Thursday, June 6, 2002

Part IV

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Rio Grande Silvery Minnow; Proposed Rule

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39206 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

DEPARTMENT OF THE INTERIOR ADDRESSES: 1. Send your comments on fishes in the Rio Grande Basin, this proposed rule, the draft economic occurring from Espan˜ ola, NM, to the Fish and Wildlife Service analysis, and draft EIS to the New Gulf of Mexico (Bestgen and Platania Mexico Ecological Services Field Office, 1991). It was also found in the Pecos 50 CFR Part 17 2105 Osuna Road NE, Albuquerque, River, a major tributary of the Rio RIN 1018–AH91 NM, 87113. Written comments may also Grande, from Santa Rosa, NM, be sent by facsimile to (505) 346–2542 downstream to its confluence with the Endangered and Threatened Wildlife or through the Internet to Rio Grande (Pflieger 1980). The silvery and Plants; Designation of Critical [email protected]. You may also minnow is completely extirpated from Habitat for the Rio Grande Silvery hand-deliver written comments to our the Pecos River and from the Rio Grande Minnow New Mexico Ecological Services Field downstream of Elephant Butte Reservoir Office, at the above address. You may and upstream of Cochiti Reservoir AGENCY: Fish and Wildlife Service, obtain copies of the proposed rule, the (Bestgen and Platania 1991). The current Interior. draft economic analysis, or the draft EIS distribution of the silvery minnow is ACTION: Proposed rule; notice of from the above address or by calling limited to the Rio Grande between availability. 505/346–2525. All documents are also Cochiti Dam and Elephant Butte Reservoir. Throughout much of its SUMMARY: We, the U.S. Fish and available from our website at http:// historic range, decline of the silvery Wildlife Service (Service), propose to ifw2es.fws.gov/Library/. minnow has been attributed to designate critical habitat for the Rio 2. Comments and materials received, modification of the flow regime Grande silvery minnow (Hybognathus as well as supporting documentation (hydrological pattern of flows that vary amarus) (silvery minnow), a species used in the preparation of this proposed seasonally in magnitude and duration, federally listed as endangered under the rule, will be available for public depending on annual precipitation authority of the Endangered Species Act inspection, by appointment, during patterns such as runoff from snowmelt) of 1973, as amended (Act). The silvery normal business hours at the New and channel drying because of minnow presently occurs only in the Mexico Ecological Services Field Office impoundments, water diversion for Rio Grande from Cochiti Dam, Sandoval (see address above). agriculture, stream channelization, and County, downstream to the headwaters 3. We will hold public hearings in perhaps both interactions with non- of Elephant Butte Reservoir, Sierra Socorro, NM, on June 25, 2002; and in native fish and decreasing water quality County, New Mexico. We propose to Albuquerque, NM, on June 26, 2002 at (Cook et al. 1992; Bestgen and Platania designate critical habitat within this last the following locations: 1991, Service 1999; Buhl 2001). remaining portion of the occupied range • Socorro, NM: New Mexico Institute It is important to note that much of in the middle Rio Grande (Cochiti Dam for Mining and Technology, Macey Center, 801 Leroy Place, Socorro, New the species’ life history information to Elephant Butte Dam) in New Mexico. detailed below comes from studies The proposed critical habitat Mexico, on June 25, 2002, from 6 to 9 p.m. conducted within the middle Rio designation defines the lateral extent Grande, the current range of the (width) as those areas bounded by • Albuquerque, NM: Indian Pueblo Cultural Center, 2401 12th Street NW, minnow. Nevertheless, we believe that existing levees or, in areas without our determinations for other areas levees, 91.4 meters (300 feet) of riparian Albuquerque, New Mexico, on June 26, 2002, from 6 to 9 p.m. outside of the middle Rio Grande, but zone adjacent to each side of the middle within the historical range of the silvery Rio Grande. We request data and FOR FURTHER INFORMATION CONTACT: Joy minnow, are consistent with the data comments from the public and all Nicholopoulos, Field Supervisor, New collected to date on the species’ interested parties on all aspects of this Mexico Ecological Services Field Office ecological requirements (e.g., Service proposed rule, including data on (see ADDRESSES above); phone: 505– 1999). economic and other relevant impacts of 346–2525. The role of the plains minnow the designation and the two areas that SUPPLEMENTARY INFORMATION: (Hybognathus placitus) in the decline are not proposed as critical habitat. A Background and extirpation of the silvery minnow draft economic analysis, which from the Pecos River is uncertain; examines primarily economic impacts The Rio Grande silvery minnow is however, the establishment of the plains of this proposed rule, has been prepared one of seven species in the genus minnow coincided with the and is also available for review and Hybognathus found in the United States disappearance of the silvery minnow comments. This publication also (Pflieger 1980). The species was first (Bestgen and Platania 1991; Cook et al. provides notice of the availability of the described by Girard (1856) from 1992). It is believed the non-native draft economic analysis and the draft specimens taken from the Rio Grande plains minnow was introduced into the EIS for this proposed rule. We invite all near Fort Brown, Cameron County, TX. Pecos drainage prior to 1964 (Cook et al. interested parties to submit comments It is a stout silvery minnow with 1992), and was probably the result of on these draft documents and this moderately small eyes and a small, the release of ‘‘bait minnows’’ that were proposed rule. slightly oblique mouth. Adults may collected from the Arkansas River DATES: Comments. We will consider all reach 90 millimeters (mm) (3.5 inches drainage. It is unclear, however, if comments on the proposed rule, draft (in)) in total length (Sublette et al. 1990). populations of the native silvery economic analysis, and the draft EIS Its dorsal fin is distinctly pointed with minnow were depleted prior to the received from interested parties by the front of it located slightly closer to introduction of the plains minnow, or if September 4, 2002. the tip of the snout than to the base of the reduction and extirpation of the Public Hearings. We will also hold the tail. The fish is silver with emerald silvery minnow was a consequence of two public hearings to receive reflections. Its belly is silvery white, fins the interactions of the two species (C. comments from the public. The public are plain, and barbels are absent Hoagstrom, U.S. Fish and Wildlife hearings will be held in Socorro and (Sublette et al. 1990). Service, pers. comm. 2001). One theory Albuquerque, New Mexico, on June 25 This species was historically one of is that the plains minnow may be more and 26, respectively. the most abundant and widespread tolerant of modified habitats and,

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39207

therefore, was able to replace the silvery apparently collected in the late 1950s water) (59 FR 36988; Dudley and minnow in the degraded reaches of the (Trevino-Robinson 1959; Hubbs et al. Platania 2001). Pecos River. Nevertheless, the plains 1977; Edwards and Contreras-Balderas The various life history stages of the minnow has experienced population 1991). silvery minnow require shallow waters declines within its native range from Decline of the species in the middle with a sandy and silty substrate that is highly variable water levels, unstable Rio Grande probably began in 1916 generally associated with a meandering streambeds, and fluctuating water when the gates at Elephant Butte Dam river that includes sidebars, oxbows, temperatures (Cross et al. 1985 cited in were closed. Construction of the dam and backwaters (C. Hoagstrom, pers. Taylor and Miller 1990). Although the signaled the beginning of an era of comm, 2001; Bestgen and Platania 1991; interactions (e.g., hybridization or mainstem Rio Grande dam construction Platania 1991). However, physical competition) between the silvery that resulted in five major mainstem modifications to the Rio Grande over the minnow and the introduced plains dams within the silvery minnow’s last century—including the construction minnow are believed by some to be one historic range (Shupe and Williams of dams, levees, and channelization of of the primary causes for the extirpation 1988). These dams allowed the mainstem—have altered much of the of the silvery minnow in the Pecos manipulation and diversion of the flow habitat that is necessary for the species River, this hypothesis is unsubstantiated of the river. Often this manipulation to persist (Service 1999). Channelization (Hatch et al. 1985; Bestgen et al. 1989; severely altered the flow regime and has straightened and shortened Cook et al. 1992). Currently, New likely precipitated the decline of the mainstem river reaches; increased the Mexico State University is conducting silvery minnow (Bestgen and Platania velocity of the current; and altered research on the plains minnow and 1991). Concurrent with construction of riparian vegetation, instream cover, and silvery minnow to determine if the two the mainstem dams was an increase in substrate composition (U.S. Bureau of species hybridize. Preliminary results of the abundance of non-native fish as Reclamation (BOR) 2001a). In the middle Rio Grande, the spring this research should be available in these species were stocked into the runoff coincides with and may trigger summer 2002. It is important to note reservoirs created by the dams (e.g., the silvery minnow’s spawn (Platania that, within its native range, the plains Cochiti Reservoir) (Sublette et al. 1990). and Hoagstrom 1996; Service 1999; minnow is sympatric (occurs at the Once established, these species often Dudley and Platania 2001). The semi- same localities) with other species of completely replaced the native fish buoyant (floating) eggs that are Hybognathus. However, they are fauna (Propst et al. 1987; Propst 1999). segregated ecologically (i.e., the plains produced drift downstream in the water Development of agriculture and the minnow is found in the main river column (Smith 1999; Dudley and growth of cities within the historic channel where the substrate is Platania 2001) (see ‘‘Primary range of the silvery minnow resulted in predominantly sand, whereas the Constituent Elements’’ section of this a decrease in the quality of river water western silvery minnow (Hybognathus proposed rule for further information on through municipal and agricultural run- argyritis) predominates backwaters and spawning). However, it is believed that off (i.e., sewage and pesticides) that may protected areas with little to no current diversion dams act as instream barriers have also adversely affected the range and sand or silt substrate) (Pflieger and prevent silvery minnows from 1997). Consequently, if the silvery and distribution of the silvery minnow. movement upstream after hatching minnow and plains minnow do not Historically there were four other small (Service 2001b; Dudley and Platania hybridize, they may be ecologically native fish species (speckled chub 2001; 2002). In fact, the continued segregated and able to co-exist. (Macrohybopsis aestivalis); Rio Grande downstream displacement and decline The plains minnow and silvery shiner (Notropis jemezanus); phantom of the silvery minnow in the middle Rio minnow appear to have little in the way shiner (Notropis orca); and Rio Grande Grande is well documented (Dudley and of behavioral or physiological isolating bluntnose shiner (Notropis simus Platania 2001). mechanisms and may hybridize (Cook et simus)) within the middle Rio Grande During the irrigation season al. 1992); yet the combined effects of that had similar reproductive attributes, (approximately March 1 to October 31 of habitat degradation (i.e., modification of but these species are now either extinct each year) in the middle Rio Grande, the flow regime, channel drying, water or extirpated (Platania 1991). The silvery minnow often become stranded diversion, and stream channelization) silvery minnow is a pelagic spawning in the diversion channels (or irrigation may be a more likely explanation for the species; i.e. its eggs flow in the water ditches), where they are unlikely to silvery minnow’s extirpation from the column. The silvery minnow is the only survive (Smith 1999, Lang and Pecos River (Bestgen and Platania 1991; surviving small native pelagic spawning Altenbach 1994). For example, when the C. Hoagstrom, pers. comm. 2001). We minnow in the middle Rio Grande and irrigation water in the diversion acknowledge that there are no its range has been reduced to only 5 channels is used on agricultural fields, conclusive data to substantiate any percent of its historic extent. Although the possibility for survival of silvery reasons for extirpation of the silvery the silvery minnow is a hearty fish, minnows in the irrigation return flows minnow from the Pecos River. capable of withstanding many of the (excess irrigation water that flows from The silvery minnow has also been natural stresses of the desert aquatic agricultural fields and is eventually extirpated from the lower Rio Grande, environment, the majority of the returned to the river) is low, because including the Big Bend National Park individual silvery minnows live only they perish in canals due to unsuitable area (Hubbs et al. 1977; Bestgen and one year (Bestgen and Platania 1991). habitat, dewatering, or predation (Lang Platania 1991). Reasons for the species’ Thus, a successful annual spawn is key and Altenbach 1994). Unscreened extirpation in the lower Rio Grande are to the survival of the species (Platania diversion dams also entrain (trap) also uncertain. The last documented and Hoagstrom 1996; Service 1999; silvery minnow fry (fish that have collection of a silvery minnow in the Dudley and Platania 2001). The silvery recently emerged from eggs) and semi- Big Bend area was 1961, but minnow’s range has been so greatly buoyant eggs (Smith 1998; 1999). reexamination of that specimen revealed restricted, the species is extremely However, some irrigation water is it was a plains minnow (Bestgen and vulnerable to a single catastrophic returned to the river via irrigation Propst 1996). Therefore, the last silvery event, such as a prolonged period of low wasteways in the reach of the middle minnow from the lower Rio Grande was or no flow (i.e., the loss of all surface Rio Grande from the Isleta Diversion

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39208 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

Dam to the San Acacia Diversion Dam Deacon and Minckley 1974, J. Smith, extant population lives. For example, in (Isleta reach), which helps sustain flow U.S. Fish and Wildlife Service, pers. the river reach above (north of) the San in certain segments of this reach. comm. 2001). It is also believed that Acacia Diversion Dam, return flows Nevertheless, we do not believe these after prolonged periods of low or no from irrigation and other activities are riverside drains offer suitable refugia or flow the silvery minnow may have been routed back into the mainstem of the are useful for recovery of the silvery able to repopulate downstream habitat river. At times, this can provide a fairly minnow. the following year by the drift of eggs consistent flow in particular stretches of In the middle Rio Grande, perhaps from upstream populations (Platania the Isleta reach. However, at the San even more problematic for the silvery 1995). However, when the present-day Acacia Diversion Dam, once diversions minnow are drought years during the middle Rio Grande dries and dams are made (i.e., to irrigation canals, as irrigation season when there may be prevent upstream movement of the well as seepage losses to the LFCC) the little supplemental water (water that is silvery minnow, they can become return flows continue in off-river used to augment river flows) available trapped in dewatered reaches and often channels (with a few exceptions at and when most or all of the water in the die in isolated pools before the river Brown’s Arroyo and the 10-mile outfall middle Rio Grande may be diverted into becomes wetted again. The inability of of the LFCC) until they enter Elephant the irrigation channels (e.g., see Dudley the population to find adequate refugia Butte Reservoir. Thus, unlike in the and Platania 2001) or otherwise during prolonged periods of low or no Isleta reach, the silvery minnow does consumed. Compounding this problem flow and to repopulate extirpated not receive the benefit of irrigation is stream bed aggradation (i.e., the river reaches creates a very unstable return flows in the San Acacia reach. bottom is rising due to sedimentation) population (Service 2001b). In some below San Acacia, NM, where the bed isolated pools, Smith and Hoagstrom Although we determine that a river of the river is now perched above the (1997) and Smith (1999) documented reach in the lower Rio Grande in Big bed of the low flow conveyance channel complete mortality of silvery minnows Bend National Park downstream of the (LFCC), which is immediately adjacent in the middle Rio Grande in both 1996 park boundary to the Terrell/Val Verde and parallel to the river channel. and 1997 during prolonged periods of County line, Texas, and a river reach in Because of this physical configuration, low or no flow. These studies the middle Pecos River, from Sumner waters in the mainstem of the river are documented both the relative size of the Dam to Brantley Dam in De Baca, drained from the river bed into the isolated pool (i.e., estimated surface area Chaves, and Eddy Counties, New LFCC. The LFCC parallels the Rio and maximum depth) in relation to pool Mexico, are essential to the conservation Grande for approximately 121 longevity (i.e., number of days the of the silvery minnow, these areas are kilometers (km) (75 miles (mi)) and was isolated pool existed) and the fish not proposed for critical habitat designed to expedite delivery of water community within isolated pools. For designation because of our preliminary to Elephant Butte Reservoir, pursuant to example, isolated pools found during analysis under section 4(b)(2) (see the Rio Grande Compact of 1939. The these conditions typically only lasted ‘‘Exclusions Under Section 4(b)(2) of the LFCC diverted water from the Rio for about 48 hours before drying up Act’’ section of this rule). The current Grande from 1959 to 1985. The LFCC completely (Smith 1999). Those isolated proposal only includes the middle Rio was built to more efficiently deliver pools that persisted longer than 48 Grande (Cochiti Dam to Elephant Butte water to Elephant Butte Reservoir hours lost greater than 81 percent of Dam) in New Mexico, and no other during low-flow conditions and has the their estimated surface area and greater reaches within the historical range of capacity to take approximately 2,000 than 26 percent of their maximum depth the silvery minnow. Therefore, we are cubic feet per second (cfs) of the river’s within 48 hours. Moreover, isolated only proposing to designate the river flow, via gravity. If natural river flow is pools receive no surface inflow; water reaches currently occupied by the 2,000 cfs or less, the LFCC can dewater temperatures increase; dissolved oxygen silvery minnow. This proposal is the Rio Grande from its heading at the decreases; and depending on location, analyzed as the preferred alternative in San Acacia Diversion Dam south to size, and duration of the prolonged the draft Environmental Impact Elephant Butte Reservoir. periods of low or no flow, will usually However, the LFCC has not been fully Statement (EIS), pursuant to the result in the death of all fish (Tramer National Environmental Policy Act operational since 1985 because of 1977; Mundahl 1990; Platania 1993b; (NEPA), which the Service was required outfall problems (e.g., stream bed Ostrand and Marks 2000; Ostrand and to prepare under the court order from aggradation) at Elephant Butte Wilde 2001). Therefore, when periods of the United States District Court for the Reservoir. Even without water diversion low or no flow are longlasting (over 48 District of New Mexico, in Middle Rio into the LFCC, seepage from the river to hours), complete mortality of silvery the LFCC is occurring and causing some minnows in isolated pools can be Grande Conservancy District v. Babbitt, loss of surface flows in the river channel expected. Civ. Nos. 99–870, 99–872, 99–1445M/ (BOR 2001a). In effect, water is drained Formation of isolated pools also RLP (Consolidated). The two reaches from the Rio Grande into the LFCC and increases the risk of predation of silvery referenced above (i.e., middle Pecos conveyed to Elephant Butte Reservoir, minnows in drying habitats. Predators; River and lower Rio Grande) are also thereby resulting in water losses in the primarily fish and birds, have been analyzed in the draft EIS. The Service reach from the San Acacia Diversion observed in high numbers in the middle must follow the procedures required by Dam to Elephant Butte Reservoir (San Rio Grande, consuming fish in drying, the Act, NEPA, and the Administrative Acacia reach). During some years this isolated pools, where the fish become Procedure Act. Therefore, we seek can result in prolonged periods of low concentrated and are more vulnerable to public comment on all reaches or no flow. predation (J. Smith, pers. comm. 2001). identified in this proposed rule as It is believed that, historically, the The potential for prolonged periods of essential, including whether any of silvery minnow was able to withstand low or no flow on the middle Rio these or other areas should be excluded periods of drought primarily by Grande becomes particularly significant from the final designation pursuant to retreating to pools and backwater for the silvery minnow below the San Section 4(b)(2). As required by law, we refugia, and swimming upstream to Acacia Diversion Dam, where will consider all comments received on repopulate upstream habitats (e.g., approximately 95 percent of the only this proposed rule, the draft EIS, and the

