River Meridian) to Granite Parkin (Salt Lake Meridian). T.30N., RIOW., sec. 25 (Salt and Gila Colorado: Rio Blanco County; and River Meridian). Utah: Uintah County. The White River Known constituent elements include and its 100-year flood plain from Rio water, physical habitat, and biological Blanco Lake Dam in T.1N., R.96W., sec. environment as required for each 6 (6th Principal Meridian) to the particular life stage for each species. confluence with the GreenRiver in BILLING CODE 4310-55-P T.9S., R.20E., sec. 4 (Salt Lake Meridian). Colorado: Delta and Mesa Counties. The Gunnison River and its 100-year flood plain from the confluence with the BILUNG CODE 4310-65-P Uncompahgre River in T.15S., R.96W., * * * a * sec. 11 (6th Principal Meridian) to the confluence with the Colorado River in Humpback Chub (Gila cypha) T.1S., R.IW., sec. 22 (Ute Meridian). Description of areas taken from BLM Colorado: Mesa and Garfield 1:100,000 scale maps (available from N Counties; and Utah: Grand, San Juan, BLM State Offices): Rangely, CO 1989; Wayne, and Garfield Counties. The Canyon of Lodore, CO 1990; Seep Ridge, Colorado River and its 100-year flood UT/CO 1982; Vernal, UT/CO 1982; plain from the Colorado River Bridge at Grand Junction, CO 1990; Moab, UT/CO exit 90 north off Interstate 70 in T.6S., 1985; La Sal, UT/CO 1985;Tuba City, R.93W., sec. 16 (6th Principal Meridian) AZ 1983; Peach Springs, AZ 1980; to North Wash including the Dirty Devil Grand Canyon, AZ 1980; Mt. Trumbull, arm ofLake Powell up to the full pool AZ 1979. BILLING CODE 4310-55-C elevation in T.33S., R.14E., sec. 29 (Salt Colorado: Moffat County. The Yampa * * * .* * Lake Meridian). River from the boundary of Dinosaur Colorado Squawfish (Ptychocheilus New Mexico: San Juan County; and National Monument in T.6N., R.99W., Utah: San Juan County. The San Juan sec. 27 (6th Principal Meridian) to the lucius) Description of areas taken from BLM River and its 100-year flood plain from confluence with the Green River in T.7N., R.103W., sec. 28 (6th Principal 1:100,000 maps (available from BLM the State Route 371 Bridge in T.29N., State Offices): Canyon of Lodore, CO R.13W., sec. 17 (New Mexico Meridian) Meridian). 1990; La Sal, UT/CO 1985; Rangely, CO to Neskahai Canyon in the San Juan arm Utah: Uintah County; and Colorado: of Lake Powell in T.41S., R.IIE., sec. 26 Moffat County. The Green River from 1989; Delta, CO 1989;Grand Junction, CO 1990; Hite Crossing, UT 1982; (Salt Lake Meridian) up to the full pool the confluence with the Yampa River in elevation. 28 (6th Principal Vernal, UT/CO 1990; Craig, CO 1990; T.7N., R.103W., sec. Bluff, UT/CO 1985; Moab, UT/CO 1985; Meridian) to the southern boundary of Known constituent elements include Hanksville, UT 1982; San Rafael Desert, water, physical habitat, and biological Dinosaur National Monument in T.6N., UT 1985; Huntington, UT 1982; Price, R.24E., sec. 30 (SaltLake Meridian). environment as required for each UT 1989; Farmington, NM 1991; Navajo particular life stage for each species. Utah: Uintah and Grand Counties. Mountain, UT/AZ 1982. The 100-year The Green River(Desolation and Gray flood plain for many areas is detailed in BILLING CODE 4310-65—P Canyons) from Sumner’s Amphitheater Flood Insurance Rate Maps (FIRM) in T.12S., R.18E., sec. 5 (Salt Lake published by and available through the Meridian) to Swasey’s Rapid in T.20S., Federal Emergency Management Agency R.16E., sec. 3 (Salt LakeMeridian). (FEMA). In areas where a FIRM is not Utah: Grand County; and Colorado: available, the presence of alluvium soils Mesa County. The Colorado Riverfrom or known high water marks can be used Black Rocks in T.IOS., R.104W., sec. 