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39209

draft economic analysis before making a Previous Federal Action program that had been shut down for final determination. We proposed to list the silvery over a year and faced a backlog of 243 In accordance with the Recovery Plan, minnow as an endangered species with proposed species listings. In order to we have initiated a captive propagation critical habitat on March 1, 1993 (58 FR address that workload, we published, on program for the silvery minnow (Service 11821). The comment period, originally May 16, 1996, our Listing Priority 1999). We currently have silvery scheduled to close on April 30, 1993, Guidance for the remainder of Fiscal minnows housed at: (1) The Service’s was extended to August 25, 1993 (58 FR Year 1996 (61 FR 24722). That guidance Dexter National Fish Hatchery and 19220; April 13, 1993). This extension identified the designation of critical Technology Center; (2) the Service’s allowed us to conduct public hearings habitat as the lowest priority upon Mora National Fish Hatchery and and to receive additional public which we could expend limited funding Technology Center; (3) the City of and staff resources. Subsequent comments. Public hearings were held in Albuquerque’s Biological Park; (4) the revisions of the guidance for Fiscal Albuquerque and Socorro, NM, on the U.S. Geological Survey Biological Years 1997 (December 5, 1996; 61 FR evenings of June 2 and 3, 1993, Resources Division’s Yankton 64475) and for 1998/1999 (May 8, 1998; respectively. After a review of all Laboratory; and (5) the New Mexico 63 FR 25502) retained critical habitat as comments received in response to the State University (J. Brooks, pers. comm., the lowest priority for the listing proposed rule, we published the final 2001). Progeny of these fish are being program within the Service. Thus, no rule to list the silvery minnow as used to augment the middle Rio Grande work resumed on the economic analysis endangered on July 20, 1994 (59 FR silvery minnow population, but could due the low priority assigned to critical 36988). also be used in future augmentation or habitat designations. reestablishment programs for the silvery Section 4(a)(3) of the Act requires that On February 22, 1999, in Forest minnow in other river reaches (J. the Secretary, to the maximum extent Guardians v. Babbitt, Civ. No. 97–0453 Remshardt, New Mexico Fishery prudent and determinable, designate JC/DIS, the United States District Court Resources Office, pers. comm. 2001). critical habitat at the time a species is for the District of New Mexico ordered We have also salvaged and transplanted listed as endangered or threatened. Our us to publish a final determination with silvery minnows within the middle Rio regulations (50 CFR 424.12(a)(2)) state regard to critical habitat for the silvery Grande in recent years (Service 1996, that critical habitat is not determinable minnow within 30 days. The deadline 1998, 1999, 2000, 2001). For example, if information sufficient to perform was subsequently extended by the court approximately 220,000 silvery minnow required analyses of the impacts of the to June 23, 1999. On July 6, 1999, we larvae and adults have been released designation is lacking or if the biological published a final designation of critical (i.e., stockings from captive bred fish or needs of the species are not sufficiently habitat for the silvery minnow (64 FR translocated from downstream reaches) well known to permit identification of 36274), pursuant to the court order. since May 1996 (J. Remshardt, U.S. Fish an area as critical habitat. At the time On November 21, 2000, the United and Wildlife Service, pers. comm. the silvery minnow was listed, we States District Court for the District of 2001). Effectiveness of these releases is found that critical habitat was not New Mexico, in Middle Rio Grande currently being investigated and will be determinable because there was Conservancy District v. Babbitt, Civ. useful for evaluating future efforts to insufficient information to perform the Nos. 99–870, 99–872, 99–1445M/RLP repatriate the species. required analyses of the impacts of the (Consolidated), set aside the July 9, If this proposed rule is finalized, designation. 1999, critical habitat designation and section 7(a)(2) of the Act would require We contracted for an economic ordered us to issue both an EIS and a that Federal agencies ensure that actions analysis of the proposed critical habitat new proposed rule designating critical they fund, authorize, or carry out are not designation in September 1994 and a habitat for the silvery minnow. This likely to result in the ‘‘destruction or draft analysis was prepared and proposed rule and the draft EIS are adverse modification’’ of critical habitat. provided to us on February 29, 1996. being issued pursuant to that court In our regulations at 50 CFR 402.02, we The draft document was then provided order. define destruction or adverse to all interested parties on April 26, On April 5, 2001, we mailed modification as ‘‘direct or indirect 1996. That mailing included 164 approximately 500 pre-proposal alteration that appreciably diminishes individuals and agencies, all affected notification letters to the six Middle Rio the value of critical habitat for both the Pueblos in the valley, all county Grande Indian Pueblos (Cochiti, Santo survival and recovery of a listed species. commissions within the occupied range Domingo, San Felipe, Santa Ana, Such alterations include, but are not of the species, and an additional 54 Sandia, and Isleta), various limited to, alterations adversely individuals who had attended the governmental agencies, interested modifying any of those physical or public hearings on the proposed listing individuals, and the New Mexico biological features that were the basis and who had requested that they be Congressional delegation. The letter for determining the habitat to be included on our mailing list, informed them of our intent to prepare critical.’’ Section 4 of the Act requires particularly for the economic analysis. an EIS for the proposed designation of us to consider economic and other At that time, we notified the public that, critical habitat for the silvery minnow relevant impacts of specifying any because of a moratorium on final listing and announced public scoping meetings particular area as critical habitat. actions and determinations of critical pursuant to NEPA. On April 17, 23, 24, Our practice is to make comments habitat imposed by Public Law 104–6, and 27, 2001, we held public scoping that we receive on this rulemaking, no work would be conducted on the meetings in Albuquerque and Carlsbad, including names and home addresses of analysis or on the final decision NM, Fort Stockton, TX, and Socorro, the respondents, available for public concerning critical habitat. However, we NM, respectively. We solicited oral and review during normal business hours. solicited comments from the public and written comments and input. We were Individual respondents may request that agencies on the document for use when particularly interested in obtaining we withhold their home address from such work resumed. additional information on the status of the rulemaking record, which we will On April 26, 1996, the moratorium the species or information concerning honor to the extent allowable by Federal was lifted. Following the waiver of the threats to the species. The comment law. moratorium, we reactivated the listing period closed June 5, 2001. We received

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39210 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

approximately 40 comments during the participation, a policy intended to all methods and procedures which are EIS scoping process. During April 2001, involve stakeholders in recovery necessary to bring any endangered we contracted with Industrial planning (July 1, 1994; 59 FR 34272). species or threatened species to the Economics Incorporated for an Stakeholder involvement in the point at which the measures provided economic analysis and the Institute of development of recovery plans helps pursuant to this Act are no longer Public Law at the University of New minimize the social and economic necessary’’ (i.e., the species is recovered Mexico School of Law for an EIS on the impacts that could be associated with and removed from the list of endangered proposed critical habitat designation. recovery of endangered species. and threatened species). It is important Following the closing of the scoping Numerous individuals, agencies, and to note that we utilized the comment period, we outlined possible affected parties were involved in the recommendations in the Recovery Plan, alternatives for the EIS. We held a development of the Recovery Plan or consistent with this definition of meeting on September 12, 2001, to otherwise provided assistance and conservation, to conclude that the solicit input on the possible alternatives review (Service 1999). On July 8, 1999, middle Rio Grande proposed critical from the Rio Grande Silvery Minnow we finalized the Recovery Plan (Service habitat unit and the middle Pecos River Recovery Team (Recovery Team) and 1999), pursuant to section 4(f) of the from Sumner Dam to Brantley Dam, NM other invited participants including Act. (middle Pecos River), and the lower Rio individuals from the Carlsbad Irrigation The Recovery Plan recommends Grande from the upstream boundary of District, Fort Sumner Irrigation District, recovery goals for the silvery minnow, Big Bend National Park downstream the States of New Mexico and Texas, as well as procedures to better through the area designated as a wild and potentially affected Pueblos and understand the biology of the species. and scenic river to the Terrell/Val Verde Tribes. Following this meeting, we sent The primary goals of the Recovery Plan County line, TX (lower Rio Grande) are letters to the Recovery Team and other are to: (1) Stabilize and enhance ‘‘essential to the conservation of’’ the invited participants, including Tribal populations of silvery minnow and its silvery minnow. Although the middle entities, and resource agencies in New habitat in the middle Rio Grande valley; Pecos River and the lower Rio Grande Mexico and Texas, to solicit any and (2) reestablish the silvery minnow are not proposed as critical habitat additional information—particularly in at least two other areas of its units, we believe they are important for biological, cultural, social, or economic historical range (Service 1999). The the recovery of the silvery minnow. data—that may be pertinent to the reasons for determining that these areas Thus, we concur with the Recovery Plan economic analysis or EIS. We received were necessary for recovery include: (1) that reestablishment of the silvery 10 comments from our requests for Consideration of the biology of the minnow within additional additional information. The information species (i.e., few silvery minnows live geographically distinct areas is provided in the comment letters was more than 12 to 14 months, indicating necessary to ensure the minnow’s fully considered in developing the the age 1 fish (e.g., all fish born in 2000 survival and recovery (Service 1999). alternatives that were analyzed in the that remain alive in 2001 would be age However, recovery is not achieved by draft EIS, which contains this proposed 1 fish) are almost entirely responsible designating critical habitat. The Act rule as our preferred alternative. We for perpetuation of the species); (2) the provides for other mechanisms that will made these comments part of the factors in each reach that may inhibit or provide for reestablishment of the administrative record for this enhance reestablishment and security of minnow outside of the middle Rio rulemaking. the species vary among areas; and (3) it Grande and the eventual recovery of the is unlikely that any single event would silvery minnow. We are not proposing Recovery Plan simultaneously eliminate the silvery critical habitat designation for the area Restoring an endangered or minnow from three geographic areas on the middle Pecos River or the lower threatened species to the point where it (Service 1999). Rio Grande; we are proposing to is recovered is a primary goal of the We have continued working with the designate only the middle Rio Grande as Service’s endangered species program. Recovery Team since the Recovery Plan critical habitat. Our conservation To help guide the recovery effort, we was finalized. We believe this proposed strategy for this species and our prepare recovery plans for most of the critical habitat designation and our rationale is discussed in the ‘‘Exclusions listed species native to the United conservation strategy (see ‘‘Exclusions Under Section 4(b)(2) of the Act’’ States. Recovery plans describe actions Under Section 4(b)(2) of the Act’’ section of this rule below. considered necessary for conservation of section below) are consistent with the the species, establish criteria for Recovery Plan (Service 1999). The Exclusions Under Section 4(b)(2) of the downlisting or delisting them, and purpose of the Recovery Plan is to Act estimate time and cost for implementing outline the research and data collection Section 4(b)(2) of the Act requires us the recovery measures needed. activities that will identify measures to to base critical habitat designations on Although a recovery plan is not a ensure the conservation of the silvery the best scientific and commercial data regulatory document (i.e., recovery minnow in the wild and to provide a available, after taking into consideration plans are advisory documents because roadmap that leads to the protection of the economic and any other relevant there are no specific protections, habitat essential to its recovery. impact of specifying any particular area prohibitions, or requirements afforded Therefore, we also believe this proposed as critical habitat. We may exclude areas to a species based solely on a recovery critical habitat designation and our from a critical habitat designation when plan), the information contained in the conservation strategy are consistent the benefits of exclusion outweigh the Rio Grande Silvery Minnow Recovery with the recommendations of Recovery benefits of designation, provided the Plan (Recovery Plan) was considered in Team members. Nevertheless, we will exclusion will not result in the developing this proposed critical habitat request that peer reviewers who are extinction of the species. Our designation. familiar with this species review the preliminary analysis of the following On July 1, 1994, the Recovery Team proposed rule. two areas: (1) The river reach in the was established by the Service pursuant The term ‘‘conservation,’’ as defined middle Pecos River, NM, from Sumner to section 4(f)(2) of the Act and our in section 3(3) of the Act and in 50 CFR Dam to Brantley Dam in De Baca, cooperative policy on recovery plan 424.02(c), means ‘‘to use and the use of Chaves, and Eddy Counties, NM; and (2)

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39211

the river reach in the lower Rio Grande essential to the conservation of the and ongoing activities for the Pecos in Big Bend National Park downstream species can provide informational bluntnose shiner are compatible with of the National Park boundary to the benefits to the public, State, and local those of the silvery minnow such that Terrell/Val Verde County line, TX, finds governments; scientific organizations; reestablishment of the silvery minnow that the benefits of excluding these areas and Federal agencies. The court also in this stretch of river should not be from the designation of critical habitat noted that heightened public awareness precluded in the future. Thus, we outweigh the benefits of including them. of the plight of listed species and its determine that any additional benefit Therefore, we are not proposing these habitat may facilitate conservation from a designation of critical habitat in areas as critical habitat. efforts. We agree with these findings; this river reach does not outweigh the As indicated in the ‘‘Public however, we believe that there would be benefit of excluding this area, as Comments Solicited’’ section of this little additional informational benefit discussed below in the ‘‘Benefits of rule, we are seeking comments on gained from including the middle Pecos Exclusion’’ section. whether these areas should be River because the final rule will identify The benefits of inclusion of the river designated as critical habitat. In making all areas that are essential to the reach in the lower Rio Grande in Big a final determination, we will consider conservation of the silvery minnow, Bend National Park downstream of the all comments we receive on this regardless of whether all of these areas park boundary to the Terrell/Val Verde proposed rule, the draft EIS, and the are included in the regulatory County line, TX, would also result from draft economic analysis. designation. Consequently, we believe the requirement under section 7 that Federal agencies consult with us to (1) Benefits of Inclusion that the informational benefits will be provided to the middle Pecos River, ensure that any proposed actions do not The benefits of inclusion of the river regardless of whether this reach is destroy or adversely modify critical reach in the middle Pecos River, NM, designated as critical habitat. habitat. However, as indicated in the from Sumner Dam to Brantley Dam in draft economic analysis, we anticipate The draft economic analysis De Baca, Chaves, and Eddy Counties, very little consultation activity within recognizes that while consultations NM, would result from the requirement this area. The draft economic analysis regarding the Pecos will occur without under section 7 of the Act that Federal (section 6.3.3) estimates that over the a silvery minnow critical habitat agencies consult with us to ensure that next 20 years there would be a total of designation, those consultations would any proposed actions do not destroy or 12 formal consultations and 6 informal adversely modify critical habitat. not consider the silvery minnow. consultations. The only Federal actions Historically, no consultations have However, due to the similar life history that we are aware of within the stream occurred on the Pecos River for the requirements of these species, we do not reach of the lower Rio Grande silvery minnow since the area is not anticipate that the outcomes of such downstream of Big Bend National Park occupied. However, while critical consultations would be altered. We is the Big Bend National Park oversight habitat designation could provide some recognize, as does the draft economic and permitting authority for float trips, benefit to the silvery minnow, in fact, analysis, that the middle Pecos River scientific research permits, consultations are already occurring for area (as described above) covers about environmental education, and law another listed fish with similar twice the length of the area designated enforcement (R. Skiles, Big Bend requirements. The Pecos bluntnose for the Pecos bluntnose shiner. National Park, pers. comm. 2001). shiner (Notropis simus pecosensis) was Historically, two formal consultations Therefore, unless there are other types federally listed in 1987 and portions of and two informal consultations of Federal permitting or authorization the Pecos River are designated as critical occurred annually for the Pecos within this area, private and State- habitat for the Pecos bluntnose shiner bluntnose shiner. The draft economic owned lands would not be affected. (52 FR 5295). As stated in the ‘‘Criteria analysis assumes that twice as many Additional activities that were used to for Identifying Proposed Critical Habitat consultations would occur if this area estimate the numbers of consultations Units’’ section of this rule, these fish were designated as critical habitat for for this area include: National Park species belong to the same guild of the silvery minnow, since the area management activities (e.g., pesticide broadcast spawners with semi-buoyant would be doubled in size. However, the application and fishing regulations), eggs and also spawn during high flow draft economic analysis also recognizes U.S. International Boundary and Water events with eggs and larvae being that this is likely an overstatement of Commission channel maintenance distributed downstream (Bestgen et al. the actual increase in consultations activities, U.S. Fish and Wildlife Service 1989). Therefore, flow regime operations because consultations frequently occur (e.g., fire management plans, fish in this reach that benefit the Pecos on projects located outside of Pecos stocking), and Environmental Protection bluntnose shiner also provide benefits bluntnose shiner critical habitat, due to Agency, National Pollution Discharge to habitat of the silvery minnow. We the interdependent nature of the river Elimination System permitting for the also believe that the primary constituent system and the presence of the species. Predsidio or Lajitas wastewater elements for the Pecos bluntnose shiner Consequently, we do not believe that treatment facility. We find sufficient critical habitat are compatible with the designating critical habitat within this regulatory and protective conservation proposed primary constituent elements river reach would provide additional measures in place and believe there for the silvery minnow. Thus, we find benefits for the silvery minnow, because would be little benefit to a designation that little additional benefit through currently the activities that occur in this reach since this area is protected section 7 would occur as a result of the outside of critical habitat designated for and managed by the National Park overlap between habitat suitable for the the Pecos bluntnose shiner are also Service and the number of consultations silvery minnow and the Pecos bluntnose being consulted upon. We find little expected to occur in this area are shiner listing and critical habitat benefit to including this river reach in relatively low. designation. the proposed critical habitat for the As above, we believe that heightened In Sierra Club v. Fish and Wildlife silvery minnow due to the presence of public awareness of a listed species and Service, 245 F.3d 434 (5th Cir. 2001), the Pecos bluntnose shiner and its its habitat may facilitate conservation the Fifth Circuit Court of Appeals stated designated critical habitat, in the efforts. Nevertheless, we believe that that the identification of habitat absence of the silvery minnow. Current there would be little additional

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39212 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

informational benefit gained from range. Threatened status gives us more affected State and Federal agencies, and including the lower Rio Grande within discretion in developing and persons holding any interest in land that designated critical habitat for the silvery implementing management programs may be affected by the establishment of minnow because we have identified in and special regulations for a population the experimental population (see 50 this proposed rule, and will identify in and allows us to develop any CFR 17.81(d)). the final designation, those areas that regulations we consider necessary to The flexibility gained by we believe are essential to the provide for the conservation of a establishment of a nonessential conservation of the species. For these threatened species. In situations where experimental population through reasons, we determine that any we have experimental populations, section 10(j) would be of little value if additional benefit of designation of certain section 9 prohibitions (e.g., there is a designation of critical habitat critical habitat in this river reach does harm, harass, capture) that apply to that overlaps it. This is because Federal not outweigh the benefit of excluding endangered and threatened species may agencies would still be required to this area, as discussed below. no longer apply, and a special rule can consult with us on any actions that may be developed that contains the adversely modify critical habitat. In (2) Benefits of Exclusion prohibitions and exceptions necessary effect, the flexibility gained from section As discussed in the ‘‘Recovery Plan’’ and appropriate to conserve that 10(j) would be rendered useless by the section of this rule, the primary goals of species. This flexibility allows us to designation of critical habitat. In fact, the silvery minnow Recovery Plan are manage the experimental population in section 10(j)(2)(C)(ii)(B) of the Act states to: (1) Stabilize and enhance a manner that will ensure that current that critical habitat shall not be populations of the silvery minnow and and future land, water, or air uses and designated under the Act for any its habitat in the middle Rio Grande activities will not be unnecessarily experimental population determined to valley; and (2) reestablish the silvery restricted and the population can be be not essential to the continued minnow in at least two other areas of its managed for recovery purposes. existence of a species. historical range (Service 1999). We When we designate a population as The second goal of the Recovery Plan believe that the best way to achieve the experimental, section 10(j) of the Act is to reestablish the silvery minnow in second recovery goal will be to use the requires that we determine whether that areas of its historic range. We strongly authorities under section 10(j) of the population is either essential or believe that in order to achieve recovery Act. Consequently, we have developed nonessential to the continued existence for the silvery minnow we would need a conservation strategy that we believe of the species, based on the best the flexibility provided for in section is consistent with the species’ Recovery available information. Nonessential 10(j) of the Act to help ensure the Plan. The conservation strategy is to experimental populations located success of reestablishing the minnow in reestablish the silvery minnow, under outside National Wildlife Refuge System the middle Pecos River and lower Rio section 10(j) of the Act, within areas of or National Park System lands are Grande areas. Use of section 10(j) is its historical range, possibly including treated, for the purposes of section 7 of meant to encourage local cooperation the river reach in the middle Pecos the Act, as if they are proposed for through management flexibility. Critical River and the river reach in the lower listing. Thus, for nonessential habitat is often viewed negatively by the Rio Grande (both are described above). experimental populations, only two public since it is not well understood Since the silvery minnow is extirpated provisions of section 7 would apply and there are many misconceptions from these areas and natural outside National Wildlife Refuge System about how it affects private landowners. repopulation is not possible without and National Park System lands: section It is important for recovery of this human assistance, use of a 10(j) rule is 7(a)(1), which requires all Federal species that we have the support of the the appropriate tool to achieve this agencies to use their authorities to public when we move towards meeting recovery objective. Nevertheless, any conserve listed species, and section the second recovery goal. It is critical to future recovery efforts, including 7(a)(4), which requires Federal agencies the recovery of the silvery minnow that repatriation of the species to areas of its to informally confer with the Service on we reestablish the species in areas historical range must be conducted in actions that are likely to jeopardize the outside of its current occupied range. accordance with NEPA and the Act. An continued existence of a proposed The current population of silvery overview of the process to establish an species. Section 7(a)(2) of the Act, minnow in the middle Rio Grande is in experimental population under section which requires Federal agencies to an imperiled state making it extremely 10(j) of the Act is described below. ensure that their activities are not likely important that reestablishment into Section 10(j) of the Act enables us to to jeopardize the continued existence of other portions of its historical range designate certain populations of a listed species, would not apply except occur. federally listed species that are released on National Wildlife Refuge System and Nonessential experimental into the wild as ‘‘experimental.’’ The National Park System lands. populations located within the National circumstances under which this Experimental populations determined to Park System are treated, for purposes of designation can be applied are: (1) The be ‘‘essential’’ to the survival of the section 7 of the Act, as if they are listed population is geographically separate species would remain subject to the as threatened (50 CFR 17.83(b)). from non-experimental populations of consultation provisions of section Moreover, a nonessential experimental the same species (e.g., the population is 7(a)(2) of the Act. population established in the river reach reintroduced outside the species’ In order to establish an experimental in the lower Rio Grande downstream of current range but within its probable population we must issue a proposed the Big Bend National Park boundary historical range); and (2) we determine regulation and consider public (i.e., within the reach designated as a that the release will further the comments on the proposed rule prior to wild and scenic river) to the Terrell/Val conservation of the species. Section publishing a final regulation. In Verde County line, TX, would also be 10(j) is designed to increase our addition, we must comply with NEPA. treated, for purposes of section 7, as a flexibility in managing an experimental Also, our regulations require that, to the threatened species because this area is population by allowing us to treat the extent practicable, a regulation issued a component of the national wild and population as threatened, regardless of under section 10(j) of the Act represent scenic rivers system that is administered the species’ status elsewhere in its an agreement between the Service, the by the Secretary of the Interior through

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39213

the National Park Service and is river reach from designation of critical no longer occurs. This is likely the most considered part of the National Park habitat. important step in reaching recovery of System (16 USC 1281(c)). These lands On the middle Pecos River, we this species and we believe that section downstream of Big Bend National Park acknowledge that the New Mexico 10(j), as opposed to a critical habitat are owned by the State of Texas (Black Interstate Stream Commission (NMISC) designation, is the best tool to achieve Gap Wildlife Management Area) and has been actively acquiring and leasing this objective. Thus, we believe that an approximately 12 to 15 private water rights to meet the State’s delivery exclusion of these two areas outweighs landowners. The National Park Service’s obligations to Texas as specified in the any benefits that could be realized management authority in the wild and Pecos River Compact and pursuant to an through a designation of critical habitat scenic river designation currently Amended Decree entered by the U.S. and we have not proposed these two extends 0.25 mi from the ordinary high Supreme Court. For example, between areas for critical habitat designation. water mark. For the past two years, Big 1991 and 1999, $27.8 million was spent The Pecos River and lower Rio Bend National Park has been working on the Pecos River water rights Grande reaches were historically acquisition program. New Mexico faced occupied but are currently unoccupied on a management plan for the a shortfall in its Pecos River Compact by the silvery minnow (Hubbs 1940; ‘‘outstanding remarkable values of the delivery obligations for the year 2001 Trevino-Robinson 1959; Hubbs et al. Rio Grande wild and scenic river’’ (F. and the possibility of priority 1977; Bestgen and Platania 1991). The Deckert, Big Bend National Park, pers. administration, in which the State silvery minnow occupies less than five comm. 2002). The development of the Engineer would order junior water percent of its historic range and the river management plan has involved rights holders not to use water. Given likelihood of extinction from a stakeholders, including private the tight water situation and the catastrophic event is high because of its landowners and the State of Texas. Compact delivery obligations, we limited range (Hoagstrom and Brooks Throughout the stakeholder-based believe that the flexibility of section 2000, Service 1999). However, if critical planning process, the Park has built 10(j) would be especially appropriate in habitat were designated in the middle trust among diverse and competing the middle Pecos. Economic costs Pecos River or lower Rio Grande, the interests by encouraging open dialogue associated with endangered species likelihood of extinction of the species regarding various river management management and critical habitat from the occupied reach of the middle issues. If critical habitat were designated designation for the silvery minnow are Rio Grande would not decrease because in this river reach, the introduction of discussed in the draft economic critical habitat designation is not a additional Federal influence could analysis. There are a variety of current process to reestablish additional jeopardize the trust and spirit of and potential future costs associated populations within areas outside of the cooperation that has been established with the ongoing water management current known distribution. We believe over the last several years (F. Deckert, and water reallocation on the middle that the exclusion of the river reaches of pers. comm., 2002). The designation of Pecos River. The draft economic the middle Pecos River and the lower critical habitat would be expected to analysis and DEIS discuss and analyze Rio Grande will not lead to the adversely impact our, and possibly the these costs. We used the draft economic extinction of the species. analysis and DEIS to make our Park’s, working relationship with the Exclusions Under Section 3(5)(A) preliminary determinations on the State of Texas and private landowners, Definition and we believe that Federal regulation benefits of including or excluding areas through critical habitat designation from the proposed designation of Section 3(5) of the Act defines critical would be viewed as an unwarranted and critical habitat. Consequently, we invite habitat, in part, as areas within the geographical area occupied by the unwanted intrusion. Based on recent comments on the economic and other species ‘‘on which are found those conversations with the National Park relevant impacts of all of the areas we physical and biological features (I) Service, their plan and draft EIS are have determined are essential for the essential to the conservation of the expected to be completed in 2002, and conservation of the silvery minnow. In summary, we believe that the species and (II) which may require finalized in 2003. We do not want to benefits of excluding the middle Pecos special management considerations and impede the development of a river River and lower Rio Grande outweighs protection.’’ As noted above, special management plan, which will likely the benefits of their inclusion as critical management considerations or provide for the management of this river habitat. Including these areas may result protection is a term that originates in reach consistent with the recovery in some benefit through additional the definition of critical habitat. needs of the silvery minnow. We believe consultations with Federal agencies Additional special management is not this area has the greatest potential for whose activities may affect critical required if adequate management or repatriating the species within an area habitat. However, overall this benefit is protection is already in place. Adequate of its historical range and believe this minimal due to the presence of the special management considerations or river reach also has the greatest Pecos bluntnose shiner and its critical protection is provided by a legally potential for developing an habitat in the middle Pecos River and operative plan or agreement that experimental population under section the minimal number of estimated future addresses the maintenance and 10(j) of the Act. In order for an consultations that are expected to occur improvement of the primary constituent experimental population to be within Big Bend National Park and the elements important to the species and successful, the support of local wild and scenic river designation that manages for the long-term conservation stakeholders—including the National extends beyond the Park’s boundaries. of the species. We use the following Park Service, the State of Texas, private On the other hand, an exclusion will three criteria to determine if a plan landowners, and other potentially greatly benefit the overall recovery of provides adequate special management affected entities—is crucial. In light of the minnow by allowing us to move or protection: (1) A current plan or this and the fact that the river forward using the flexibility and greater agreement must be complete and management plan will soon be public acceptance of section 10(j) of the provide sufficient conservation benefit completed, we find that there would be Act to reestablish minnows in other to the species; (2) the plan or agreement significant benefits to excluding this portions of its historical range where it must provide assurances that the

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39214 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

conservation management strategies will through required consultation under received on the previous proposed and be implemented; and (3) the plan or section 7 of the Act with regard to final rule, draft economic analysis, and agreement must provide assurances that actions carried out, funded, or environmental assessment. This the conservation management strategies authorized by a Federal agency. Where proposed rule constitutes our best will be effective (i.e., provide for no such Federal agency action is assessment of areas needed for the periodic monitoring and revisions as involved, critical habitat designation conservation of the silvery minnow. We necessary). If all of these criteria are has no bearing on private landowners, must make this determination based on met, then the area covered under the State, or Tribal activities. Aside from the the information available at this time, plan would no longer meet the added protection provided under and we are not allowed to delay our definition of critical habitat. If any section 7, the Act does not provide other decision until all information about the management plans are submitted during forms of protection to lands designated species and its habitat are known, nor the open comment period, we will as critical habitat. are we required to conduct further consider whether these plans provide Designating critical habitat does not, surveys or scientific studies on our own. adequate special management or in itself, lead to recovery of a listed Southwest Center for Biological protection for the species. We will use species. Designation does not create a Diversity v. Babbitt, 215 F.3d 58 (D.C. this information in determining which, management plan, establish numerical Cir. 2000). We have emphasized areas if any, river reaches or portions of river population goals, prescribe specific known to be occupied by the silvery reaches within the middle Rio Grande management actions (inside or outside minnow and described other stream should not be included in the final of critical habitat), or directly affect reaches that were identified in the designation of critical habitat for the areas not designated as critical habitat. Recovery Plan and we believe are silvery minnow. Specific management recommendations important for possible repatriation and for areas designated as critical habitat recovery (Service 1999). Proposed Critical Habitat are most appropriately addressed in Critical habitat is defined in section recovery, conservation, and Primary Constituent Elements 3(5)(A) of the Act as—(i) the specific management plans, and through section In accordance with section 3(5)(A)(i) areas within the geographic area 7 consultations and section 10 permits. of the Act and regulations at 50 CFR occupied by a species, at the time it is We recognize that designation of critical 424.12, in determining which areas to listed in accordance with the Act, on habitat may not include all of the propose as critical habitat, we are which are found those physical or habitat areas that may eventually be required to base critical habitat biological features (I) essential to the determined to be necessary for the designations on the best scientific and conservation of the species and (II) that recovery of the species. For these commercial data available and to may require special management reasons, critical habitat designations do consider those physical and biological considerations or protection; and (ii) not signal that habitat outside the features (primary constituent elements) specific areas outside the geographic designation is unimportant or may not that are essential to the conservation of area occupied by a species at the time be required for recovery. the species and, within areas currently it is listed, upon a determination that Areas outside the critical habitat occupied by the species, that may such areas are essential for the designation will continue to be subject require special management conservation of the species. to conservation actions that may be considerations or protection. These ‘‘Conservation,’’ as defined by the Act, implemented under section 7(a)(1), the include, but are not limited to: space for means the use of all methods and regulatory protections afforded by the individual and population growth, and procedures that are necessary to bring section 7(a)(2) jeopardy standard, and for normal behavior; food, water, or an endangered or a threatened species to the section 9 take prohibition. Federally other nutritional or physiological the point at which listing under the Act funded or assisted projects affecting requirements; cover or shelter; sites for is no longer necessary. listed species outside their designated breeding, reproduction, or rearing of Section 4(b)(2) of the Act requires that critical habitat areas may still result in offspring; and habitats that are protected we base critical habitat designation on jeopardy findings in some cases. from disturbance or are representative of the best scientific and commercial data Similarly, critical habitat designations the historical geographical and available, taking into consideration the made on the basis of the best available ecological distributions of a species. economic impact, and any other information at the time of designation Diverse habitats are used by the relevant impact, of specifying any will not control the direction and various life-history stages of the silvery particular area as critical habitat. We substance of future recovery plans, minnow. The following discussion may exclude areas from critical habitat habitat conservation plans under section summarizes the biological requirements designation if we determine that the 10 of the Act, or other species of the silvery minnow relevant to benefits of exclusion outweigh the conservation planning efforts if new identifying the primary constituent benefits of including the areas as critical information available to these planning elements of its critical habitat. habitat, provided the exclusion will not efforts calls for a different outcome. The silvery minnow historically result in the extinction of the species. inhabited the portions of the wide, Designation of critical habitat helps Methods shallow rivers and larger streams of the focus conservation activities by In determining areas that are essential Rio Grande basin, predominantly the identifying areas that are essential to the to conserve the silvery minnow, we Rio Grande and the Pecos River (Bestgen conservation of the species and alerting used the best scientific and commercial and Platania 1991). Adults were the public and land management data available. This included data from common in shallow and braided runs agencies to the importance of an area to research and survey observations over sand substrate, and almost never conservation. Within areas currently published in peer-reviewed articles, occurred in habitats with bottoms of occupied by the species, critical habitat recovery criteria outlined in the gravel or cobble, while young-of-year also identifies areas that may require Recovery Plan (Service 1999), data fish (less than 1 year old) occupy special management or protection. collected from reports submitted by shallow, low-velocity backwaters with Critical habitat receives protection from biologists holding section 10(a)(1)(A) sand-silt substrates (Dudley and destruction or adverse modification recovery permits, and comments Platania 1997; Platania and Dudley

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39215

1997; Platania 1991; Remshardt et al. quickly swelled to 3 mm (0.12 in). silvery minnows) is believed to have 2001). Young-of-year silvery minnows Recently hatched larval fish are about moved farther downstream over the last are infrequently found at the same time 3.7 mm (0.15 in) in standard length and several years (Dudley and Platania 2001; in the same habitat as adults. Stream grow about 0.15 mm (0.005 in) in size 2002). For example, in 1997, it was reaches dominated by straight, narrow, per day during the larval stages. Eggs estimated that 70 percent of the silvery incised (deep) channels with rapid and larvae remain in the drift for 3 to minnow population was found in the flows are not typically occupied by the 5 days, and may be transported from reach below San Acacia Diversion Dam silvery minnow (Bestgen and Platania 216 to 359 km (134 to 223 mi) (Dudley and Platania 1997). Moreover, 1991). downstream depending on river flows during surveys in 1999, over 95 percent The habitats most often occupied by and habitat conditions (e.g., debris piles, of the silvery minnows captured silvery minnow were characterized by low velocity backwaters, etc.) (Platania occurred downstream of San Acacia low (<20 cm) to moderate depths (31 to and Altenbach 1998). About three days Diversion Dam (Dudley and Platania 40 cm), little (<10 cm/s) to moderate (11 after hatching, the larvae begin moving 1999a, Smith and Jackson 2000). to 30 cm/s) water velocity, and silt and to low velocity habitats where food Probable reasons for this distribution sand substrata (Dudley and Platania (mainly phytoplankton and include: (1) The spawning of buoyant 1997; Remshardt et al. 2001). It is zooplankton) is abundant and predators eggs during the spring and early believed that silvery minnow select are scarce. Because eggs and larvae can summer high flows, resulting in debris piles, pools, and backwaters, as be swept downstream, where downstream transport of eggs and larval habitat with main channel runs recruitment (individuals added to the fish; (2) diversion dams that restrict or generally being avoided (Dudley and breeding population) of fish may be preclude the movement of fish into Platania 1997). poor in the current degraded condition upstream reaches; and (3) reduction in The silvery minnow is believed to be of the middle Rio Grande (e.g., the amount of available habitat due to a generalized forager, feeding upon channelization, banks stabilization, the current degraded condition of some items suspended in the water column levee construction, disruption of natural areas within the middle Rio Grande and items lying on the substrate (e.g., processes throughout the floodplain, (e.g., channelization, streambed plankton, algae, diatoms) (Sublette et al. etc.), adequate stream length appears to degradation, reduction in off-channel 1990; Dudley and Platania 1997; Service be an important determinant of habitat, and the general narrowing and 1999). The silvery minnow’s elongated reproductive success. incising of the stream channel) (Platania and coiled gastrointestinal tract suggests 1998; Lagassee 1981; BOR 2001). that detritus (partially decomposed Platania (1995) indicated that the Most Great Plains streams are highly plant or animal matter), including sand downstream transport of eggs and larvae variable environments. Fish in these and silt, is scraped from the river of the silvery minnow over long systems (e.g., the Rio Grande) are bottom (Sublette et al. 1990). Other distances may have been, historically, subjected to extremes in water species of Hybognathus have similar beneficial to the survival of their temperatures, flow regimes, and overall food habits, consuming rich organic populations. This behavior could have water quality conditions (e.g., quantity ooze and detritus found in silt or mud promoted recolonization of reaches of dissolved oxygen). Native fish in substrates (Pflieger 1997). impacted during periods of natural these streams often exhibit life history The silvery minnow is a pelagic drought (Platania 1995). Alternatively, strategies and microhabitat preferences spawner, with each female capable of in a natural functioning river system that enabled them to cope with these producing an average of 3,000 semi- (e.g., a natural, unregulated flow natural conditions. For example, buoyant, non-adhesive eggs during a regime), a variety of low-velocity refugia Matthews and Maness (1979) reported spawning event (Platania 1995; Platania (e.g., oxbows, backwaters, etc.) would that the synergistic (combined) effects of and Altenbach 1998). The collection of have been available for silvery minnow high temperature, low oxygen, and other eggs in the middle of May, late May, and lengthy downstream drift of eggs stressors probably limit fishes in early June, and late June suggest a and larvae may not have been common streams of the Great Plains. contracted spawning period in response (J. Brooks, U.S. Fish and Wildlife The silvery minnow evolved in a to a spring runoff or spike (increase in Service pers. comm., 2001). Currently, highly variable ecosystem, and is likely flow that occurs when winter snows the release of floating silvery minnow more tolerant of elevated temperatures melt) (Service 1999; BOR 2001a). eggs may replenish downstream and low dissolved oxygen However, the peak of egg production reaches, but the presence of the concentrations for short periods than appears to occur in mid-May (Smith diversion dams (Angostura, Isleta, and other non-native species. Although little 1998, 1999). If the spring spike occurs San Acacia Diversion Dams) prevents is known about the upper tolerance at the wrong time or is reduced, then recolonization of upstream habitats limits of the silvery minnow, when silvery minnow reproduction could be (Platania 1995). As reaches are depleted water quality conditions degrade, stress impacted. It is unknown if the silvery upstream, and diversion structures increases, and fish generally die (e.g., minnow spawns multiple times during prevent upstream movements, see Matthews and Maness 1979; Ostrand the summer, although this behavior has population decline of the species within and Wilde 2001). Generally, it is been documented in other species of stream reaches may occur through loss believed that during periods of low flow Hybognathus in other drainages of connectivity (i.e., preventing or no flow, Great Plains fishes seek (Lehtinen and Layzer 1988, Taylor and upstream movement of fish). Silvery refugia in large isolated pools, Miller 1990). minnow, eggs, and larvae are also backwater areas, or adjoining tributaries Platania (1995, 2000) found that early transported downstream to Elephant (Deacon and Minckley 1974; Matthews development and hatching of eggs is Butte Reservoir, where it is believed that and Maness 1979). Fish in these refugia correlated with water temperature. survival of these fish is highly unlikely strive to survive until suitable flow Silvery minnow eggs raised in 30°C because of poor habitat, and, even more conditions return and these areas water hatched in about 24 hours, while important, because of predation from reconnect with the main river channel. eggs reared in 20°C water hatched reservoir fishes (Service 2001b). The This pattern of retraction and within 50 hours. Eggs were 1.6 mm population center (i.e., the stream reach recolonization of occupied areas in (0.06 in) in size upon fertilization, but that contains the majority of adult response to flow and other habitat