25 to determine the extent of the flood (6th Principal Meridian) to Fish Ford plain. Only areas of flood plain River in T.21S., R.24E., sec. 35 (Salt containing constituent elements are Lake Meridian). considered critical habitat. Utah: Garfield and San Juan Counties. Colorado: Moffat County. The Yampa The Colorado River from Brown Betty River and its 100-year flood plain from Rapid River in T.30S., R.18E., sec. 34 the State Highway 394 bridge in T.6N., (Salt Lake Meridian) to Imperial Canyon R.91W., sec. 1 (6th Principal Meridian) in T.31S., R.17E., sec. 28 (Salt Lake to the confluence with the Green River Meridian). in T.7N., R.103W., sec. 28 (6th Principal Arizona: Coconino County. The Little Meridian). Colorado River from river mile 8 in Utah: Uintah, Carbon, Grand, Emery, T.32N., R.6E., sec. 12 (Salt and Gila Wayne, and San Juan Counties; and BILLING CODE 4310—OS--C River Meridian) to the confluence with Colorado: Moffat County. The Green * * * * * Federal Register I Vol. 59, No. 54 I Monday, March 21, 1994 / Rules and Regulations 13399

Razorback Sucker (Xyrauchen texanus) T.6N., R.98W., sec. 23 (6th Principal Colorado:Mesa and Garfield Description of areas taken from BLM Meridian) to the confluence with the Counties. The Colorado River and its 1:100,000 scale maps (available from Green Riverin T.7N., R.103W., sec. 28 100-year flood plain from Colorado Meridian). BLM State Offices): Rangely, CO 1989; (6th Principal River Bridge at exit 90 north off Canyon of Lodore, CO 1990; Seep Ridge, Utah: Uintah County; and Colorado: Interstate 70 in T.6S., R.93W., sec. 16 UT/CO 1982; La Sal, UT/CO 1985; Moffat County. The Green River and its (6th Principal Meridian) to Westwater Westwater, UT/CO 1981; Hite Crossing, 100-year flood plain from the Canyon in T.20S., R.25E., sec. 12 (Salt U’!’ 1982; Glenwood Springs, CO 1988; confluence with the Yampa River in Lake Meridian) including the Gunnison Grand Junction, CO 1990; Delta, CO T.7N.. R.103W., sec. 28 (6th Principal River and its 100-year flood plain from 1989; Navajo Mountain, UT/AZ 1982; Meridian) to Sand Wash in T.I1S., the Redlands DiversionDam in T.1S., Vernal, UT/CO 1990; Craig, CO 1990; R.18E., sec. 20 (6th Principal Meridian). R.IW., sec. 27 (Ute Meridian) to the Bluff, UT/CO 1985; Moab, UT/CO 1985; Utah: Uintah, Carbon, Grand, Emery. confluence with the Colorado River in Hanksville, UT 1982; San Rafael Desert, Wayne, and San Juan Counties. The T.IS., R.1W., sec. 22 (Ute Meridian). UT 1985; Huntington, UT 1982; Price, Green River and its 100-year flqod plain Utah: Grand, San Juan, Wayne, and UT 1989; Tuba City, AZ 1983; Lake from Sand Wash at T.1IS., R.18E., sec. Garfield Counties. The Colorado River Mead, NV/AZ 1981; Davis Darn, AZ! 20 (6th Principal Meridian) to the and its 100-year flood plain from NV/CA 1982, Parker, AZ/CA 1980; confluence with the Colorado River in Westwater Canyon in T.20S., R.25E., Yuma, AZJCA 1988; Safford, AZ 1991; T.30S., R.19E., sec. 7 (6th Principal sec. 12 (Salt LakeMeridian) to full pool Globe, AZ 1980; Clifton, AZ/NM 1975; Meridian). elevation, upstream of North Wash and Prescott, AZ 1982; Theodore Roosevelt Utah: Uintah County. The White River including the Dirty Devil arm of Lake Lake, AZ 1982, Grand Canyon. AZ 1980; and its 100-year flood plain fromthe Powell inT.33S., R.14E., sec. 29 (Salt Mt. Trumbull, AZ 1979; Boulder City, boundary of the Uintah and Ouray Lake Meridian). NV/AZ 1978; Blythe, CA/AZ 1976; Indian Reservation at river mile 18 in New Mexico: San Juan County; and Trigo Mountains, AZ/CA 1988; Sedona, T.9S., R.22E., sec. 21 (Salt Lake Utah: San Juan County. The San Juan AZ 1982; Payson, AZ 1988; and