VerDate May<23>2002 18:54 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39216 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

conditions is typical of fishes that cause silvery minnow mortality due to providing target flows, it may be endure harsh conditions of Great Plains poor water quality (low dissolved possible to intensively manage and rivers and streams (Deacon and oxygen, high water temperatures) and closely monitor the water in middle Rio Minckley 1974; Matthews and Maness predation from other fish and predators Grande and Pecos River. For example, 1979). (e.g., birds, raccoons etc.). Portions of this was the case during the 2001 Localized reductions in abundance the middle Rio Grande were dewatered irrigation season on the middle Rio are not typically a concern where in 1996 to 2001 (Service 2001b; J. Smith, Grande in which the continued sufficient numbers of the species pers. comm. 2001). In 1996, about 58 km existence of the silvery minnow was not survive, because stream reaches can be (34 mi) out of the 90 km (56 mi) from jeopardized (i.e., the implementation of recolonized when conditions improve. the San Acacia Diversion Dam to the elements of the reasonable and However, habitat conditions such as Elephant Butte Reservoir was prudent alternative) (Service 2001b). oxbows, backwaters, or other refugia dewatered. In 1997, water flows ceased The primary constituent elements that were historically present on the Rio at the south boundary of the Bosque del identified below provide a qualitative Grande and Pecos River and were a Apache National Wildlife Refuge, description of those physical and component of natural population resulting in dewatering 22.5 km (14 mi) biological features necessary to ensure fluctuations (e.g., extirpation and of silvery minnow habitat. In 1998, the the conservation of the silvery minnow. recolonization) have been dramatically Rio Grande was discontinuous within We did not identify quantitative altered or lost (e.g., Bestgen and Platania the Bosque del Apache National estimates of specific minimum 1991; Hoagstrom 2000; BOR 2001a, Wildlife Refuge, dewatering about 32 thresholds (e.g., minimum flows or 2001b). Over the past several decades, km (20 mi) of habitat. In 1999, flows depths), because we believe these the extent of areas in the Rio Grande ceased about one mile upstream of the estimates vary seasonally and annually, and Pecos River that periodically lost Bosque del Apache National Wildlife and by stream reach within the flow has increased due to human Refuge northern boundary, dewatering proposed critical habitat unit. Thus, we alterations of the watersheds and stream about 39 km (24 mi) of habitat. A similar believe these thresholds are channels and diversion of the event occurred in 2000, only not to the appropriately enumerated through streamflows (Service 1994). extent of the 1999 drying. In 2001, section 7 consultations (e.g., see Service Variation in stream flow (i.e., flow approximately 14 combined km (9 mi) 2001b), which can be more easily regime) strongly affects some stream fish of river dried, within the Bosque del changed if new information reveals (Schlosser 1985). For example, juvenile Apache National Wildlife Refuge and effects to critical habitat in a manner or recruitment (that portion of the young- south of San Marcial (Smith 2001). extent not previously considered (see 50 of-the-year fish that survive to adults Because of recurring prolonged periods CFR 402.16(b)). We acknowledge that if and reproduce) of some stream fish is of low or no flow through multiple thresholds were established as part of a highly influenced by stable flow regimes years, the status of the silvery minnow critical habitat designation, they could (Schlosser 1985; Hoagstrom 2000). has declined (Dudley and Platania 2001; be revised if new data became available When sufficient flows persist and other 2002). (50 CFR 424.12(g)); however, the habitat needs are met, then recruitment We believe it is possible to manage process of new rulemaking can take into the population is high. Silvery the middle Rio Grande and Pecos River years (see 50 CFR 424.17), as opposed minnows and other Great Plains or to avoid prolonged periods of low or no to months to reinitiate and complete a desert fishes cannot currently survive flow and provide sufficient flowing formal consultation (see 50 CFR 402.14). when conditions lead to prolonged water during critical time periods, such Formal consultation provides an up-to- periods of low or no flow of long as from May to October (Service 2001a, date biological status of the species or stretches of river (Hubbs 1974; 2001b). For example, in a recent critical habitat (i.e., environmental Hoagstrom 2000). Fish mortality likely biological opinion we issued on the baseline) which is used to evaluate a begins from degraded water quality (e.g., effects of actions associated with the proposed action during formal increasing temperatures, p.H., and U.S. Bureau of Reclamation’s, U.S. consultations. Consequently, we believe decreasing dissolved oxygen) and loss of Army Corps of Engineers’’, and Non- it is more prudent to pursue the refuge habitat prior to prolonged periods Federal Entities’ discretionary actions establishment of specific thresholds of low or no flow (J. Brooks, pers. comm related to water management on the through formal consultation. 2001; Ostrand and Wilde 2001). For middle Rio Grande, NM, provided, This proposed rule does not explicitly instance, a reduction of stream flow among other elements of a reasonable state what might be included as special reduces the amount of water available to and prudent alternative: management for a particular river reach protect against temperature oscillations, within the middle Rio Grande. We and high temperatures from reduced river flow from Cochiti Dam to Elephant anticipate that special management Butte Reservoir from October 31 to April 30 water flow frequently kill fish before of each year, with a target flow of 50 cfs at actions will likely be developed as part prolonged periods of no flow occurs the San Marcial Floodway gage. Flows will of the section 7 consultation process. (Hubbs 1990). not drop below 40 cfs. From May 1 to June Special management might entail a suite It is also possible that fish may 15 of each year, provide a minimum flow of of actions including: re-establishment of subsequently die from living under sub- 50 cfs at the San Marcial Floodway gage. hydrologic connectivity within the optimal conditions or that their From June 16 to July 1 of each year, ramp floodplain, widening the river channel, spawning activities may be significantly down the flow to achieve 50 cfs over San or placement of woody debris or disrupted (Hubbs 1974; Platania 1993b). Acacia Diversion Dam (Service 2001b). boulders within the river channel (J. Such conditions are in part responsible A similar biological opinion on the Smith, pers. comm., 2001). for the current, precarious status of the effects on the Pecos bluntnose shiner of It is important to note that some areas silvery minnow. For example, actions associated with the U.S. Bureau within the middle Rio Grande proposed management of water releases from of Reclamation’s discretionary actions critical habitat unit have the potential reservoirs, evaporation, diversion dams, related to water management on the for periods of low or no flow under and irrigation water deliveries have Pecos River, in New Mexico, provided certain conditions (e.g., see discussion resulted in dewatered habitat—causing for target flows of 35 cfs at the Acme above on middle Rio Grande). We direct mortality and isolated pools that Gage (Service 2001a). We believe that by recognize that the proposed critical

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39217

habitat designation specifically includes analysis will likely evaluate whether the debris piles, pools, or backwaters, or some areas that have lost flow adverse effect of prolonged periods of other refuge habitat (e.g., connected periodically (Middle Rio Grande low or no flow is of sufficient oxbows or braided channels)) within Conservancy District 1999; Scurlock and magnitude (e.g., length of river) and unimpounded stretches of flowing water Johnson 2001; D. Coleman, U.S. Fish duration that it would appreciably of sufficient length (i.e., river miles) that and Wildlife Service, pers. comm., diminish the value of the critical habitat provide a variation of habitats with a 2001). It is difficult to describe the unit for the survival and recovery of the wide range of depth and velocities; existing conditions for the river reach silvery minnow. For example, the effect 3. Substrates of predominantly sand below San Acacia Diversion Dam on the of prolonged periods of low or no flow or silt; and middle Rio Grande. It is our belief that on the habitat quality (e.g., depth of 4. Water of sufficient quality to this stretch of river is likely to pools, water temperature, pool size, etc.) maintain natural, daily, and seasonally experience periods of low or no flow and the extent of fish mortality is variable water temperatures in the ° under certain conditions. However, it is related to the duration of the event approximate range of greater than 1 C ° ° ° important to note that we are not able (Bestgen and Platania 1991). All of these (35 F) and less than 30 C (85 F) and to predict with certainty which areas factors will be analyzed under section 7 reduce degraded water quality within the middle Rio Grande will of the Act, if they are part of an action conditions (decreased dissolved oxygen, experience these conditions. We proposed by a Federal agency. increased pH, etc.). nevertheless believe this area is Additionally, any Federal agency whose We determined that these proposed essential to the conservation of the actions influence water quantity or primary constituent elements of critical silvery minnow because it likely serves quality in a way that may affect habitat provide for the physiological, as connecting corridors for fish proposed critical habitat or the silvery behavioral, and ecological requirements movements between areas of sufficient minnow must enter into section 7 of the silvery minnow. The first primary flowing water (e.g., see Deacon and consultation with us. Still, these constituent element provides water of Minckley 1974; Eberle et al. 1993). consultations cannot result in biological sufficient flows to reduce the formation of isolated pools. We conclude this Additionally, we believe this area is opinions that require actions that are element is essential to the conservation essential for the natural channel outside an action agency’s legal of the silvery minnow because the geomorphology (the topography of the authority and jurisdiction (50 CFR species cannot withstand permanent river channel) to maintain or re-create 402.02). drying (loss of surface flow) of long habitat, such as pools, by removing or We determined the primary stretches of river. Water is a necessary redistributing sediment during high constituent elements of critical habitat component for all silvery minnow life- flow events (e.g., see Simpson et al. for the silvery minnow based on studies history stages and provides for 1982; Middle Rio Grande Biological on their habitat and population biology hydrologic connectivity to facilitate fish Interagency Team 1993). Therefore, we including, but not limited to: Bestgen movement. The second primary believe that the inclusion of an area that and Platania 1991; Service 1999; Dudley and Platania 1997; 2001; 2002; Platania constituent element provides habitat has the potential for periods of low or necessary for development and hatching no flow as proposed critical habitat will and Altenbach 1998; Platania 1991, 2000; Service 2001; Smith 1998, 1999; of eggs and the survival of the silvery ensure the long-term survival and minnow from larvae to adult. Low recovery of silvery minnow. As such, Hoagstrom 2000; Remshardt et al. 2001. These primary constituent elements velocity habitat provides food, shelter, we believe that the primary constituent include: and sites for reproduction, and are elements as described in this proposed 1. A hydrologic regime that provides essential for the survival and rule provide for a flow regime that sufficient flowing water with low to reproduction of silvery minnow. The allows for short periods of low or no moderate currents capable of forming third primary constituent element flow. However, it is difficult to describe and maintaining a diversity of aquatic provides appropriate silt and sand the existing conditions of this area (see habitats, such as, but not limited to: substrates (Dudley and Platania 1997; above) and to define the primary backwaters (a body of water connected Remshardt et al. 2001), which we and constituent elements to reflect such a to the main channel, but with no other scientists conclude are important flow regime. Thus, we are soliciting appreciable flow), shallow side in creating and maintaining appropriate comments or information related to the channels, pools (that portion of the river habitat and life requisites (e.g., food and proposed designation of critical habitat that is deep with relatively little cover). The final primary constituent in this area that may experience periods velocity compared to the rest of the element provides protection from of no or low flow, and in particular the channel), eddies (a pool with water degraded water quality conditions. We primary constituent elements and how moving opposite to that in the river conclude that when water quality they relate to the existing conditions channel), and runs (flowing water in the conditions degrade (e.g., increasing (e.g., flow regime). river channel without obstructions) of water temperatures, pH, decreasing If this proposed rule is finalized, varying depth and velocity which are dissolved oxygen, etc.), silvery minnows Federal agencies with discretion over necessary for each of the particular will likely be injured or die. actions related to water management silvery minnow life-history stages; e.g., that affect critical habitat will be the silvery minnow requires habitat Criteria for Identifying Proposed required to consider critical habitat and with sufficient flows from early spring Critical Habitat possibly enter into consultation under (March) to early summer (June) to The primary objective in designating section 7 of the Act. These consultations trigger spawning, flows in the summer critical habitat is to identify areas that will evaluate whether any Federal (June) and fall (October) that do not are considered essential for the discretionary actions destroy or increase prolonged periods of low or no conservation of the species, and to adversely modify critical habitat to the flow; and a relatively constant winter highlight specific areas where extent that the action appreciably flow (November to February), in management considerations should be diminishes the value of the critical appropriate seasons; given highest priority. In proposing habitat for the survival and recovery of 2. The presence of low velocity critical habitat for the silvery minnow, the species. The adverse modification habitat (including eddies created by we have reviewed the overall approach

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39218 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

to the conservation of the silvery was subsequently set aside by court listed (59 FR 36988), and through the minnow undertaken by the local, State, order. The differences also reflect the summer of 2000, its status declined Tribal, and Federal agencies operating best scientific and commercial (Dudley and Platania 2001). Although within the species’ historical range information analyzed in the context of the 2001 population levels of silvery since the species’ listing in 1994, and the final Recovery Plan (see ‘‘Recovery minnow in the middle Rio Grande were the previous proposed (58 FR 11821) Plan’’ discussion above) and our higher than those recorded in 2000, the and final critical habitat rules (64 FR conservation strategy for this species. known silvery minnow population 36274). We have also outlined our Although we could have proposed two within the middle Rio Grande has conservation strategy to eventually additional critical habitat units to become fragmented and isolated and is recover the species (see ‘‘Exclusions respond to the Recovery Plan’s vulnerable to those natural or manmade Under Section 4(b)(2) of the Act’’ recommendation that additional areas factors that might further reduce section above). are required to achieve recovery population size (Dudley and Platania We also considered the features and (Service 1999) (see ‘‘Recovery Plan’’ 2001; 2002). Because there have been steps necessary for recovery and habitat discussion above), we believe that the low spring peak flows in the Rio Grande requirements described in the Recovery inclusion of these areas could hinder in some recent years (e.g., such as in Plan (Service 1999), and information our future conservation strategy (see 2000), and a related decrease in provided by our Fishery Resources ‘‘Exclusions Under Section 4(b)(2) of the spawning success of the silvery Office in New Mexico, and other Act’’ section above) and actually impede minnow, the population size of silvery biologists, as well as utilized our own recovery of the silvery minnow. minnow declined through the summer expertise. We also reviewed the Recovery requires protection and of 2000, but catch rates in June 2001 biological opinion issued June 29, 2001, enhancement of existing populations were higher than those observed in 2000 to the BOR and U.S. Army Corps of and reestablishment of populations in (Dudley and Platania 2001; 2002). We Engineers (Corps) for impacts to the suitable areas of historical range. The conclude the species’ vulnerability to silvery minnow from water operations Recovery Plan identifies, ‘‘the necessity catastrophic events, such as prolonged in the middle Rio Grande (Service of reestablishing silvery minnow in periods of low or no flow, have 2001b), the biological opinion issued to portions of its historical range outside of increased since the species was listed as the BOR for discretionary actions the middle Rio Grande in New Mexico.’’ endangered in 1994 (59 FR 36988). related to water management on the The Recovery Plan identified potential It is widely recognized that major Pecos River, in New Mexico (Service areas for reestablishment of silvery efforts to repatriate the silvery minnow 2001a), and reviewed available minnow in certain stream reaches of the to large reaches of its historical habitat information that pertains to the habitat Rio Grande and Pecos River. The in the Rio Grande and Pecos River will requirements of this species, including Recovery Plan also recommended a not likely occur without either natural material received during the initial thorough analysis of the reestablishment or induced changes in the river, public comment period on the proposed potential of specific river reaches within including changes affecting the existing listing and designation, the information the historical range of the silvery fish community, habitat restoration, and received following the provision of the minnow. coordinated water management (e.g., see draft economic analysis to the public on Therefore, we have determined that Service 1999). Nevertheless, we April 26, 1996, the comments and one of the most important goals to be conclude that conservation and recovery information provided during the 30-day achieved toward the conservation of this of the silvery minnow requires habitat comment period opened on April 7, species is the establishment of secure, conditions that will facilitate population 1999, including the public hearing, and self-reproducing populations in areas expansion or repatriation. As an the comments and information received outside of the middle Rio Grande, but example, we are currently involved in during the 60-day comment period within the species’ historical range developing several efforts to assist in the opened on April 5, 2001, for the notice (Service 1999). Thus, we have outlined conservation and recovery of the silvery of intent to prepare an EIS and public our conservation strategy for the silvery minnow and other imperiled species scoping meetings held on April 17, 23, minnow (see ‘‘Exclusions Under Section (e.g., Federal and non-Federal efforts to 24, and 27, 2001 (April 7, 1999; 64 FR 4(b)(2) of the Act’’ section above). create a middle Rio Grande Endangered 16890). Because the species occupies less than Species Act Collaborative Program). Since the listing of the silvery five percent of its historical range and Any future habitat restoration efforts minnow in 1994 (59 FR 36988), no the likelihood of extinction from a conducted by us or other Federal progress has been made toward catastrophic event is greatly increased agencies within the species’ historical reestablishing this species within (Hoagstrom and Brooks 2000, Service habitat will be analyzed through NEPA unoccupied areas (e.g., stream reaches 1999), we believe that additional and will be conducted in accordance on the middle Pecos, lower Rio Grande, populations should be established with the pertinent sections of the Act etc.). Because the silvery minnow has within certain unoccupied reaches (i.e., and Federal rulemaking procedures. been extirpated from these areas, areas outside of the current known Habitat alteration and loss, and non- Federal agencies have not consulted distribution). Nevertheless, any future native competition, predation, and other with us on how their discretionary recovery efforts, including repatriation effects are inextricably intertwined and actions may affect the silvery minnow. of the species to areas of its historical have contributed substantially to the We conclude these areas (e.g., stream range must be conducted in accordance endangered status of the silvery minnow reaches on the middle Pecos and the with NEPA and the Act. (Service 1999; Dudley and Platania lower Rio Grande) are essential to the The recent trend in the status of the 2001). Furthermore, habitat alteration conservation of the minnow, but we silvery minnow has been characterized has been a significant contributor to have not proposed them for designation by dramatic declines in numbers and non-native fish invasion, competition, of critical habitat (see discussion above). range despite the fact that this species and adverse effects. In turn, non-native For these reasons, this proposed evolved in rapidly fluctuating, harsh species have likely contributed critical habitat designation differs from environments. Moreover, none of the significantly to the inability of native the final critical habitat designation we threats affecting the silvery minnow fish, such as the silvery minnow, to made in 1999 (64 FR 36274), and which have been eliminated since the fish was persist in altered environments (Hubbs

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39219

1990; Propst 1999). However, non- current protections in place for the this area from the designation of critical native fish species may have the Pecos bluntnose shiner in the river habitat for the silvery minnow. potential to be removed or reduced to reach from Sumner to Brantley Lateral Extent of Critical Habitat acceptable levels using a variety of Reservoirs on the Pecos river; control or management techniques. For consequently, we believe that the The proposed critical habitat example, the New Mexico State Game designation of critical habitat would designation defines the lateral extent as Commission recently passed a provide little additional benefit for the those areas bounded by existing levees regulation limiting the species that can silvery minnow above the current or in areas without levees the lateral be used as baitfish in the Pecos River jeopardy and adverse modifications extent of critical habitat is proposed to (New Mexico Department of Game and standards for the Pecos bluntnose shiner be defined as 91.4 meters (300 feet) of riparian zone adjacent to each side of Fish 2000). As part of this proposed rule (see ‘‘Exclusions Under Section 4(b)(2) the middle Rio Grande. Thus, the lateral (see ‘‘Public Comments Solicited’’ of the Act’’ section above). section below) we are seeking further extent of proposed critical habitat does information regarding the role of The Pecos bluntnose shiner inhabits not include areas adjacent to the unoccupied stream reaches within the main-channel habitats with sandy existing levees but within the 300-foot historical range of the silvery minnow, substrates, low velocity flows, and at lateral width outside the existing levees including those reaches with non-native depths from 17 to 41 cm (7 to 16 in) (i.e., these areas are not proposed as fish species (e.g., plains minnow) (Hatch et al. 1985). Adult Pecos critical habitat, even though they may present or those reaches that have the bluntnose shiners use main-channel be within the 300-foot lateral width). If potential for low or no flow events. We habitats, with larger individuals found this proposed rule is finalized, critical are particularly interested in assistance mainly in more rapidly flowing water habitat will not remove existing levees. on how to describe the existing habitat (greater than 40 cm/sec, 1.25 ft/sec), but We recognize that these areas can be (e.g., flow) conditions for the river reach preferences for particular depths were important for the overall health of river below San Acacia Diversion Dam on the not found (Hoagstrom et al. 1995). ecosystems, but these areas have almost middle Rio Grande. Young of the year use the upstream no potential for containing the primary It is important to note that the mere reaches between Sumner and Brantley constituent elements because they are presence of non-native aquatic species Reservoirs, which provide shallow, low protected from the levees and are rarely does not eliminate an area from being velocity habitat. These reaches also inundated by water. Therefore, they are considered for designation as critical maintain such habitat at high (bankfull) not included in the proposed habitat. For example, the relationship discharge, providing refugia from swift, designation because we conclude they between the introduction of the plains deep water. Pecos bluntnose shiner and are not essential to the conservation of minnow and extirpation of the silvery related mainstream cyprinids (e.g., the silvery minnow. Nevertheless, these minnow is unclear (see discussion silvery minnow) are adapted to exploit and other areas outside the critical above). Although the Recovery Plan features of Great Plains rivers habitat designation will continue to be suggested that the plains minnow would (Hoagstrom 2000). These fish species subject to conservation actions that may be the primary limiting factor belong to the same guild of broadcast be implemented under section 7(a)(1) of precluding successful reestablishment spawners with semi-buoyant eggs and the Act and to the regulatory protections of the silvery minnow to the Pecos River also spawn during high flow events in afforded by the section 7(a)(2) of the Act jeopardy standard and the section 9 of (Service 1999), we have little data from the Pecos River, with eggs and larvae which to draw firm conclusions for the the Act take prohibition. being distributed downstream to For each stream reach within the extirpation of the silvery minnow from colonize new areas (Bestgen et al. 1989). the Pecos River. We recognize that any middle Rio Grande, the up- and The habitat features used by the Pecos downstream-boundaries are described efforts to reestablish the silvery minnow bluntnose shiner are largely affected by to unoccupied stream reaches must fully below. Proposed critical habitat ongoing Sumner Dam operations (e.g., analyze and consider a variety of habitat includes the stream channels within the block releases). Nevertheless, any flow management techniques, including the identified stream reaches and areas regime operations in this reach that control or management of non-native within these reaches potentially benefit the Pecos bluntnose shiner, fish. Consequently, we invite comments inundated during high flow events. would also benefit the silvery minnow. or information relating to the status of Critical habitat includes the area of the plains minnow in the Pecos River We believe they could both occupy the bankfull width plus 300 feet on either and this area not being proposed as same river reach in the future with little side of the banks. The bankfull width is critical habitat. We are especially to no interspecific competition, in part, the width of the stream or river at interested in observations of related because these species historically co- bankfull discharge, i.e., the flow at species of Hybognathus and any existed (Bestgen and Platania 1991), and which water begins to leave the channel behavioral or reproductive mechanisms microhabitat partitioning has been and move into the floodplain (Rosgen that might provide for ecological documented for related species of 1996). Bankfull discharge, while a separation in areas where two or more southwestern fish (Matthews and Hill function of the size of the stream, is a species of Hybognathus co-occur. 1980). Therefore, we believe that the fairly consistent feature related to the Portions of the Pecos River include primary constituent elements for the formation, maintenance, and designated critical habitat for the Pecos Pecos bluntnose shiner critical habitat dimensions of the stream channel bluntnose shiner (52 FR 5295). The (e.g., clean permanent water; a main (Rosgen 1996). This 300-foot width Pecos bluntnose shiner critical habitat river channel habitat with sandy defines the lateral extent of those areas includes a 103 km (64 mi) reach of the substrate; and a low velocity flow (52 we believe are essential to the species’ Pecos River extending from a point 16 FR 5295)) are compatible with our conservation. Although the silvery km (10 mi) south of Fort Sumner, NM conservation strategy for repatriating the minnow cannot be found in these areas downstream to the De Baca and Chaves silvery minnow. We invite comments or when they are dry, they likely provided County line and a 60 km (37 mi) reach information relating to the current backwater habitat and were sometimes from near Hagerman, NM, to near protections under the Act for the Pecos flooded (Middle Rio Grande Biological Artesia, NM (52 FR 5295). There are bluntnose shiner and our exclusion of Interagency Team 1993), suggesting

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39220 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

these areas may provide habitat during 300-foot lateral width of this proposed We do not believe that the entire high-water periods. As discussed in this designation of critical habitat. floodplain is essential to the section, we determined that the areas This proposed critical habitat conservation of the species, and we are within the 300-foot lateral width are designation takes into account the not proposing to designate the entire essential to the conservation of the naturally dynamic nature of riverine floodplain as critical habitat. However, silvery minnow. systems and recognizes that floodplains conservation of the river channel alone We determined the 300-foot lateral (including riparian areas) are an integral is not sufficient to ensure the survival extent for several reasons. First, the part of the stream ecosystem. For and recovery of the silvery minnow. For implementing regulations of the Act example, riparian areas are seasonally the reasons discussed above, we believe require that critical habitat be defined flooded habitats (i.e., wetlands) that are the riparian corridors adjacent to the by reference points and lines as found major contributors to a variety of vital river channel provide an important on standard topographic maps of the functions within the associated stream function for the protection and area (50 CFR 424.12). Although we channel (Federal Interagency Stream maintenance of the primary constituent considered using the 100-year Restoration Working Group 1998, elements and are essential to the floodplain, as defined by the Federal Brinson et al. 1981). They are conservation of the species. Emergency Management Agency responsible for energy and nutrient The lateral extent (width) of riparian (FEMA), we found that it was not cycling, filtering runoff, absorbing and corridors fluctuates considerably on the included on standard topographic maps, gradually releasing floodwaters, Rio Grande. The appropriate width for riparian protection has been the subject and the information was not readily recharging groundwater, maintaining of several studies (Castelle et al. 1994). available from FEMA or from the Corps streamflows, protecting stream banks Most Federal and State agencies for the areas we are proposing to from erosion, and providing shade and generally consider a zone 23 to 46 designate. We suspect this is related to cover for fish and other aquatic species. meters (m) (75.4 to 150.9 feet (ft)) wide the remoteness of various stream Healthy riparian areas help ensure water on each side of a stream to be adequate reaches. We could not find specific courses maintain the habitat to help improve or maintain local water aerial photos, maps, or geographic components essential to aquatic species quality (Natural Resource Conservation information systems coverages that (e.g., see U.S.D.A. Forest Service 1979; Service 1998, Moring et al. 1993, Lynch accurately delineated vegetation type Middle Rio Grande Biological Interagency Team 1993; Briggs 1996), et al. 1985), although lateral widths as along the proposed critical habitat unit. wide as 152 m (500 ft) have been including the silvery minnow. Habitat If this information were available, we recommended for achieving flood quality within the mainstem river could have refined the extent of the attenuation benefits (Corps 1999). In channels in the historical range of the lateral width, specific to various river most instances, however, these riparian silvery minnow is intrinsically related reaches. Therefore, we selected the 300- areas are primarily intended to reduce to the character of the floodplain and foot lateral extent, rather than some (i.e. protect) detrimental impacts to the the associated tributaries, side channels, other delineation, for three biological stream from sources outside the river and backwater habitats that contribute reasons: (1) The biological integrity and channel (e.g., agricultural runoff). to the key habitat features (e.g., natural dynamics of the river system are Generally, we believe a lateral distance substrate, water quality, and water maintained within this area (i.e., the of 91.4 m (300 ft) on each side of the floodplain and its riparian vegetation quantity) in the middle Rio Grande stream beyond the bankfull width to be provide space for natural flooding (Middle Rio Grande Biological appropriate for the protection of patterns and latitude for necessary Interagency Team 1993). Among other riparian and wetland habitat and the natural channel adjustments to maintain things, the floodplain provides space for natural processes involved in the appropriate channel morphology and natural flooding patterns and latitude maintenance and improvement of water geometry, store water for slow release to for necessary natural channel quality (e.g., see Middle Rio Grande maintain base flows, provide protected adjustments to maintain channel Biological Interagency Team 1993). We side channels and other protected areas morphology and geometry. We believe a believe this lateral width will help for larval and juvenile silvery minnow, relatively intact riparian area, along ensure the protection of one or more allow the river to meander within its with periodic flooding in a relatively primary constituent elements (e.g., main channel in response to large flow natural pattern, is important in water quality) of the critical habitat. events, and recreate the mosaic of maintaining the stream conditions Thus, within the area proposed for habitats necessary for the survival and necessary for long-term survival and critical habitat designation on the recovery of the silvery minnow); (2) recovery of the silvery minnow. middle Rio Grande, we conclude that conservation of the adjacent riparian Human activities that occur outside the 300-foot lateral width is essential to area also helps provide essential the river channel can have a the conservation of the species. nutrient recharge and protection from demonstrable effect on physical and We did not map critical habitat in sediment and pollutants, which biological features of aquatic habitats. sufficient detail to exclude all contributes to successful spawning and However, not all of the activities that developed areas and other lands recruitment of silvery minnows; and (3) occur within a floodplain will have an unlikely to contain primary constituent vegetated lateral zones are widely adverse impact on the silvery minnow elements essential for silvery minnow recognized as providing a variety of or its habitat. Thus, in determining the conservation. Some developed lands aquatic habitat functions and values lateral extent of critical habitat along within the 300-foot lateral extent are not (e.g., aquatic habitat for fish and other riverine systems, we must consider the considered critical habitat because they aquatic organisms, moderation of water definition of critical habitat under the either do not contain the primary temperature changes, and detritus for Act. That is, critical habitat must be constituent elements or they are not aquatic food webs) and help improve or determined to be essential to a species’ essential to the conservation of the maintain local water quality (65 FR conservation and, within areas currently silvery minnow. Lands located within 12897; Middle Rio Grande Biological occupied by the species, must be in the exterior boundaries of the proposed Interagency Team 1993). We invite need of special management critical habitat designation, but not comments or information relating to the considerations or protection. considered critical habitat include:

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39221

existing paved roads, bridges, parking provide for the physiological, the Falcon Dam to the Gulf of Mexico, lots, dikes, levees, diversion structures, behavioral, and ecological requirements Texas, (10) Pecos river from Santa Rosa railroad tracks, railroad trestles, water of the silvery minnow. The proposed Reservoir to Sumner Dam, Guadalupe diversion canals outside of natural critical habitat unit is within the middle County, New Mexico, (11) Sumner Dam stream channels, active gravel pits, Rio Grande from immediately to the Brantley Dam, NM; (12) Brantley cultivated agricultural land, and downstream of Cochiti Reservoir to the Dam, NM to the Red Bluff Dam, TX; and residential, commercial, and industrial Elephant Butte Reservoir Dam, (13) Red Bluff Dam to the confluence of developments. These developed areas including the tributary Jemez River from the Rio Grande, TX. Each of these do not contain any of the primary Jemez Canyon Reservoir to its reaches are analyzed below. constituent elements and do not provide confluence with the Rio Grande. 1. Upstream of Cochiti Reservoir to habitat or biological features essential to Although we determined that other the confluence of the Rio Chama and the conservation of the silvery minnow, areas are essential to the conservation of Rio Grande, Rio Arriba, Sante Fe, and and generally will not contribute to the the silvery minnow (i.e., the middle Sandoval Counties, NM. Currently, this species’ recovery. However, some Pecos River from immediately reach is dominated by cool water, which activities in these areas like activities in downstream of Sumner Dam to Brantley is not considered suitable for the silvery other areas not included within the Dam, NM; and the lower Rio Grande minnow (Platania and Altenbach 1998). designation (if Federally funded, from the upstream boundary of Big The majority of this reach is bounded by authorized, or carried out) may affect Bend National Park to Terrell/Val Verde canyons, with substrate dominated by the primary constituent elements of the County line, TX), these areas are not gravel, cobble, and boulder (Service proposed critical habitat and, therefore, proposed as critical habitat. A 1999). The flow regime is also highly may be affected by the critical habitat description of each stream reach within variable seasonally because of irrigation designation, as discussed later in this the silvery minnow’s historical range is and other agricultural needs, and proposed rule. provided below. We also provide our recreational and municipal uses. This river reach is highly manipulated by Reach-by-Reach Analysis reasons for determining whether each reach is essential to the conservation of releases from El Vado and Abiquiu We conducted a reach-by-reach the species and whether we are Reservoirs (J. Smith, pers. comm. 2001). analysis of the entire known historical proposing or not proposing critical Furthermore, silvery minnow range of the silvery minnow to evaluate habitat for each of the identified populations may have been historically and select stream reaches that require reaches. We conclude that we can low for some areas of this reach, special management or protection, or secure the long-term survival and supporting only small outlier are essential to the conservation of the recovery of this species with the populations (Bestgen and Platania species. As identified in the Recovery establishment of future experimental 1991). Currently, this reach is Plan (see ‘‘Recovery Plan’’ discussion populations under section 10(j) of the dominated by cool or cold water above), important factors we considered Act, along with the proposed critical species, which have almost completely in determining whether areas were habitat unit in the middle Rio Grande. replaced the native fish species (Service essential to the conservation of the 1999). For these reasons, we conclude species include presence of other The historical range of the species in that habitat for silvery minnow within members of the reproductive guild (e.g. the Rio Grande is from Espan˜ ola, NM, this stream reach is generally degraded pelagic spawners, species with to the Gulf of Mexico, and, in the Pecos and unsuitable, and is not essential to semibuoyant eggs, etc.), habitat River (a major tributary of the Rio the conservation of the silvery minnow. suitability (e.g., appropriate substrate), Grande) from Santa Rosa, NM, Therefore, this stream reach is not water quality, and presence of non- downstream to its confluence with the proposed as critical habitat. natives (competitors, predators, other Rio Grande (Pflieger 1980; Bestgen and 2. Middle Rio Grande from Cochiti species of Hybognathus, etc.). These Platania 1991). We separated the Reservoir downstream to the Elephant important factors were evaluated in historical range of the silvery minnow Butte Dam, including the Jemez River conjunction with the variable flow into 12 stream reaches that include: (1) immediately downstream of Jemez regime of each reach. Each of the stream Upstream of Cochiti Reservoir to the Canyon Reservoir to the confluence of reaches, to some extent, has a varying confluence of the Rio Chama and Rio the Rio Grande, Sandoval, Bernalillo, flow regime. However, the fact that a Grande, New Mexico; (2) Middle Rio Valencia, and Socorro Counties, NM. river reach may at times experience a Grande from Cochiti Reservoir The middle Rio Grande is currently prolonged period of low or no flow as downstream to the Elephant Butte Dam, occupied, and the status of the silvery a result of a varying flow regime does including the Jemez River immediately minnow within this segment is unstable not preclude the area from being downstream of Jemez Canyon Reservoir (Bestgen and Platania 1991; Dudley and considered essential to the conservation to the confluence of the Rio Grande; (3) Platania 1999; Platania and Dudley of the species and, further, being Downstream of Elephant Butte Dam to 2001; 2002). This area currently proposed as critical habitat. Based on the Caballo Dam, New Mexico; (4) contains the primary constituent our reach-by-reach analysis, we have downstream of Caballo Dam, New elements (described above) during all or determined which reaches are essential Mexico, to the American Dam, Texas; a part of the year and is considered for the conservation of the species. (5) downstream of American Reservoir, suitable habitat for the silvery minnow, We are proposing to designate the to the upstream boundary of Big Bend as shown by the presence of the silvery middle Rio Grande as a critical habitat National Park, Texas; (6) the upstream minnow within this reach. The river unit. This unit contains all of the boundary of Big Bend National Park to reaches in the proposed critical habitat primary constituent elements during the southern boundary of the wild and unit are degraded from lack of some or all of the year (see the scenic river designation at Terrell/Val floodplain connectivity, non-native ‘‘Regulation Promulgation’’ section of Verde County line, Texas; (7) the vegetation, stabilized banks (e.g., jetty this rule for exact descriptions of Terrell/Val Verde County line, Texas to jacks), streambed aggradation, and boundaries of the proposed critical the Amistad Dam, Texas; (8) decreasing channel width, increasing habitat unit). We conclude that the downstream of Amistad Dam to the depths, and increasing velocities (BOR proposed critical habitat unit can Falcon Dam, Texas; (9) downstream of 2001a; Service 2001b). Thus,

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39222 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

conservation of the silvery minnow this section of the Jemez River as critical primary constituent elements (described requires stabilizing populations within habitat for the silvery minnow. above) during all or a part of the year. the middle Rio Grande, including b. Cochiti Reservoir Dam to Angostura Therefore, this reach is proposed as special management considerations or Diversion Dam (Cochiti Reach)—34 km critical habitat. protections (e.g., habitat management (21 mile) of river immediately c. Angostura Diversion Dam to Isleta and/or restoration). downstream of Cochiti Reservoir to the Diversion Dam (Angostura Reach)—61 The middle Rio Grande is essential to Angostura Diversion Dam. This reach is km (38 mile) of river immediately the conservation of the silvery minnow somewhat braided and is dominated by downstream of the Angostura Diversion (see discussion below), and therefore we clear water releases from Cochiti Dam to the Isleta Diversion Dam. Silvery propose the following reaches as a Reservoir. Since Cochiti Reservoir was minnows and suitable habitat are still critical habitat unit. This proposed filled, the downstream substrate has present throughout this reach of the critical habitat unit does not include the changed from a course sand to a gravel river, although their abundance appears ephemeral or perennial irrigation canals substrate (Baird 2001). Silvery minnows to be low (Dudley and Platania 2001; and ditches, including the LFCC (i.e., were collected immediately downstream 2002). This reach is relatively wide 183 downstream of the southern boundary of Cochiti Dam in 1988 (Platania 1993). m (600 ft) and the substrate is mostly of Bosque del Apache National Wildlife Although the Cochiti reach has not been course sand to gravel (Baird 2001). The Refuge to the headwaters of Elephant monitored since the mid-1990s (Platania river bank within this reach is Butte Reservoir) that are adjacent to a 1995), it is believed that silvery minnow dominated by bank stabilization (e.g., jetty jacks), which has led to the portion of the stream reach within the may still be present within this reach, floodplain being predominantly middle Rio Grande because these areas but reduced in abundance. For example, disconnected from the river. Bank do not offer suitable refugia and are not silvery minnows were documented near stabilization devices and other flood useful for recovery of the silvery the Angostura Diversion Dam in 2001 control operations (e.g., channelization) minnow. The stream reaches in the (Platania and Dudley 2001; 2002; have led to flows that seldom exceed proposed middle Rio Grande critical Service 2001c). In this reach, water channel capacity, such that the river habitat unit include (see the Regulation releases from Cochiti Reservoir have dynamics which likely provided Promulgation section of this rule for scoured sand from the stream channel backwater habitat for the silvery exact descriptions of boundaries of this and reduced the downstream proposed critical habitat unit): minnow no longer function naturally. temperatures (Bestgen and Platania These river processes historically a. Jemez Canyon Reach—8 km ( 5 1991; Platania 1991; 59 FR 36988; shaped and reshaped the river, mile) of river immediately downstream Service 1999; Hoagstrom 2000). These constantly redefining the physical of Jemez Canyon Reservoir to the effects (e.g., low water temperatures) habitat and complexity of the river. confluence of the Rio Grande. This may inhibit or prevent reproduction Historical large flow events allowed the reach of river is manipulated by releases among Rio Grande Basin Cyprinids river to meander, thereby creating and from Jemez Canyon Reservoir. Releases (Platania and Altenbach 1998), but it is maintaining the mosaic of habitats from this reservoir are determined by unknown if water temperatures have necessary for the survival of the silvery downstream needs and flood events affected silvery minnow reproduction minnow and other native fish (Middle occurring in the Jemez River. Silvery within this reach. Although reservoirs Rio Grande Biological Interagency Team minnows historically occupied this can modify river flows and habitat (e.g., 1993). We conclude that the creation reach of the Jemez River and have the downstream river reaches have and maintenance of these habitats is recently been collected there (Sublette increased in depth and water velocity) essential to the conservation of the et al. 1990; Corps 2001). The water (Hoagstrom 2000), we believe this river silvery minnow. We believe that special within this reach is continuous to the reach is essential to the conservation of management is necessary in this and confluence with Rio Grande and the silvery minnow because we believe other downstream reaches within the currently contains the primary it is still occupied by the species and middle Rio Grande to create and constituent elements (described above) contributes to its survival in maintain the habitat complexity (e.g., during all or a part of the year. Although downstream reaches (i.e., the eggs and backwater areas, braided channels, etc.) this reach currently provides suitable larvae of the silvery minnow drift in the that was historically present, but may habitat for the silvery minnow, we water column and may be transported not currently present, in these river believe that it is important to ensure downstream depending on river flows reaches. This reach currently contains that special management actions are and habitat conditions). We reviewed the primary constituent elements implemented within this stream reach. aerial photographs from 1997, and have (described above) during all or a part of We also conclude that this area is determined that the river through this the year. Thus, we propose this reach as essential to the conservation and reach is braided in areas and contains critical habitat. contains the primary constituent many side channels. We also spoke with d. Isleta Diversion Dam to San Acacia elements for the silvery minnow. This the Corps and conclude there is a high Diversion Dam (Isleta Reach)—90 km area is essential because the additional potential to increase the amount of (56 mi) of river immediately loss of any habitat that is currently suitable habitat (e.g., debris piles, low downstream of the Isleta Diversion Dam occupied could increase the likelihood velocity backwaters, side channels, etc.) to the San Acacia Diversion Dam. The of extinction (Hoagstrom and Brooks within the entire reach, but particularly river bank within this reach is also 2000, Service 1999). Moreover, if the in the proximity of the confluences of dominated by bank stabilization (e.g., species or habitat were severely Galisteo Creek and the Rio Grande and jetty jacks), and the floodplain is impacted within this reach, the the Sante Fe River and the Rio Grande predominantly disconnected from the continued existence of silvery minnows (D. Kreiner, U.S. Army Corps of river. The substrate is mostly sand and in downstream reaches would be Engineers, pers. comm. 2001). Thus, we silt and there are many permanent affected (i.e., the extirpation of fish conclude special management in this islands within the river channel (J. within this reach would create a very reach is needed. We conclude that this Smith, pers. comm. 2001). This reach unstable population within the area contains suitable habitat for the provides continuous water flow in most downstream reaches). Thus, we propose silvery minnow and contains the years with infrequent periods of low or