U.S. Meridian) to the confluence with the River and its 100-year flood plain from Forest Service map: Tonto National Green River in T.9S., R.20E., sec. 4 (Salt the Hogback Diversion in T.29N., Forest, Phoenix, AZ. The 100-year flood Lake Meridian). R.16W., sec. 9 (NewMexico Meridian) plain for many areas is detailed in Flood Utah: Uintah County. The Duchesne to the full pool elevation at themouth Insurance Rate Maps (FIRM) published River and its 100-year flood plain from of Neskahai Canyon on the San Juan by and available through the FEMA. In rivermile 2.5 in T.4S., R.3E., sec. 30 arm of Lake Powell in T.41S., RIlE., areas where a FIRM is not available, the (Salt Lake Meridian) to the confluence sec. 26 (Salt LakeMeridian). presence of alluvium soils or known with the Green River in T.5S., R.3E., sec. Arizona: Coconino and Mohave high water marks can be used to 5 (Uintah Meridian). Counties; and Nevada: Clark County. determine the extent of the flood plain. Colorado: Delta and Mesa Counties. The Colorado River and its 100-year Only areas of flood plain containing The Gunnison River and its 100-year flood plain from the confluence with the constituent elements are considered flood plain from the confluence with the Paria River in T.40N , R.7E., sec. 24 critical habitat. Uncompahgre River in T.15S., R.96W., (Gila and Salt River Meridian) to Hoover Colorado: Moffat County. The Yainpa sec. 11 (6th Principal Meridian) to Dam in T.30N., R.23W., sec. 3 (Gila and River and its 100-year flood plain from Redlands Diversion Dam in T.1S., Salt River Meridian) including Lake the mouth of Cross Mountain Canyon in R.IW., sec. 27 (Ute Meridian). Mead to the full pool elevation. 11400 Federal Register I VoL 59, No.. 54 1 Monday. March 21, 1994 / Rules and Regulations

Arizona: Mohave Cowity and including San Carlos Reservoirto the Nevada: Clark County. The Colorado full pool elevation. River and its 100-year flood plain from Arizona: Gila County. The Salt River R.23W.., sec. Hoover Dam in T.30N., I and its 100-year flood plain from the old (Gila and Salt River Meridian) to Davis U.S. Highway 60/State Route 77 bridge Darn in T.2lN.., R2IW., sec. 18 (Gus and Salt River Meridian) including Lake (nnst~rveyedJto Roosevelt Diversion R14E., sec. Mohave to the full pool elevathm. Dam in T.3N., 4 (Gila and Arizona: La Pazand Ynma Counties; Salt RiverMeridian). and California: San Bernardino. Arizona: Yavapai County. The Verde Riverside, and Imperial Counties. The River and its 100-year flood plain from Colorado River and its 100-year flood the U.S. Forest Service boundary plain from Parker Darn in T.1IN.. (PrescottNational Ferest} in T.18N., RI8W., sec. 16 (Gila and Salt River R.2E, sec. 31 to Horseshoe Dam in Meridian) to imperial Dam in T.&S., T.7N., R.ZE. sec. 2 (Gila and Salt River R22W.. sec. 25 (Gila and Sail River Meridian). including Horseshoe Laketo Meridian) including Imperial Reservoir the full pooi elevation. to the full pooi elevation or 100-year Known constituent elements include BILLMG COCa 4310-65-C flood plain, whichever is greater. water, physical habitat, and biological * a * a * Arizona: Graham, Greenlee, Gila, and environment as required for each Pinal Counties. The Gila River and its Dated: March 10, 1994. particular life stage for each species. 100-yearflood plain from the Arizona- George T. Frampton, New Mexico border in T8&, R32F.... B1LUNG COOE 43*0-66-P Assistant Secretaiyfor Fisli5nd Wildlife and sec. 34 (Gila and Salt River Meridian) to Parks. Depai-tment oftheInleriar. Coolidge Darn in T.3S... R.18E, sec. 17 (FR Doc. 94—6508 Filed 3—16-94; 11:28 ami (Gila and Salt River Meridian), BILLING CODE 4310-66-P