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39223

no flow (Service 2001b). Nevertheless, variable. In fact, this stretch may not downstream drift of eggs and larvae and flows vary markedly in magnitude, from have provided continuous flow in some recruitment of adults (Platania and high spring to low summer flows. The years prior to the 1900s (Middle Rio Altenbach 1998). We conclude this area variable flow regime is a result of Grande Conservancy District 1999; is not essential to the conservation of irrigation demand, irrigation returns Scurlock and Johnson 2001). As the species. Therefore, this river reach is (e.g., augmented flow), precipitation, described above, we are soliciting not proposed as critical habitat. temperature, and sediment transport. comments or information relating to the 4. Downstream of Caballo Dam to This reach also contains numerous proposed designation of critical habitat American Reservoir Dam, Sierra and arroyos and small tributaries that in this reach, which may experience Don˜ a Ana, Counties, NM and El Paso, provide water and sediment during periods of no or low flow. County, TX. This approximately 176-km rainstorm events, which may Currently, the river channel has been (110 mile) reach has a highly regulated periodically augment river flows highly modified by water depletions flow regime from releases of water (Service 2001b; J. Smith, pers. comm. from agricultural and municipal use, stored in Caballo Reservoir. This reach 2001). Silvery minnows and suitable dams and water diversion structures, is also highly canalized with winter habitat are still present throughout this bank stabilization, and the flows near zero in the upper portions reach of the river; however, abundance infrastructure for water delivery (e.g., and does not contain suitable habitat for appears to be low (Dudley and Platania irrigation ditches). These modifications the silvery minnow (Service 1999; IBWC 2001; 2002). Nevertheless, we conclude have led to the loss of sediment, 2001a). Silvery minnow have not been that this area is essential to the channel drying, separation of the river reported from this reach since 1944 conservation of the silvery minnow from the floodplain, and changes in (Bestgen and Platania 1991, Service because the additional loss of any river dynamics and resulting channel 1999). The reach is currently inhabited habitat that is currently occupied could morphology. Consequently, this reach by many non-native fish species (IBWC increase the likelihood of extinction requires special management 2001a). Due to lack of suitable habitat, (Hoagstrom and Brooks 2000, Service considerations similar to those diminished and highly regulated flow 1999). Similarly, if the species or habitat discussed above. This reach currently (IBWC 2001a), this reach of river no were severely impacted within this contains the primary constituent longer contains suitable habitat for the reach, the continued existence of silvery elements (described above) during all or silvery minnow and is not essential to minnows in downstream reaches would a part of the year. Although the silvery the conservation of the silvery minnow. be affected (i.e., the extirpation of fish minnow continues to be widespread Thus, this reach is not proposed as within this reach would create a very within this reach with higher critical habitat. unstable population within the abundance than the Angostura or Isleta 5. Downstream of American Reservoir downstream reaches). This reach reaches (Dudley and Platania 2001; to the upstream boundary of Big Bend currently contains the primary 2002), the variable flow regime and National Park, El Paso, Hudspeth, and constituent elements (described above) modifications to the river have Presidio, Counties, TX. Portions of this during all or a part of the year. We increased the potential for short and reach, primarily upstream of Presido, believe that special management is long-term impacts not only to the TX, are continually dewatered, necessary within this reach to create silvery minnow, but also to its habitat. especially between Fort Quitman and and maintain the habitat complexity Thus, we determine that this area is Presidio (Hubbs et al. 1977; Department (e.g., backwater areas, debris piles, essential to the conservation of the of Interior 1998). River flow is meandering river, etc.) that was species and in need of special augmented downstream of Presido by historically, but may not currently be management considerations or waters flowing from the Rio Conchos. associated with this reach. Thus, we protections; we propose this reach as The near-continuous input of municipal propose this reach as critical habitat. critical habitat. waste has led to a deterioration of water e. San Acacia Diversion Dam to the 3. Downstream of Elephant Butte quality, with corresponding changes to Elephant Butte Dam (San Acacia Reservoir to the Caballo Dam, Sierra the ichthyofauna (fish species Reach)—147 km (92 mi) of river County, NM. This short 26-km (16-mile) assemblage within a region) (Hubbs et immediately downstream of the San reach is highly channelized with widely al. 1977; Bestgen and Platania 1988; Acacia Diversion Dam to the Elephant variable flow regimes. Construction of IBWC 1994; El-Hage and Moulton Butte Dam. We selected Elephant Butte Elephant Butte and Caballo Reservoirs 1998a). Flows in this reach consist of a Dam as the boundary of the proposed in 1916 and 1938, respectively, severely blend of raw river water; treated critical habitat because it is a stationary altered the flows and habitat within this municipal waste from El Paso, TX; structure. Nevertheless, the area reach (Bestgen and Platania 1991). The untreated municipal water from Juarez, inundated by the reservoir does not silvery minnow has not been Mexico; irrigation return flow; and the provide those physical or biological documented within this reach since occasional floodwater (Texas Water features essential to the conservation of 1944 (Service 1999). This river reach is Development Board 2001). For example, the species and is specifically excluded currently highly channelized to water temperature patterns can be from the proposed critical habitat. We expedite water deliveries and very few elevated and oxygen levels decreased by define the reservoir as that part of the native fish remain (Propst et al. 1987; the input of various pollutants (e.g., body of water impounded by Elephant International Boundary and Water nitrogen, phosphorus) (Texas Water Butte Dam where the storage waters are Commission 2001). This reach is subject Development Board 2001; IBWC 2001b). lentic (relatively still waters) and not to prolonged periods of low or no flow Water quality is believed to improve part of the lotic (flowing water) river and there is no spring runoff spike farther downstream of the confluence of channel. (Service 1999). Altered flow regimes the Rio Conchos and Rio Grande. The The channel width within this reach will continue to affect habitat quality in development of agriculture and varies from approximately 15 m (50 ft) this reach and it does not contain population growth of this area has to approximately 198 m (650 ft). The suitable habitat for the silvery minnow. resulted in a decrease of water quantity substrate is mostly sand and silt. The The stream length in this reach is and quality, which has had a significant flow regime within this reach was inadequate (e.g., less than 134 to 223 impact on the range and distribution of historically, and is currently, highly mi) to ensure the survival of many fish species within this reach

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39224 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

(IBWC 1994; El-Hage and Moulton actions (e.g., the establishment of an minnow. Water quality is also a 1998a). There are no current or museum experimental population) are not potential concern for this reach, records of silvery minnow from this compromised. Although Big Bend particularly during low-flow conditions reach (Service 1999). Because of National Park expressed support for a (Texas Water Development Board 2001; dewatering upstream and the degraded critical habitat designation for the Texas Natural Resource Conservation water quality, we believe this reach of silvery minnow within the National Commission 1996). This reach is heavily river would never provide suitable Park, they also indicated that if areas channelized with little to no stream habitat for the silvery minnow. Thus, outside the National Park, but within braiding and, in areas inappropriate this river reach is not essential to the the wild and scenic river were included, substrate (e.g., cobble). There is no conservation of the silvery minnow and their attempts at developing a river suitable habitat for the silvery minnow is not proposed as critical habitat. management plan could be within this reach, and the species was 6. The upstream boundary of Big compromised (F. Deckert, Big Bend last recorded here in the 1950s (Service Bend National Park (3.2 km, 2 mi National Park, pers. comm.). 1999). The fish community within this We have determined that this reach is downstream of Lajitas), Brewster reach is dominated by warm water non- essential to the conservation of the County, to the southern boundary of the native predators (Platania 1990; Service silvery minnow. However, our wild and scenic river designation at 1999). Because this reach does not have conservation strategy for the silvery Terrell/Val Verde County line, TX. This suitable habitat for the silvery minnow approximately 368-km (230-mile) reach minnow is to establish populations within its historical range under section and water quality during variable flow of the lower Rio Grande was historically 10(j) of the Act, and this could include conditions is a concern, this reach of occupied but is currently unoccupied by all or portions of this stream reach. We river is not essential to the conservation the silvery minnow (Hubbs 1940; believe that this area will contribute to of the silvery minnow and is not Trevino-Robinson 1959; Hubbs et al. the recovery of the silvery minnow, but proposed as critical habitat. 1977; Bestgen and Platania 1991). The have not proposed this stream reach for 9. Downstream of Falcon Reservoir to continuing presence of members of the designation of critical habitat. As pelagic spawning guild (e.g., speckled the Gulf of Mexico, Starr, Hildago, and indicated in the ‘‘Public Comments chub and Rio Grande shiner) are Cameron, Counties, TX. The silvery Solicited’’ section of this rule we are evidence that the lower Rio Grande minnow historically occupied this reach seeking comments on whether this of river (Service 1999). In fact, the type through Big Bend National Park area reach should or should not be may support reestablishment of silvery locality (the location from which the designated as critical habitat based upon species was originally described) for the minnow (Platania 1990; IBWC 1994). the factors discussed in this proposed Moreover, water quality, compared to species is Brownsville, TX (Hubbs and rule and any other relevant information Ortenburger 1929). However, the last the reach upstream of the Park, is that you believe should be considered in greatly improved in this reach from the collection of the silvery minnow our analysis. We are also soliciting occurred in 1961 just downstream of many freshwater springs within Big comments on the applicability of an Bend National Park (MacKay 1993; R. Falcon Reservoir (Bestgen and Platania experimental population under section 1991). This flow regime of this reach of Skiles, pers. comm. 2001; IBWC 1994). 10(j) of the Act to provide for This area is protected and managed by the Rio Grande is highly influenced by conservation and recovery of the silvery releases from Falcon Reservoir. Most of the National Park Service and the river minnow within this reach of its currently supports a relatively stable the tributary inflow is controlled or historical range. influenced by small impoundments off hydrologic regime (R. Skiles, pers. 7. The Terrell/Val Verde County line, the main channel of the river. The lower comm. 2001). The National Park TX to the Amistad Dam, TX. This short portion of this reach is often dewatered Service’s management authority in the reach is highly influenced by the with the river flow stopping before the wild and scenic river designation Amistad Dam at its terminus. It is also confluence with the Gulf of Mexico currently extends 0.25 mi from the believed that introduced fish played a ordinary high water mark. Thus, the role in the extirpation of silvery (IBWC 2001b). The fish community in area designated as a wild and scenic minnow in this reach (Bestgen and this reach of the Rio Grande has had a river outside of Big Bend National Park Platania 1991). Water quality conditions significant shift toward estuarine (a is currently managed by the National within this reach are generally mixture of fresh and salt water) type Park Service under their authorities and degraded, and are also a concern for this species (IBWC 1994; Contreras-B. and is considered part of the National Park reach, particularly during low-flow Lozano-V.1994). There has also been a Service System. As discussed above, we conditions (Texas Water Development significant loss of the native fish fauna have determined that recovery of the Board 2001; Texas Natural Resource in the Mexican tributaries in the last silvery minnow requires reestablishing Conservation Commission 1996). For all several decades (Hubbs et al. 1977 populations outside of the middle Rio these reasons, we do not believe that Almada-Villela 1990; Platania 1990), Grande (see ‘‘Recovery Plan’’ discussion this river reach is essential to the apparently from poor water quality (e.g., above), and should include areas within conservation of the silvery minnow; see Texas Water Development Board the lower Rio Grande. Because the therefore, it is not proposed as critical 2001; Texas Natural Resource silvery minnow has been extirpated habitat. Conservation Commission 1996). from this reach, Federal agencies have 8. Downstream of the Amistad Dam to Finally, invasive weeds (e.g., hydrilla determined their actions will not the Falcon Dam, Val Verde, Kinney, and hyacinth) have clogged many areas adversely affect the silvery minnow and Maverick, Web, Zapata, and Starr of this reach and have reduced the therefore have not consulted with the Counties, TX. This reach does provide amount of dissolved oxygen in the water Service under section 7(a)(2) on their continuous base flows ranging between (IBWC 2001b). Because this reach does actions related to this reach. We believe 500 and 3000 cfs (Service 1999), but the not have suitable habitat, there appears it is important to ensure that the reach is highly urbanized and has many to be little benefit in trying to assistance of Federal agencies, the State instream barriers (e.g., earthen dams) at intensively managing the flow regime in of Texas resource agencies, and non- Maverick, Eagle Pass, and Indio that this reach of river. For these reasons, Federal entities in future recovery would prevent movements of silvery this reach is not considered essential to

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39225

the conservation of the silvery minnow After the construction of Sumner We believe this river reach may provide and is not proposed as critical habitat. Dam, major channel incision occurred a suitable area for an experimental 10. Pecos River from Santa Rosa during the 1949 to 1980 period, population. Consequently, we are Reservoir to Sumner Dam, Guadalupe accompanied by salt cedar proliferation soliciting comments on the applicability County, NM. This reach is along the river banks (Hoagstrom 2000). of an experimental population under approximately 89 km (55 mi) and is High velocity flows within the incised section 10(j) of the Act to provide for typified by wide fluctuations in flow (deep) river channel have the ability to conservation and recovery of the silvery regimes from upstream releases from displace eggs from pelagic spawners minnow in areas of currently suitable Santa Rosa Reservoir (Hoagstrom 2000). such as the silvery minnow. This habitat within its historical range. Within this reach there is one diversion channel incision also reduced the areas 12. Downstream of Brantley Reservoir, at Puerto del Luna, NM. The silvery of low velocity habitat within this river Eddy County, NM to Red Bluff minnow has not been collected within reach (Hoagstrom 2000). Recently Reservoir, Loving and Reeves Counties, this reach since 1939 (Bestgen and lengthy reservoir releases such as those Texas. This reach is short, with a highly Platania 1991; Service 1999). The that occurred in 1988 (36 days) and in variable flow regime that is dependent habitat in this reach is not suitable for 1989 (56 days), have been shortened to on agricultural demand. This reach is the silvery minnow because much of the about 10 days, which has benefitted also highly segmented with small surrounding topography is composed of species such as the Pecos bluntnose closely placed impoundments (e.g., steep cliffs and canyons (Hoagstrom shiner (Service 2001). Nevertheless, permanent and temporary diversion 2000). Canyon habitat does not provide historical block releases of water from dams) that pond water, impede fish suitable habitat (e.g., shallow, braided, Sumner Reservoir have modified river movements, and would not allow for streams with sandy substrates) for the flows and habitat (e.g., the downstream adequate stream length (e.g., 134 to 223 silvery minnow (Bestgen and Platania river reaches have increased in depth mi) to ensure the survival of 1991; Dudley and Platania 1997; and water velocity) (Hoagstrom 2000). downstream drift of eggs and larvae and Remshardt et al. 2001). Due to the short The recovery of the silvery minnow recruitment of adults (Platania and length of this reach, fluctuations in the requires reestablishing populations Altenbach 1998). Additionally, flow regime, and the absence of suitable outside of the middle Rio Grande agricultural and oil field pollution and habitat for the silvery, this reach of river (Service 1999). We believe that permian salts (i.e., brine) are added to is not essential to the conservation of repatriation is required outside of the the river in this reach, decreasing the the silvery minnow and is not proposed area presently occupied by the species water quality to levels that likely would as critical habitat. (i.e., the middle Rio Grande) to ensure not support the silvery minnow 11. Middle Pecos Reach— the recovery of the silvery minnow (50 (Campbell 1959; Larson 1994). Silvery approximately 345 km (214 mi) of river CFR 424.12(e)) (see ‘‘Recovery Plan’’ minnow was historically uncommon immediately downstream of Sumner discussion above). We recognize that within this reach; only 14 specimens Reservoir to the Brantley Reservoir Dam habitat within this river reach is from two collections are known in De Baca, Chaves, and Eddy Counties, degraded, but believe this reach within (Bestgen and Platania 1991). Due to the NM. The Pecos River was historically the middle Pecos River may provide one short length of this reach, fluctuations occupied but is currently unoccupied by of the most promising areas for in the flow regime, degraded water the silvery minnow (Bestgen and conducting recovery efforts because we quality, and the absence of suitable Platania 1991). In fact, the silvery believe it still contains habitat suitable habitat for the silvery minnow, it is not minnow was once one of the most for the silvery minnow (Hoagstrom considered essential to the conservation common fish species present between 2000). For example, the continuing of the silvery minnow and is not Sumner and Avalon Reservoir (the area presence of members of the pelagic proposed as critical habitat. currently inundated by Brantley spawning guild (e.g., speckled chub, Rio 13. Downstream of Red Bluff Reservoir) (Bestgen and Platania 1991). Grande shiner, Pecos bluntnose shiner) Reservoir to the confluence with Rio The Pecos River can support a relatively is evidence that this reach of the Pecos Grande, Loving, Reeves, Pecos, Ward, stable hydrologic regime between River contains habitat suitable for the Crane, Crockett, and Terrell Counties, Sumner and Brantley Reservoirs, and, silvery minnow and may support TX. Historically silvery minnows until summer 2001, this stretch reestablishment of the species occurred in this reach, though their maintained continuous flow for about (Hoagstrom 2000). exact distribution and abundance is the last 10 years (D. Coleman, pers. Federal agencies have not consulted unclear (Campell 1958,Trevino- comm. 2001). For example, groundwater with us on how their actions will affect Robinson 1959, James and De La Cruz seepage areas and base flow the silvery minnow, because the species 1989, Linam and Kleinsasser 1996, supplementation from Sumner Dam no longer occurs within the Pecos River Garrett 1997, Service 1999). For bypasses can offer a degree of stability (D. Coleman, pers. comm. 2001). example, Bestgen and Platania (1991) for the river flow, especially during low Because habitat suitable for the silvery suggest silvery minnows may have been flow periods (Hatch et al. 1985; Service minnow is still present within this river uncommon within this reach because of 2001). Still, segments of this river reach reach, we find that this stream reach is pond habitat and high water salinity. were dewatered for at least 5 days essential to the conservation of the However, this area may not have been during summer 2001 (D. Coleman, pers. species. Although we have determined well surveyed when the silvery minnow comm. 2001). Although springs and that this reach is essential to the was still extant in the Pecos River (D. irrigation return flows maintain water conservation of the silvery minnow, we Propst, New Mexico Game and Fish, flow in the lower portions of this river have not proposed this area for pers. comm. 2001). Still, sampling the reach during times when no water is designation of critical habitat (see middle and lower parts of this river being released from Sumner Dam, ‘‘Exclusions Under Section 4(b)(2) of the reach has been historically difficult periods of low discharge or Act’’ section above). Our conservation because of dense vegetation, steep intermittency have the potential to strategy is to develop, through Federal canyon banks, and lack of public access impact much of the suitable habitat rulemaking procedures, one or more (Campbell 1959). The upper segment of within portions of this reach (Service experimental populations within the this reach can be characterized as 2001). historical range of the silvery minnow. devoid of suitable habitat, and has a

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39226 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

highly variable flow regime from release elements. Although portions of this the species. Individuals, organizations, of water from Red Bluff Reservoir for river reach may contain fresh water (i.e., States, Indian Pueblos and Tribes, local agricultural use. Indeed, many salinity less than 1 part per thousand), governments, and other non-Federal freshwater springs that historically we suspect that much of this stream entities are affected by the designation augmented the Pecos River throughout reach may never provide suitable of critical habitat only if their actions this reach have recently been habitat for the silvery minnow, and it is occur on Federal lands, require a diminished or gone dry (Campbell 1959; not proposed as critical habitat. Federal permit, license, or other authorization, or involve Federal Brune 1981 cited in Hoagstrom 2000; Land Ownership Barker et al. 1994; El-Hage and Moulton funding. 1998b; ). The water quality in this upper The proposed critical habitat for the Activities on Federal lands that may portion is also poor and dominated by silvery minnow encompasses stream affect the silvery minnow or its high salinity (generally exceeding 5 reaches where the species has been proposed critical habitat will require parts per thousand) (Hiss 1970; Hubbs collected in the recent past and where section 7 consultation. Actions on 1990; Linam and Kleinsasser 1996; it is currently known to exist. Proposed private, State, or Indian Pueblo and Miyamoto et al. 1995; El-Hage and critical habitat for the silvery minnow Tribal lands receiving funding or Moulton 1998b). Additionally, algal includes both the active river channel requiring a permit from a Federal blooms (Prymnesium parvum) have and the area of bankfull width plus 300 agency also will be subject to the section essentially eliminated all the fishes feet on either side of the banks, except 7 consultation process if the action may throughout from Malaga, NM, to in areas narrowed by existing levees. affect proposed critical habitat. Federal actions not affecting the species or its Amistad Dam, TX (James and De la Cruz Ownership of the river channel and proposed critical habitat, as well as 1989; Hubbs 1990; Rhodes and Hubbs the lateral width along the bank is actions on non-Federal lands that are 1992). The river channel is also unclear in the middle Rio Grande not federally funded or permitted, will somewhat incised and dominated by proposed critical habitat unit. However, not require section 7 consultation. non-native vegetation in parts (Koidin most of the land in the middle Rio Regulations implementing this 2000; Harman 1999; IBWC 2001b). Grande valley that abuts critical habitat interagency cooperation provision of the Agricultural needs diminish south of is within the administrative boundaries of the Middle Rio Grande Conservancy Act are codified at 50 CFR part 402. Girvin, TX, and water quality conditions Section 7(a)(4) of the Act require (e.g., salinity) generally begin to District. The Middle Rio Grande Conservancy District is a political Federal agencies to confer with us on improve downstream from the any action that is likely to jeopardize confluence of Independence Creek to subdivision of the State of New Mexico which provides for irrigation, flood the continued existence of a proposed Amistad Dam (Hubbs 1990; Linam and species or to result in destruction or Kleinsasser 1996). This improvement control, and drainage of the Middle Rio Grande valley in New Mexico, from adverse modification of proposed could result from the freshwater springs critical habitat. Conference reports within the lower 160 km (100 mi) Cochiti Dam downstream 150 mi (285 km) to the northern boundary of the provide conservation recommendations stretch of this reach. Nevertheless, to assist the agency in eliminating gaging records from the lower segment Bosque del Apache National Wildlife Refuge. Within these 150 miles are also conflicts that may be caused by the indicate that there is virtually no flow proposed action. The conservation during drought conditions (Texas Water the lands of the communities of Algodones, Bernalillo, Rio Rancho, recommendations in a conference report Development Board 2001) and water are advisory. quality (e.g., total dissolved solids) at Corrales, Albuquerque, Los Lunas, Belen, Socorro, and a number of smaller We may issue a formal conference Shumla Bend, just upstream of Amistad report if requested by a Federal agency. incorporated and unincorporated Reservoir, would be expected to have a Formal conference reports on proposed communities. Other landowners, deleterious effect on aquatic life (IBWC critical habitat contain a biological sovereign entities, and managers 1994). We did not include this reach opinion that is prepared according to 50 include: The Pueblos of Cochiti, Santo because the current or potential CFR 402.14, as if critical habitat were Domingo, San Felipe, Santa Ana, suitability for the silvery minnow is designated. We may adopt the formal Sandia, and Isleta; the BOR; the Service; unknown; detailed habitat studies have conference report as a biological the U.S. Bureau of Land Management not been conducted in this reach. opinion if the critical habitat is (BLM); New Mexico State Parks Moreover, it is believed that this area designated, if no significant new Division; New Mexico Department of contains a network of steep canyons, information or changes in the action Game and Fish; New Mexico State with rock and course gravel substrate alter the content of the opinion (see 50 Lands Department; and the Corps. (Campbell 1959; Texas Parks and CFR 402.10(d)). Wildlife 1999). Canyon habitat reduces Approximately 86 river km (45 mi) of Regulations at 50 CFR 402.16 also stream channel width, which decreases our proposed critical habitat run require Federal agencies to reinitiate sinuosity and meandering, and creates through Pueblo lands including: consultation in instances where we have deep channels that do not provide Cochiti, Santo Domingo, San Felipe, already reviewed an action for its effects suitable habitat (e.g., shallow, braided, Santa Ana, Sandia, and Isleta. on a listed species if critical habitat is streams with sandy substrates) (Bestgen Effect of Critical Habitat Designation subsequently designated. Consequently, and Platania 1991; Dudley and Platania some Federal agencies may request 1997; Remshardt et al. 2001). Section 7 Consultation reinitiation of consultation or Additionally, the presence of algal Section 7(a)(2) of the Act requires conferencing with us on actions for blooms will continue to affect water Federal agencies, including the Service, which formal consultation has been quality in this reach. For these reasons, to ensure that actions they fund, completed, if those actions may affect we do not believe that this reach is authorize, or carry out do not destroy or designated critical habitat or adversely essential to the conservation of the adversely modify critical habitat to the modify or destroy proposed critical species. It is unknown whether this extent that the action appreciably habitat. reach contains or has the potential to diminishes the value of the critical When we issue a biological opinion develop the primary constituent habitat for the survival and recovery of concluding that a project is likely to

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39227

result in jeopardy or the destruction or water management actions of Federal 3. Significantly and detrimentally adverse modification of critical habitat, agencies (e.g., Corps, BOR, Service, and altering the channel morphology (e.g., we also provide reasonable and prudent the Bureau of Indian Affairs) and related depth, velocity, etc.) of any of the alternatives to the project, if any are or similar actions of other federally stream reaches within the proposed identifiable. Reasonable and prudent regulated projects (e.g., road and bridge designation. Possible actions would alternatives are defined at 50 CFR construction activities by the Federal include channelization, impoundment, 402.02 as alternative actions identified Highway Administration; dredge and road and bridge construction, during consultation that can be fill projects, sand and gravel mining, deprivation of substrate source, implemented in a manner consistent and bank stabilization activities reduction of available floodplain, with the intended purpose of the action, conducted or authorized by the Corps; removal of gravel or floodplain terrace that are consistent with the scope of the construction, maintenance, and materials, reduction in stream flow, and Federal agency’s legal authority and operation of diversion structures; excessive sedimentation from mining, jurisdiction, that are economically and management of the conveyance channel; livestock grazing, road construction, technologically feasible, and that the and levee and dike construction and timber harvest, off-road vehicle use, and Director of the Service believes would maintenance by the BOR; and, National other watershed and floodplain avoid the likelihood of jeopardizing the Pollutant Discharge Elimination System disturbances with a Federal nexus. continued existence of listed species or permits authorized by the 4. Significantly and detrimentally result in the destruction or adverse Environmental Protection Agency). altering the water quality within the modification of critical habitat. These types of activities have already proposed designation. Possible actions Reasonable and prudent alternatives can been examined under consultation with with a Federal nexus would include vary from slight project modifications to us upon listing the species as release of chemical or biological extensive redesign or relocation of the endangered and in our previous pollutants into the surface water or project. Costs associated with designation of critical habitat. We connected groundwater at a point implementing a reasonable and prudent expect that the same types of activities source or by dispersed release (non- alternative are similarly variable. will be reviewed in section 7 point). Section 4(b)(8) of the Act requires us consultation if critical habitat is again 5. Introducing, spreading, or to describe in any proposed or final designated. However, there is some augmenting non-native aquatic species regulation that designates critical potential for an increase in the number within the proposed designation. habitat a description and evaluation of of proposed actions we review under Possible actions with a Federal nexus those activities involving a Federal section 7 of the Act from actions would include fish stocking for sport, action that may adversely modify such proposed in areas that are contained aesthetics, biological control, or other purposes; use of live bait fish; habitat or that may be affected by such within the 300-foot lateral width. We aquaculture; construction and operation designation. When determining whether believe that we currently review most any of these activities may adversely of canals; and interbasin water transfers. actions (e.g., indirect effects) that could Not all of the identified activities are modify critical habitat, we will analyze affect silvery minnow through section 7 the effects of the action in relation to the necessarily of current concern within that occur in this lateral width, but the middle Rio Grande; however, they designated critical habitat unit (Service acknowledge that an explicit boundary and National Marine Fisheries Service do indicate the potential types of could result in a slight increase in activities that will require consultation 1998). Therefore, the analysis (i.e., the consultations. determination whether an action in the future and, therefore, that may be Activities that we are likely to review destroys or adversely modifies critical affected by the proposed designation of under section 7 of the Act include, but habitat) conducted through consultation critical habitat. We do not expect that or conferencing should evaluate are not limited to: the proposed designation of critical whether that loss, when added to the 1. Significantly and detrimentally habitat will result in a significant environmental baseline, is likely to altering the river flow or the natural regulatory burden above that already in appreciably diminish the capability of flow regime of any of the proposed river place due to the presence of the listed the critical habitat unit to satisfy reaches in the middle Rio Grande. species. However, areas included within essential requirements of the species. In Possible actions would include the 300-foot lateral width of the other words, activities that may destroy groundwater pumping, impoundment, proposed designation that are not or adversely modify critical habitat and water diversion with a Federal currently occupied by the species may include those that alter the primary nexus (i.e., activities that are authorized, result in an additional regulatory constituent elements (defined above) to funded, or carried out by a Federal burden when there is a Federal nexus an extent that the value of the critical agency). We note that such flow (Federal funding, authorization, or habitat unit for both the survival and reductions that result from actions permit). recovery of the silvery minnow is affecting tributaries of the designated As discussed previously, Federal appreciably reduced (50 CFR 402.02). stream reaches may also destroy or actions that are found likely to destroy A number of Federal agencies or adversely modify critical habitat. or adversely modify critical habitat may departments fund, authorize, or carry 2. Significantly and detrimentally often be modified, through development out actions that may affect the silvery altering the characteristics of the 300- of reasonable and prudent alternatives, minnow and proposed critical habitat. foot lateral width (e.g., parts of the in ways that will remove the likelihood We have reviewed and continue to floodplain) in the middle Rio Grande of destruction or adverse modification review numerous activities proposed critical habitat unit. Possible actions of critical habitat. Such project within the range of the silvery minnow would include vegetation manipulation, modifications may include such things that are currently the subject of formal timber harvest, road construction and as adjustment in timing of projects to or informal section 7 consultations. A maintenance, prescribed fire, livestock avoid sensitive periods for the species wide range of Federal activities have the grazing, off-road vehicle use, powerline and its habitat; replanting of riparian potential to destroy or adversely modify or pipeline construction and repair, vegetation; minimization of work and critical habitat of the silvery minnow. mining, and urban and suburban vehicle use in the main river channel or These activities may include land and development with a Federal nexus. the 300-foot lateral width; restriction of

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39228 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

riparian and upland vegetation clearing exclusions outweigh the benefits of Designation of Critical Habitat on Tribal in the 300-foot lateral width; fencing to specifying such areas as critical habitat. Lands exclude livestock and limit recreational In accordance with section 4(b)(2) of the use; use of alternative livestock Act we cannot exclude areas from Section 3(5) of the Act defines critical management techniques; avoidance of critical habitat when their exclusion habitat, in part, as areas within the geographical area occupied by the pollution; minimization of ground will result in the extinction of the species ‘‘on which are found those disturbance in the 300-foot lateral species. We have prepared a draft physical and biological features (I) width; use of alternative material economic analysis that is available for essential to the conservation of the sources; storage of equipment and public review and comment during the species and (II) which may require staging of operations outside the 300- comment period for this proposed rule. special management considerations and foot lateral width; use of sediment Send your requests for copies of the barriers; access restrictions; and use of protection.’’ We included lands of the draft economic analysis to the New Indian Pueblos of Cochiti, Santo best management practices to minimize Mexico Ecological Services Field Office erosion. Domingo, San Felipe, Santa Ana, (see ADDRESSES section). The silvery minnow does not need a Sandia, and Isleta in this proposed large quantity of water to survive but it American Indian Tribal Rights, designation of critical habitat for the does need a sufficient amount of Federal-Tribal Trust Responsibilities, silvery minnow. flowing water to reduce prolonged and the Endangered Species Act As provided under section 4(b)(2) of periods of low or no flow and minimize the Act, we are soliciting information on the formation of isolated pools. The In accordance with the Presidential the possible economic and other identification of primary constituent Memorandum of April 29, 1994, we impacts of critical habitat designation, elements for the silvery minnow is not believe that, to the maximum extent and we will continue to work with the intended to create a high-velocity, deep possible, Indian Pueblos and Tribes Indian Pueblos and Tribes in developing flowing river, with a bank-to-bank flow. should be the governmental entities to voluntary measures adequate to The silvery minnow does not require manage their lands and tribal trust conserve silvery minnow on tribal such habitat characteristics. Instead, the resources. To this end, we support tribal lands. If any of these Indian Pueblos and silvery minnow requires habitat with measures that preclude the need for Tribes submit management plans, we sufficient flows through the irrigation Federal conservation regulations. We will consider whether these plans season to avoid prolonged periods of provide technical assistance to Indian provide adequate special management low or no flow; additionally, a spike in Pueblos and Tribes who ask for or protection for the species, and we flow in the late spring or early summer assistance in developing and expanding will further weigh the benefits of to trigger spawning, and a relatively tribal programs for the management of including these areas versus the benefits constant winter flow are also required. healthy ecosystems so that Federal of excluding these areas under section If you have questions regarding conservation regulations, such as 4(b)(2) of the Act. We will use this whether specific activities will likely designation of critical habitat, on tribal information in determining which, if constitute destruction or adverse lands are unnecessary. any, tribal lands should be excluded in modification of proposed critical the final designation of critical habitat habitat, contact the Field Supervisor, The Presidential Memorandum of for the silvery minnow. New Mexico Ecological Services Field April 29, 1994, also requires us to Office (see ADDRESSES section). If you consult with the Indian Pueblos and Effects on Tribal Trust Resources From would like copies of the regulations on Tribes on matters that affect them, and Critical Habitat Designation on Non- listed wildlife or have questions about section 4(b)(2) of the Act requires us to Tribal Lands prohibitions and permits, contact the gather information regarding the U.S. Fish and Wildlife Service, Division designation of critical habitat and the We do not anticipate that the proposal of Endangered Species, P.O. Box 1306, effects thereof from all relevant sources, of critical habitat on non-tribal lands Albuquerque, New Mexico 87103 including Indian Pueblos and Tribes. will result in any impact on tribal trust (telephone 505–248–6920; facsimile Recognizing a government-to- resources or the exercise of tribal rights. 505–248–6788). government relationship with Indian However, in complying with our tribal trust responsibilities, we must Economic Analysis Pueblos and Tribes and our Federal trust responsibility, we have and will communicate with all Indian Pueblos Section 4(b)(2) of the Act requires that continue to consult with the Indian and Tribes potentially affected by the we designate critical habitat on the basis Pueblos and Tribes that might be designation. Therefore, we are soliciting of the best scientific and commercial affected by the designation of critical information from the Indian Pueblos information available and consider the habitat. and Tribes and will arrange meetings economic and other relevant impacts of with them during the comment period designating a particular area as critical We will make every effort to consult on potential effects to them or their habitat. We based this proposed rule on with the affected Indian Pueblos and resources that may result from critical the best available scientific information, Tribes during the comment period for habitat designation. We sent including the recommendations in the this proposed rule to gain information preproposal letters to all affected Indian Recovery Plan (Service 1999). We will on: (1) possible effects if critical habitat Pueblos including Cochiti, Santo further utilize the draft and final were designated on Tribal lands; and (2) Domingo, San Felipe, Santa Ana, economic analyses and our analysis of possible effects on tribal resources Sandia, Isleta, and San Juan, and other relevant impacts, and consider all resulting from the proposed designation solicited additional information from comments and information submitted of critical habitat on non-tribal lands. them regarding biological, cultural, during the public hearing and comment We will meet with each potentially social, or economic data that were period, to make a final critical habitat affected Pueblo or Tribe to ensure that pertinent to the EIS process. We will designation. We may exclude areas from government-to-government consultation continue to provide assistance to and the final designation upon a final on proposed critical habitat issues cooperate with Indian Pueblos and determination that the benefits of such occurs in a timely manner. Tribes that potentially could be affected

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39229

by this proposed critical habitat should be designated as critical habitat, including names and home addresses of designation at their request. and critical habitat could be revised as respondents, available for public review appropriate. during regular business hours. Public Comments Solicited 3. Specific information on the amount Individual respondents may request that We intend to make any final action and distribution of silvery minnow we withhold their home address from resulting from this proposed rule to be habitat, and what habitat is essential to the rulemaking record, which we will as accurate and as effective as possible. the conservation of the species and why; honor to the extent allowable by Federal Therefore, we are soliciting comments 4. Land use practices and current or law. In some circumstances, we would or suggestions from the public, other planned activities in the subject areas, withhold from the rulemaking record a concerned governmental agencies, the including comments or information respondent’s identity, as allowable by scientific community, industry, or any relating to the 300-foot lateral width, Federal law. If you wish for us to other interested party concerning this and their possible impacts on proposed withhold your name and/or address, proposed rule. We particularly seek critical habitat; you must state this prominently at the comments concerning: 5. Any foreseeable economic or other beginning of your comment. However, 1. The reasons why any habitat impacts resulting from the proposed we will not consider anonymous should or should not be determined to designation of critical habitat including, comments. We will make all be critical habitat as provided by section in particular, any impacts on small submissions from organizations or 4 of the Act, including whether the entities or families; and businesses, including individuals benefits of excluding areas will 6. Economic and other values identifying themselves as outweigh the benefits of including areas associated with designating critical representatives or officials of as critical habitat. Specifically we ask if habitat for the silvery minnow, such as organizations or businesses, available there is adequate special management those derived from nonconsumptive for public inspection in their entirety. and protection in place on any lands uses (e.g., hiking, camping, birding, included in this proposed rule to allow enhanced watershed protection, Peer Review us not to designate these lands as increased soil retention, ‘‘existence In accordance with our policy critical habitat. We also seek values,’’ and reductions in published on July 1, 1994 (59 FR information concerning New Mexico or administrative costs). 34270), we will seek the expert opinions Texas State water rights issues (e.g., Rio We are also seeking additional Grande Compact delivery obligations) of at least three appropriate and information about the silvery minnow’s independent specialists regarding this and how designation of critical habitat status and would like information on might affect these uses. We also request proposed rule. The purpose of such any of the following: review is to ensure listing decisions are assistance in describing the existing 1. The location of silvery minnow based on scientifically sound data, conditions for the river reach below San populations; assumptions, and analyses. We will Acacia Diversion Dam on the middle 2. Any additional information about send copies of this proposed rule Rio Grande. For these and other areas the silvery minnow’s range, immediately following publication in that have the potential for low or no distribution, and population sizes; and flow events, we are soliciting comments 3. Any current or planned activities the Federal Register to these peer or information relating to the proposed (i.e., threats or recovery actions) in or reviewers. We will invite these peer designation of critical habitat that near areas occupied by the silvery reviewers to comment, during the includes areas that may experience minnow. public comment period, on the specific these conditions. In addition, we are assumptions and conclusions regarding seeking comments on the primary Clarity of the Rule the proposed designation of critical constituent elements and how they Executive Order 12866 requires each habitat. relate to the existing conditions (i.e., agency to write regulations and notices We will consider all comments and flow regime) in the middle Rio Grande. that are easy to understand. We invite information received during the 2. We ask whether areas or river your comments on how to make this comment period on this proposed rule reaches suggested in the Recovery Plan proposed rule easier to understand during preparation of a final for potential reestablishment of the including answers to questions such as rulemaking. Accordingly, the final silvery minnow, which are not included the following: (1) Are the requirements decision may differ from this proposed in this proposed rule, should be in the document clearly stated? (2) Does rule. It is important to note that we have designated as critical habitat. We are the proposed rule contain technical not proposed critical habitat designation further soliciting information or language or jargon that interferes with for two areas that we have determined comments concerning our conservation the clarity? (3) Does the format of the are essential for the conservation of the strategy for the silvery minnow. We proposed rule (grouping and order of silvery minnow (i.e., the river reach of believe that, in particular, the sections, use of headings, paragraphing, the middle Pecos and lower Rio Grande development of one or more etc.) aid or reduce its clarity? (4) Is the in Big Bend National Park and experimental populations provides a description of the proposed rule in the downstream to the Terrell/Val Verde conservation benefit for the silvery ‘‘Supplementary Information’’ section of County line). We believe that our minnow that outweighs the the preamble helpful in understanding conservation strategy of developing one conservation benefit of designating areas the document? (5) What else could we or more experimental populations as critical habitat. Depending on public do to make the proposed rule easier to outweighs the benefits that would be comments, information, or data understand? Send a copy of any written provided to the silvery minnow by received, we will evaluate whether the comments about how we could make including these areas within a areas we have determined are essential this rule easier to understand to: Office designation of critical habitat. However, for the conservation of the silvery of Regulatory Affairs, Department of the depending on public comments, minnow (i.e., the river reach of the Interior, Room 7229, 1849 C Street NW., information, or data received, we will middle Pecos and lower Rio Grande in Washington, DC 20240. evaluate whether these areas within the Big Bend National Park and downstream Our practice is to make comments silvery minnow’s historical range to the Terrell/Val Verde County line) that we receive on this rulemaking, should be designated as critical habitat,

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39230 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

and critical habitat could be revised as inconsistencies with other Federal The following discussion explains our appropriate. agency actions. rationale. The economic analysis determined Public Hearings 3. We believe that this rule, if finalized, will not materially affect whether this proposed critical habitat The Act provides for one or more entitlements, grants, user fees, loan designation potentially affects a public hearings on this proposed rule, if programs, or the rights and obligations ‘‘substantial number’’ of small entities requested. Given the high likelihood of of their recipients, except those in counties supporting proposed critical multiple requests we have scheduled involving Federal agencies which would habitat areas. It also quantifies the two public hearings. We will hold be required to ensure that their activities probable number of small businesses public hearings in Socorro, New do not destroy or adversely modify that experience a ‘‘significant effect.’’ Mexico, on June 25, 2002; and in designated critical habitat. As discussed While SBREFA does not explicitly Albuquerque, NM, on June 26, 2002 (see above, we do not anticipate that the define either ‘‘substantial number’’ or ADDRESSES section for times and adverse modification prohibition (from ‘‘significant effect,’’ the Small Business locations). Announcements for the critical habitat designation) will have Administration (SBA) and other Federal public hearings will be made in local any significant economic effects such agencies have interpreted these terms to newspapers. that it will have an annual economic represent an impact on 20 percent or Written comments submitted during effect of $100 million or more. more of the small entities in any the comment period receive equal 4. OMB has determined that the industry and an effect equal to three consideration with those comments critical habitat portion of this rule will percent or more of a business’ annual presented at a public hearing. raise novel legal or policy issues and, as sales. Required Determinations a result, this rule has undergone OMB Based on the past consultation history review. The proposed rule follows the for the silvery minnow, wastewater Regulatory Planning and Review requirements for proposing critical discharges from municipal treatment In accordance with Executive Order habitat contained in the Act. plants are the primary activities 12866, this document is a significant anticipated to be affected by the Regulatory Flexibility Act (5 U.S.C. 601 rule and has been reviewed by the designation of critical habitat that could et seq.) Office of Management and Budget affect small businesses. To be (OMB), under Executive Order 12866. Under the Regulatory Flexibility Act conservative, (i.e., more likely to 1. We have prepared a draft economic (as amended by the Small Business overstate impacts than understate them), analysis to assist us in considering Regulatory Enforcement Fairness Act the economic analysis assumes that a whether areas should be excluded (SBREFA) of 1996; 5 U.S.C. 804(2)), unique company will undertake each of pursuant to section 4(b)(2) of the Act. whenever a Federal agency is required the projected consultations in a given The draft analysis indicates that this to publish a notice of rulemaking for year, and so the number of businesses rule will not have an annual economic any proposed or final rule, it must affected is equal to the total annual effect of $100 million or more or prepare and make available for public number of consultations (both formal adversely affect an economic sector, comment a regulatory flexibility and informal). productivity, jobs, the environment, or analysis that describes the effect of the First, the number of small businesses other units of government. Under the rule on small entities (i.e., small affected is estimated. As shown in Act, critical habitat may not be businesses, small organizations, and Exhibit 1 below, the following destroyed or adversely modified by a small government jurisdictions). calculations yield this estimate: Federal agency action; the Act does not However, no regulatory flexibility • Estimate the number of businesses impose any restrictions related to analysis is required if the head of an within the study area affected by section critical habitat on non-Federal persons agency certifies that the rule will not 7 implementation annually (assumed to unless they are conducting activities have a significant economic impact on be equal to the number of annual funded or otherwise sponsored or a substantial number of small entities. consultations); permitted by a Federal agency. SBREFA amended the Regulatory • Calculate the percent of businesses 2. As discussed above, Federal Flexibility Act to require Federal in the affected industry that are likely to agencies would be required to ensure agencies to provide a statement of the be small; that their actions do not destroy or factual basis for certifying that a rule • Calculate the number of affected adversely modify designated critical will not have a significant economic small businesses in the affected habitat of the silvery minnow. Because impact on a substantial number of small industry; of the potential for impacts on other entities. We are certifying that the rule • Calculate the percent of small Federal agencies activities, we will will not have a significant effect on a businesses likely to be affected by review this proposed action for any substantial number of small entities. critical habitat.

EXHIBIT 1.—ESTIMATED ANNUAL NUMBER OF SMALL BUSINESSES AFFECTED BY CRITICAL HABITAT DESIGNATION: THE ‘‘SUBSTANTIAL’’ TEST

Sanitary Industry name services SIC 4959

Annual number of affected businesses in industry: By formal consultation ...... 0.13 (Equal to number of annual consultations): 1 By informal consultation ...... 0.75 Total number of all businesses in industry within study area ...... 6 Number of small businesses in industry within study area ...... 6 Percent of businesses that are small (Number of small businesses)/(Total Number of businesses) ...... 100%

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39231

EXHIBIT 1.—ESTIMATED ANNUAL NUMBER OF SMALL BUSINESSES AFFECTED BY CRITICAL HABITAT DESIGNATION: THE ‘‘SUBSTANTIAL’’ TEST—Continued

Sanitary Industry name services SIC 4959

Annual number of small businesses affected (Number affected businesses) * (Percent of small businesses) ...... 0.88 Annual percentage of small businesses affected (Number of small businesses affected)/(Total number of small businesses); >20 15% percent is substantial. 1 Note that because these values represent the probability that small businesses will be affected during a one-year time period, calculations may result in fractions of businesses. This is an acceptable result, as these values represent the probability that small businesses will be affected.

This calculation reflects conservative critical habitat designation for the annual sales equal to or less than the assumptions and nonetheless yields an silvery minnow, the following threshold amount calculated above. estimate that is still far less than the 20 calculations were made: This is estimated using national percent threshold that would be • Calculate the per-business cost. statistics on the distribution of sales considered ‘‘substantial.’’ As a result, This consists of the unit cost to a third within industries. this analysis concludes that a significant party of participating in a section 7 • Based on the probability that a economic impact on a substantial consultation (formal or informal) and single business may experience number of small entities will not result the unit cost of associated project significant effects, calculate the from the designation of critical habitat modifications. To be conservative, the expected value of the number of for the silvery minnow. Nevertheless, an economic analysis uses the high-end businesses likely to experience a estimate of the number of small estimate for each cost. significant effect. • Determine the amount of annual businesses that will experience effects at • a significant level is provided below. sales that a company would need to Calculate the percent of businesses Costs of critical habitat designation to have for this per-business cost to in the study area within the affected small businesses consist primarily of the constitute a ‘‘significant effect.’’ This is industry that are likely to be affected cost of participating in section 7 calculated by dividing the per-business significantly. consultations and the cost of project cost by the three percent ‘‘significance’’ Calculations for costs associated with modifications. To calculate the threshold value. designating critical habitat for the likelihood that a small business will • Estimate the likelihood that small silvery minnow are provided in Exhibit experience a significant effect from businesses in the study area will have 2 below.

EXHIBIT 2.—ESTIMATED ANNUAL EFFECTS ON SMALL BUSINESSES: THE ‘‘SIGNIFICANT EFFECT’’ TEST

Sanitary services SIC 4959 Formal con- Industry sultations Informal con- with project sultations modifications

Annual Number of Small Businesses Affected (From Exhibit 8–1) ...... 0.13 ...... 0.75 Per-Business Cost ...... $34,100 ...... $2,900 Level of Annual Sales Below Which Effects Would Be Significant (Per-Business Cost/3%) ...... $1,136,667 ... $96,667 Probability That Per-Business Cost Is Greater Than 3% of Sales for Small Business 1 ...... 48% ...... 3% Probable Annual Number of Small Businesses Experiencing Significant Effects (Number Small Businesses)* 0.06 ...... 0.02 (Probability of Significant Effect). Total Annual Number of Small Businesses Bearing Significant Costs in Industry ...... 0.08 Total Annual Percentage of Small Businesses Bearing Significant Costs in Industry ...... 1.4% 1 This probability is calculated based on national industry statistics obtained from the Robert Morris Associated Annual Statement of Studies: 2001–2002, which provides data on the distribution of annual sales in an industry within the following ranges: $0–1 million, $1–3 million, $3–5 million, $5–10, $10–25 million, and $25+ million. This analysis uses the ranges that fall within the SBA definition of small businesses (i.e., for in- dustries in which small businesses have sales of less than $5.0 million, it uses $0–1 million, $1–3 million, and $3–5 million) to estimate a dis- tribution of sales for small businesses. It then calculates the probability that small businesses have sales below the threshold value using the fol- lowing components: (1) All small businesses (expressed as a percentage of all small businesses) in ranges whose upper limits fall below the threshold value experience the costs as significant; (2) for the range in which the threshold value falls, the percentage of companies in the bin that fall below the threshold value is calculated as [(threshold value¥range minimum)/(bin maximum¥range minimum)] × percent of small busi- nesses captured in range. This percentage is added to the percentage of small businesses captured in each of the lower ranges to reach the total probability that small businesses have sales below the threshold value. Note that in instances in which the threshold value exceeds the defi- nition of small businesses (i.e., the threshold value is $10 million and the definition of small businesses is sales less than $5.0 million), all small businesses experience the effects as significant.

Because the costs associated with sanitary services industry) in the silvery minnow. This would be true designating critical habitat for the affected counties, the economic analysis even if all of the effects of section 7 silvery minnow are likely to be concludes that a significant economic consultation on these activities were significant for less than one small impact on a substantial number of small attributed solely to the critical habitat businesses per year (approximately one entities will not result from the designation. percent of the small businesses in the designation of critical habitat for the

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39232 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

Executive Order 13211 designation of critical habitat for the critical habitat. For these reasons, we do On May 18, 2001, the President issued silvery minnow. The takings not anticipate that the designation of an Executive Order (E.O. 13211) on implications assessment concludes that critical habitat will change State policy regulations that significantly affect this proposed rule does not pose or administration, change the role of the energy supply, distribution, and use. significant takings implications. A copy Federal or State government, or affect of this assessment is available by fiscal capacity. Executive Order 13211 requires agencies contacting the New Mexico Ecological Within the 300-foot lateral width, to prepare Statements of Energy Effects Services Field Office (see ADDRESSES designation of critical habitat could when undertaking certain actions. We section). trigger additional review of Federal have a very good consultation history Based on the above assessment, the activities under section 7 of the Act, and for silvery minnow; thus, we can Service finds that this proposed rule may result in additional requirements describe the kinds of actions that have designating critical habitat for the on Federal activities to avoid destroying undergone consultations. Within the silvery minnow does not pose or adversely modifying critical habitat. middle Rio Grande proposed critical significant takings implications. Any action that lacked Federal habitat unit, the BLM has the highest involvement would not be affected by Federalism likelihood of any Federal agency to the critical habitat designation. Should undergo section 7 consultation for In accordance with Executive Order a Federally funded, permitted, or actions relating to energy supply, 13132, we have considered whether this implemented project be proposed that distribution, or use. However, since rule has significant Federalism effects may affect designated critical habitat, 1994, the BLM has not conducted any and have determined that a Federalism we will work with the Federal action consultations for resource management assessment is not required. In keeping agency and any applicant, through plans that related to energy supply, with Department of the Interior policy, section 7 consultation, to identify ways distribution, or use. We do not we requested information from and to implement the proposed project anticipate the development of oil and coordinated development of this while minimizing or avoiding any gas leases within the area we are proposed rule with appropriate resource adverse effect to the species or critical proposing to designate as critical habitat agencies in New Mexico and Texas (i.e., habitat. In our experience, the vast (J. Smith, pers. comm. 2001). during the EIS scoping period). We will majority of such projects can be Nevertheless, if we were to consult on continue to coordinate any future successfully implemented with at most a proposed BLM energy-related action, designation of critical habitat for the minor changes that avoid significant the outcome of that consultation likely silvery minnow with the appropriate economic impacts to project would not differ from the BLM’s policy agencies. proponents. of not allowing oil and gas development We do not anticipate that this The designation may have some within the 100-year floodplain. For regulation will intrude on State policy benefit to these governments in that the these reasons, we do not anticipate, this or administration, change the role of the areas essential to the conservation of the rule will be a significant regulatory Federal or State government, or affect species would be clearly defined, and action under Executive Order 12866, fiscal capacity. For example, we have the primary constituent elements of the and it is not expected to significantly conducted one formal consultation with habitat necessary to the survival of the affect energy supplies, distribution, or the Corps and BOR, and a non-Federal species would be identified. While this use. Therefore, this action is not a agency (e.g., Middle Rio Grande definition and identification does not significant energy action and no Conservancy District) over actions alter where and what Federally Statement of Energy Effects is required. related to water operations on the sponsored activities may occur, it may middle Rio Grande (Service 2001b). assist these local governments in long- Unfunded Mandates Reform Act (2 Although this consultation was U.S.C. 1501 et seq.) range planning (rather than waiting for conducted after critical habitat case-by-case section 7 consultations to In accordance with the Unfunded designation for the silvery minnow was occur). Mandates Reform Act (2 U.S.C. 1501 et removed pursuant to court order, we do seq.): not believe that this designation of Civil Justice Reform 1. This rule will not ‘‘significantly or critical habitat will have significant In accordance with Executive Order uniquely’’ affect small governments. A Federalism effects. For example, in the 12988, the Office of the Solicitor has Small Government Agency Plan is not recent formal section 7 consultation, the determined that this rule would not required. Small governments will be Middle Rio Grande Conservancy unduly burden the judicial system and affected only to the extent that any of District’s regulatory burden requirement would meet the requirements of sections their actions involving Federal funding was only affected to the extent that they 3(a) and 3(b)(2) of the Order. We or authorization must not destroy or were acting as the United States’ agent propose to designate critical habitat in adversely modify the critical habitat or over the operation and maintenance of accordance with the provisions of the take the species under section 9. facilities. If this critical habitat Act. The rule uses standard property 2. This rule will not produce a designation is finalized, Federal descriptions and identifies the primary Federal mandate of $100 million or agencies also must ensure, through constituent elements within the greater in any year (i.e., it is not a section 7 consultation with us, that their designated areas to assist the public in ‘‘significant regulatory action’’ under activities do not destroy or adversely understanding the habitat needs of the the Unfunded Mandates Reform Act). modify designated critical habitat. silvery minnow. Nevertheless, we do not anticipate that Takings the amount of supplemental instream Paperwork Reduction Act of 1995 (44 In accordance with Executive Order flow, provided by past consultations U.S.C. 3501 et seq.) 12630 (‘‘Government Actions and (e.g., Service 2001b), will increase This rule does not contain any new Interference with Constitutionally because an area is designated as critical collections of information that require Protected Private Property Rights’’), we habitat. This rule also will not change approval by the Office of Management have analyzed the potential takings the appropriation of water rights within and Budget (OMB) under 44 U.S.C. 3501 implications of the proposed listing and the area proposed to be designated as et seq. This rule will not impose new

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39233

record-keeping or reporting meetings with them during the moderate currents capable of forming and requirements on State or local comment period on potential effects to maintaining a diversity of aquatic habitats, governments, individuals, businesses, or them or their resources that may result such as, but not limited to: backwaters (a organizations. An agency may not from critical habitat designation. body of water connected to the main channel, conduct or sponsor, and a person is not but with no appreciable flow), shallow side References Cited channels, pools (that portion of the river that required to respond to, a collection of A complete list of all references cited is deep with relatively little velocity information unless they display a compared to the rest of the channel), eddies currently valid OMB control number. in this proposed rule is available upon (a pool with water moving opposite to that request from the New Mexico Ecological National Environmental Policy Act in the river channel), and runs (flowing water Services Field Office (see ADDRESSES in the river channel without obstructions) of It is our position that, outside the section). varying depth and velocity necessary for each Tenth Circuit, we do not need to Authors of the particular silvery minnow life-history prepare environmental analyses as stages in appropriate seasons (e.g., the silvery defined by the NEPA in connection with The primary authors of this notice are minnow requires habitat with sufficient the New Mexico Field Office staff (see designating critical habitat under the flows from early spring (March) to early ADDRESSES section). summer (June) to trigger spawning, flows in Endangered Species Act of 1973, as the summer (June) and fall (October) that do amended. We published a notice List of Subjects in 50 CFR Part 17 not increase prolonged periods of low or no outlining our reasons for this Endangered and threatened species, flow, and a relatively constant winter flow determination in the Federal Register Exports, Imports, Reporting and record- (November to February)); on October 25, 1983 (48 FR 49244). This keeping requirements, Transportation. (ii) The presence of eddies created by assertion was upheld in the Ninth debris piles, pools, or backwaters, or other Circuit Douglas County v. Babbitt, 48 Proposed Regulation Promulgation refuge habitat (e.g., connected oxbows or F.3d 1495 (9th Cir. 1995), cert. denied, Accordingly, we propose to amend braided channels) within unimpounded 116 S. Ct. 698 (1996). However, when part 17, subchapter B of chapter I, title stretches of flowing water of sufficient length the range of the species includes States (i.e., river miles) that provide a variation of 50 of the Code of Federal Regulations as habitats with a wide range of depth and within the Tenth Circuit, such as that of set forth below: velocities; the silvery minnow, pursuant to the (iii) Substrates of predominantly sand or Tenth Circuit ruling in Catron County PART 17—[AMENDED] silt; and Board of Commissioners v. U.S. Fish 1. The authority citation for part 17 (iv) Water of sufficient quality to maintain and Wildlife Service, 75 F.3d 1429 (10th continues to read as follows: natural, daily, and seasonally variable water Cir. 1996), we will undertake a NEPA temperatures in the approximate range of analysis for critical habitat designation. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. greater than 1 °C (35 °F) and less than 30 °C Additionally, on November 21, 2000, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (85 °F) and reduce degraded conditions 625, 100 Stat. 3500; unless otherwise noted. the United States District Court for the (decreased dissolved oxygen, increased p.H., District of New Mexico, in Middle Rio 2. Amend § 17.95(e) by revising etc.). (4) Proposed critical habitat is depicted on Grande Conservancy District v. Babbitt, critical habitat for the Rio Grande silvery minnow (Hybognathus amarus), the following map for the Middle Rio Grande, Civ. Nos. 99–870, 99–872 and 99– which includes the area from Cochiti to read as follows. 1445M/RLP (Consolidated) set aside the Reservoir downstream to the Elephant Butte July 9, 1999, critical habitat designation § 17.95 Critical habitat—fish and wildlife. Dam, Sandoval, Bernalillo, Valencia, and and ordered us to issue within 120 days Socorro Counties, New Mexico. The stream * * * * * both an EIS and a new proposed rule reaches in the middle Rio Grande include: (e) Fishes. *** designating critical habitat for the (i) Jemez Canyon Reach—8 km ( 5 mile) of silvery minnow. We have prepared the Rio Grande Silvery Minnow (Hybognathus river immediately downstream of Jemez draft EIS pursuant to that court order. amarus) Canyon Reservoir to the confluence of the (1) Proposed critical habitat is depicted for Rio Grande; Government-to-Government Socorro, Valencia, Bernalillo, and Sandoval, (ii) Cochiti Diversion Dam to Angostura Relationship With Indian Pueblos and Counties, New Mexico; on the map and as Diversion Dam (Cochiti Reach)—34 km (21 Tribes described below. mile) of river immediately downstream of (2) For each river reach proposed, the up- Cochiti Reservoir to the Angostura Diversion In accordance with the Secretarial and downstream boundaries are described Dam; Order 3206, ‘‘American Indian Tribal below. Proposed critical habitat includes the (iii) Angostura Diversion Dam to Isleta Rights, Federal-Tribal Trust stream channels within the identified river Diversion Dam (Angostura Reach)—61 km Responsibilities, and the Endangered reaches and areas within these reaches (38 mile) of river immediately downstream of Species Act’’ (June 5, 1997), the included within the existing levees, or if no the Angostura Diversion Dam to the Isleta President’s memorandum of April 29, levees are present, then within a lateral Diversion Dam; distance of 91.4 m (300 ft) on each side of (iv) Isleta Diversion Dam to San Acacia 1994, ‘‘Government-to-Government the river width at bankfull discharge. Relations with Native American Tribal Diversion Dam (Isleta Reach)—90 km (56 mi) Bankfull discharge is the flow at which water of river immediately downstream of the Isleta Governments’’ (59 FR 22951), Executive begins to leave the channel and move into Diversion Dam to the San Acacia Diversion Order 13175, and the Department of the the floodplain. Dam; and Interior’s requirement at 512 DM 2, we (3) Within these areas the primary (v) San Acacia Diversion Dam to the understand that recognized Federal constituent elements include, but are not Elephant Butte Dam (San Acacia Reach)–147 limited to, those habitat components that are Indian Pueblos and Tribes must be km (92 mi) of river immediately downstream essential for the primary biological needs of of the San Acacia Diversion Dam to the related to on a Government-to- foraging, sheltering, and reproduction. These Elephant Butte Dam. Government basis. Therefore, we are elements include the following: (vi) Map Follows: soliciting information from the Indian (i) A hydrologic regime that provides Pueblos and Tribes and will arrange sufficient flowing water with low to BILLING CODE 4310–55–P

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 39234 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules

BILLING CODE 4310–55–C

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3 EP06JN02.047 Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / Proposed Rules 39235

(5) This designation does not include the critical habitat. We define the reservoir as bridges; parking lots; dikes; levees; diversion ephemeral or perennial irrigation canals and that part of the body of water impounded by structures; railroad tracks; railroad trestles; ditches outside of natural stream channels, the dam where the storage waters are lentic active gravel pits; cultivated agricultural including the low flow conveyance channel (relatively still waters) and not part of the land; and residential, commercial, and that is adjacent to a portion of the stream lotic (flowing water) river channel. industrial developments. reach within the middle Rio Grande (i.e., (7) Lands located within the exterior * * * * * downstream of the southern boundary of boundaries of the proposed critical habitat Bosque del Apache National Wildlife Refuge designation (i.e., within the existing levees, Dated: May 23, 2002 to the Elephant Butte Dam). or if no levees are present, then within a Craig Manson, (6) The area inundated by Elephant Butte lateral distance of 91.4 m (300 ft) on each Assistant Secretary for Fish and Wildlife and Reservoir does not provide those physical or side of the stream width at bankfull Parks. biological features essential to the discharge), but that are not considered conservation of the species and is specifically critical habitat and are therefore excluded by [FR Doc. 02–14141 Filed 6–5–02; 8:45 am] excluded by definition from the proposed definition, include existing paved roads; BILLING CODE 4310–55–P

VerDate May<23>2002 18:22 Jun 05, 2002 Jkt 197001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\06JNP3.SGM pfrm17 PsN: 06JNP3